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This suit was brought June 27, 1889, by the appellees Walter H. Tenney Co., a firm of merchants in Boston, Massachusetts, against W.T. Harris, sheriff of McLennan County, and the Waco State Bank, to establish their right to the possession of certain goods, or the value thereof, which had been seized by the sheriff at the instance of the bank, and sold and converted to the use of the bank. The cause of action of plaintiffs is predicated upon their alleged seller's lien upon the goods, or right of stoppage in transitu. The value of the goods itemized in the account was $563.67, but plaintiffs sustained their right of recovery to only the last two items of the account, amounting to $353.17, and it is only of these that we are concerned, and will only speak of them. Defendants have appealed. Plaintiffs sold the goods to the firm of Moser Son, merchants in Waco, *Page 256 on a credit, and shipped them by rail to Waco, the point of destination, for Moser Son. They arrived in Waco by the Missouri, Kansas Texas Railway, and were left in the depot. On the 3d day of October, 1888, Moser Son were closed out by attachment, their business house, and all their goods therein, levied on by the sheriff and taken into his possession. Moser Son were then insolvent. On the 4th of October, 1888, the Waco State Bank sued out attachment against Moser Son on a debt of $6990.88, and caused the sheriff to levy the same on the goods sold by plaintiffs to Moser Son — the goods involved in this suit. The levy was made under the following circumstances: W.W. Seley, cashier of the bank, obtained from one of the firm of Moser Son, October 4, 1888, a written order to the railway agent, directing the company to deliver the goods to the dray line in Waco, to be carried by the dray line to the store of Moser Son, Moser giving Seley money to pay the freight (loaned by the bank, and afterward repaid by Moser Son), requesting witness to present the order, pay the freight, receive possession of the goods, and have the dray line take the goods to the store of Moser Son. Seley took Cook, a deputy sheriff, along with him to the depot, went to the depot, presented the order, paid the freight, and received possession of the goods from the railway company, "or rather," Seley says, "after paying said freight and presenting the order, the railway company authorized him or the dray line to take possession of said goods; and Cook, after paying said freight and presenting said order of Moser Son, was requested by witness to see said goods loaded on the dray line for shipment up town to the store of Moser Son, which Cook agreed to do." (Sheriff Harris had prior to this been to the depot and directed or informed the agent that he must not deliver the goods to Moser Son, but to hold them.) Seley returned and directed the sheriff to go and levy on the goods for the bank. Cook testified, that he saw the goods loaded on the drays or floats, and was going along with them to the store, when Harris, while the goods were on their way to the store, before reaching it, levied the attachment on the goods; and again, after the goods reached the store, under direction of counsel for the bank, levied on the goods a second time. Cook was not acting officially; did not have the writ and did not levy it. Harris, testifying, says he is not certain when the goods were first levied on by him, his impression being that he made the levy when the goods were at the depot; but he is certain that he levied the writ after the arrival of the goods at the store house. Seley testified, that he acted as the agent of Moser Son in receiving the goods. The bank advanced the money to Moser Son to pay the freight on the goods, and Moser Son repaid them. Seley also testified, that when Moser gave him the order for the goods, Moser requested him *Page 257 to present the order to the agent of the railway, pay the freight, and receive the possession of the goods, and have the dray line take them to the store of Moser Son. The testimony does not show how long the goods had been at the depot before they were taken away. Harris says he learned that there were goods at the depot belonging to Moser Son. He went to the depot to inquire if there were any goods there belonging to them, and learned the fact, and he then "informed the agent of the railway company that he must not deliver them to Moser Son, and to hold them." Moser, testifying, says, that learning that the goods were at the depot, on October 4 he gave Seley an order for the same, requesting the company or its agent to deliver the goods to the dray line for Moser Son. He also says, that a day or so after the levy, and while the goods were in his possession under the levy, counsel for plaintiffs claimed possession thereof, saying, "that they had a right to them; that they had not reached their destination of shipment and had not been delivered into the possession of said Moser Son." Harris refused to deliver the possession of the goods, but sold them and applied the proceeds to the debt of the bank. It was proved by W.S. Baker, Esq., who was representing other creditors of Moser Son, that he and the agent of the parties he was representing saw the goods in the store within a day or so after the levy, and seeing that they were the goods of plaintiffs, he notified the sheriff of the claim of plaintiffs, stating the claim of right to stop the goods in transit, and told the sheriff he would be held responsible for them. After he had so notified the sheriff, plaintiffs employed attorneys other than witness, and they notified the sheriff, claimed the goods on the legal right of plaintiffs to stop them in transit and warned the sheriff that if he did not surrender the goods they would sue him for their value. The second levy was made without releasing the first, but the court finds that the last levy is the basis of the sheriff's return. The court also finds, that "the bank and its cashier knew, as did Moser Son, while the above transactions were had, that Moser Son were insolvent, and that they, bank and Moser Son, endeavored to so manipulate the goods that they would not be subject to the right of stoppage in transitu should it be attempted." The court also finds, that the goods at the depot were subject to the right of stoppage when the sheriff levied onthem, and that "the delivery order given by Moser Son did not change the destination of the goods, which was at the place of business on Austin street; and the payment of freight, and the acceptance of the order by the railway company did not end the transitus, or give the purchaser such possession of the goods as would defeat the right of plaintiffs. The court also held, that the attempt by the debtor and the bank to *Page 258 defeat the right of plaintiffs to take the goods in transit was a nullity, and did not have that effect. Also, that the goods never reached the possession of Moser Son; the sheriff was not their agent, but was acting in hostility to them; and the goods having been claimed while in his hands, he held them subject to plaintiffs' right of stoppage. Appellants contend, by their first assignment of error, that the evidence shows that at the time the attachment was levied the goods had reached their final destination, and were in the actual and constructive possession of Moser Son, and were therefore no longer subject to stoppage in transitu by appellees. The seller of chattels has a lien upon them, and the right to hold them for the purchase price, so long as they are in his possession; and when they have been shipped for delivery to the debtor who has become insolvent, the right to stop them on the way, to recover possession, and subject them to the payment of such unpaid price. This right continues not only while the goods are in actual transit, but until they have reached their destination and are delivered into the actual or constructive possession of the consignee. Halff, Weiss Co. v. Allyn Co.,60 Tex. 279; Chandler v. Fulton, 10 Tex. 13 [10 Tex. 13]; Jones on Liens, 800, et seq., 857, 862, et seq., and specially 902. Appellants do not controvert the foregoing proposition, but they say, that in this case it is shown that the goods had reached their ultimate destination and had been duly delivered by the carrier into the possession of their agent before the levy of the writ. We have seen what kind of delivery it was. The order from Moser Son to the agent of the railway did not authorize the agent to deliver the goods to Seley, but to the dray line. It is true he had instructions from Moser to receive possession, but he does not say he did, but rather the company authorized him or the float line to take possession. He did not then take possession, but requested Cook to see the goods loaded on the dray for shipment up town to the store house of Moser Son. The railway company was evidently only delivering the goods to the dray line for shipment, as directed in the order. The goods were loaded on the drays or floats, and Cook went with them to the store. If the goods were levied on at the depot, as Harris is impressed to say, or white on their way to the store, as Cook testifies, we think they were still in transit. Halff, Weiss Co. v. Allyn Co., 60 Tex. 282. The attachment by creditors while in transit did not impair or defeat plaintiffs' right. Allyn Co. v. Willis Bros., 65 Tex. 66; Jones on Liens, 965, and authorites cited in note 3. In White v. Mitchell, 38 Michigan, 390, action of trover was sustained against the sheriff, who had attached goods in the hands of the local carrier before delivery to the purchaser. In another case, a local carrier *Page 259 or transfer agent, who had general authority from the consignee to deliver all goods shipped to him, undertook to transfer goods (shipped by rail) from the depot to the consignee, but finding the store closed, placed the goods in a warehouse in the city, where they were levied on by attaching creditors; it was held, that there had been no actual or constructive delivery to consignee, and the seller's right of stoppage in transit was not lost when the attachment was levied. Mason v. Wilson, 43 Ark. 172. In Ohio it was decided, that the right of stoppage in transitu is terminated only when possession wasvoluntarily and actually transferred to the vendee or to his agent; and that the seizure while in transitu subjects the officer making it to suit for the value of the goods by the vendor. Calahan v. Babcock, 21 Ohio St. 292-294. Where goods arrived at the depot, place of shipment, and by agreement between the consignee and the carrier they were set aside by the latter in its depot, to be sold and the proceeds used to pay past due freights" (the consignee did not receive the boxes and then turn them over, assign the bill of lading, or pay the freight), it was held, that there was no delivery so as to interfere with the right of stoppage in transitu. Railway v. Meador Bros., 65 Ga. 705. Upon the arrival of goods, the car containing them was set out where, according to custom, they were to be taken out immediately by the consignees, or on failure, to pay $2 a day demurrage, there being no agreement that the carrier was to hold the goods as warehouseman or agent. On the next day they were attached, and it was held that the consignor's right of stoppage in transitu had not terminated, and that the officer attaching was liable in an action of trover. Inslee v. Lane, 57 N.H., 454. The delivery to the consignee or his agent must be complete. Railway v. Painter Sons, 15 Neb. 395. A delivery to a carrier by order of the consignee is not such a constructive delivery to the consignee as will interfere with the consignor's right of stoppage in transitu. Jones on Liens, 907-912. We are of opinion that plaintiffs right of stoppage in transitu was not at an end while the goods were at the depot or on the drays. They were still in course of transportation, and had not been delivered to the consignees in person, or to their agent. There is no testimony in the case that can be construed to make the railway company or the dray line agents of the consignees, nor does the evidence show that Seley ever received the goods into his possession, even if under the circumstances he was the agent of Moser Son to receive possession for them. Had Moser Son themselves intercepted the goods at the depot before the terminus of transit, and, without actually taking the goods into their possession, ordered their delivery to the local carrier for shipment to their store, the right of plaintiff would not have been interfered with while in the hands of such carrier. *Page 260 But there is a question deeper than this, which will relieve the case of difficulty in relation to delivery or not to Seley. Was he the agent of Moser Son, or rather, could he be under the circumstances? We think he was the agent of the bank during the entire transaction. He was acting for the bank and for its benefit; he was its representative. We do not think the attaching creditor would be allowed to become the agent of the debtor, under the circumstances shown in this case, to deprive the seller of his lien, and to secure a superior and valuable right to himself. The principle involved is more than one of mere diligence to secure a debt. The means adopted, if successful, would work a palpable injustice to plaintiffs, which should not be perfected and affirmed by the courts. On the contrary, the courts should prevent the consummation of such a design. The bank could not, as was attempted in this case, by acting for itself and its debtor, extinguish or destroy the right of another that stood in the way of collecting its debt. The conclusion arrived at by the court below, in our judgment, was correct, and should not be disturbed on this question. The law supposes, that if the vendor loses his lien, or right of stoppage in transitu, it shall be by the usual course of events, or such as fall out without the combining, the connivance, and co-operation of the vendee and an attaching creditor. The delivery of the goods at the store house formerly occupied by Moser Son, but at the time in the possession of the sheriff by virtue of seizure under attachment, was no delivery, actual or constructive, to Moser Son. They had no control over the house, and a second levy there put the bank in no better attitude than it was before. The first levy was not released, and the goods had not left the possession of the sheriff from the time of the first levy, whether made at the depot or en route on the drays. Moser Son had never had possession of the goods in person or by agent, and plaintiffs' right was still in force. While the goods were so in the possession of the sheriff, he was notified in a reasonable time by plaintiffs' attorney of their right and its nature (but it is quite evident to us that the sheriff, the bank, and Moser Son knew of such right all the while), before any change had taken place in the relations of any of the parties to the goods, and that such right would be insisted on. He refused to recognize plaintiffs' right, and thereby became liable, with the bank, for the value of the goods. Plaintiffs were not required to intervene in the attachment suit of the bank against Moser Son in order to establish their right of regaining possession of the goods or recovering their value. They might have done so, as was done in cases cited (Halff, Weiss Co. v. Allyn Co., and Allyn Co. v. Willis Bros., supra), but they were not compelled to intervene, or to file bond and oath to try the right of property. Lang v. Dougherty, 74 Tex. 228. *Page 261 We do not think Moser Son were necessary parties defendant. Plaintiffs did not sue to recover their debt and foreclose their sellers' lien upon the goods, but to recover the value of the goods from a wrongdoer, who had converted them. Moser Son had no interest in this contest. The right of stoppage in transitu is to recover the possession of the goods, and hold the same subject to the seller's lien; and if the goods have been converted by one in violation of this right, he would be liable for the value of the same; such value to be held upon recovery by the vendor, instead of and under the same right as the goods themselves. The seller's right is not to rescind the sale, and rescission does not result from the enforcement such right; its object is "to secure possession to the vendor to enable him to exercise his right as an unpaid vendor." Allyn Co. v. Willis Bros., supra. After possession has been reclaimed, the seller holds the goods subject to his lien, and must ordinarily hold them to the expiration of the credit given, so as to deliver them to the purchaser upon payment of the purchase price. Jones on Liens, 862. If the time of credit expires without payment, he can then proceed to enforce his lien. Jones on Liens, 862-864. This being the character of the right and its object, there can be no necessity to make the debtor a party. If the suit is not only to recover possession, but to obtain judgment on the debt and foreclose the lien, the debtor would be a necessary party. This suit asks no such relief; it was brought purely upon the right of stoppage in transitu, the vender being insolvent. Where the suit was against the carrier who, after notice, delivered the goods, the debtor, being joined as defendant, was dismissed because of insolvency, and judgment was rendered against the carrier, but there is no comment in the opinion on the fact. Poole v. Railway, 58 Tex. 135. We are in no doubt of the correctness of the conclusion that Moser Son were not necessary parties to this suit. The foregoing discussion disposes of all the assignments of error adversely to appellant. The judgment of the lower court should be affirmed. Affirmed. Adopted June 14, 1892. | 07-06-2016 | [
"This suit was brought June 27, 1889, by the appellees Walter H. Tenney Co., a firm of merchants in Boston, Massachusetts, against W.T. Harris, sheriff of McLennan County, and the Waco State Bank, to establish their right to the possession of certain goods, or the value thereof, which had been seized by the sheriff at the instance of the bank, and sold and converted to the use of the bank. The cause of action of plaintiffs is predicated upon their alleged seller's lien upon the goods, or right of stoppage in transitu. The value of the goods itemized in the account was $563.67, but plaintiffs sustained their right of recovery to only the last two items of the account, amounting to $353.17, and it is only of these that we are concerned, and will only speak of them. Defendants have appealed. Plaintiffs sold the goods to the firm of Moser Son, merchants in Waco, *Page 256 on a credit, and shipped them by rail to Waco, the point of destination, for Moser Son.",
"They arrived in Waco by the Missouri, Kansas Texas Railway, and were left in the depot. On the 3d day of October, 1888, Moser Son were closed out by attachment, their business house, and all their goods therein, levied on by the sheriff and taken into his possession. Moser Son were then insolvent. On the 4th of October, 1888, the Waco State Bank sued out attachment against Moser Son on a debt of $6990.88, and caused the sheriff to levy the same on the goods sold by plaintiffs to Moser Son — the goods involved in this suit. The levy was made under the following circumstances: W.W. Seley, cashier of the bank, obtained from one of the firm of Moser Son, October 4, 1888, a written order to the railway agent, directing the company to deliver the goods to the dray line in Waco, to be carried by the dray line to the store of Moser Son, Moser giving Seley money to pay the freight (loaned by the bank, and afterward repaid by Moser Son), requesting witness to present the order, pay the freight, receive possession of the goods, and have the dray line take the goods to the store of Moser Son. Seley took Cook, a deputy sheriff, along with him to the depot, went to the depot, presented the order, paid the freight, and received possession of the goods from the railway company, \"or rather,\" Seley says, \"after paying said freight and presenting the order, the railway company authorized him or the dray line to take possession of said goods; and Cook, after paying said freight and presenting said order of Moser Son, was requested by witness to see said goods loaded on the dray line for shipment up town to the store of Moser Son, which Cook agreed to do.\"",
"(Sheriff Harris had prior to this been to the depot and directed or informed the agent that he must not deliver the goods to Moser Son, but to hold them.) Seley returned and directed the sheriff to go and levy on the goods for the bank. Cook testified, that he saw the goods loaded on the drays or floats, and was going along with them to the store, when Harris, while the goods were on their way to the store, before reaching it, levied the attachment on the goods; and again, after the goods reached the store, under direction of counsel for the bank, levied on the goods a second time. Cook was not acting officially; did not have the writ and did not levy it. Harris, testifying, says he is not certain when the goods were first levied on by him, his impression being that he made the levy when the goods were at the depot; but he is certain that he levied the writ after the arrival of the goods at the store house.",
"Seley testified, that he acted as the agent of Moser Son in receiving the goods. The bank advanced the money to Moser Son to pay the freight on the goods, and Moser Son repaid them. Seley also testified, that when Moser gave him the order for the goods, Moser requested him *Page 257 to present the order to the agent of the railway, pay the freight, and receive the possession of the goods, and have the dray line take them to the store of Moser Son. The testimony does not show how long the goods had been at the depot before they were taken away.",
"Harris says he learned that there were goods at the depot belonging to Moser Son. He went to the depot to inquire if there were any goods there belonging to them, and learned the fact, and he then \"informed the agent of the railway company that he must not deliver them to Moser Son, and to hold them.\" Moser, testifying, says, that learning that the goods were at the depot, on October 4 he gave Seley an order for the same, requesting the company or its agent to deliver the goods to the dray line for Moser Son. He also says, that a day or so after the levy, and while the goods were in his possession under the levy, counsel for plaintiffs claimed possession thereof, saying, \"that they had a right to them; that they had not reached their destination of shipment and had not been delivered into the possession of said Moser Son.\" Harris refused to deliver the possession of the goods, but sold them and applied the proceeds to the debt of the bank. It was proved by W.S.",
"Baker, Esq., who was representing other creditors of Moser Son, that he and the agent of the parties he was representing saw the goods in the store within a day or so after the levy, and seeing that they were the goods of plaintiffs, he notified the sheriff of the claim of plaintiffs, stating the claim of right to stop the goods in transit, and told the sheriff he would be held responsible for them. After he had so notified the sheriff, plaintiffs employed attorneys other than witness, and they notified the sheriff, claimed the goods on the legal right of plaintiffs to stop them in transit and warned the sheriff that if he did not surrender the goods they would sue him for their value. The second levy was made without releasing the first, but the court finds that the last levy is the basis of the sheriff's return. The court also finds, that \"the bank and its cashier knew, as did Moser Son, while the above transactions were had, that Moser Son were insolvent, and that they, bank and Moser Son, endeavored to so manipulate the goods that they would not be subject to the right of stoppage in transitu should it be attempted.\"",
"The court also finds, that the goods at the depot were subject to the right of stoppage when the sheriff levied onthem, and that \"the delivery order given by Moser Son did not change the destination of the goods, which was at the place of business on Austin street; and the payment of freight, and the acceptance of the order by the railway company did not end the transitus, or give the purchaser such possession of the goods as would defeat the right of plaintiffs.",
"The court also held, that the attempt by the debtor and the bank to *Page 258 defeat the right of plaintiffs to take the goods in transit was a nullity, and did not have that effect. Also, that the goods never reached the possession of Moser Son; the sheriff was not their agent, but was acting in hostility to them; and the goods having been claimed while in his hands, he held them subject to plaintiffs' right of stoppage. Appellants contend, by their first assignment of error, that the evidence shows that at the time the attachment was levied the goods had reached their final destination, and were in the actual and constructive possession of Moser Son, and were therefore no longer subject to stoppage in transitu by appellees. The seller of chattels has a lien upon them, and the right to hold them for the purchase price, so long as they are in his possession; and when they have been shipped for delivery to the debtor who has become insolvent, the right to stop them on the way, to recover possession, and subject them to the payment of such unpaid price.",
"This right continues not only while the goods are in actual transit, but until they have reached their destination and are delivered into the actual or constructive possession of the consignee. Halff, Weiss Co. v. Allyn Co.,60 Tex. 279; Chandler v. Fulton, 10 Tex. 13 [10 Tex. 13]; Jones on Liens, 800, et seq., 857, 862, et seq., and specially 902. Appellants do not controvert the foregoing proposition, but they say, that in this case it is shown that the goods had reached their ultimate destination and had been duly delivered by the carrier into the possession of their agent before the levy of the writ.",
"We have seen what kind of delivery it was. The order from Moser Son to the agent of the railway did not authorize the agent to deliver the goods to Seley, but to the dray line. It is true he had instructions from Moser to receive possession, but he does not say he did, but rather the company authorized him or the float line to take possession. He did not then take possession, but requested Cook to see the goods loaded on the dray for shipment up town to the store house of Moser Son. The railway company was evidently only delivering the goods to the dray line for shipment, as directed in the order.",
"The goods were loaded on the drays or floats, and Cook went with them to the store. If the goods were levied on at the depot, as Harris is impressed to say, or white on their way to the store, as Cook testifies, we think they were still in transit. Halff, Weiss Co. v. Allyn Co., 60 Tex. 282. The attachment by creditors while in transit did not impair or defeat plaintiffs' right. Allyn Co. v. Willis Bros., 65 Tex. 66; Jones on Liens, 965, and authorites cited in note 3. In White v. Mitchell, 38 Michigan, 390, action of trover was sustained against the sheriff, who had attached goods in the hands of the local carrier before delivery to the purchaser. In another case, a local carrier *Page 259 or transfer agent, who had general authority from the consignee to deliver all goods shipped to him, undertook to transfer goods (shipped by rail) from the depot to the consignee, but finding the store closed, placed the goods in a warehouse in the city, where they were levied on by attaching creditors; it was held, that there had been no actual or constructive delivery to consignee, and the seller's right of stoppage in transit was not lost when the attachment was levied.",
"Mason v. Wilson, 43 Ark. 172. In Ohio it was decided, that the right of stoppage in transitu is terminated only when possession wasvoluntarily and actually transferred to the vendee or to his agent; and that the seizure while in transitu subjects the officer making it to suit for the value of the goods by the vendor. Calahan v. Babcock, 21 Ohio St. 292-294. Where goods arrived at the depot, place of shipment, and by agreement between the consignee and the carrier they were set aside by the latter in its depot, to be sold and the proceeds used to pay past due freights\" (the consignee did not receive the boxes and then turn them over, assign the bill of lading, or pay the freight), it was held, that there was no delivery so as to interfere with the right of stoppage in transitu. Railway v. Meador Bros., 65 Ga. 705.",
"Upon the arrival of goods, the car containing them was set out where, according to custom, they were to be taken out immediately by the consignees, or on failure, to pay $2 a day demurrage, there being no agreement that the carrier was to hold the goods as warehouseman or agent. On the next day they were attached, and it was held that the consignor's right of stoppage in transitu had not terminated, and that the officer attaching was liable in an action of trover. Inslee v. Lane, 57 N.H., 454. The delivery to the consignee or his agent must be complete. Railway v. Painter Sons, 15 Neb. 395. A delivery to a carrier by order of the consignee is not such a constructive delivery to the consignee as will interfere with the consignor's right of stoppage in transitu. Jones on Liens, 907-912. We are of opinion that plaintiffs right of stoppage in transitu was not at an end while the goods were at the depot or on the drays.",
"They were still in course of transportation, and had not been delivered to the consignees in person, or to their agent. There is no testimony in the case that can be construed to make the railway company or the dray line agents of the consignees, nor does the evidence show that Seley ever received the goods into his possession, even if under the circumstances he was the agent of Moser Son to receive possession for them. Had Moser Son themselves intercepted the goods at the depot before the terminus of transit, and, without actually taking the goods into their possession, ordered their delivery to the local carrier for shipment to their store, the right of plaintiff would not have been interfered with while in the hands of such carrier. *Page 260 But there is a question deeper than this, which will relieve the case of difficulty in relation to delivery or not to Seley.",
"Was he the agent of Moser Son, or rather, could he be under the circumstances? We think he was the agent of the bank during the entire transaction. He was acting for the bank and for its benefit; he was its representative. We do not think the attaching creditor would be allowed to become the agent of the debtor, under the circumstances shown in this case, to deprive the seller of his lien, and to secure a superior and valuable right to himself. The principle involved is more than one of mere diligence to secure a debt. The means adopted, if successful, would work a palpable injustice to plaintiffs, which should not be perfected and affirmed by the courts. On the contrary, the courts should prevent the consummation of such a design. The bank could not, as was attempted in this case, by acting for itself and its debtor, extinguish or destroy the right of another that stood in the way of collecting its debt. The conclusion arrived at by the court below, in our judgment, was correct, and should not be disturbed on this question. The law supposes, that if the vendor loses his lien, or right of stoppage in transitu, it shall be by the usual course of events, or such as fall out without the combining, the connivance, and co-operation of the vendee and an attaching creditor.",
"The delivery of the goods at the store house formerly occupied by Moser Son, but at the time in the possession of the sheriff by virtue of seizure under attachment, was no delivery, actual or constructive, to Moser Son. They had no control over the house, and a second levy there put the bank in no better attitude than it was before. The first levy was not released, and the goods had not left the possession of the sheriff from the time of the first levy, whether made at the depot or en route on the drays.",
"Moser Son had never had possession of the goods in person or by agent, and plaintiffs' right was still in force. While the goods were so in the possession of the sheriff, he was notified in a reasonable time by plaintiffs' attorney of their right and its nature (but it is quite evident to us that the sheriff, the bank, and Moser Son knew of such right all the while), before any change had taken place in the relations of any of the parties to the goods, and that such right would be insisted on. He refused to recognize plaintiffs' right, and thereby became liable, with the bank, for the value of the goods. Plaintiffs were not required to intervene in the attachment suit of the bank against Moser Son in order to establish their right of regaining possession of the goods or recovering their value.",
"They might have done so, as was done in cases cited (Halff, Weiss Co. v. Allyn Co., and Allyn Co. v. Willis Bros., supra), but they were not compelled to intervene, or to file bond and oath to try the right of property. Lang v. Dougherty, 74 Tex. 228. *Page 261 We do not think Moser Son were necessary parties defendant. Plaintiffs did not sue to recover their debt and foreclose their sellers' lien upon the goods, but to recover the value of the goods from a wrongdoer, who had converted them. Moser Son had no interest in this contest. The right of stoppage in transitu is to recover the possession of the goods, and hold the same subject to the seller's lien; and if the goods have been converted by one in violation of this right, he would be liable for the value of the same; such value to be held upon recovery by the vendor, instead of and under the same right as the goods themselves. The seller's right is not to rescind the sale, and rescission does not result from the enforcement such right; its object is \"to secure possession to the vendor to enable him to exercise his right as an unpaid vendor.\" Allyn Co. v. Willis Bros., supra. After possession has been reclaimed, the seller holds the goods subject to his lien, and must ordinarily hold them to the expiration of the credit given, so as to deliver them to the purchaser upon payment of the purchase price.",
"Jones on Liens, 862. If the time of credit expires without payment, he can then proceed to enforce his lien. Jones on Liens, 862-864. This being the character of the right and its object, there can be no necessity to make the debtor a party. If the suit is not only to recover possession, but to obtain judgment on the debt and foreclose the lien, the debtor would be a necessary party. This suit asks no such relief; it was brought purely upon the right of stoppage in transitu, the vender being insolvent. Where the suit was against the carrier who, after notice, delivered the goods, the debtor, being joined as defendant, was dismissed because of insolvency, and judgment was rendered against the carrier, but there is no comment in the opinion on the fact. Poole v. Railway, 58 Tex. 135. We are in no doubt of the correctness of the conclusion that Moser Son were not necessary parties to this suit. The foregoing discussion disposes of all the assignments of error adversely to appellant. The judgment of the lower court should be affirmed. Affirmed. Adopted June 14, 1892."
] | https://www.courtlistener.com/api/rest/v3/opinions/3950077/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
EXHIBIT H
Case 19-42890-MJH Doc 25-8 Filed 01/27/20 Ent. 01/27/20 22:52:01 Pg. 1 of 32 Case 19-42890-MJH Doc 25-8 Filed 01/27/20 Ent. 01/27/20 22:52:01 Pg. 2 of 32 Case 19-42890-MJH Doc 25-8 Filed 01/27/20 Ent. 01/27/20 22:52:01 Pg. 3 of 32 Case 19-42890-MJH Doc 25-8 Filed 01/27/20 Ent. 01/27/20 22:52:01 Pg. 4 of 32 Case 19-42890-MJH Doc 25-8 Filed 01/27/20 Ent. 01/27/20 22:52:01 Pg. 5 of 32 Case 19-42890-MJH Doc 25-8 Filed 01/27/20 Ent. 01/27/20 22:52:01 Pg. 6 of 32 Case 19-42890-MJH Doc 25-8 Filed 01/27/20 Ent. 01/27/20 22:52:01 Pg. 7 of 32 Case 19-42890-MJH Doc 25-8 Filed 01/27/20 Ent. 01/27/20 22:52:01 Pg. 8 of 32 Case 19-42890-MJH Doc 25-8 Filed 01/27/20 Ent. 01/27/20 22:52:01 Pg. 9 of 32 Case 19-42890-MJH Doc 25-8 Filed 01/27/20 Ent. 01/27/20 22:52:01 Pg. 10 of 32 Case 19-42890-MJH Doc 25-8 Filed 01/27/20 Ent. 01/27/20 22:52:01 Pg. 11 of 32 Case 19-42890-MJH Doc 25-8 Filed 01/27/20 Ent. 01/27/20 22:52:01 Pg. 12 of 32 Case 19-42890-MJH Doc 25-8 Filed 01/27/20 Ent. 01/27/20 22:52:01 Pg. 13 of 32 Case 19-42890-MJH Doc 25-8 Filed 01/27/20 Ent. 01/27/20 22:52:01 Pg. 14 of 32 Case 19-42890-MJH Doc 25-8 Filed 01/27/20 Ent. 01/27/20 22:52:01 Pg. 15 of 32 Case 19-42890-MJH Doc 25-8 Filed 01/27/20 Ent. 01/27/20 22:52:01 Pg. 16 of 32 Case 19-42890-MJH Doc 25-8 Filed 01/27/20 Ent. 01/27/20 22:52:01 Pg. 17 of 32 Case 19-42890-MJH Doc 25-8 Filed 01/27/20 Ent. 01/27/20 22:52:01 Pg. 18 of 32 Case 19-42890-MJH Doc 25-8 Filed 01/27/20 Ent. 01/27/20 22:52:01 Pg. 19 of 32 Case 19-42890-MJH Doc 25-8 Filed 01/27/20 Ent. 01/27/20 22:52:01 Pg. 20 of 32 Case 19-42890-MJH Doc 25-8 Filed 01/27/20 Ent. 01/27/20 22:52:01 Pg. 21 of 32 Case 19-42890-MJH Doc 25-8 Filed 01/27/20 Ent. 01/27/20 22:52:01 Pg. 22 of 32 Case 19-42890-MJH Doc 25-8 Filed 01/27/20 Ent. 01/27/20 22:52:01 Pg. 23 of 32 Case 19-42890-MJH Doc 25-8 Filed 01/27/20 Ent. 01/27/20 22:52:01 Pg. 24 of 32 Case 19-42890-MJH Doc 25-8 Filed 01/27/20 Ent. 01/27/20 22:52:01 Pg. 25 of 32 Case 19-42890-MJH Doc 25-8 Filed 01/27/20 Ent. 01/27/20 22:52:01 Pg. 26 of 32 Case 19-42890-MJH Doc 25-8 Filed 01/27/20 Ent. 01/27/20 22:52:01 Pg. 27 of 32 Case 19-42890-MJH Doc 25-8 Filed 01/27/20 Ent. 01/27/20 22:52:01 Pg. 28 of 32 Case 19-42890-MJH Doc 25-8 Filed 01/27/20 Ent. 01/27/20 22:52:01 Pg. 29 of 32 Case 19-42890-MJH Doc 25-8 Filed 01/27/20 Ent. 01/27/20 22:52:01 Pg. 30 of 32 Case 19-42890-MJH Doc 25-8 Filed 01/27/20 Ent. 01/27/20 22:52:01 Pg. 31 of 32 Case 19-42890-MJH Doc 25-8 Filed 01/27/20 Ent. 01/27/20 22:52:01 Pg. 32 of 32 | 2020-01-27 | [
"EXHIBIT H Case 19-42890-MJH Doc 25-8 Filed 01/27/20 Ent. 01/27/20 22:52:01 Pg. 1 of 32 Case 19-42890-MJH Doc 25-8 Filed 01/27/20 Ent. 01/27/20 22:52:01 Pg. 2 of 32 Case 19-42890-MJH Doc 25-8 Filed 01/27/20 Ent. 01/27/20 22:52:01 Pg. 3 of 32 Case 19-42890-MJH Doc 25-8 Filed 01/27/20 Ent. 01/27/20 22:52:01 Pg. 4 of 32 Case 19-42890-MJH Doc 25-8 Filed 01/27/20 Ent. 01/27/20 22:52:01 Pg. 5 of 32 Case 19-42890-MJH Doc 25-8 Filed 01/27/20 Ent. 01/27/20 22:52:01 Pg. 6 of 32 Case 19-42890-MJH Doc 25-8 Filed 01/27/20 Ent. 01/27/20 22:52:01 Pg. 7 of 32 Case 19-42890-MJH Doc 25-8 Filed 01/27/20 Ent. 01/27/20 22:52:01 Pg. 8 of 32 Case 19-42890-MJH Doc 25-8 Filed 01/27/20 Ent. 01/27/20 22:52:01 Pg.",
"9 of 32 Case 19-42890-MJH Doc 25-8 Filed 01/27/20 Ent. 01/27/20 22:52:01 Pg. 10 of 32 Case 19-42890-MJH Doc 25-8 Filed 01/27/20 Ent. 01/27/20 22:52:01 Pg. 11 of 32 Case 19-42890-MJH Doc 25-8 Filed 01/27/20 Ent. 01/27/20 22:52:01 Pg. 12 of 32 Case 19-42890-MJH Doc 25-8 Filed 01/27/20 Ent. 01/27/20 22:52:01 Pg. 13 of 32 Case 19-42890-MJH Doc 25-8 Filed 01/27/20 Ent. 01/27/20 22:52:01 Pg. 14 of 32 Case 19-42890-MJH Doc 25-8 Filed 01/27/20 Ent. 01/27/20 22:52:01 Pg.",
"15 of 32 Case 19-42890-MJH Doc 25-8 Filed 01/27/20 Ent. 01/27/20 22:52:01 Pg. 16 of 32 Case 19-42890-MJH Doc 25-8 Filed 01/27/20 Ent. 01/27/20 22:52:01 Pg. 17 of 32 Case 19-42890-MJH Doc 25-8 Filed 01/27/20 Ent. 01/27/20 22:52:01 Pg. 18 of 32 Case 19-42890-MJH Doc 25-8 Filed 01/27/20 Ent. 01/27/20 22:52:01 Pg. 19 of 32 Case 19-42890-MJH Doc 25-8 Filed 01/27/20 Ent. 01/27/20 22:52:01 Pg.",
"20 of 32 Case 19-42890-MJH Doc 25-8 Filed 01/27/20 Ent. 01/27/20 22:52:01 Pg. 21 of 32 Case 19-42890-MJH Doc 25-8 Filed 01/27/20 Ent. 01/27/20 22:52:01 Pg. 22 of 32 Case 19-42890-MJH Doc 25-8 Filed 01/27/20 Ent. 01/27/20 22:52:01 Pg. 23 of 32 Case 19-42890-MJH Doc 25-8 Filed 01/27/20 Ent. 01/27/20 22:52:01 Pg. 24 of 32 Case 19-42890-MJH Doc 25-8 Filed 01/27/20 Ent. 01/27/20 22:52:01 Pg. 25 of 32 Case 19-42890-MJH Doc 25-8 Filed 01/27/20 Ent. 01/27/20 22:52:01 Pg. 26 of 32 Case 19-42890-MJH Doc 25-8 Filed 01/27/20 Ent. 01/27/20 22:52:01 Pg. 27 of 32 Case 19-42890-MJH Doc 25-8 Filed 01/27/20 Ent. 01/27/20 22:52:01 Pg.",
"28 of 32 Case 19-42890-MJH Doc 25-8 Filed 01/27/20 Ent. 01/27/20 22:52:01 Pg. 29 of 32 Case 19-42890-MJH Doc 25-8 Filed 01/27/20 Ent. 01/27/20 22:52:01 Pg. 30 of 32 Case 19-42890-MJH Doc 25-8 Filed 01/27/20 Ent. 01/27/20 22:52:01 Pg. 31 of 32 Case 19-42890-MJH Doc 25-8 Filed 01/27/20 Ent. 01/27/20 22:52:01 Pg. 32 of 32"
] | https://www.courtlistener.com/api/rest/v3/recap-documents/180371383/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
HOLT, District Judge. This action is brought by Isaac S- Plaut, as trustee in bankruptcy of Solomon Rothschild, bankrupt, against the Gorham Manufacturing Company and others to recover, as an asset of the estate, a lease made by the Gorham Manufacturing Company to the bankrupt of the premises 384 Fifth avenue, New York, dated January lii, 1906, for a term oí 21 years, at an annual rental of $35,000 a year, payable monthly. Rothschild, the tenant, went into possession of the premises under the lease, and paid the rent monthly in advance until and including the month of June, 1906. On July 19, 1906, no rent for July having been paid, the Gorham Manufacturing Company instituted' a proceeding on a petition in a Municipal Court of the city of New York to dispossess the said Rothschild for the nonpayment of rent, and to recover possession of the premises and terminate the. lease. A precept was issued directed to the said Rothschild, requiring him to *854remove from the premises or show cause before the Municipal Court before the 24th day of July, 190G, and was served on July 19th by leav-j ing a copy of the same at Rothschild’s place of business with a person in- charge. Rothschild thereupon employed the firm of Dáv'is & Kaufman as his attorneys to represent him in the proceeding. On July 23, 1906, the day before the precept was returnable, Davis & Kaufman applied to the firm of Olney & Comstock, 'the attorneys for the Gorham Manufacturing Company in the proceeding, and requested them to sign a stipulation adjourning the proceeding to July 26, 1906, reserving the right of the tenant to interpose any objection or answer or show cause to the precept returnable on the 24th day of July. Messrs. Olney & Comstock declined to adjourn the proceeding generally, but agreed to withhold the issuance of a warrant until July 26th, and accordingly struck from the proposed stipulation the words which granted the right to the tenant to interpose any objection or answer or show cause to the precept, and interlined the words “pay rent called for by precept returnable,” so that the stipulation as finally signed by the attorneys for the respective parties read as follows: “It is hereby consented that Solomon Rothschild the tenant in the above-entitled proceeding, had until Thursday, July 2Cth, .1906, in which to pay rent called for by the precept returnable the 24th day of July, 1906, at 9 ‘o’clock in the forenoon.” . On July 24th, the original return day of the precept, Messrs. Olney & Comstock appeared in the Municipal Court, filed the stipulation, and had a final order dispossessing the tenant for nonpayment of rent signed by the magistrate, but withheld the issuance of the warrant until July 26, 1906. On July 26th Messrs. Dávis & Kaufman applied to Messrs. Olney & Comstock, asking them if they would accept the rent if they sent the money down the next day, the 27th. Messrs. Olney & Comstock replied that they would, but that they would get out the warrant in the meantime. They thereupon directed their clerk to stop at the office of the Municipal Court on the morning of the following-day, and get the warrant, and he did so. During the 27th, checks for the amount of the rent were sent by Davis & Kaufman to Olney & Comstock. Mr. Comstock testifies that he left town on the 27th, which was Friday, and did not. return until the succeeding. Monday, the 30th; that he told his clerk not to accept checks in payment of the rent, but only money. After Mr. Comstock had left the office, late in the afternoon of the 27th, checks for the amount of the rent were brought to Mr. Comstock’s office by Mr. Davis. The clerk said that his in-j.structions were to take money only. Mr. Davis suggested that he take the checks and give a receipt for them until Mr. Comstock returned, and the clerk did só.'. Upon Mr. Comstock’s return on Monday, the 30th, he had a conversation by telephone with Mr. Kaufman, and said that he found the checks in his office upon his return, and that he would not accept anything but money in payment of the rent. The checks were drawn,by Mr. Rothschild to the order of Mr. Kaufman, and indorsed by the latter. Mr. Comstock asked Mr. Kaufman if he-meant by the indorsement to guarantee the payment of the checks. Mr. Kaufman answered that he did not, that he was merely acting for Mr. Rothschild’ as -an attorney, and a mere conduit for the checks. *855Mr. Comstock then informed him that he would send the checks back, but Mr. Kaufman requested Mr. Comstock to take them for collection, to which Mr. Comstock replied that, if his client was willing to accept them for that purpose, he would have no objection, and, if they were so received and paid, they would be accepted in payment, but, if not, they would be treated as a nullity. Mr. Comstock thereupon sent the checks to the office of the Gorham Manufacturing Company at New York. Mr. Holbrook, the president of the company, was in .Providence. Mr. Spencer, the financial official of the company at New York, refused to deposit the checks, and referred Mr. Comstock to Mr. Holbrook. Mr. Comstock went to Providence that afternoon, and saw Mr. Holbrook, and Mr. Holbrook directed that the checks be deposited, and that, if paid, the rent would be accepted, and, if not, not. These instructions were given on July 31st, and the checks were put in the bank for collection on August 1st. On that day, at 9:13 a. m., an involuntary petition in bankruptcy was filed against Sothschild. None of the checks was paid. One was returned indorsed “Insufficient funds,” and the others indorsed “ Bankruptcy proceedings pending.” On the same day Mr. Charles C. Burlingham was appointed receiver, and qualified as such. He thereupon went to the leased premises, took possession of Ihc properly of the bankrupt there, and occupied the premises until September 3906. At the same time, an injunction was issued restraining the Gorham Manufacturing Company and all other persons from interfering with the receiver, and on August 7, 3906, an order was obtained requiring the Gorham Manufacturing Company to show cause why it should not be restrained from prosecuting the dispossess proceedings, which order contained a temporary injunction to that effect. This order, after several adjournments, came on for hearing on September 7, 390(5. On the hearing, the receiver’s counsel stated that he had discontinued the business of the bankrupt upon the premises, and had sold the stock and merchandise of the bankrupt at public auction, and thereupon an order was made denying the motion for a further stay contained in said order to show cause of August 7, 190(5. Thereupon the Gorliam Manufacturing Company went inlo possession of the said premises, and continued in such possession until November or December, 190(5, when it leased the said premises to the defendant Adelbert Jaeckel, who has been in possession ever since. The plaintiff was appointed trustee in bankruptcy on October 16, 3906. lie thereafter, claiming that the lease was an asset of the estate to which he was entitled, tendered the amount of the rent in arrears, and demanded possession of the premises, which was refused, lie thereupon brought this suit. The first question in this case is whether the facts proved show that this court lias jurisdiction. The complaint alleges, in substance, that the receiver took possession of the lease and of the premises thereunder, and that he was dispossessed under the warrant of dispossession, which complainant claims was issued without jurisdiction. On demurrer I held that these allegations made out a case which conferred jurisdiction upon this court under the doctrine of the case of Whitney v. Wenman, 198 U. S. 539, 25 Sup. Ct. 778, 49 L. Ed. 1157. But it is not enough that a complaint alleges facts showing jurisdiction in a *856federal court. The evidence must establish such facts. It is necessary, in order to bring this case within the reasoning of Whitney v. Wen-man, to show that the receiver was in possession of the asset claimed, and that he wrongfully parted with it or was deprived of it. In the first place, I do not think that the evidence establishes .that' the receiver was ever in possession of the lease. ITe went into possession of the premises which had been leased, and of the physical assets of the bankrupt which were situated in said premises; but if the lease and all the rights of the tenant under it had been terminated by the issuance of the warrant of the Municipal Court on July 26th, four days before the receiver was appointed, the tenant had no lease, and it was not an asset of which the receiver could take possession. Moreover, assuming that he did take possession of the lease by the fact that he took possession of the premises, and occupied them for about a month, the evidence does not establish that he either wrongfully parted with'them, or was deprived of them by the force of the warrant to dispossess. He appeared in open court, announced that he had finished the business, and disposed of the assets of the bankrupt contained in the premises, and made no objection to a vacation of the injunction. The court thereupon made an order vacating- the injunction. Instead, therefore, of the receiver being dispossessed by the operation of the dispossess warrant, he voluntarily vacated the premises, and his action in doing so was authorized by the court. Under such circumstar res, I cannot see that he wrongfully parted with property or was wrongfully deprived of property by- the defendants. Therefore I do not see that this court has any jurisdiction in this case. This conclusion makes it strictly unnecessary to consider the case upon the merits, but, as an appeal may be taken, and the court on appeal may hold that this court had jurisdiction, and as it is desirable that this elaborate and expensive litigation, if an appeal is taken, should come before the appellate court in such a form that it may be finally disposed of, I will briefly state the conclusions at which I have arrived on the merits. It fis claimed that the dispossess warrant issued by the magistrate was issued without jurisdiction,'and that therefore it is void. This claim is based on the proposition, as I understand it, that the rent, by the terms of the lease, was not pa)able in advance, and therefore no rent was due when the proceeding was begun; that the service of the precept, when made, was not made upon Rothschild personally, but was made by being- left at his place of business; and that the original defect in the service was not cured by the appearance of Davis & Kaufman as attorneys for the bankrupt, on the ground that attorneys, as such, are not officers of courts of justices of the peace, and, if they appear for a litigant in such a court, must prove that thejr have authority to appear by the provisions of the statute relating to such courts. The question whether the rent was payable in advance is a question of fact. Rothschild, in fact, had paid it, and the Gorham Manufacturing Company had received it, in advance, at the beginning of each of the six months which had elapsed after Rothschild went into possession. The contemporaneous construction of the parties therefore was .that the rent was payable in advance. The lease was silent on the sub-*857jí'.ct of the time of payment, and probably, under the authorities, in the absence, of evidence of any other circumstances, it would be held that the rent was payable at the end of the month. But the question from any point of view is purely one of fact, and the judgment of dispossession, if otherwise valid, established the fact that the rent was title. A judgment by default establishes such a fact in the same way as any other judgment. The fact that the service of the precept was made, not upon Rothschild personally, but upon a person in charge at his place of business, appears, under the statute, to have been insufficient service, but no objection to the service was made by Rothschild, and he appeared in the proceeding by Davis & Kaufman as his attorneys. But it is said that the Municipal Courts of the city of New York are substantially the same as the courts of justices of the peace; that attorneys at law, being officers of courts of record, and not of courts of justices of the peace, if they appear for a party in such a court, must furnish proof that they have authority to appear for him. Various cases are cited in which it has been held tliat such authority must be proved. These authorities all seem to be cases in which the defendant has asserted that an attorney who appeared for him in a justice’s court had no authority to appear. In this case Rothschild never asserted that Davis & Kaufman had no authority to appear for him. He recognized that they were acting- as his attorneys by sending to them the checks with which to pay the rent which was due. Moreover. it may he questioned whether the rule applicable to country courts of justices of tlie peace applies to Municipal Courts in this city. In ordinary practice it would certainly be considered an extraordinary proposition by most New York lawyers that a party was not bound bran appearance of reputable attorneys in a Municipal Court of the city of New York unless such attorneys had proved by oath that they were authorized to appear. If such proof is necessary in any case in a Municipal Court, it must be in my opinion in a case in which the party represented by the attorney repudiates his authority, and asserts that lie never acquiesced in the attorney’s appearance. In mv opinion, none of the grounds upon which it is claimed that the magistrate’s order dispossessing the tenant was without jurisdiction is valid. I think that the judgment of dispossession, shown either by the signing of the order for the warrant on July 2-fth, or certainly by the issuance of the warrant on July 2(>th, was a valid judgment, which terminated the relation (if landlord. and tenant between the Gorham Manufacturing Company and Rothschild, and that, when the receiver was appointed upon August 1st, the lease of the premises was not an asset of the bankrupt which could be taken possession of by the receiver or by the trustee. But it is claimed that the landlord waived the provisions of the judgment of dispossession by receiving the checks in payment. If, in fact, no bankruptcy had intervened, and the checks had been paid, and the landlord had acquiesced in Rothschild’s continuing in possession of the premises, and had accepted rent subsequently from him, Rothschild would have continued to occupy the’ premises in accordance with the terms of the lease. Logically, the lease having once been absolutely terminated, it might be claimed that any subsequent reten*858tion of the premises was not strictly under the lease, but was a use and occupation upon an implied lease or agreement, the terms of which would be similar to that of the original lease; but whether it be considered that the judgment would be waived, and the lease actually continued, or that theoretically it was a case of use and occupation, is an immaterial academic question. The checks, in fact, were not paid, and there was no agreement to receive them as payment. The receipt given for them was a receipt for the checks, and not for the rent. The conversations between Mr. Comstock'and Mr. Kaufman, the fact that the New York manager of the Gorham Manufacturing Company refused to take the responsibility of depositing the checks, and that Mr. Comstock went to Providence and consulted with Mr. Holbrook on that subject before they were deposited, the fact that by the conversations between Mr. Comstock and Mr. Kaufman, the evidence of which is entirely uncontradicted by Mr. Kaufman, it .was agreed between - them that the checks should not be taken as payment, but should be taken for what they were worth, all tends to show that the ordinary, rule applies in this case that the acceptance of checks does not constitute payment, in the absence of a specific agreement to that .effect. The fact that they were endorsed by Mr. Kaufman does not change the general rule, especially in view of the uncontradicted testimony that it was agreed between Mr. Comstock and Mr. Kaufman that Kaufman's endorsement was merely as a means of transferring the checks to the Gorham Manufacturing Company, and that Mr. Holbrook was informed of that fact, and took the checks upon that understanding. A sheck is nothing but a piece of paper. It is not money. Under the general rules of law, its acceptance is presumably not payment. The complainant’s counsel argues that from the time of the adjudication until the appointment of a trustee the bankrupt is civilly dead, and that nothing that takes place in the meantime can deprive the trustee of his right to elect whether to accept any asset of the bankrupt or not. If that doctrine were true, the court would have no power to authorize any action whatever in respect to the assets of the estate until the trustee was appointed. It could not order a sale; it could not permit a delivery of property admitted not to belong to the bankrupt; it could not permit a business to be carried on. The adjudication would strike the estate with a complete paralysis until the necessary weeks or the usual months had passed before the appointment of the trustee. There is nothing in the bankrupt act which authorizes such a conclusion. It is also claimed that the judgment of dispossession having taken place when the bankrupt was insolvent, and within four months of his bankruptcy, is null and void, under the provisions of section 67f of the bankrupt act (Act July 1, 1898, c. 541, 30 Stat. 564 [U. S. Comp. St. 1901, p. 3450]), which provides that: “All levies, judgments, attachments, or other liens, obtained through legal proceedings against a person who is insolvent, at any time within tour months prior to the filing of a petition in bankruptcy against him, shall be deemed null and void in case he is.adjudged a bankrupt.” But the judgment of dispossession did not create a lien upon the bankrupt’s estate. rtA judgment or decree in enforcement of an other*859wise valid pfe-existiug lien is not the judgment denounced by the statute which is plainly confined to judgments creating liens. * * * Moreover, other provisions of the act render it unreasonable to impute the intention to annul all judgments recovered within four months.” Metcalf v. Barker, 187 U. S. 174, 23 Sup. Ct. 71 (47 L. Ed. 122). The proposition that every judgment for the issue of a warrant to dis possess a tenant for the nonpayment of rent becomes null and void by the subsequent bankruptcy of the tenant within four months, upon proof that at the time the judgment was obtained the bankrupt was insolvent, is, in my opinion, entirely unwarranted by the provision of the act in question. Such a doctrine would render all decrees for the foreclosure of mortgages or liens of any kind liable to be held null and void under similar circumstances. My conclusion is that this court has no jurisdiction of this case, and that, if it had jurisdiction, there should be a decree for the defendants upon the merits. | 11-26-2022 | [
"HOLT, District Judge. This action is brought by Isaac S- Plaut, as trustee in bankruptcy of Solomon Rothschild, bankrupt, against the Gorham Manufacturing Company and others to recover, as an asset of the estate, a lease made by the Gorham Manufacturing Company to the bankrupt of the premises 384 Fifth avenue, New York, dated January lii, 1906, for a term oí 21 years, at an annual rental of $35,000 a year, payable monthly. Rothschild, the tenant, went into possession of the premises under the lease, and paid the rent monthly in advance until and including the month of June, 1906. On July 19, 1906, no rent for July having been paid, the Gorham Manufacturing Company instituted' a proceeding on a petition in a Municipal Court of the city of New York to dispossess the said Rothschild for the nonpayment of rent, and to recover possession of the premises and terminate the. lease.",
"A precept was issued directed to the said Rothschild, requiring him to *854remove from the premises or show cause before the Municipal Court before the 24th day of July, 190G, and was served on July 19th by leav-j ing a copy of the same at Rothschild’s place of business with a person in- charge. Rothschild thereupon employed the firm of Dáv'is & Kaufman as his attorneys to represent him in the proceeding. On July 23, 1906, the day before the precept was returnable, Davis & Kaufman applied to the firm of Olney & Comstock, 'the attorneys for the Gorham Manufacturing Company in the proceeding, and requested them to sign a stipulation adjourning the proceeding to July 26, 1906, reserving the right of the tenant to interpose any objection or answer or show cause to the precept returnable on the 24th day of July. Messrs. Olney & Comstock declined to adjourn the proceeding generally, but agreed to withhold the issuance of a warrant until July 26th, and accordingly struck from the proposed stipulation the words which granted the right to the tenant to interpose any objection or answer or show cause to the precept, and interlined the words “pay rent called for by precept returnable,” so that the stipulation as finally signed by the attorneys for the respective parties read as follows: “It is hereby consented that Solomon Rothschild the tenant in the above-entitled proceeding, had until Thursday, July 2Cth, .1906, in which to pay rent called for by the precept returnable the 24th day of July, 1906, at 9 ‘o’clock in the forenoon.” .",
"On July 24th, the original return day of the precept, Messrs. Olney & Comstock appeared in the Municipal Court, filed the stipulation, and had a final order dispossessing the tenant for nonpayment of rent signed by the magistrate, but withheld the issuance of the warrant until July 26, 1906. On July 26th Messrs. Dávis & Kaufman applied to Messrs. Olney & Comstock, asking them if they would accept the rent if they sent the money down the next day, the 27th. Messrs. Olney & Comstock replied that they would, but that they would get out the warrant in the meantime. They thereupon directed their clerk to stop at the office of the Municipal Court on the morning of the following-day, and get the warrant, and he did so.",
"During the 27th, checks for the amount of the rent were sent by Davis & Kaufman to Olney & Comstock. Mr. Comstock testifies that he left town on the 27th, which was Friday, and did not. return until the succeeding. Monday, the 30th; that he told his clerk not to accept checks in payment of the rent, but only money. After Mr. Comstock had left the office, late in the afternoon of the 27th, checks for the amount of the rent were brought to Mr. Comstock’s office by Mr. Davis. The clerk said that his in-j.structions were to take money only. Mr. Davis suggested that he take the checks and give a receipt for them until Mr. Comstock returned, and the clerk did só.'. Upon Mr. Comstock’s return on Monday, the 30th, he had a conversation by telephone with Mr. Kaufman, and said that he found the checks in his office upon his return, and that he would not accept anything but money in payment of the rent.",
"The checks were drawn,by Mr. Rothschild to the order of Mr. Kaufman, and indorsed by the latter. Mr. Comstock asked Mr. Kaufman if he-meant by the indorsement to guarantee the payment of the checks. Mr. Kaufman answered that he did not, that he was merely acting for Mr. Rothschild’ as -an attorney, and a mere conduit for the checks. *855Mr. Comstock then informed him that he would send the checks back, but Mr. Kaufman requested Mr. Comstock to take them for collection, to which Mr. Comstock replied that, if his client was willing to accept them for that purpose, he would have no objection, and, if they were so received and paid, they would be accepted in payment, but, if not, they would be treated as a nullity.",
"Mr. Comstock thereupon sent the checks to the office of the Gorham Manufacturing Company at New York. Mr. Holbrook, the president of the company, was in .Providence. Mr. Spencer, the financial official of the company at New York, refused to deposit the checks, and referred Mr. Comstock to Mr. Holbrook. Mr. Comstock went to Providence that afternoon, and saw Mr. Holbrook, and Mr. Holbrook directed that the checks be deposited, and that, if paid, the rent would be accepted, and, if not, not. These instructions were given on July 31st, and the checks were put in the bank for collection on August 1st. On that day, at 9:13 a. m., an involuntary petition in bankruptcy was filed against Sothschild. None of the checks was paid. One was returned indorsed “Insufficient funds,” and the others indorsed “ Bankruptcy proceedings pending.” On the same day Mr. Charles C. Burlingham was appointed receiver, and qualified as such.",
"He thereupon went to the leased premises, took possession of Ihc properly of the bankrupt there, and occupied the premises until September 3906. At the same time, an injunction was issued restraining the Gorham Manufacturing Company and all other persons from interfering with the receiver, and on August 7, 3906, an order was obtained requiring the Gorham Manufacturing Company to show cause why it should not be restrained from prosecuting the dispossess proceedings, which order contained a temporary injunction to that effect. This order, after several adjournments, came on for hearing on September 7, 390(5. On the hearing, the receiver’s counsel stated that he had discontinued the business of the bankrupt upon the premises, and had sold the stock and merchandise of the bankrupt at public auction, and thereupon an order was made denying the motion for a further stay contained in said order to show cause of August 7, 190(5.",
"Thereupon the Gorliam Manufacturing Company went inlo possession of the said premises, and continued in such possession until November or December, 190(5, when it leased the said premises to the defendant Adelbert Jaeckel, who has been in possession ever since. The plaintiff was appointed trustee in bankruptcy on October 16, 3906. lie thereafter, claiming that the lease was an asset of the estate to which he was entitled, tendered the amount of the rent in arrears, and demanded possession of the premises, which was refused, lie thereupon brought this suit. The first question in this case is whether the facts proved show that this court lias jurisdiction. The complaint alleges, in substance, that the receiver took possession of the lease and of the premises thereunder, and that he was dispossessed under the warrant of dispossession, which complainant claims was issued without jurisdiction. On demurrer I held that these allegations made out a case which conferred jurisdiction upon this court under the doctrine of the case of Whitney v. Wenman, 198 U. S. 539, 25 Sup.",
"Ct. 778, 49 L. Ed. 1157. But it is not enough that a complaint alleges facts showing jurisdiction in a *856federal court. The evidence must establish such facts. It is necessary, in order to bring this case within the reasoning of Whitney v. Wen-man, to show that the receiver was in possession of the asset claimed, and that he wrongfully parted with it or was deprived of it. In the first place, I do not think that the evidence establishes .that' the receiver was ever in possession of the lease. ITe went into possession of the premises which had been leased, and of the physical assets of the bankrupt which were situated in said premises; but if the lease and all the rights of the tenant under it had been terminated by the issuance of the warrant of the Municipal Court on July 26th, four days before the receiver was appointed, the tenant had no lease, and it was not an asset of which the receiver could take possession. Moreover, assuming that he did take possession of the lease by the fact that he took possession of the premises, and occupied them for about a month, the evidence does not establish that he either wrongfully parted with'them, or was deprived of them by the force of the warrant to dispossess. He appeared in open court, announced that he had finished the business, and disposed of the assets of the bankrupt contained in the premises, and made no objection to a vacation of the injunction. The court thereupon made an order vacating- the injunction. Instead, therefore, of the receiver being dispossessed by the operation of the dispossess warrant, he voluntarily vacated the premises, and his action in doing so was authorized by the court.",
"Under such circumstar res, I cannot see that he wrongfully parted with property or was wrongfully deprived of property by- the defendants. Therefore I do not see that this court has any jurisdiction in this case. This conclusion makes it strictly unnecessary to consider the case upon the merits, but, as an appeal may be taken, and the court on appeal may hold that this court had jurisdiction, and as it is desirable that this elaborate and expensive litigation, if an appeal is taken, should come before the appellate court in such a form that it may be finally disposed of, I will briefly state the conclusions at which I have arrived on the merits. It fis claimed that the dispossess warrant issued by the magistrate was issued without jurisdiction,'and that therefore it is void. This claim is based on the proposition, as I understand it, that the rent, by the terms of the lease, was not pa)able in advance, and therefore no rent was due when the proceeding was begun; that the service of the precept, when made, was not made upon Rothschild personally, but was made by being- left at his place of business; and that the original defect in the service was not cured by the appearance of Davis & Kaufman as attorneys for the bankrupt, on the ground that attorneys, as such, are not officers of courts of justices of the peace, and, if they appear for a litigant in such a court, must prove that thejr have authority to appear by the provisions of the statute relating to such courts.",
"The question whether the rent was payable in advance is a question of fact. Rothschild, in fact, had paid it, and the Gorham Manufacturing Company had received it, in advance, at the beginning of each of the six months which had elapsed after Rothschild went into possession. The contemporaneous construction of the parties therefore was .that the rent was payable in advance. The lease was silent on the sub-*857jí'.ct of the time of payment, and probably, under the authorities, in the absence, of evidence of any other circumstances, it would be held that the rent was payable at the end of the month. But the question from any point of view is purely one of fact, and the judgment of dispossession, if otherwise valid, established the fact that the rent was title. A judgment by default establishes such a fact in the same way as any other judgment. The fact that the service of the precept was made, not upon Rothschild personally, but upon a person in charge at his place of business, appears, under the statute, to have been insufficient service, but no objection to the service was made by Rothschild, and he appeared in the proceeding by Davis & Kaufman as his attorneys.",
"But it is said that the Municipal Courts of the city of New York are substantially the same as the courts of justices of the peace; that attorneys at law, being officers of courts of record, and not of courts of justices of the peace, if they appear for a party in such a court, must furnish proof that they have authority to appear for him. Various cases are cited in which it has been held tliat such authority must be proved. These authorities all seem to be cases in which the defendant has asserted that an attorney who appeared for him in a justice’s court had no authority to appear. In this case Rothschild never asserted that Davis & Kaufman had no authority to appear for him. He recognized that they were acting- as his attorneys by sending to them the checks with which to pay the rent which was due. Moreover.",
"it may he questioned whether the rule applicable to country courts of justices of tlie peace applies to Municipal Courts in this city. In ordinary practice it would certainly be considered an extraordinary proposition by most New York lawyers that a party was not bound bran appearance of reputable attorneys in a Municipal Court of the city of New York unless such attorneys had proved by oath that they were authorized to appear. If such proof is necessary in any case in a Municipal Court, it must be in my opinion in a case in which the party represented by the attorney repudiates his authority, and asserts that lie never acquiesced in the attorney’s appearance. In mv opinion, none of the grounds upon which it is claimed that the magistrate’s order dispossessing the tenant was without jurisdiction is valid. I think that the judgment of dispossession, shown either by the signing of the order for the warrant on July 2-fth, or certainly by the issuance of the warrant on July 2(>th, was a valid judgment, which terminated the relation (if landlord. and tenant between the Gorham Manufacturing Company and Rothschild, and that, when the receiver was appointed upon August 1st, the lease of the premises was not an asset of the bankrupt which could be taken possession of by the receiver or by the trustee. But it is claimed that the landlord waived the provisions of the judgment of dispossession by receiving the checks in payment.",
"If, in fact, no bankruptcy had intervened, and the checks had been paid, and the landlord had acquiesced in Rothschild’s continuing in possession of the premises, and had accepted rent subsequently from him, Rothschild would have continued to occupy the’ premises in accordance with the terms of the lease. Logically, the lease having once been absolutely terminated, it might be claimed that any subsequent reten*858tion of the premises was not strictly under the lease, but was a use and occupation upon an implied lease or agreement, the terms of which would be similar to that of the original lease; but whether it be considered that the judgment would be waived, and the lease actually continued, or that theoretically it was a case of use and occupation, is an immaterial academic question. The checks, in fact, were not paid, and there was no agreement to receive them as payment.",
"The receipt given for them was a receipt for the checks, and not for the rent. The conversations between Mr. Comstock'and Mr. Kaufman, the fact that the New York manager of the Gorham Manufacturing Company refused to take the responsibility of depositing the checks, and that Mr. Comstock went to Providence and consulted with Mr. Holbrook on that subject before they were deposited, the fact that by the conversations between Mr. Comstock and Mr. Kaufman, the evidence of which is entirely uncontradicted by Mr. Kaufman, it .was agreed between - them that the checks should not be taken as payment, but should be taken for what they were worth, all tends to show that the ordinary, rule applies in this case that the acceptance of checks does not constitute payment, in the absence of a specific agreement to that .effect.",
"The fact that they were endorsed by Mr. Kaufman does not change the general rule, especially in view of the uncontradicted testimony that it was agreed between Mr. Comstock and Mr. Kaufman that Kaufman's endorsement was merely as a means of transferring the checks to the Gorham Manufacturing Company, and that Mr. Holbrook was informed of that fact, and took the checks upon that understanding. A sheck is nothing but a piece of paper. It is not money. Under the general rules of law, its acceptance is presumably not payment. The complainant’s counsel argues that from the time of the adjudication until the appointment of a trustee the bankrupt is civilly dead, and that nothing that takes place in the meantime can deprive the trustee of his right to elect whether to accept any asset of the bankrupt or not. If that doctrine were true, the court would have no power to authorize any action whatever in respect to the assets of the estate until the trustee was appointed. It could not order a sale; it could not permit a delivery of property admitted not to belong to the bankrupt; it could not permit a business to be carried on.",
"The adjudication would strike the estate with a complete paralysis until the necessary weeks or the usual months had passed before the appointment of the trustee. There is nothing in the bankrupt act which authorizes such a conclusion. It is also claimed that the judgment of dispossession having taken place when the bankrupt was insolvent, and within four months of his bankruptcy, is null and void, under the provisions of section 67f of the bankrupt act (Act July 1, 1898, c. 541, 30 Stat. 564 [U. S. Comp. St. 1901, p. 3450]), which provides that: “All levies, judgments, attachments, or other liens, obtained through legal proceedings against a person who is insolvent, at any time within tour months prior to the filing of a petition in bankruptcy against him, shall be deemed null and void in case he is.adjudged a bankrupt.” But the judgment of dispossession did not create a lien upon the bankrupt’s estate. rtA judgment or decree in enforcement of an other*859wise valid pfe-existiug lien is not the judgment denounced by the statute which is plainly confined to judgments creating liens. * * * Moreover, other provisions of the act render it unreasonable to impute the intention to annul all judgments recovered within four months.” Metcalf v. Barker, 187 U. S. 174, 23 Sup.",
"Ct. 71 (47 L. Ed. 122). The proposition that every judgment for the issue of a warrant to dis possess a tenant for the nonpayment of rent becomes null and void by the subsequent bankruptcy of the tenant within four months, upon proof that at the time the judgment was obtained the bankrupt was insolvent, is, in my opinion, entirely unwarranted by the provision of the act in question. Such a doctrine would render all decrees for the foreclosure of mortgages or liens of any kind liable to be held null and void under similar circumstances.",
"My conclusion is that this court has no jurisdiction of this case, and that, if it had jurisdiction, there should be a decree for the defendants upon the merits."
] | https://www.courtlistener.com/api/rest/v3/opinions/8773191/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
DETAILED ACTION
Information Disclosure Statement The information disclosure statement (IDS) submitted on 05/03/2022 is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Double Patenting Claims 1, 3, 6, 14-15, 17-19, 26, 116, 124, 134, 142, 144-147, 149, 152-153, 155, 157-159, 163, 165-167 and 171-172 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 8, 14-15, 18-20, 41, 45, 51, 53, 55-57, 78, 84, 86, 92, 9-98, 107, 114-116, 125, 131, 134, 141, 145-147, 152, 157 and 165 of copending Application No. 17/410,906 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because claims 1, 8, 14, 19-20, 115-116, 152, 157 and 165 of copending Application No. 17/410,906 teaches the limitations in claims 1 and 152 of current application. Regarding claim 1, copending Application No. 17/410,906 teaches a battery comprising: a) an anode case; b) a cathode case comprising (claim 1 of 17/410,906); i) a cathode inner conductive layer comprising aluminum (Al), stainless steel, chromium (Cr), gold (Au), vanadium (V), nickel (Ni), silver (Ag), copper (Cu), magnesium (Mg), zinc (Zn), an alloy thereof, or a combination of any two or more thereof (claims 115-116 of 17/410,906), and ii) a cathode deactivating layer comprising a deactivating metal comprising niobium (Nb), tantalum (Ta), an alloy thereof, or any combination thereof, wherein the cathode deactivating layer has a uniform or varying thickness of 50 um to 200 µm (claims 1 and 8 of 17/410,906) iii) wherein the ratio of the thickness of the cathode deactivating layer to the thickness of the inner conductive layer is from 8:1 to 1:2.5 at least at a point in a bottom portion of the cathode case (claim 14 of 17/410,906), iv) wherein the cathode case has a uniform or varying thickness of 200 um to 250 µm (claim 19 of 17/410,906), v) wherein the cathode case comprises a hem fold structure, wherein the hem fold structure comprises a first side and a second side wherein the first side of the hem fold contacts the second side of the hem fold (claims 19-20 of 17/410,906), vi) and further wherein the cathode inner conductive layer and the cathode deactivating layer are in electrical contact (claim 8 of 17/410,906), c) an electrochemical cell comprising an anode, a cathode, and a separator positioned between the anode and the cathode (claim 1 of 17/410,906); and e) a gasket between the anode case and the cathode case (claim 1 of 17/410,906). Regarding claim 152, copending Application No. 17/410,906 teaches a cathode case (claims 1, 8 and 152 of 17/410,906) comprising a) a cathode inner conductive layer comprising aluminum (Al), stainless steel, chromium (Cr), gold (Au), vanadium (V), nickel (Ni), silver (Ag), copper (Cu), magnesium (Mg), zinc (Zn), an alloy thereof, or a combination of any two or more thereof (claims 115-116 and 165 of 17/410,906), b) a cathode deactivating layer comprising a deactivating metal comprising Ta, Nb, W, Ti, an alloy thereof, or any combination thereof, wherein the cathode deactivating layer has a uniform or varying thickness of 50 µm to 200 µm (claims 1, 8, 152 and 157 of 17/410,906); c) wherein the ratio of thickness of the cathode deactivating layer to the thickness of the inner conductive layer is from 8:1 to 1:2.5 at least at a point in a bottom portion of the cathode case (claims 14 and 157 of 17/410,906), d) wherein the cathode case has a uniform or varying thickness of 200 um to 250 µm (claim 19 of 17/410,906), and e) further wherein the cathode case comprises a hem fold structure, wherein the hem fold structure comprises a first side and a second side wherein the first side of the hem fold contacts the second side of the hem fold (claims 19-20 of 17/410,906). This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Conclusion THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a). A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action. Any inquiry concerning this communication or earlier communications from the examiner should be directed to HAIXIA ZHANG whose telephone number is (571)272-5697. The examiner can normally be reached Monday, Thursday and Friday 8-5. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Milton Cano can be reached on 313-446-4937. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/HAIXIA ZHANG/Primary Examiner, Art Unit 1723 | 2022-05-22T00:32:11 | [
"Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . DETAILED ACTION Information Disclosure Statement The information disclosure statement (IDS) submitted on 05/03/2022 is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner. Double Patenting Claims 1, 3, 6, 14-15, 17-19, 26, 116, 124, 134, 142, 144-147, 149, 152-153, 155, 157-159, 163, 165-167 and 171-172 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 8, 14-15, 18-20, 41, 45, 51, 53, 55-57, 78, 84, 86, 92, 9-98, 107, 114-116, 125, 131, 134, 141, 145-147, 152, 157 and 165 of copending Application No. 17/410,906 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because claims 1, 8, 14, 19-20, 115-116, 152, 157 and 165 of copending Application No.",
"17/410,906 teaches the limitations in claims 1 and 152 of current application. Regarding claim 1, copending Application No. 17/410,906 teaches a battery comprising: a) an anode case; b) a cathode case comprising (claim 1 of 17/410,906); i) a cathode inner conductive layer comprising aluminum (Al), stainless steel, chromium (Cr), gold (Au), vanadium (V), nickel (Ni), silver (Ag), copper (Cu), magnesium (Mg), zinc (Zn), an alloy thereof, or a combination of any two or more thereof (claims 115-116 of 17/410,906), and ii) a cathode deactivating layer comprising a deactivating metal comprising niobium (Nb), tantalum (Ta), an alloy thereof, or any combination thereof, wherein the cathode deactivating layer has a uniform or varying thickness of 50 um to 200 µm (claims 1 and 8 of 17/410,906) iii) wherein the ratio of the thickness of the cathode deactivating layer to the thickness of the inner conductive layer is from 8:1 to 1:2.5 at least at a point in a bottom portion of the cathode case (claim 14 of 17/410,906), iv) wherein the cathode case has a uniform or varying thickness of 200 um to 250 µm (claim 19 of 17/410,906), v) wherein the cathode case comprises a hem fold structure, wherein the hem fold structure comprises a first side and a second side wherein the first side of the hem fold contacts the second side of the hem fold (claims 19-20 of 17/410,906), vi) and further wherein the cathode inner conductive layer and the cathode deactivating layer are in electrical contact (claim 8 of 17/410,906), c) an electrochemical cell comprising an anode, a cathode, and a separator positioned between the anode and the cathode (claim 1 of 17/410,906); and e) a gasket between the anode case and the cathode case (claim 1 of 17/410,906).",
"Regarding claim 152, copending Application No. 17/410,906 teaches a cathode case (claims 1, 8 and 152 of 17/410,906) comprising a) a cathode inner conductive layer comprising aluminum (Al), stainless steel, chromium (Cr), gold (Au), vanadium (V), nickel (Ni), silver (Ag), copper (Cu), magnesium (Mg), zinc (Zn), an alloy thereof, or a combination of any two or more thereof (claims 115-116 and 165 of 17/410,906), b) a cathode deactivating layer comprising a deactivating metal comprising Ta, Nb, W, Ti, an alloy thereof, or any combination thereof, wherein the cathode deactivating layer has a uniform or varying thickness of 50 µm to 200 µm (claims 1, 8, 152 and 157 of 17/410,906); c) wherein the ratio of thickness of the cathode deactivating layer to the thickness of the inner conductive layer is from 8:1 to 1:2.5 at least at a point in a bottom portion of the cathode case (claims 14 and 157 of 17/410,906), d) wherein the cathode case has a uniform or varying thickness of 200 um to 250 µm (claim 19 of 17/410,906), and e) further wherein the cathode case comprises a hem fold structure, wherein the hem fold structure comprises a first side and a second side wherein the first side of the hem fold contacts the second side of the hem fold (claims 19-20 of 17/410,906). This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented. Conclusion THIS ACTION IS MADE FINAL.",
"Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a). A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action.",
"In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action. Any inquiry concerning this communication or earlier communications from the examiner should be directed to HAIXIA ZHANG whose telephone number is (571)272-5697. The examiner can normally be reached Monday, Thursday and Friday 8-5. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Milton Cano can be reached on 313-446-4937. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of published or unpublished applications may be obtained from Patent Center.",
"Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000. /HAIXIA ZHANG/Primary Examiner, Art Unit 1723"
] | https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-05-29.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Case 8:20-cv-00043-SB-ADS Document 190-27 Filed 05/14/21 Page 1 of 16 Page ID #:2801
Summary Judgment Ex. 4 Case 8:20-cv-00043-SB-ADS Document 190-27 Filed 05/14/21 Page 2 of 16 Page ID #:2802
1 DECLARATION OF DAVID SKLAR 2 3 I, David Sklar, pursuant to 28 U.S.C. § 1746, hereby declare the 4 following: 5 1. My name is David Sklar. I live in Mission Viejo, California. The 6 following facts are known to me personally and if called as a witness I could 7 and would competently testify to them. 8 Beginning of Docu Prep Center 9 2. From 2000 to 2014, I worked as a bartender in various bars in 10 Orange County, California. 11 3. I met Sean Cowell in around 1996 and we became friends. 12 4. In mid-2014, Cowell informed me that he, Jawad Nesheiwat, and 13 Thomas Chou were planning to open a new student loan debt relief company. 14 5. At around that time, Nesheiwat, Cowell, and Chou asked that I 15 operate this new company, and said that I would be given an ownership interest 16 in the business. 17 6. I was excited by the opportunity and saw it as a potential step 18 forward for me after years as a bartender. I did not, however, have any 19 management or executive experience or experience with student loans or in the 20 debt relief industry. 21 7. Prior to taking on this position, Nesheiwat, Cowell, and Chou 22 asked me to go work at a business called Advantage Student Loans for training 23 and to get up to speed on the student loan debt relief business. Advantage 24 Student Loans was owned by an individual named Andrew Roosen, who I 25 believe was a business associate of Nesheiwat, Cowell, and Chou. I worked 26 there for about four to six months in around mid to late 2014 as a telemarketing 27 sales representative. That company was engaged primarily in marketing debt 28 relief services to consumers with federal student loans.
1 Case 8:20-cv-00043-SB-ADS Document 190-27 Filed 05/14/21 Page 3 of 16 Page ID #:2803
1 8. After that experience, in early 2015, I became the manager of 2 Docu Prep Center, Inc. and eventually was given the title of chief executive 3 officer. 4 9. Docu Prep Center, Inc. registered as a California corporation in 5 2015 and had a business address of 3 Whatney, Suite 100, Irvine, CA 92618. 6 10. Document Preparation Services, LP registered as a California 7 limited partnership in 2015. Document Preparation Services, LP was the 8 general partner of Docu Prep Center, Inc. In this Declaration, I refer to both 9 entities collectively as “Docu Prep Center.” 10 11. Docu Prep Center also operated under the d/b/a’s DocuPrep Center 11 and Certified Document Center. 12 12. My co-manager at Docu Prep Center was Robert Hoose, who was 13 given the title of chief operating officer. Like me, he had no prior executive 14 experience. 15 13. In early 2015, Nesheiwat, Cowell, and Chou directed Hoose and 16 me to work with Roosen to set up Docu Prep Center. Roosen ran a “back-end” 17 company called Student Loan Processing Center (“SLPC”) that worked with a 18 number of companies that marketed and sold student debt relief services, 19 including Advantage Student Loans, where I had previously worked. By “back- 20 end,” I mean that SLPC provided the actual services that the other companies 21 marketed and sold. SLPC referred to the companies it worked with as its 22 “affiliates.” 23 14. Nesheiwat, Cowell, and Chou instructed Hoose and me to set up 24 Docu Prep Center as a new affiliate for SLPC. Under this arrangement, Docu 25 Prep Center was responsible for marketing and selling services to consumers 26 with federal student loans. Once the sale was complete, SLPC would perform 27 the actual services, assisting consumers with consolidating their loans and 28 enrolling in the income-based repayment plans offered by the U.S. Department
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1 of Education. SLPC provided the initial marketing materials and telemarketing 2 scripts that Docu Prep Center used, which the company then adapted. 3 15. Although Hoose and I were Docu Prep Center’s executives and 4 served as its day-to-day managers, we did not have authority over the major 5 decisions made by the company, such as decisions about how the company 6 would market and sell its services and the types of services it offered. Instead, 7 we followed directions from Nesheiwat, Cowell, and Chou, who each owned 8 limited partnership interests in Docu Prep Center. Hoose and I were not 9 allowed to make major decisions about Docu Prep Center’s operations without 10 their approval. Hoose and I also received limited partnership interests in Docu 11 Prep Center (which were smaller than the interests held by Nesheiwat, Cowell, 12 and Chou). 13 16. Hoose and I began managing Docu Prep Center together in 14 February 2015. In general, I was responsible for monitoring the sales floor and 15 for hiring and firing employees. Hoose was in charge of training new 16 employees and coaching existing employees. 17 17. Hoose and I were also both signatories on the Wells Fargo bank 18 accounts for Docu Prep Center, Inc. and Document Preparation Services, LP. 19 In that capacity, we routinely signed checks on behalf of Docu Prep Center. 20 18. When Docu Prep Center started in early 2015, Chou Team Realty, 21 Inc., a mortgage lender which did business as Monster Loans, was located in 22 the same building at 3 Whatney in Irvine. Chou, Nesheiwat, and Cowell ran 23 Monster Loans, and Nesheiwat was in charge of Monster Loans’ marketing. 24 19. Nesheiwat had a desk on the same floor as Docu Prep Center’s at 25 the 3 Whatney address in Irvine, and I saw him at the office almost every day. 26 Nesheiwat had strong views about how Docu Prep Center should operate, 27 which he often expressed to Hoose and me, and which I felt compelled to 28 follow. Out of all of Docu Prep Center’s limited partners, Nesheiwat was the
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1 most involved in the daily operations of the company. Nesheiwat was also the 2 only limited partner with a desk on Docu Prep Center’s floor. 3 20. Nesheiwat regularly instructed Hoose and me on how to manage 4 Docu Prep Center’s operations and its employees. For example, on at least one 5 occasion, Nesheiwat directed Hoose and me to fire a Docu Prep Center 6 employee. As further described below, Nesheiwat was also very involved in 7 Docu Prep Center’s marketing. 8 21. Around the end of 2015, Docu Prep Center stopped working with 9 SLPC. A company named Docs Done Right then took over the “back-end” 10 function that SLPC had previously performed. Docs Done Right was managed 11 by Eduardo Martinez. Its owners included Nesheiwat, Cowell, Chou, who 12 provided directions to Martinez regarding the company’s operations and the 13 services it provided to consumers on behalf of Docu Prep Center. 14 Docu Prep Center’s Direct Mail Marketing Process 15 22. Docu Prep Center primarily marketed its services to consumers 16 through direct mail. 17 23. In early 2015, Nesheiwat arranged for Docu Prep Center to send 18 direct mail through a mailing house called Automated Mailers (which he was 19 already using to send Monster Loans’ direct mail marketing). Thereafter, 20 Nesheiwat oversaw Docu Prep Center’s relationship with Automated Mailers. 21 For example, for most of 2015, Nesheiwat directed Hoose and me to copy him 22 on communications with Automated Mailers concerning Docu Prep Center’s 23 orders—a direction that we followed. Even after that, Nesheiwat continued to 24 oversee Docu Prep Center’s relationship with Automated Mailers, ensuring that 25 Docu Prep Center paid its invoices and requesting updates from Hoose and me 26 regarding its mailings. 27 24. At times in 2015 and 2016, I directly communicated with, and was 28 copied on the communications of others with, Automated Mailers regarding
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1 orders to send direct mail to consumers marketing Docu Prep Center’s services. 2 I am familiar with the process that was used to send Docu Prep Center’s direct 3 mail and with Docu Prep Center’s direct mail solicitations. 4 25. The marketing process generally worked as follows: Docu Prep 5 Center provided Automated Mailers with the template for its direct mail 6 solicitations, and periodically placed orders for direct mail. For most of 2015 7 and 2016, Docu Prep Center placed orders about every one or two weeks. To 8 initiate an order, Docu Prep Center provided Automated Mailers with consumer 9 names, addresses, and student loan balances (which those involved with Docu 10 Prep Center often referred to as consumer “data”) and told Automated Mailers 11 how many pieces of mail to send. Upon receiving the consumer data, 12 Automated Mailers created “proofs” of the marketing letter for Docu Prep 13 Center’s review and approval. The proofs reflected the marketing language that 14 would be contained in each outgoing Docu Prep Center letter. The marketing 15 letters were generally identical except for the recipient’s name, address, and 16 student loan balance. Upon Docu Prep Center’s review and approval, 17 Automated Mailers printed and mailed out the marketing letters. 18 26. Attached as Exhibit 1 are true and correct copies of marketing 19 letters that Docu Prep Center sent in February 2016 with Automated Mailers’ 20 assistance. The letters in Exhibit 1 are representative of the marketing letters 21 that Docu Prep Center sent in 2016. 22 27. Nesheiwat oversaw Docu Prep Center’s direct mail marketing 23 through Automated Mailers. In addition, in 2015 and 2016, Nesheiwat directed 24 Bilal Abdelfattah a/k/a Bill Abdel (“Abdel”) to send Automated Mailers 25 consumer names, addresses, and student loan balances, which were used to 26 populate Docu Prep Center’s direct mail template. 27 28
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1 28. Mohamed Hegazi, a bookkeeper who worked for both Monster 2 Loans and Docu Prep Center, was in charge of paying off the balances that 3 Docu Prep Center incurred with Automated Mailers. 4 29. Attached as Exhibit 2 is a true and correct copy of an October 2016 5 email from Nesheiwat to me, forwarding an email from Automated Mailers, 6 regarding Docu Prep Center’s balance for past mailings. Hoose and Mike Van 7 Loon (“Van Loon”), a then-executive at Monster Loans, are also copied on 8 Nesheiwat’s forwarded email. In this email string, Nesheiwat instructed Hoose 9 and me to pay down Docu Prep Center’s balance with the mailing house with 10 no more than one week’s delay whenever possible, at the request of Automated 11 Mailers. Exhibit 2 is representative of Nesheiwat’s involvement in Docu Prep 12 Center’s marketing, and of his providing directions regarding Docu Prep 13 Center’s interactions with Automated Mailers. 14 Docu Prep Center’s Use of Prescreened Lists 15 30. As described above, Docu Prep Center sent to Automated Mailers 16 consumers’ names, addresses, and student loan balances when it placed orders 17 for direct mail. For much of the time that it operated, Docu Prep Center 18 obtained that consumer data through Monster Loans’ account with the credit 19 bureau Experian. My understanding is that that consumer data came from 20 “prescreened lists.” 21 31. Before Docu Prep Center began using the prescreened lists, it was 22 my understanding from conversations with Nesheiwat that he intended to use 23 Monster Loans’ Experian account to buy marketing lists for Docu Prep Center 24 to use to send its direct mail. 25 32. Attached as Exhibit 3 is a true and correct copy of an email 26 exchange between Nesheiwat and me from August 11, 2015. In this exchange, 27 Nesheiwat informed me that the Experian account was “about ready” to use. At 28 the time, I was not an employee of Monster Loans.
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1 33. Thereafter, at Nesheiwat’s direction, Docu Prep Center began 2 using prescreened lists pulled from Monster Loans’ Experian account. Initially, 3 Abdel, who worked under Nesheiwat’s supervision, was primarily responsible 4 for placing the orders with Experian and emailing the prescreened lists to 5 Automated Mailers for use when sending Docu Prep Center’s mailings. Later, 6 Nesheiwat directed Max Chou to take over those responsibilities after Abdel 7 was fired. 8 34. Nesheiwat required Docu Prep Center to pay the cost of the 9 prescreened lists ordered through Monster Loans’ Experian account. For 10 example, attached as Exhibit 4 is a true and correct copy of an email from 11 Nesheiwat to Abdel, copying Hoose and me, sent on January 25, 2016. In the 12 email, Nesheiwat directs Abdel to pay a “whopping” bill from Experian. 13 Because Hoose and I were copied, and co-managed Docu Prep Center at the 14 time, I understand the email to refer to a bill for marketing lists that Monster 15 Loans purchased from Experian for Docu Prep Center’s use. 16 35. Nesheiwat also negotiated with Experian to obtain lower costs for 17 the prescreened lists Monster Loans obtained for Docu Prep Center’s use, and 18 provided updates to Hoose and me regarding the status of the negotiations. For 19 example, attached as Exhibit 5 is a true and correct copy of an email Nesheiwat 20 sent to Hoose and me on March 8, 2016, regarding his negotiations with 21 Experian. 22 36. Attached as Exhibit 6 is a true and correct copy of an April 8, 2016 23 “investor update” email that I sent to Van Loon and Nesheiwat. This email is 24 representative of the updates that I drafted and sent to Docu Prep Center’s 25 limited partners, on the state of Docu Prep Center, including on any efforts to 26 increase profits by paying less for prescreened lists. My email informed Docu 27 Prep Center’s limited partners that “[w]e have ironed out a new deal with 28 Experian as far as our Data purchasing is concerned. We have cut the cost per
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1 record from .18 cents to .09 cents and have realized that this data is performing 2 with greater response percentages as well as closing ratios.” Although I used 3 the word “we” in that sentence, I did not personally negotiate this deal with 4 Experian; rather, Nesheiwat negotiated this lower pricing for the prescreened 5 lists that Docu Prep Center would use. 6 37. Hegazi, the bookkeeper for both Monster Loans and Docu Prep 7 Center, used a Chase credit card to pay the Experian invoices that Docu Prep 8 Center incurred on the Monster Loans account. Docu Prep Center then 9 reimbursed Monster Loans for its share of Experian prescreened lists by writing 10 a check to Hegazi’s credit card. 11 38. Attached as Exhibit 7 is a true and correct copy of three checks 12 written in 2016 from Docu Prep Center and Document Preparation Services, 13 LP’s bank accounts. Each check is made out to “Chase credit services” or to 14 “Chase card” and contains a reference to “Experian” in the memo line. I 15 recognize my signature on all three checks. These checks are representative of 16 the reimbursement Docu Prep Center made to Monster Loans through Hegazi’s 17 Chase credit card, for the cost of the Experian prescreened lists Monster Loans 18 obtained for Docu Prep Center to use to market Docu Prep Center’s services. 19 Docu Prep Center’s Sales Calls with Consumers 20 39. Consumers called the phone number on Docu Prep Center 21 marketing letters, which routed them to the company’s call center. Docu Prep 22 Center’s sales representatives then answered these consumer calls. 23 40. Consumers were interested in Docu Prep Center’s services because 24 they wanted to improve the terms of their student loans. For example, 25 consumers often wanted to make lower payments or receive loan forgiveness. 26 41. Hoose and I required Docu Prep Center’s sales representatives to 27 use a script to sell the company’s services over the phone, although at times 28 sales representatives deviated from the scripts.
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1 42. Although some edits were incorporated into the Docu Prep Center 2 scripts between 2015 and 2017, their substance and representations remained 3 largely the same. 4 43. As a result of overseeing hundreds of sales representatives at Docu 5 Prep Center, I am familiar with the sales scripts and training materials that 6 Docu Prep Center used to market its services in 2015 and 2016. 7 44. Attached as Exhibit 8 is a true and correct copy of an email and 8 attached sales script that Hoose forwarded to Nesheiwat, Cowell, and me on 9 May 28, 2015 from an employee of SLPC. I recognize the sales script attached 10 to that email as the script that Docu Prep Center sales representatives used 11 during calls with consumers in 2015. 12 45. Attached as Exhibit 9 is a true and correct copy of a Docu Prep 13 Center training manual that the company used in 2016. The manual includes a 14 “Student Loan Advisor Script,” which I recognize as a sales script that Docu 15 Prep Center used in 2016. 16 46. Nesheiwat was familiar with the sales scripts that Docu Prep 17 Center used, instructed us to use specific sales scripts, approved any changes 18 that were made to the sales scripts, and directly made edits to the sales scripts 19 over time. 20 47. To my knowledge, Nesheiwat made no efforts to verify the 21 truthfulness of Docu Prep Center’s statements regarding loan consolidation 22 either before or after he instructed Hoose and me to use these sales scripts to 23 market Docu Prep Center’s services. 24 48. Docu Prep Center used software platforms to track its sales calls 25 and other interactions with consumers. For much of its operations, Docu Prep 26 Center used a customer relationship management platform called Debt Pay Pro 27 to store and track information about consumers, as well as interactions with 28 consumers as part of Docu Prep Center’s regularly conducted business
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1 activities. For example, Docu Prep Center’s sales representatives used Debt 2 Pay Pro to enter notes regarding calls with consumers. The information and 3 notes entered into Debt Pay Pro by Docu Prep Center’s employees were 4 regularly made by Docu Prep Center and were kept on Debt Pay Pro as part of 5 Docu Prep Center’s regular business activities. The information and notes were 6 also made at or near the time of Docu Prep Center’s interactions with 7 consumers. 8 Docu Prep Center’s Fees 9 49. Docu Prep Center’s fees for its services increased between 2015 10 and 2017, beginning at around $599 or $699, and eventually increasing to $799 11 or $899. 12 50. Between 2015 and 2017, Docu Prep Center used several payment 13 processors to process fees paid by consumers in ACH transactions. 14 51. In 2015, Docu Prep Center used Trans2Pay, LLC and then 15 switched to Reliant Account Management (“RAM”). Docu Prep Center later 16 began to use a company called Debt Pay Gateway, Inc. (“Debt Pay Gateway”). 17 52. Docu Prep Center also at times charged fees to consumers’ credit 18 cards using a merchant account to which it had access. 19 53. Docu Prep Center typically charged its fees soon after a 20 consumer’s enrollment, requiring that consumers generally make their first 21 payment within 10 days of enrollment and complete all payments within 45 22 days of enrollment (if the consumer paid in installments). 23 54. Docu Prep Center did not wait to charge or receive its fees until the 24 consumer’s loan consolidation and loan repayment plan were approved. Nor 25 did it wait for the consumer to begin making payments under the altered terms 26 of the consumer’s loan to charge or receive its fees. 27 28
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1 55. Before I managed Docu Prep Center, I was not familiar with the 2 Telemarketing Sales Rule (“TSR”) or with its prohibition on charging advance 3 fees for debt relief services. 4 56. Attached as Exhibit 10 is a true and correct copy of an email that 5 Chou sent on May 18, 2015 in response to an update that I sent to Docu Prep 6 Center’s owners, including Nesheiwat. Chou asked for “information about the 7 potential ban on advance fees that might extend the time frame that we get 8 payment” and expressed concern about “a delay in being paid … slowing 9 growth” towards Docu Prep Center’s goal of closing 1,000 deals each month, 10 which the several of those involved with Docu Prep Center planned to celebrate 11 with a trip to Las Vegas. Chou noted said he was concerned because he “really 12 want[ed] to go to Vegas.” 13 57. Following Chou’s email, Docu Prep Center did not change its 14 practices to extend how long it took to receive consumers’ fees or make other 15 efforts to comply with the TSR’s requirements regarding the timing of charging 16 fees. 17 58. Rather, as shown in Exhibit 11, which is a true and correct copy of 18 a July 2015 email that I sent to Docu Prep Center’s investors, Docu Prep Center 19 switched to a new payment processor, RAM, which “ma[de] our funds available 20 between 7 to 9 days after the client has made their ACH payment.” Since 21 consumers generally made their first payment within 10 days of enrollment and 22 completed all payments within 45 days of enrollment, this change meant that 23 Docu Prep Center generally received consumers’ first payments within about 24 three weeks and received all of the consumers’ payments within 60 days. 25 The Four New Student Loan Debt Relief Companies 26 59. Because of Docu Prep Center’s profitability, its limited partners, 27 including Nesheiwat, Chou, Cowell, Hoose, and me, decided to open four new 28 companies in the two years after Docu Prep Center was created. Those four
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1 businesses were Certified Doc Prep Services, Assure Direct Services, Direct 2 Document Solutions, and Secure Preparation Services (collectively, with Docu 3 Prep Center, the “Student Loan Debt Relief Companies”). 4 60. Like Docu Prep Center, each of those businesses was structured as 5 a corporation and an associated limited partnership, and the profits from each 6 business went to its limited partner owners. 7 61. The four new businesses were owned by the same core group of 8 limited partners as Docu Prep Center, including Nesheiwat, Chou, Cowell, 9 Hoose, and me. 10 62. Although I was not a manager of the four new businesses, I am 11 familiar with them because I held an ownership stake in each of them, because 12 they at times interacted with Docu Prep Center, and because they were all 13 closely modeled on Docu Prep Center. 14 63. The four new businesses were managed by former employees of 15 Docu Prep Center. 16 64. The four new businesses offered the same services as Docu Prep 17 Center, which involved offering to assist consumers with consolidating federal 18 student loans and enrolling in loan repayment and loan forgiveness programs. 19 65. The four new businesses marketed their services through direct 20 mail using Automated Mailers, and used the same template for direct mail that 21 Docu Prep Center did. They also used the same sales scripts as Docu Prep 22 Center. As he did for Docu Prep Center, Nesheiwat generally oversaw the four 23 businesses’ relationship with Automated Mailers. 24 66. The four new businesses sold their services to consumers during 25 telemarketing sales calls. 26 67. Like Docu Prep Center, the four new businesses used prescreened 27 lists obtained from Monster Loans’ account with Experian to send direct mail. 28
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1 Nesheiwat played a similar role in overseeing the efforts to obtain prescreened 2 lists for their use. 3 68. The four new businesses also each used Docs Done Right to 4 provide “back-end” support services. 5 69. Two of the new businesses, which were created in 2017, were 6 effectively continuations of earlier businesses under new names. 7 70. In early 2017, the limited partners of Docu Prep Center decided to 8 begin operating that business using a new entity, Direct Document Solutions. 9 Direct Document Solutions was managed by Tera Wray, who had previously 10 been an employee of Docu Prep Center. Docu Prep Center’s existing 11 employees were transferred to Direct Document Solutions. Direct Document 12 Solutions continued offering the same services that Docu Prep Center had 13 previously offered. As a limited partner of Docu Prep Center, I received a 14 limited partnership interest in Direct Document Solutions when it was created. 15 71. Similarly, in early 2017, the limited partners of Certified Doc Prep 16 Services decided to begin operating that business using a new entity, Secure 17 Preparation Services. Secure Preparation Services was managed by Aaron 18 Sebreros and Mark Nevarez, who had previously been employees of Docu Prep 19 Center and Certified Doc Prep Services. Certified Doc Prep Services’ 20 employees were transferred to Secure Preparation Services. Secure Preparation 21 Services continued offering the same services that Certified Doc Prep Services 22 had previously offered. As a limited partner of Certified Doc Prep Services, I 23 received a limited partnership interest in Direct Document Solutions when it 24 was created. 25 72. After these changes in 2017, there were three companies that were 26 continuing to offer services to new customers: Assure Direct Services, Direct 27 Document Solutions, and Secure Preparation Services. 28
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1 Closure of the Student Loan Debt Relief Companies 2 73. Work at the three remaining Student Loan Debt Relief Companies 3 stopped in September 2017 after certain of the businesses received civil 4 investigative demands from the Consumer Financial Protection Bureau. 5 74. Despite the cessation of operations and the Bureau’s inquiries, 6 certain of the Student Loan Debt Relief Companies were still receiving 7 payments from consumers who had previously signed up for their services. In 8 January 2018, the limited partners asked me to wind down the affairs of the 9 three remaining Student Loan Debt Relief Companies and distribute their 10 remaining assets to the limited partners, including Nesheiwat, Chou, Cowell, 11 Hoose, and myself. 12 75. For the purpose of performing this duty, the limited partners 13 authorized a corporation that I control, Prime Ad Enterprises, Inc., to serve as 14 the new general partner of Assure Direct Services, LP, Direct Document 15 Solutions, LP, and Secure Preparation Services, LP. I was also granted access 16 to those businesses’ bank accounts. 17 76. In January 2018, I began using another corporation that I control, 18 Loki Investments, Inc. (“Loki”), to receive the remaining assets of the Student 19 Loan Debt Relief Companies and to distribute those assets to the limited 20 partners, including Nesheiwat and Frank Anthony Sebreros (who owned a 21 limited partnership interest in the company he managed, Assure Direct 22 Services). To facilitate these transfers, I opened a Wells Fargo bank account 23 under Loki’s name. 24 77. As part of this process, Eduardo Martinez wrote checks from Docs 25 Done Right’s bank account to my Loki account. These checks represented fees 26 paid by consumers to the Student Loan Debt Relief Companies. 27 78. Attached as Exhibit 12 are true and correct copies of checks I 28 wrote in 2018 using the Loki bank account to distribute to Nesheiwat and
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"Case 8:20-cv-00043-SB-ADS Document 190-27 Filed 05/14/21 Page 1 of 16 Page ID #:2801 Summary Judgment Ex. 4 Case 8:20-cv-00043-SB-ADS Document 190-27 Filed 05/14/21 Page 2 of 16 Page ID #:2802 1 DECLARATION OF DAVID SKLAR 2 3 I, David Sklar, pursuant to 28 U.S.C. § 1746, hereby declare the 4 following: 5 1. My name is David Sklar. I live in Mission Viejo, California. The 6 following facts are known to me personally and if called as a witness I could 7 and would competently testify to them. 8 Beginning of Docu Prep Center 9 2. From 2000 to 2014, I worked as a bartender in various bars in 10 Orange County, California.",
"11 3. I met Sean Cowell in around 1996 and we became friends. 12 4. In mid-2014, Cowell informed me that he, Jawad Nesheiwat, and 13 Thomas Chou were planning to open a new student loan debt relief company. 14 5. At around that time, Nesheiwat, Cowell, and Chou asked that I 15 operate this new company, and said that I would be given an ownership interest 16 in the business. 17 6. I was excited by the opportunity and saw it as a potential step 18 forward for me after years as a bartender.",
"I did not, however, have any 19 management or executive experience or experience with student loans or in the 20 debt relief industry. 21 7. Prior to taking on this position, Nesheiwat, Cowell, and Chou 22 asked me to go work at a business called Advantage Student Loans for training 23 and to get up to speed on the student loan debt relief business. Advantage 24 Student Loans was owned by an individual named Andrew Roosen, who I 25 believe was a business associate of Nesheiwat, Cowell, and Chou.",
"I worked 26 there for about four to six months in around mid to late 2014 as a telemarketing 27 sales representative. That company was engaged primarily in marketing debt 28 relief services to consumers with federal student loans. 1 Case 8:20-cv-00043-SB-ADS Document 190-27 Filed 05/14/21 Page 3 of 16 Page ID #:2803 1 8. After that experience, in early 2015, I became the manager of 2 Docu Prep Center, Inc. and eventually was given the title of chief executive 3 officer. 4 9. Docu Prep Center, Inc. registered as a California corporation in 5 2015 and had a business address of 3 Whatney, Suite 100, Irvine, CA 92618. 6 10.",
"Document Preparation Services, LP registered as a California 7 limited partnership in 2015. Document Preparation Services, LP was the 8 general partner of Docu Prep Center, Inc. In this Declaration, I refer to both 9 entities collectively as “Docu Prep Center.” 10 11. Docu Prep Center also operated under the d/b/a’s DocuPrep Center 11 and Certified Document Center. 12 12. My co-manager at Docu Prep Center was Robert Hoose, who was 13 given the title of chief operating officer. Like me, he had no prior executive 14 experience. 15 13. In early 2015, Nesheiwat, Cowell, and Chou directed Hoose and 16 me to work with Roosen to set up Docu Prep Center. Roosen ran a “back-end” 17 company called Student Loan Processing Center (“SLPC”) that worked with a 18 number of companies that marketed and sold student debt relief services, 19 including Advantage Student Loans, where I had previously worked.",
"By “back- 20 end,” I mean that SLPC provided the actual services that the other companies 21 marketed and sold. SLPC referred to the companies it worked with as its 22 “affiliates.” 23 14. Nesheiwat, Cowell, and Chou instructed Hoose and me to set up 24 Docu Prep Center as a new affiliate for SLPC. Under this arrangement, Docu 25 Prep Center was responsible for marketing and selling services to consumers 26 with federal student loans.",
"Once the sale was complete, SLPC would perform 27 the actual services, assisting consumers with consolidating their loans and 28 enrolling in the income-based repayment plans offered by the U.S. Department 2 Case 8:20-cv-00043-SB-ADS Document 190-27 Filed 05/14/21 Page 4 of 16 Page ID #:2804 1 of Education. SLPC provided the initial marketing materials and telemarketing 2 scripts that Docu Prep Center used, which the company then adapted. 3 15. Although Hoose and I were Docu Prep Center’s executives and 4 served as its day-to-day managers, we did not have authority over the major 5 decisions made by the company, such as decisions about how the company 6 would market and sell its services and the types of services it offered. Instead, 7 we followed directions from Nesheiwat, Cowell, and Chou, who each owned 8 limited partnership interests in Docu Prep Center. Hoose and I were not 9 allowed to make major decisions about Docu Prep Center’s operations without 10 their approval. Hoose and I also received limited partnership interests in Docu 11 Prep Center (which were smaller than the interests held by Nesheiwat, Cowell, 12 and Chou). 13 16.",
"Hoose and I began managing Docu Prep Center together in 14 February 2015. In general, I was responsible for monitoring the sales floor and 15 for hiring and firing employees. Hoose was in charge of training new 16 employees and coaching existing employees. 17 17. Hoose and I were also both signatories on the Wells Fargo bank 18 accounts for Docu Prep Center, Inc. and Document Preparation Services, LP. 19 In that capacity, we routinely signed checks on behalf of Docu Prep Center. 20 18. When Docu Prep Center started in early 2015, Chou Team Realty, 21 Inc., a mortgage lender which did business as Monster Loans, was located in 22 the same building at 3 Whatney in Irvine. Chou, Nesheiwat, and Cowell ran 23 Monster Loans, and Nesheiwat was in charge of Monster Loans’ marketing. 24 19.",
"Nesheiwat had a desk on the same floor as Docu Prep Center’s at 25 the 3 Whatney address in Irvine, and I saw him at the office almost every day. 26 Nesheiwat had strong views about how Docu Prep Center should operate, 27 which he often expressed to Hoose and me, and which I felt compelled to 28 follow. Out of all of Docu Prep Center’s limited partners, Nesheiwat was the 3 Case 8:20-cv-00043-SB-ADS Document 190-27 Filed 05/14/21 Page 5 of 16 Page ID #:2805 1 most involved in the daily operations of the company. Nesheiwat was also the 2 only limited partner with a desk on Docu Prep Center’s floor. 3 20. Nesheiwat regularly instructed Hoose and me on how to manage 4 Docu Prep Center’s operations and its employees. For example, on at least one 5 occasion, Nesheiwat directed Hoose and me to fire a Docu Prep Center 6 employee. As further described below, Nesheiwat was also very involved in 7 Docu Prep Center’s marketing. 8 21.",
"Around the end of 2015, Docu Prep Center stopped working with 9 SLPC. A company named Docs Done Right then took over the “back-end” 10 function that SLPC had previously performed. Docs Done Right was managed 11 by Eduardo Martinez. Its owners included Nesheiwat, Cowell, Chou, who 12 provided directions to Martinez regarding the company’s operations and the 13 services it provided to consumers on behalf of Docu Prep Center. 14 Docu Prep Center’s Direct Mail Marketing Process 15 22. Docu Prep Center primarily marketed its services to consumers 16 through direct mail. 17 23. In early 2015, Nesheiwat arranged for Docu Prep Center to send 18 direct mail through a mailing house called Automated Mailers (which he was 19 already using to send Monster Loans’ direct mail marketing).",
"Thereafter, 20 Nesheiwat oversaw Docu Prep Center’s relationship with Automated Mailers. 21 For example, for most of 2015, Nesheiwat directed Hoose and me to copy him 22 on communications with Automated Mailers concerning Docu Prep Center’s 23 orders—a direction that we followed. Even after that, Nesheiwat continued to 24 oversee Docu Prep Center’s relationship with Automated Mailers, ensuring that 25 Docu Prep Center paid its invoices and requesting updates from Hoose and me 26 regarding its mailings.",
"27 24. At times in 2015 and 2016, I directly communicated with, and was 28 copied on the communications of others with, Automated Mailers regarding 4 Case 8:20-cv-00043-SB-ADS Document 190-27 Filed 05/14/21 Page 6 of 16 Page ID #:2806 1 orders to send direct mail to consumers marketing Docu Prep Center’s services. 2 I am familiar with the process that was used to send Docu Prep Center’s direct 3 mail and with Docu Prep Center’s direct mail solicitations. 4 25. The marketing process generally worked as follows: Docu Prep 5 Center provided Automated Mailers with the template for its direct mail 6 solicitations, and periodically placed orders for direct mail. For most of 2015 7 and 2016, Docu Prep Center placed orders about every one or two weeks. To 8 initiate an order, Docu Prep Center provided Automated Mailers with consumer 9 names, addresses, and student loan balances (which those involved with Docu 10 Prep Center often referred to as consumer “data”) and told Automated Mailers 11 how many pieces of mail to send. Upon receiving the consumer data, 12 Automated Mailers created “proofs” of the marketing letter for Docu Prep 13 Center’s review and approval. The proofs reflected the marketing language that 14 would be contained in each outgoing Docu Prep Center letter.",
"The marketing 15 letters were generally identical except for the recipient’s name, address, and 16 student loan balance. Upon Docu Prep Center’s review and approval, 17 Automated Mailers printed and mailed out the marketing letters. 18 26. Attached as Exhibit 1 are true and correct copies of marketing 19 letters that Docu Prep Center sent in February 2016 with Automated Mailers’ 20 assistance. The letters in Exhibit 1 are representative of the marketing letters 21 that Docu Prep Center sent in 2016. 22 27. Nesheiwat oversaw Docu Prep Center’s direct mail marketing 23 through Automated Mailers. In addition, in 2015 and 2016, Nesheiwat directed 24 Bilal Abdelfattah a/k/a Bill Abdel (“Abdel”) to send Automated Mailers 25 consumer names, addresses, and student loan balances, which were used to 26 populate Docu Prep Center’s direct mail template.",
"27 28 5 Case 8:20-cv-00043-SB-ADS Document 190-27 Filed 05/14/21 Page 7 of 16 Page ID #:2807 1 28. Mohamed Hegazi, a bookkeeper who worked for both Monster 2 Loans and Docu Prep Center, was in charge of paying off the balances that 3 Docu Prep Center incurred with Automated Mailers. 4 29. Attached as Exhibit 2 is a true and correct copy of an October 2016 5 email from Nesheiwat to me, forwarding an email from Automated Mailers, 6 regarding Docu Prep Center’s balance for past mailings. Hoose and Mike Van 7 Loon (“Van Loon”), a then-executive at Monster Loans, are also copied on 8 Nesheiwat’s forwarded email. In this email string, Nesheiwat instructed Hoose 9 and me to pay down Docu Prep Center’s balance with the mailing house with 10 no more than one week’s delay whenever possible, at the request of Automated 11 Mailers. Exhibit 2 is representative of Nesheiwat’s involvement in Docu Prep 12 Center’s marketing, and of his providing directions regarding Docu Prep 13 Center’s interactions with Automated Mailers.",
"14 Docu Prep Center’s Use of Prescreened Lists 15 30. As described above, Docu Prep Center sent to Automated Mailers 16 consumers’ names, addresses, and student loan balances when it placed orders 17 for direct mail. For much of the time that it operated, Docu Prep Center 18 obtained that consumer data through Monster Loans’ account with the credit 19 bureau Experian. My understanding is that that consumer data came from 20 “prescreened lists.” 21 31. Before Docu Prep Center began using the prescreened lists, it was 22 my understanding from conversations with Nesheiwat that he intended to use 23 Monster Loans’ Experian account to buy marketing lists for Docu Prep Center 24 to use to send its direct mail. 25 32.",
"Attached as Exhibit 3 is a true and correct copy of an email 26 exchange between Nesheiwat and me from August 11, 2015. In this exchange, 27 Nesheiwat informed me that the Experian account was “about ready” to use. At 28 the time, I was not an employee of Monster Loans. 6 Case 8:20-cv-00043-SB-ADS Document 190-27 Filed 05/14/21 Page 8 of 16 Page ID #:2808 1 33. Thereafter, at Nesheiwat’s direction, Docu Prep Center began 2 using prescreened lists pulled from Monster Loans’ Experian account. Initially, 3 Abdel, who worked under Nesheiwat’s supervision, was primarily responsible 4 for placing the orders with Experian and emailing the prescreened lists to 5 Automated Mailers for use when sending Docu Prep Center’s mailings. Later, 6 Nesheiwat directed Max Chou to take over those responsibilities after Abdel 7 was fired.",
"8 34. Nesheiwat required Docu Prep Center to pay the cost of the 9 prescreened lists ordered through Monster Loans’ Experian account. For 10 example, attached as Exhibit 4 is a true and correct copy of an email from 11 Nesheiwat to Abdel, copying Hoose and me, sent on January 25, 2016. In the 12 email, Nesheiwat directs Abdel to pay a “whopping” bill from Experian. 13 Because Hoose and I were copied, and co-managed Docu Prep Center at the 14 time, I understand the email to refer to a bill for marketing lists that Monster 15 Loans purchased from Experian for Docu Prep Center’s use.",
"16 35. Nesheiwat also negotiated with Experian to obtain lower costs for 17 the prescreened lists Monster Loans obtained for Docu Prep Center’s use, and 18 provided updates to Hoose and me regarding the status of the negotiations. For 19 example, attached as Exhibit 5 is a true and correct copy of an email Nesheiwat 20 sent to Hoose and me on March 8, 2016, regarding his negotiations with 21 Experian. 22 36. Attached as Exhibit 6 is a true and correct copy of an April 8, 2016 23 “investor update” email that I sent to Van Loon and Nesheiwat.",
"This email is 24 representative of the updates that I drafted and sent to Docu Prep Center’s 25 limited partners, on the state of Docu Prep Center, including on any efforts to 26 increase profits by paying less for prescreened lists. My email informed Docu 27 Prep Center’s limited partners that “[w]e have ironed out a new deal with 28 Experian as far as our Data purchasing is concerned. We have cut the cost per 7 Case 8:20-cv-00043-SB-ADS Document 190-27 Filed 05/14/21 Page 9 of 16 Page ID #:2809 1 record from .18 cents to .09 cents and have realized that this data is performing 2 with greater response percentages as well as closing ratios.” Although I used 3 the word “we” in that sentence, I did not personally negotiate this deal with 4 Experian; rather, Nesheiwat negotiated this lower pricing for the prescreened 5 lists that Docu Prep Center would use.",
"6 37. Hegazi, the bookkeeper for both Monster Loans and Docu Prep 7 Center, used a Chase credit card to pay the Experian invoices that Docu Prep 8 Center incurred on the Monster Loans account. Docu Prep Center then 9 reimbursed Monster Loans for its share of Experian prescreened lists by writing 10 a check to Hegazi’s credit card. 11 38. Attached as Exhibit 7 is a true and correct copy of three checks 12 written in 2016 from Docu Prep Center and Document Preparation Services, 13 LP’s bank accounts. Each check is made out to “Chase credit services” or to 14 “Chase card” and contains a reference to “Experian” in the memo line. I 15 recognize my signature on all three checks. These checks are representative of 16 the reimbursement Docu Prep Center made to Monster Loans through Hegazi’s 17 Chase credit card, for the cost of the Experian prescreened lists Monster Loans 18 obtained for Docu Prep Center to use to market Docu Prep Center’s services. 19 Docu Prep Center’s Sales Calls with Consumers 20 39. Consumers called the phone number on Docu Prep Center 21 marketing letters, which routed them to the company’s call center. Docu Prep 22 Center’s sales representatives then answered these consumer calls.",
"23 40. Consumers were interested in Docu Prep Center’s services because 24 they wanted to improve the terms of their student loans. For example, 25 consumers often wanted to make lower payments or receive loan forgiveness. 26 41. Hoose and I required Docu Prep Center’s sales representatives to 27 use a script to sell the company’s services over the phone, although at times 28 sales representatives deviated from the scripts. 8 Case 8:20-cv-00043-SB-ADS Document 190-27 Filed 05/14/21 Page 10 of 16 Page ID #:2810 1 42.",
"Although some edits were incorporated into the Docu Prep Center 2 scripts between 2015 and 2017, their substance and representations remained 3 largely the same. 4 43. As a result of overseeing hundreds of sales representatives at Docu 5 Prep Center, I am familiar with the sales scripts and training materials that 6 Docu Prep Center used to market its services in 2015 and 2016. 7 44. Attached as Exhibit 8 is a true and correct copy of an email and 8 attached sales script that Hoose forwarded to Nesheiwat, Cowell, and me on 9 May 28, 2015 from an employee of SLPC. I recognize the sales script attached 10 to that email as the script that Docu Prep Center sales representatives used 11 during calls with consumers in 2015. 12 45. Attached as Exhibit 9 is a true and correct copy of a Docu Prep 13 Center training manual that the company used in 2016. The manual includes a 14 “Student Loan Advisor Script,” which I recognize as a sales script that Docu 15 Prep Center used in 2016.",
"16 46. Nesheiwat was familiar with the sales scripts that Docu Prep 17 Center used, instructed us to use specific sales scripts, approved any changes 18 that were made to the sales scripts, and directly made edits to the sales scripts 19 over time. 20 47. To my knowledge, Nesheiwat made no efforts to verify the 21 truthfulness of Docu Prep Center’s statements regarding loan consolidation 22 either before or after he instructed Hoose and me to use these sales scripts to 23 market Docu Prep Center’s services. 24 48. Docu Prep Center used software platforms to track its sales calls 25 and other interactions with consumers. For much of its operations, Docu Prep 26 Center used a customer relationship management platform called Debt Pay Pro 27 to store and track information about consumers, as well as interactions with 28 consumers as part of Docu Prep Center’s regularly conducted business 9 Case 8:20-cv-00043-SB-ADS Document 190-27 Filed 05/14/21 Page 11 of 16 Page ID #:2811 1 activities.",
"For example, Docu Prep Center’s sales representatives used Debt 2 Pay Pro to enter notes regarding calls with consumers. The information and 3 notes entered into Debt Pay Pro by Docu Prep Center’s employees were 4 regularly made by Docu Prep Center and were kept on Debt Pay Pro as part of 5 Docu Prep Center’s regular business activities. The information and notes were 6 also made at or near the time of Docu Prep Center’s interactions with 7 consumers. 8 Docu Prep Center’s Fees 9 49. Docu Prep Center’s fees for its services increased between 2015 10 and 2017, beginning at around $599 or $699, and eventually increasing to $799 11 or $899.",
"12 50. Between 2015 and 2017, Docu Prep Center used several payment 13 processors to process fees paid by consumers in ACH transactions. 14 51. In 2015, Docu Prep Center used Trans2Pay, LLC and then 15 switched to Reliant Account Management (“RAM”). Docu Prep Center later 16 began to use a company called Debt Pay Gateway, Inc. (“Debt Pay Gateway”). 17 52. Docu Prep Center also at times charged fees to consumers’ credit 18 cards using a merchant account to which it had access. 19 53. Docu Prep Center typically charged its fees soon after a 20 consumer’s enrollment, requiring that consumers generally make their first 21 payment within 10 days of enrollment and complete all payments within 45 22 days of enrollment (if the consumer paid in installments). 23 54. Docu Prep Center did not wait to charge or receive its fees until the 24 consumer’s loan consolidation and loan repayment plan were approved. Nor 25 did it wait for the consumer to begin making payments under the altered terms 26 of the consumer’s loan to charge or receive its fees.",
"27 28 10 Case 8:20-cv-00043-SB-ADS Document 190-27 Filed 05/14/21 Page 12 of 16 Page ID #:2812 1 55. Before I managed Docu Prep Center, I was not familiar with the 2 Telemarketing Sales Rule (“TSR”) or with its prohibition on charging advance 3 fees for debt relief services. 4 56. Attached as Exhibit 10 is a true and correct copy of an email that 5 Chou sent on May 18, 2015 in response to an update that I sent to Docu Prep 6 Center’s owners, including Nesheiwat. Chou asked for “information about the 7 potential ban on advance fees that might extend the time frame that we get 8 payment” and expressed concern about “a delay in being paid … slowing 9 growth” towards Docu Prep Center’s goal of closing 1,000 deals each month, 10 which the several of those involved with Docu Prep Center planned to celebrate 11 with a trip to Las Vegas. Chou noted said he was concerned because he “really 12 want[ed] to go to Vegas.” 13 57. Following Chou’s email, Docu Prep Center did not change its 14 practices to extend how long it took to receive consumers’ fees or make other 15 efforts to comply with the TSR’s requirements regarding the timing of charging 16 fees.",
"17 58. Rather, as shown in Exhibit 11, which is a true and correct copy of 18 a July 2015 email that I sent to Docu Prep Center’s investors, Docu Prep Center 19 switched to a new payment processor, RAM, which “ma[de] our funds available 20 between 7 to 9 days after the client has made their ACH payment.” Since 21 consumers generally made their first payment within 10 days of enrollment and 22 completed all payments within 45 days of enrollment, this change meant that 23 Docu Prep Center generally received consumers’ first payments within about 24 three weeks and received all of the consumers’ payments within 60 days. 25 The Four New Student Loan Debt Relief Companies 26 59.",
"Because of Docu Prep Center’s profitability, its limited partners, 27 including Nesheiwat, Chou, Cowell, Hoose, and me, decided to open four new 28 companies in the two years after Docu Prep Center was created. Those four 11 Case 8:20-cv-00043-SB-ADS Document 190-27 Filed 05/14/21 Page 13 of 16 Page ID #:2813 1 businesses were Certified Doc Prep Services, Assure Direct Services, Direct 2 Document Solutions, and Secure Preparation Services (collectively, with Docu 3 Prep Center, the “Student Loan Debt Relief Companies”). 4 60. Like Docu Prep Center, each of those businesses was structured as 5 a corporation and an associated limited partnership, and the profits from each 6 business went to its limited partner owners.",
"7 61. The four new businesses were owned by the same core group of 8 limited partners as Docu Prep Center, including Nesheiwat, Chou, Cowell, 9 Hoose, and me. 10 62. Although I was not a manager of the four new businesses, I am 11 familiar with them because I held an ownership stake in each of them, because 12 they at times interacted with Docu Prep Center, and because they were all 13 closely modeled on Docu Prep Center. 14 63. The four new businesses were managed by former employees of 15 Docu Prep Center. 16 64.",
"The four new businesses offered the same services as Docu Prep 17 Center, which involved offering to assist consumers with consolidating federal 18 student loans and enrolling in loan repayment and loan forgiveness programs. 19 65. The four new businesses marketed their services through direct 20 mail using Automated Mailers, and used the same template for direct mail that 21 Docu Prep Center did. They also used the same sales scripts as Docu Prep 22 Center. As he did for Docu Prep Center, Nesheiwat generally oversaw the four 23 businesses’ relationship with Automated Mailers. 24 66. The four new businesses sold their services to consumers during 25 telemarketing sales calls. 26 67. Like Docu Prep Center, the four new businesses used prescreened 27 lists obtained from Monster Loans’ account with Experian to send direct mail.",
"28 12 Case 8:20-cv-00043-SB-ADS Document 190-27 Filed 05/14/21 Page 14 of 16 Page ID #:2814 1 Nesheiwat played a similar role in overseeing the efforts to obtain prescreened 2 lists for their use. 3 68. The four new businesses also each used Docs Done Right to 4 provide “back-end” support services. 5 69. Two of the new businesses, which were created in 2017, were 6 effectively continuations of earlier businesses under new names.",
"7 70. In early 2017, the limited partners of Docu Prep Center decided to 8 begin operating that business using a new entity, Direct Document Solutions. 9 Direct Document Solutions was managed by Tera Wray, who had previously 10 been an employee of Docu Prep Center. Docu Prep Center’s existing 11 employees were transferred to Direct Document Solutions. Direct Document 12 Solutions continued offering the same services that Docu Prep Center had 13 previously offered. As a limited partner of Docu Prep Center, I received a 14 limited partnership interest in Direct Document Solutions when it was created.",
"15 71. Similarly, in early 2017, the limited partners of Certified Doc Prep 16 Services decided to begin operating that business using a new entity, Secure 17 Preparation Services. Secure Preparation Services was managed by Aaron 18 Sebreros and Mark Nevarez, who had previously been employees of Docu Prep 19 Center and Certified Doc Prep Services. Certified Doc Prep Services’ 20 employees were transferred to Secure Preparation Services. Secure Preparation 21 Services continued offering the same services that Certified Doc Prep Services 22 had previously offered. As a limited partner of Certified Doc Prep Services, I 23 received a limited partnership interest in Direct Document Solutions when it 24 was created. 25 72.",
"After these changes in 2017, there were three companies that were 26 continuing to offer services to new customers: Assure Direct Services, Direct 27 Document Solutions, and Secure Preparation Services. 28 13 Case 8:20-cv-00043-SB-ADS Document 190-27 Filed 05/14/21 Page 15 of 16 Page ID #:2815 1 Closure of the Student Loan Debt Relief Companies 2 73. Work at the three remaining Student Loan Debt Relief Companies 3 stopped in September 2017 after certain of the businesses received civil 4 investigative demands from the Consumer Financial Protection Bureau. 5 74. Despite the cessation of operations and the Bureau’s inquiries, 6 certain of the Student Loan Debt Relief Companies were still receiving 7 payments from consumers who had previously signed up for their services. In 8 January 2018, the limited partners asked me to wind down the affairs of the 9 three remaining Student Loan Debt Relief Companies and distribute their 10 remaining assets to the limited partners, including Nesheiwat, Chou, Cowell, 11 Hoose, and myself. 12 75. For the purpose of performing this duty, the limited partners 13 authorized a corporation that I control, Prime Ad Enterprises, Inc., to serve as 14 the new general partner of Assure Direct Services, LP, Direct Document 15 Solutions, LP, and Secure Preparation Services, LP.",
"I was also granted access 16 to those businesses’ bank accounts. 17 76. In January 2018, I began using another corporation that I control, 18 Loki Investments, Inc. (“Loki”), to receive the remaining assets of the Student 19 Loan Debt Relief Companies and to distribute those assets to the limited 20 partners, including Nesheiwat and Frank Anthony Sebreros (who owned a 21 limited partnership interest in the company he managed, Assure Direct 22 Services). To facilitate these transfers, I opened a Wells Fargo bank account 23 under Loki’s name. 24 77. As part of this process, Eduardo Martinez wrote checks from Docs 25 Done Right’s bank account to my Loki account. These checks represented fees 26 paid by consumers to the Student Loan Debt Relief Companies. 27 78. Attached as Exhibit 12 are true and correct copies of checks I 28 wrote in 2018 using the Loki bank account to distribute to Nesheiwat and 14 Case 8:20-cv-00043-SB-ADS Document 190-27 Filed 05/14/21 Page 16 of 16 Page ID #:2816"
] | https://www.courtlistener.com/api/rest/v3/recap-documents/170132633/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
ORDER PER CURIAM AND NOW, this 24th day of January, 2017, the Petition for Allowance of Appeal is DENIED. | 09-25-2021 | [
"ORDER PER CURIAM AND NOW, this 24th day of January, 2017, the Petition for Allowance of Appeal is DENIED."
] | https://www.courtlistener.com/api/rest/v3/opinions/4977468/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
People v Lewis (2020 NY Slip Op 02479)
People v Lewis
2020 NY Slip Op 02479
Decided on April 29, 2020
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on April 29, 2020
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
ALAN D. SCHEINKMAN, P.J.
LEONARD B. AUSTIN
SYLVIA O. HINDS-RADIX
PAUL WOOTEN, JJ.
2017-03599
[*1]The People of the State of New York, respondent,
vTiquan W. Lewis, appellant. (S.C.I. No. 209/16)
Salvatore C. Adamo, New York, NY, for appellant, and appellant pro se. Robert Tendy, District Attorney, Carmel, NY (David M. Bishop and Nicholas LaStella of counsel), for respondent.
DECISION & ORDER Appeal by the defendant from a judgment of the County Court, Putnam County (James F. Reitz, J.), rendered March 9, 2017, convicting him of criminal sale of a controlled substance in the third degree (three counts), upon his plea of guilty, and imposing sentence. ORDERED that the judgment is affirmed. The defendant's contention that his plea of guilty was not knowingly, voluntarily, and intelligently entered because his waiver of the right to appeal was invalid, is not preserved for appellate review since the defendant never moved to withdraw his plea prior to sentencing (see People v Lopez, 71 NY2d 662; People v Harris, 169 AD3d 924), and "the exception to the preservation requirement does not apply here, because the defendant's plea allocution did not cast significant doubt upon his guilt, negate an essential element of the crime, or call into question the voluntariness of the plea" (People v Fontanet, 126 AD3d 723, 723; see People v Tyrell, 22 NY3d 359, 364). In any event, this contention is without merit because the validity of a plea of guilty is not dependent upon the validity of a waiver of the right to appeal (see generally People v Lopez, 6 NY3d 248, 256; People v Calvi, 89 NY2d 868, 871). Further, here, the record of the plea proceedings, which included both an oral and written waiver of the defendant's right to appeal, demonstrates that the defendant received an explanation of the nature of the right to appeal and the consequences of waiving that right (see People v Orta, 169 AD3d 932). Furthermore, the record demonstrates that the defendant understood that his right to appeal was separate and distinct from those rights automatically forfeited upon a plea of guilty (see People v Sanders, 25 NY3d 337, 341). On the record presented, we conclude that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see generally id. at 341; People v Bradshaw, 18 NY3d 257, 264; People v Orta, 169 AD3d at 932-933). The defendant's contention raised in his main brief and his pro se supplemental brief that he was deprived of the effective assistance of counsel is based, in part, on matter appearing on the record and, in part, on matter outside the record, and, thus, constitutes a "mixed claim of ineffective assistance" (People v Maxwell, 89 AD3d 1108, 1109; see People v Evans, 16 NY3d 571, 575 n 2). Since the defendant's claim of ineffective assistance of counsel cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for [*2]reviewing the claim in its entirety and we decline to review the claim on this direct appeal (see People v Freeman, 93 AD3d 805, 806; People v Maxwell, 89 AD3d at 1109). The defendant's valid waiver of his right to appeal precludes appellate review of his contention that the sentence imposed was excessive (see People v Lopez, 6 NY3d at 255-256; People v Morgan, 121 AD3d 1128, 1129). The defendant's remaining contentions raised in his pro se supplemental brief are without merit. SCHEINKMAN, P.J., AUSTIN, HINDS-RADIX and WOOTEN, JJ., concur.
ENTER:
Aprilanne Agostino Clerk of the Court | 04-29-2020 | [
"People v Lewis (2020 NY Slip Op 02479) People v Lewis 2020 NY Slip Op 02479 Decided on April 29, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on April 29, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department ALAN D. SCHEINKMAN, P.J. LEONARD B. AUSTIN SYLVIA O. HINDS-RADIX PAUL WOOTEN, JJ. 2017-03599 [*1]The People of the State of New York, respondent, vTiquan W. Lewis, appellant. (S.C.I. No. 209/16) Salvatore C. Adamo, New York, NY, for appellant, and appellant pro se. Robert Tendy, District Attorney, Carmel, NY (David M. Bishop and Nicholas LaStella of counsel), for respondent.",
"DECISION & ORDER Appeal by the defendant from a judgment of the County Court, Putnam County (James F. Reitz, J. ), rendered March 9, 2017, convicting him of criminal sale of a controlled substance in the third degree (three counts), upon his plea of guilty, and imposing sentence. ORDERED that the judgment is affirmed. The defendant's contention that his plea of guilty was not knowingly, voluntarily, and intelligently entered because his waiver of the right to appeal was invalid, is not preserved for appellate review since the defendant never moved to withdraw his plea prior to sentencing (see People v Lopez, 71 NY2d 662; People v Harris, 169 AD3d 924), and \"the exception to the preservation requirement does not apply here, because the defendant's plea allocution did not cast significant doubt upon his guilt, negate an essential element of the crime, or call into question the voluntariness of the plea\" (People v Fontanet, 126 AD3d 723, 723; see People v Tyrell, 22 NY3d 359, 364). In any event, this contention is without merit because the validity of a plea of guilty is not dependent upon the validity of a waiver of the right to appeal (see generally People v Lopez, 6 NY3d 248, 256; People v Calvi, 89 NY2d 868, 871).",
"Further, here, the record of the plea proceedings, which included both an oral and written waiver of the defendant's right to appeal, demonstrates that the defendant received an explanation of the nature of the right to appeal and the consequences of waiving that right (see People v Orta, 169 AD3d 932). Furthermore, the record demonstrates that the defendant understood that his right to appeal was separate and distinct from those rights automatically forfeited upon a plea of guilty (see People v Sanders, 25 NY3d 337, 341). On the record presented, we conclude that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see generally id. at 341; People v Bradshaw, 18 NY3d 257, 264; People v Orta, 169 AD3d at 932-933). The defendant's contention raised in his main brief and his pro se supplemental brief that he was deprived of the effective assistance of counsel is based, in part, on matter appearing on the record and, in part, on matter outside the record, and, thus, constitutes a \"mixed claim of ineffective assistance\" (People v Maxwell, 89 AD3d 1108, 1109; see People v Evans, 16 NY3d 571, 575 n 2). Since the defendant's claim of ineffective assistance of counsel cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for [*2]reviewing the claim in its entirety and we decline to review the claim on this direct appeal (see People v Freeman, 93 AD3d 805, 806; People v Maxwell, 89 AD3d at 1109).",
"The defendant's valid waiver of his right to appeal precludes appellate review of his contention that the sentence imposed was excessive (see People v Lopez, 6 NY3d at 255-256; People v Morgan, 121 AD3d 1128, 1129). The defendant's remaining contentions raised in his pro se supplemental brief are without merit. SCHEINKMAN, P.J., AUSTIN, HINDS-RADIX and WOOTEN, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court"
] | https://www.courtlistener.com/api/rest/v3/opinions/4529940/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Case 4:18-cv-01060-YGR Document 156-2 Filed 03/05/19 Page 1 of 14
SHEPPARD, MULLIN, RICHTER & HAMPTON LLP 1 A Limited Liability Partnership Including Professional Corporations 2 JAY T. RAMSEY, Cal. Bar No. 273160 1901 Avenue of the Stars, Suite 1600 3 Los Angeles, California 90067-6055 Telephone: 310.228.3700 4 Facsimile: 310.228.3701 jramsey@sheppardmullin.com 5 KLEIN MOYNIHAN TURCO LLP 6 BRIAN P. ASTRUP (admitted pro hac vice) 450 Seventh Avenue, 40th Floor 7 New York, New York 10123 Telephone: 212-246-0900 8 Facsimile: 212-216-9559 bastrup@kleinmoynihan.com 9 Attorneys for Defendants 10 FREEDOM FINANCIAL NETWORK, LLC, FREEDOM DEBT RELIEF, LLC, FLUENT, 11 INC., and LEAD SCIENCE, LLC 12 UNITED STATES DISTRICT COURT
13 NORTHERN DISTRICT OF CALIFORNIA
14 OAKLAND DIVISION DANIEL BERMAN, Case No.: 4:18-CV-01060-YGR 15 Plaintiff, Hon. Yvonne Gonzalez Rogers 16 v. 17 FREEDOM FINANCIAL NETWORK, LLC, DECLARATION OF JAY T. RAMSEY, 18 FREEDOM DEBT RELIEF, LLC, FLUENT, ESQ. IN SUPPORT OF MOTION FOR 19 INC., and LEAD SCIENCE, LLC, SUMMARY JUDGMENT 20 Defendants. 21 FREEDOM FINANCIAL NETWORK, 22 LLC and FREEDOM DEBT RELIEF, LLC, 23 Third-Party Plaintiffs, 24 v. 25 DOES 1 through 5, 26 Third-Party Defendants. 27 28 Case No. 4:18-cv-01060-YGR RAMSEY DECLARATION Case 4:18-cv-01060-YGR Document 156-2 Filed 03/05/19 Page 2 of 14
1 I, Jay T. Ramsey, hereby declare: 2 1. I am over the age of eighteen and I am an attorney admitted to practice law in the
3 State of California. 4 2. I am co-counsel of record to Defendants Freedom Financial Network, LLC,
5 Freedom Debt Relief, LLC, Fluent, Inc., and Lead Science, LLC (collectively, “Defendants”). 6 3. I make this Declaration in support of Defendants’ Motion for Summary Judgment.
7 4. The following facts are based upon my personal knowledge. If called as a witness,
8 I could and would testify competently to such facts under oath. 9 5. Attached hereto as Exhibit 1 is a true and correct copy of selected portions of the
10 deposition transcript of Plaintiff Daniel Berman. 11 6. Attached hereto as Exhibit 2 is a true and correct copy of the intake form submitted
12 by Plaintiff to the law firm Berger & Montague, produced as Berger_000000001. 13 7. Attached hereto as Exhibit 3 is a true and correct copy of the text messages received
14 by Plaintiff’s phone number produced as BERMAN_001-8. 15 I declare under penalty of perjury that the foregoing is true and correct.
16 Executed in Los Angeles, California on March 5, 2019.
17 _/s/ Jay T. Ramsey_______________ 18 Jay T. Ramsey, Esq. 19 20 21 22 23 24 25 26 27 28 Case No. 4:18-cv-01060-YGR RAMSEY DECLARATION Case 4:18-cv-01060-YGR Document 156-2 Filed 03/05/19 Page 3 of 14
EXHIBIT 1 [FILED UNDER SEAL] Case 4:18-cv-01060-YGR Document 156-2 Filed 03/05/19 Page 4 of 14
EXHIBIT 2 Case 4:18-cv-01060-YGR Document 156-2 Filed 03/05/19 Page 5 of 14 Case 4:18-cv-01060-YGR Document 156-2 Filed 03/05/19 Page 6 of 14
EXHIBIT 3 Case 4:18-cv-01060-YGR Document 156-2 Filed 03/05/19 Page 7 of 14
BERMAN 001 Case 4:18-cv-01060-YGR Document 156-2 Filed 03/05/19 Page 8 of 14
BERMAN 002 Case 4:18-cv-01060-YGR Document 156-2 Filed 03/05/19 Page 9 of 14
BERMAN 003 Case 4:18-cv-01060-YGR Document 156-2 Filed 03/05/19 Page 10 of 14
BERMAN 004 Case 4:18-cv-01060-YGR Document 156-2 Filed 03/05/19 Page 11 of 14
BERMAN 005 Case 4:18-cv-01060-YGR Document 156-2 Filed 03/05/19 Page 12 of 14
BERMAN 006 Case 4:18-cv-01060-YGR Document 156-2 Filed 03/05/19 Page 13 of 14
BERMAN 007 Case 4:18-cv-01060-YGR Document 156-2 Filed 03/05/19 Page 14 of 14
BERMAN 008 | 2019-03-05 | [
"Case 4:18-cv-01060-YGR Document 156-2 Filed 03/05/19 Page 1 of 14 SHEPPARD, MULLIN, RICHTER & HAMPTON LLP 1 A Limited Liability Partnership Including Professional Corporations 2 JAY T. RAMSEY, Cal. Bar No. 273160 1901 Avenue of the Stars, Suite 1600 3 Los Angeles, California 90067-6055 Telephone: 310.228.3700 4 Facsimile: 310.228.3701 jramsey@sheppardmullin.com 5 KLEIN MOYNIHAN TURCO LLP 6 BRIAN P. ASTRUP (admitted pro hac vice) 450 Seventh Avenue, 40th Floor 7 New York, New York 10123 Telephone: 212-246-0900 8 Facsimile: 212-216-9559 bastrup@kleinmoynihan.com 9 Attorneys for Defendants 10 FREEDOM FINANCIAL NETWORK, LLC, FREEDOM DEBT RELIEF, LLC, FLUENT, 11 INC., and LEAD SCIENCE, LLC 12 UNITED STATES DISTRICT COURT 13 NORTHERN DISTRICT OF CALIFORNIA 14 OAKLAND DIVISION DANIEL BERMAN, Case No.",
": 4:18-CV-01060-YGR 15 Plaintiff, Hon. Yvonne Gonzalez Rogers 16 v. 17 FREEDOM FINANCIAL NETWORK, LLC, DECLARATION OF JAY T. RAMSEY, 18 FREEDOM DEBT RELIEF, LLC, FLUENT, ESQ. IN SUPPORT OF MOTION FOR 19 INC., and LEAD SCIENCE, LLC, SUMMARY JUDGMENT 20 Defendants. 21 FREEDOM FINANCIAL NETWORK, 22 LLC and FREEDOM DEBT RELIEF, LLC, 23 Third-Party Plaintiffs, 24 v. 25 DOES 1 through 5, 26 Third-Party Defendants. 27 28 Case No. 4:18-cv-01060-YGR RAMSEY DECLARATION Case 4:18-cv-01060-YGR Document 156-2 Filed 03/05/19 Page 2 of 14 1 I, Jay T. Ramsey, hereby declare: 2 1. I am over the age of eighteen and I am an attorney admitted to practice law in the 3 State of California. 4 2. I am co-counsel of record to Defendants Freedom Financial Network, LLC, 5 Freedom Debt Relief, LLC, Fluent, Inc., and Lead Science, LLC (collectively, “Defendants”). 6 3. I make this Declaration in support of Defendants’ Motion for Summary Judgment. 7 4. The following facts are based upon my personal knowledge. If called as a witness, 8 I could and would testify competently to such facts under oath. 9 5.",
"Attached hereto as Exhibit 1 is a true and correct copy of selected portions of the 10 deposition transcript of Plaintiff Daniel Berman. 11 6. Attached hereto as Exhibit 2 is a true and correct copy of the intake form submitted 12 by Plaintiff to the law firm Berger & Montague, produced as Berger_000000001. 13 7. Attached hereto as Exhibit 3 is a true and correct copy of the text messages received 14 by Plaintiff’s phone number produced as BERMAN_001-8. 15 I declare under penalty of perjury that the foregoing is true and correct. 16 Executed in Los Angeles, California on March 5, 2019. 17 _/s/ Jay T. Ramsey_______________ 18 Jay T. Ramsey, Esq.",
"19 20 21 22 23 24 25 26 27 28 Case No. 4:18-cv-01060-YGR RAMSEY DECLARATION Case 4:18-cv-01060-YGR Document 156-2 Filed 03/05/19 Page 3 of 14 EXHIBIT 1 [FILED UNDER SEAL] Case 4:18-cv-01060-YGR Document 156-2 Filed 03/05/19 Page 4 of 14 EXHIBIT 2 Case 4:18-cv-01060-YGR Document 156-2 Filed 03/05/19 Page 5 of 14 Case 4:18-cv-01060-YGR Document 156-2 Filed 03/05/19 Page 6 of 14 EXHIBIT 3 Case 4:18-cv-01060-YGR Document 156-2 Filed 03/05/19 Page 7 of 14 BERMAN 001 Case 4:18-cv-01060-YGR Document 156-2 Filed 03/05/19 Page 8 of 14 BERMAN 002 Case 4:18-cv-01060-YGR Document 156-2 Filed 03/05/19 Page 9 of 14 BERMAN 003 Case 4:18-cv-01060-YGR Document 156-2 Filed 03/05/19 Page 10 of 14 BERMAN 004 Case 4:18-cv-01060-YGR Document 156-2 Filed 03/05/19 Page 11 of 14 BERMAN 005 Case 4:18-cv-01060-YGR Document 156-2 Filed 03/05/19 Page 12 of 14 BERMAN 006 Case 4:18-cv-01060-YGR Document 156-2 Filed 03/05/19 Page 13 of 14 BERMAN 007 Case 4:18-cv-01060-YGR Document 156-2 Filed 03/05/19 Page 14 of 14 BERMAN 008"
] | https://www.courtlistener.com/api/rest/v3/recap-documents/164902610/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
An appeal from the Circuit Court for Bay County. Hentz McClellan, Judge. AFFIRMED. | 08-24-2021 | [
"An appeal from the Circuit Court for Bay County. Hentz McClellan, Judge. AFFIRMED."
] | https://www.courtlistener.com/api/rest/v3/opinions/4853108/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
RAMIREZ, J. Warren Roberts petitions for a writ of prohibition to prevent the respondent State of Florida from prosecuting him due to the expiration of the speedy trial period as provided for in Florida Rule of Criminal Procedure 3.191. We deny the petition because we find that the trial court properly denied Roberts’ motion for discharge. Rule 3.191(c) provides that a trial commences “when the trial jury panel for that specific trial is sworn for voir dire examination. ...” See also McDermott v. State, 383 So.2d 712, 714 (Fla. 3d DCA 1980). It is undisputed that the trial in this case commenced within the speedy trial period because a jury panel was brought to court and sworn pursuant to rule 3.300(a) within the time provided under rule 3.191. During voir dire, however, Roberts successfully moved to strike the panel. The next morning, when a new jury panel had been assembled and voir dire was to begin, the State requested a continuance to seek a grand jury indictment, arguing that Roberts had waived his speedy trial rights and the State was entitled to an additional 90 days pursuant to rule 3.191(m). The trial court granted the continuance, finding that the State can add or upgrade charges following a mistrial. Roberts argues on appeal that his situation is similar to McDermott. We cannot agree. In McDermott, after the jury had been selected and sworn, the State was granted a 55-day continuance to secure the presence of witnesses. McDermott did not in any way contribute to the delay. Additionally, the State had not shown good cause to warrant a continuation. Id. at 715. This case does not deal with a situation where the State, through its own fault, caused a delay. The delay here was caused by Roberts’ motion to strike the panel. At that point, Roberts had been timely brought to trial because the trial commenced when the jury panel was sworn. Rule 3.191(m) provides, in pertinent part: Effect of Mistrial; Appeal; Order of New Trial. A person who is to be tried again or whose trial has been delayed by an appeal by the state or the defendant shall be brought to trial within 90 days from the date of declaration of a mistrial by the trial court.... Although it does not specifically mention a motion to strike the panel, we interpret rule 3.191(m) to apply to a situation where the defendant makes such a motion, thereby becoming “a person to be tried again.” The State, therefore, had ninety days from the date in which Roberts’ motion was granted to bring him to trial. Petition denied. | 07-30-2022 | [
"RAMIREZ, J. Warren Roberts petitions for a writ of prohibition to prevent the respondent State of Florida from prosecuting him due to the expiration of the speedy trial period as provided for in Florida Rule of Criminal Procedure 3.191. We deny the petition because we find that the trial court properly denied Roberts’ motion for discharge. Rule 3.191(c) provides that a trial commences “when the trial jury panel for that specific trial is sworn for voir dire examination. ...” See also McDermott v. State, 383 So.2d 712, 714 (Fla. 3d DCA 1980). It is undisputed that the trial in this case commenced within the speedy trial period because a jury panel was brought to court and sworn pursuant to rule 3.300(a) within the time provided under rule 3.191. During voir dire, however, Roberts successfully moved to strike the panel.",
"The next morning, when a new jury panel had been assembled and voir dire was to begin, the State requested a continuance to seek a grand jury indictment, arguing that Roberts had waived his speedy trial rights and the State was entitled to an additional 90 days pursuant to rule 3.191(m). The trial court granted the continuance, finding that the State can add or upgrade charges following a mistrial. Roberts argues on appeal that his situation is similar to McDermott. We cannot agree. In McDermott, after the jury had been selected and sworn, the State was granted a 55-day continuance to secure the presence of witnesses. McDermott did not in any way contribute to the delay.",
"Additionally, the State had not shown good cause to warrant a continuation. Id. at 715. This case does not deal with a situation where the State, through its own fault, caused a delay. The delay here was caused by Roberts’ motion to strike the panel. At that point, Roberts had been timely brought to trial because the trial commenced when the jury panel was sworn. Rule 3.191(m) provides, in pertinent part: Effect of Mistrial; Appeal; Order of New Trial.",
"A person who is to be tried again or whose trial has been delayed by an appeal by the state or the defendant shall be brought to trial within 90 days from the date of declaration of a mistrial by the trial court.... Although it does not specifically mention a motion to strike the panel, we interpret rule 3.191(m) to apply to a situation where the defendant makes such a motion, thereby becoming “a person to be tried again.” The State, therefore, had ninety days from the date in which Roberts’ motion was granted to bring him to trial. Petition denied."
] | https://www.courtlistener.com/api/rest/v3/opinions/7758179/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Case 1:18-cv-12297-LJL-KNF Document 54 Filed 11/17/20 Page 1 of 1
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------------------------------------X LYNDA STEWART, Plaintiff, 18 CIVIL 12297 (LJL)
-against- JUDGMENT FASHION INSTITUTE OF TECHNOLOGY, Defendants. -----------------------------------------------------------X
It is hereby ORDERED, ADJUDGED AND DECREED: That for the reasons
stated in the Court's Opinion and Order dated November 16, 2020, Defendant is entitled to
summary judgment on all counts, and the complaint is dismissed; accordingly, the case is closed.
Dated: New York, New York November 17, 2020
RUBY J. KRAJICK _________________________ Clerk of Court BY: _________________________ Deputy Clerk | 2020-11-17 | [
"Case 1:18-cv-12297-LJL-KNF Document 54 Filed 11/17/20 Page 1 of 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------------------------------------X LYNDA STEWART, Plaintiff, 18 CIVIL 12297 (LJL) -against- JUDGMENT FASHION INSTITUTE OF TECHNOLOGY, Defendants. -----------------------------------------------------------X It is hereby ORDERED, ADJUDGED AND DECREED: That for the reasons stated in the Court's Opinion and Order dated November 16, 2020, Defendant is entitled to summary judgment on all counts, and the complaint is dismissed; accordingly, the case is closed. Dated: New York, New York November 17, 2020 RUBY J. KRAJICK _________________________ Clerk of Court BY: _________________________ Deputy Clerk"
] | https://www.courtlistener.com/api/rest/v3/recap-documents/151938762/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
J. S67031/14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : : RAYMOND CHARLES WHITE, : : Appellant : No. 655 WDA 2014
Appeal from the PCRA Order February 24, 2014 In the Court of Common Pleas of Allegheny County Criminal Division No(s).: CP-02-CR-0013548-2000
BEFORE: DONOHUE, MUNDY, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED MAY 12, 2015
Appellant, Raymond Charles White, appeals pro se from order of the
Allegheny County Court of Common Pleas dismissing his second Post
Conviction Relief Act1 (PCRA) petition as untimely filed. This Panel
previously remanded the matter twice to determine the status of appointed
counsel. Commonwealth v. White, 655 WDA 2014 (unpublished
memorandum) (Pa. Super. Mar. 5, 2015); Commonwealth v. White, 655
WDA 2014 (unpublished memorandum) (Pa. Super. Jan. 7, 2015). The
* Former Justice specially assigned to the Superior Court. 1 42 Pa.C.S. §§ 9541-9546. J. S67031/14
PCRA court conducted a Grazier2 hearing at which Appellant elected to
proceed pro se based on the briefs he previously submitted to this Court.3
This matter is now properly before us, and we affirm.
We previously outlined the extended procedural history giving rise to
this appeal from the dismissal of Appellant’s second PCRA petition from the
August 2004 conviction for third-degree murder and conspiracy. White,
655 WDA 2014, at 2-6 (Pa. Super. Jan. 7, 2015). We reiterate that
following his conviction, Appellant unsuccessfully appealed to this Court, see
Commonwealth v. White, 2072 WDA 2002 (unpublished memorandum)
(Pa. Super. Aug. 24, 2004), but did not file a petition for allowance of
appeal. Appellant then filed an untimely first PCRA, the dismissal of which
was affirmed by the Court. See Commonwealth v. White, 1881 WDA
2007 (unpublished memorandum) (Pa. Super. June 2, 2008). Appellant’s
petition for allowance of appeal was denied. The instant petition was
received by the PCRA court on October 27, 2008, and dismissed by the order
of February 24, 2014.4
2 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998). 3 See N.T., 3/18/15, at 10. 4 As discussed in White, 655 WDA 2014 , at 2-6 (Pa. Super. Jan. 7, 2015), the PCRA court initially dismissed Appellant’s second and third PCRA petitions. This Court, in a previous appeal from the dismissal of Appellant’s third PCRA petition, remanded for the reinstatement of Appellant’s second PCRA petition. See Commonwealth v. White, 910 WDA 2012 (unpublished memorandum) (Pa. Super. Jan. 28, 2013).
-2- J. S67031/14
Appellant, in his pro se brief, contends his second PCRA petition fell
within the time-bar exception at 42 Pa.C.S. § 9545(b)(1)(ii) and he is
entitled to an evidentiary hearing on his claim of abandonment by direct
appeal counsel. He asserts he was abandoned when his then-privately
retained direct appeal counsel refused to file a requested PAA with the
Pennsylvania Supreme Court. He does not dispute that the underlying
judgment of sentence became final on September 23, 2004. He avers,
however, he only knew a PAA in his direct appeal was not filed as of
December 11, 2005, when he received a court docket. He further outlines
the following chronology. First, he filed his first PCRA petition in January
2006, within sixty days of his alleged discovery of direct appeal counsel’s
abandonment. Second, the Pennsylvania Supreme Court decided
Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 2007), on August 23,
2007, after the PCRA court dismissed his first petition as untimely and while
his appeal from that order was pending. Third, he filed the instant second
petition in October 2008, within sixty days of the conclusion of his appeal
from the dismissal of his first PCRA petition. See generally
Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000) (holding second
PCRA petition may be considered timely filed if it is filed within sixty days of
order which finally resolves previous PCRA petition). Appellant asserts his
second PCRA petition must be deemed timely under the principles set forth
-3- J. S67031/14
in Bennett and this Court’s decision in Commonwealth v. Smith, 35 A.3d 766 (Pa. Super. 2011). We disagree.
When reviewing an order dismissing a PCRA petition, we consider
“whether the determination of the PCRA court is supported by evidence of
record and is free of legal error.” Commonwealth v. Brandon, 51 A.3d 231, 233 (Pa. Super. 2012). We reiterate,
Our Supreme Court has stressed that “[t]he PCRA’s timeliness requirements are jurisdictional in nature and must be strictly construed; courts may not address the merits of the issues raised in a petition if it is not timely filed.” It is well settled that “[a]ny and all PCRA petitions must be filed within one year of the date on which the petitioner’s judgment became final, unless one of three statutory exceptions applies.” “A judgment becomes final at the conclusion of direct review, including discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsylvania, or at the expiration of time for seeking the review.” 42 Pa.C.S.[ ] § 9545(b)(3).
The exceptions to the PCRA’s timing requirements are set forth in 42 Pa.C.S.[ ] § 9545, as follows:
(b) Time for filing petition.—
(1) Any petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final, unless the petition alleges and the petitioner proves that:
* * *
(ii) the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence; or
-4- J. S67031/14
* * *
(2) Any petition invoking an exception provided in paragraph (1) shall be filed within 60 days of the date the claim could have been presented.
42 Pa.C.S.[ ] § 9545(b)(1) and (2).
* * *
. . . The plain language of section 9545(b)(1)(ii) and section 9545(b)(2) creates a three-part test: 1) the discovery of an unknown fact; 2) the fact could not have been learned by the exercise of due diligence; and 3) the petition for relief was filed within 60 days of the date that the claim could have been presented. . . . In our view, the third inquiry must involve a bifurcated analysis. If the claim does not involve a new theory or method of obtaining relief on collateral review, a petition must be filed within sixty days of discovering the fact exercising due diligence. If the claim does involve a new theory or method of obtaining relief on collateral review, a petition must have been filed within sixty days of discovering the factual predicate for the claim exercising due diligence. In addition, the denial of such claim on the basis of untimeliness must then have been appealed to our Supreme Court, and the petition seeking relief under section 9545(b)(1)(ii) must have been filed within sixty days of the new theory or method of obtaining relief being recognized.
Smith, 35 A.3d at 768-69, 711 (some citations omitted).
In Commonwealth v. Huddleston, 55 A.3d 1217 (Pa. Super. 2013),
this Court summarized the decisional law discussed in Smith:
In Bennett, supra, our Supreme Court found that attorney abandonment may constitute a factual basis for the section 9545(b)(1)(ii) timeliness exception. In that case, the appeal from the dismissal of Bennett’s first, timely, PCRA petition was dismissed by this Court because counsel failed to file a brief. Bennett filed a second PCRA
-5- J. S67031/14
petition alleging that he had attempted to find out the status of his PCRA appeal, did not learn that it was dismissed due to counsel’s failure to file a brief until he received a letter from this Court explaining what had transpired, and filed a new PCRA petition within 60 days of so learning. The PCRA court granted Bennett leave to appeal the dismissal of his first PCRA petition nunc pro tunc, but this Court quashed the appeal as untimely. Our Supreme Court reversed this Court, holding that Bennett sufficiently alleged that he had been abandoned by counsel on his first PCRA petition and acted with due diligence in ascertaining the fact of the abandonment to satisfy the timeliness exception of the PCRA found at section 9545(b)(1)(ii).
In Commonwealth v. Watts, 611 Pa. 80, 23 A.3d 980 (2011), Watts’s direct appeal was dismissed in 2002 because counsel failed to file a docketing statement. Within 60 days of learning of the dismissal in August 2003, Watts filed a PCRA petition seeking reinstatement of his direct appeal rights nunc pro tunc. The PCRA court dismissed the petition as untimely, and this Court affirmed in August 2005, noting that Watts did not exercise due diligence in determining the status of his appeal. Watts did not seek review of our decision by our Supreme Court. In 2007, Watts filed a second PCRA petition, again alleging attorney abandonment, but claiming that his petition met the timeliness exception of section 9545(b)(1)(ii) because it was filed within 60 days of the Bennett decision. The PCRA court dismissed the petition as untimely, this Court reversed, and our Supreme Court reversed us, holding that the PCRA court properly dismissed Watts’ second PCRA petition. The Court held that the Bennett decision was not a fact upon which Watts could rely in meeting the timeliness exception of section 9545(b)(1)(ii). Id. at 986. The factual predicate of Watts’ claim was his counsel's abandonment, which Watts discovered in 2003, within the one-year PCRA deadline. As such, the abandonment could not serve to satisfy section 9545(b)(1)(ii) for a petition filed in 2007. Id.
This Court sought to explain the interplay of the Bennett and Watts decisions and the language of section 9545(b) in Commonwealth v. Smith, 35 A.3d 766 (Pa.
-6- J. S67031/14
Super. 2011). In that case, Smith’s first, timely, PCRA petition was dismissed in 2001 after counsel did not file a brief on appeal. Less than two weeks after the appeal was dismissed, Smith filed a second PCRA petition seeking reinstatement of his direct appeal rights nunc pro tunc, which the PCRA court granted. This Court quashed the nunc pro tunc appeal in 2005, determining that Smith’s second PCRA petition was untimely, and the Pennsylvania Supreme Court denied allowance of appeal. In 2007, within 60 days of the filing of the Bennett decision, Smith filed a third PCRA petition, claiming that the petition was timely because Bennett afforded him a new method for obtaining collateral review. The PCRA court dismissed the petition as untimely. This Court reversed, holding that because Smith, unlike Watts, had attempted to “become Bennett” by seeking allowance of appeal from our Supreme Court, yet had his diligent efforts to avail himself of the opportunities of the PCRA thwarted by counsel’s initial abandonment, he was now entitled to have the merits of his PCRA petition addressed by a court. Although the factual predicate of Smith’s claims for purposes of section 9545(b)(1)(ii) was the dismissal of his first PCRA petition in 2001 due to counsel’s abandonment, the subsequent change in law that occurred in 2007 with the Bennett decision afforded Smith his first opportunity to present his claim pursuant to section 9545(b)(2). Therefore, this Court held that Smith’s third PCRA petition satisfied the section 9545(b)(1)(ii) timeliness exception because it was filed within 60 days of the Bennett decision, i.e., within 60 days of the date that the claim could have been presented.
Huddleston, 55 A.3d at 1220-21 (citations omitted).
Presently, as to Appellant’s contention that he discovered direct appeal
counsel’s abandonment on December 11, 2005, this Court previously
suggested such a claim would be disingenuous in the appeal from the
dismissal of Appellant’s first PCRA petition:
The key substantive claim raised in [Appellant]’s [first] pro se petition is that prior appellate counsel was
-7- J. S67031/14
ineffective for effectively “abandoning” him and failing to file a PAA with the Supreme Court after our Court affirmed his judgment of sentence. However, [Appellant] acknowledges that he was notified by letter dated September 2, 2004 of [privately retained] counsel’s intent not to file a PAA due to lack of funds. (See Appellant’s Brief at 10.) Thus, [Appellant] was clearly aware of this ineffectiveness claim as early as September 2004, but he did not file his [first] petition until January 2006. Regardless of whether he had access to his still unidentified “legal materials,” [Appellant] could have filed a PCRA petition asserting counsel’s ineffectiveness well before September 2005 when the one-year filing period was set to expire.
White, 1881 WDA 2007, at 4 (emphasis added).
Thus, we could consider this issue previously litigated. In any event,
we discern no basis to reconsider our prior conclusion that Appellant’s
present claim was not timely presented in his first PCRA petition, let alone
conclude that the underlying second PCRA petition was timely filed based
on Appellant’s claim of abandonment.5
As to Appellant’s legal argument based on Bennett and Smith, we
initially note that those cases considered the abandonment of counsel with
respect to PCRA appeals. Nevertheless, Bennett was decided seven days
after the PCRA court dismissed Appellant’s first PCRA petition. Bennett
5 Furthermore, even if we were to reconsider Appellant’s factual allegations regarding when he discovered direct appeal counsel’s abandonment, we would conclude that he was on notice that direct appeal counsel refused further representation on May 13, 2005. On that date, privately retained counsel sent a letter informing Appellant informing that the attempts to secure funding for the filing of a PAA failed. Thus, Appellant’s reliance on December 11, 2005 as the date of discovery is meritless as he was on notice of counsel’s inaction no later than May 13, 2005.
-8- J. S67031/14
thus constituted the law under which this Court decided Appellant’s appeal
from the dismissal of his first petition and the Pennsylvania Supreme Court
denied Appellant’s PAA from our order. Cf. Commonwealth v.
Montgomery, 938 a2d 981 (Pa. 2007) (remanding, per curiam, decision of
this Court for further consideration in light of Bennett); Commonwealth v.
Lasky, 934 A.2d 120, 123 (Pa. Super. 2007) (applying Bennett in appeal
taken before Bennett was decided by Pennsylvania Supreme Court, but
appeal remained pending when Bennett was decided). Therefore,
Appellant, unlike Smith, had the benefit of Bennett being the law during his
appeal from the dismissal of his first PCRA petition. In light of the
foregoing, we discern no merit to Appellant’s argument that Bennett and
Smith control the alleged timeliness of his second petition. Rather, this
case is closer to Watts, as Appellant seeks to rely on Bennett as a
predicate “fact” giving rise to his claim for a time-bar exception under
Section 9545(b)(1)(ii).
Having reviewed Appellant’s pro se arguments, the record, and the
legal principles relevant to this appeal, we conclude Appellant did not
establish his right to relief under Section 9545(b)(1)(ii). Accordingly, as we
discern no abuse of discretion or error of law in the PCRA court’s dismissal of
Appellant’s second PCRA petition on timeliness grounds, we affirm.
Order affirmed.
-9- J. S67031/14
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 5/12/2015
- 10 - | 05-12-2015 | [
"J. S67031/14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : : RAYMOND CHARLES WHITE, : : Appellant : No. 655 WDA 2014 Appeal from the PCRA Order February 24, 2014 In the Court of Common Pleas of Allegheny County Criminal Division No(s). : CP-02-CR-0013548-2000 BEFORE: DONOHUE, MUNDY, and FITZGERALD,* JJ. MEMORANDUM BY FITZGERALD, J.: FILED MAY 12, 2015 Appellant, Raymond Charles White, appeals pro se from order of the Allegheny County Court of Common Pleas dismissing his second Post Conviction Relief Act1 (PCRA) petition as untimely filed. This Panel previously remanded the matter twice to determine the status of appointed counsel. Commonwealth v. White, 655 WDA 2014 (unpublished memorandum) (Pa. Super. Mar. 5, 2015); Commonwealth v. White, 655 WDA 2014 (unpublished memorandum) (Pa. Super. Jan. 7, 2015). The * Former Justice specially assigned to the Superior Court. 1 42 Pa.C.S.",
"§§ 9541-9546. J. S67031/14 PCRA court conducted a Grazier2 hearing at which Appellant elected to proceed pro se based on the briefs he previously submitted to this Court.3 This matter is now properly before us, and we affirm. We previously outlined the extended procedural history giving rise to this appeal from the dismissal of Appellant’s second PCRA petition from the August 2004 conviction for third-degree murder and conspiracy. White, 655 WDA 2014, at 2-6 (Pa. Super. Jan. 7, 2015).",
"We reiterate that following his conviction, Appellant unsuccessfully appealed to this Court, see Commonwealth v. White, 2072 WDA 2002 (unpublished memorandum) (Pa. Super. Aug. 24, 2004), but did not file a petition for allowance of appeal. Appellant then filed an untimely first PCRA, the dismissal of which was affirmed by the Court. See Commonwealth v. White, 1881 WDA 2007 (unpublished memorandum) (Pa. Super. June 2, 2008). Appellant’s petition for allowance of appeal was denied. The instant petition was received by the PCRA court on October 27, 2008, and dismissed by the order of February 24, 2014.4 2 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998). 3 See N.T., 3/18/15, at 10. 4 As discussed in White, 655 WDA 2014 , at 2-6 (Pa. Super. Jan. 7, 2015), the PCRA court initially dismissed Appellant’s second and third PCRA petitions. This Court, in a previous appeal from the dismissal of Appellant’s third PCRA petition, remanded for the reinstatement of Appellant’s second PCRA petition. See Commonwealth v. White, 910 WDA 2012 (unpublished memorandum) (Pa. Super. Jan. 28, 2013). -2- J. S67031/14 Appellant, in his pro se brief, contends his second PCRA petition fell within the time-bar exception at 42 Pa.C.S. § 9545(b)(1)(ii) and he is entitled to an evidentiary hearing on his claim of abandonment by direct appeal counsel.",
"He asserts he was abandoned when his then-privately retained direct appeal counsel refused to file a requested PAA with the Pennsylvania Supreme Court. He does not dispute that the underlying judgment of sentence became final on September 23, 2004. He avers, however, he only knew a PAA in his direct appeal was not filed as of December 11, 2005, when he received a court docket. He further outlines the following chronology. First, he filed his first PCRA petition in January 2006, within sixty days of his alleged discovery of direct appeal counsel’s abandonment. Second, the Pennsylvania Supreme Court decided Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 2007), on August 23, 2007, after the PCRA court dismissed his first petition as untimely and while his appeal from that order was pending. Third, he filed the instant second petition in October 2008, within sixty days of the conclusion of his appeal from the dismissal of his first PCRA petition. See generally Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000) (holding second PCRA petition may be considered timely filed if it is filed within sixty days of order which finally resolves previous PCRA petition). Appellant asserts his second PCRA petition must be deemed timely under the principles set forth -3- J. S67031/14 in Bennett and this Court’s decision in Commonwealth v. Smith, 35 A.3d 766 (Pa. Super.",
"2011). We disagree. When reviewing an order dismissing a PCRA petition, we consider “whether the determination of the PCRA court is supported by evidence of record and is free of legal error.” Commonwealth v. Brandon, 51 A.3d 231, 233 (Pa. Super. 2012). We reiterate, Our Supreme Court has stressed that “[t]he PCRA’s timeliness requirements are jurisdictional in nature and must be strictly construed; courts may not address the merits of the issues raised in a petition if it is not timely filed.” It is well settled that “[a]ny and all PCRA petitions must be filed within one year of the date on which the petitioner’s judgment became final, unless one of three statutory exceptions applies.” “A judgment becomes final at the conclusion of direct review, including discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsylvania, or at the expiration of time for seeking the review.” 42 Pa.C.S.",
"[ ] § 9545(b)(3). The exceptions to the PCRA’s timing requirements are set forth in 42 Pa.C.S. [ ] § 9545, as follows: (b) Time for filing petition.— (1) Any petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final, unless the petition alleges and the petitioner proves that: * * * (ii) the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence; or -4- J. S67031/14 * * * (2) Any petition invoking an exception provided in paragraph (1) shall be filed within 60 days of the date the claim could have been presented. 42 Pa.C.S. [ ] § 9545(b)(1) and (2). * * * . . . The plain language of section 9545(b)(1)(ii) and section 9545(b)(2) creates a three-part test: 1) the discovery of an unknown fact; 2) the fact could not have been learned by the exercise of due diligence; and 3) the petition for relief was filed within 60 days of the date that the claim could have been presented.",
". . . In our view, the third inquiry must involve a bifurcated analysis. If the claim does not involve a new theory or method of obtaining relief on collateral review, a petition must be filed within sixty days of discovering the fact exercising due diligence. If the claim does involve a new theory or method of obtaining relief on collateral review, a petition must have been filed within sixty days of discovering the factual predicate for the claim exercising due diligence. In addition, the denial of such claim on the basis of untimeliness must then have been appealed to our Supreme Court, and the petition seeking relief under section 9545(b)(1)(ii) must have been filed within sixty days of the new theory or method of obtaining relief being recognized.",
"Smith, 35 A.3d at 768-69, 711 (some citations omitted). In Commonwealth v. Huddleston, 55 A.3d 1217 (Pa. Super. 2013), this Court summarized the decisional law discussed in Smith: In Bennett, supra, our Supreme Court found that attorney abandonment may constitute a factual basis for the section 9545(b)(1)(ii) timeliness exception. In that case, the appeal from the dismissal of Bennett’s first, timely, PCRA petition was dismissed by this Court because counsel failed to file a brief. Bennett filed a second PCRA -5- J. S67031/14 petition alleging that he had attempted to find out the status of his PCRA appeal, did not learn that it was dismissed due to counsel’s failure to file a brief until he received a letter from this Court explaining what had transpired, and filed a new PCRA petition within 60 days of so learning. The PCRA court granted Bennett leave to appeal the dismissal of his first PCRA petition nunc pro tunc, but this Court quashed the appeal as untimely. Our Supreme Court reversed this Court, holding that Bennett sufficiently alleged that he had been abandoned by counsel on his first PCRA petition and acted with due diligence in ascertaining the fact of the abandonment to satisfy the timeliness exception of the PCRA found at section 9545(b)(1)(ii).",
"In Commonwealth v. Watts, 611 Pa. 80, 23 A.3d 980 (2011), Watts’s direct appeal was dismissed in 2002 because counsel failed to file a docketing statement. Within 60 days of learning of the dismissal in August 2003, Watts filed a PCRA petition seeking reinstatement of his direct appeal rights nunc pro tunc. The PCRA court dismissed the petition as untimely, and this Court affirmed in August 2005, noting that Watts did not exercise due diligence in determining the status of his appeal. Watts did not seek review of our decision by our Supreme Court.",
"In 2007, Watts filed a second PCRA petition, again alleging attorney abandonment, but claiming that his petition met the timeliness exception of section 9545(b)(1)(ii) because it was filed within 60 days of the Bennett decision. The PCRA court dismissed the petition as untimely, this Court reversed, and our Supreme Court reversed us, holding that the PCRA court properly dismissed Watts’ second PCRA petition. The Court held that the Bennett decision was not a fact upon which Watts could rely in meeting the timeliness exception of section 9545(b)(1)(ii). Id. at 986. The factual predicate of Watts’ claim was his counsel's abandonment, which Watts discovered in 2003, within the one-year PCRA deadline. As such, the abandonment could not serve to satisfy section 9545(b)(1)(ii) for a petition filed in 2007. Id. This Court sought to explain the interplay of the Bennett and Watts decisions and the language of section 9545(b) in Commonwealth v. Smith, 35 A.3d 766 (Pa. -6- J. S67031/14 Super.",
"2011). In that case, Smith’s first, timely, PCRA petition was dismissed in 2001 after counsel did not file a brief on appeal. Less than two weeks after the appeal was dismissed, Smith filed a second PCRA petition seeking reinstatement of his direct appeal rights nunc pro tunc, which the PCRA court granted. This Court quashed the nunc pro tunc appeal in 2005, determining that Smith’s second PCRA petition was untimely, and the Pennsylvania Supreme Court denied allowance of appeal. In 2007, within 60 days of the filing of the Bennett decision, Smith filed a third PCRA petition, claiming that the petition was timely because Bennett afforded him a new method for obtaining collateral review. The PCRA court dismissed the petition as untimely.",
"This Court reversed, holding that because Smith, unlike Watts, had attempted to “become Bennett” by seeking allowance of appeal from our Supreme Court, yet had his diligent efforts to avail himself of the opportunities of the PCRA thwarted by counsel’s initial abandonment, he was now entitled to have the merits of his PCRA petition addressed by a court. Although the factual predicate of Smith’s claims for purposes of section 9545(b)(1)(ii) was the dismissal of his first PCRA petition in 2001 due to counsel’s abandonment, the subsequent change in law that occurred in 2007 with the Bennett decision afforded Smith his first opportunity to present his claim pursuant to section 9545(b)(2). Therefore, this Court held that Smith’s third PCRA petition satisfied the section 9545(b)(1)(ii) timeliness exception because it was filed within 60 days of the Bennett decision, i.e., within 60 days of the date that the claim could have been presented.",
"Huddleston, 55 A.3d at 1220-21 (citations omitted). Presently, as to Appellant’s contention that he discovered direct appeal counsel’s abandonment on December 11, 2005, this Court previously suggested such a claim would be disingenuous in the appeal from the dismissal of Appellant’s first PCRA petition: The key substantive claim raised in [Appellant]’s [first] pro se petition is that prior appellate counsel was -7- J. S67031/14 ineffective for effectively “abandoning” him and failing to file a PAA with the Supreme Court after our Court affirmed his judgment of sentence.",
"However, [Appellant] acknowledges that he was notified by letter dated September 2, 2004 of [privately retained] counsel’s intent not to file a PAA due to lack of funds. (See Appellant’s Brief at 10.) Thus, [Appellant] was clearly aware of this ineffectiveness claim as early as September 2004, but he did not file his [first] petition until January 2006. Regardless of whether he had access to his still unidentified “legal materials,” [Appellant] could have filed a PCRA petition asserting counsel’s ineffectiveness well before September 2005 when the one-year filing period was set to expire. White, 1881 WDA 2007, at 4 (emphasis added). Thus, we could consider this issue previously litigated. In any event, we discern no basis to reconsider our prior conclusion that Appellant’s present claim was not timely presented in his first PCRA petition, let alone conclude that the underlying second PCRA petition was timely filed based on Appellant’s claim of abandonment.5 As to Appellant’s legal argument based on Bennett and Smith, we initially note that those cases considered the abandonment of counsel with respect to PCRA appeals.",
"Nevertheless, Bennett was decided seven days after the PCRA court dismissed Appellant’s first PCRA petition. Bennett 5 Furthermore, even if we were to reconsider Appellant’s factual allegations regarding when he discovered direct appeal counsel’s abandonment, we would conclude that he was on notice that direct appeal counsel refused further representation on May 13, 2005. On that date, privately retained counsel sent a letter informing Appellant informing that the attempts to secure funding for the filing of a PAA failed. Thus, Appellant’s reliance on December 11, 2005 as the date of discovery is meritless as he was on notice of counsel’s inaction no later than May 13, 2005. -8- J. S67031/14 thus constituted the law under which this Court decided Appellant’s appeal from the dismissal of his first petition and the Pennsylvania Supreme Court denied Appellant’s PAA from our order. Cf. Commonwealth v. Montgomery, 938 a2d 981 (Pa. 2007) (remanding, per curiam, decision of this Court for further consideration in light of Bennett); Commonwealth v. Lasky, 934 A.2d 120, 123 (Pa. Super. 2007) (applying Bennett in appeal taken before Bennett was decided by Pennsylvania Supreme Court, but appeal remained pending when Bennett was decided). Therefore, Appellant, unlike Smith, had the benefit of Bennett being the law during his appeal from the dismissal of his first PCRA petition.",
"In light of the foregoing, we discern no merit to Appellant’s argument that Bennett and Smith control the alleged timeliness of his second petition. Rather, this case is closer to Watts, as Appellant seeks to rely on Bennett as a predicate “fact” giving rise to his claim for a time-bar exception under Section 9545(b)(1)(ii). Having reviewed Appellant’s pro se arguments, the record, and the legal principles relevant to this appeal, we conclude Appellant did not establish his right to relief under Section 9545(b)(1)(ii). Accordingly, as we discern no abuse of discretion or error of law in the PCRA court’s dismissal of Appellant’s second PCRA petition on timeliness grounds, we affirm. Order affirmed.",
"-9- J. S67031/14 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 5/12/2015 - 10 -"
] | https://www.courtlistener.com/api/rest/v3/opinions/2800250/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Notice of Pre-AIA or AIA Status 1. The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
2. Applicant cancelled claim 7.
Allowable Subject Matter
3. Claims 1-6 are allowed.
4. The following is an examiner’s statement of reasons for allowance:
Claim 1 is allowed because the closest prior art, Bowman (Patent No. US 5,115,447) discloses system for controlling the positions of each of the three electrodes of a three phase electric furnace to maintain optimum real power delivered to the furnace in the event of electrode short circuiting or arc extinction due to scrap movement in the furnace. The system includes means for determining the magnitude of arc voltage and arc current and means to change the position of selected electrodes when either arc voltage or arc current is determined to be zero. Roberts et al. (Patent No. US 4,029,888) disclose system for control of electric arc furnaces, such as melting furnaces, and more particularly to a control system for Bretthauer et al. (Patent No. US 4,663,764) disclose method and apparatus for balancing the electrical parameters in three-phase arc discharge furnaces, particularly also in order to compensate asymmetries in input inductances, by changing the transformer voltage and/or the electrode height positions. Barker [WO2006/089315] discloses an arc furnace control method for controlling an arc furnace which has a plurality of electrodes, the method including the steps of recursively estimating in real time values of parameters of circuit elements (i.e. voltage applied to the electrodes of the furnace, currents supplied to the electrodes of the furnace) of an equivalent electrical circuit for arc furnace in operation. The closest prior art fail to anticipate or render obvious a calculation method for operating resistance in a dual-electrode DC electric-smelting furnace for magnesium, the method including the steps of: calculating a raw material resistance: simplifying a raw material model as an electrode- centered cylindrical model, determining an electric-field strength of each point in an electric field generated by a raw material layer around an electrode in the cylindrical model, calculating a raw material voltage between two electrodes according to the electric-field strength of each point in the electric field, and further obtaining the raw material resistance between the two electrodes; calculating an electric arc-resistance relation model: determining a relation between an actual electric arc length and a distance from the electrode to a surface of a smelting pool, and calculating a relation between an electric arc voltage and the actual electric arc length, namely the electric arc-resistance relation model; calculating a smelting pool resistance,
5. Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.” Contact information 6. Any inquiry concerning this communication or earlier communications from the examiner should be directed to MOHAMED CHARIOUI whose telephone number is (571)272-2213. The examiner can normally be reached Monday through Friday, from 9 am to 6 pm. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Andrew Schechter can be reached on (571) 272-2302. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
Mohamed Charioui /MOHAMED CHARIOUI/Primary Examiner, Art Unit 2857 | 2021-06-09T14:53:44 | [
"Notice of Pre-AIA or AIA Status 1. The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . 2. Applicant cancelled claim 7. Allowable Subject Matter 3. Claims 1-6 are allowed. 4. The following is an examiner’s statement of reasons for allowance: Claim 1 is allowed because the closest prior art, Bowman (Patent No. US 5,115,447) discloses system for controlling the positions of each of the three electrodes of a three phase electric furnace to maintain optimum real power delivered to the furnace in the event of electrode short circuiting or arc extinction due to scrap movement in the furnace. The system includes means for determining the magnitude of arc voltage and arc current and means to change the position of selected electrodes when either arc voltage or arc current is determined to be zero. Roberts et al. (Patent No. US 4,029,888) disclose system for control of electric arc furnaces, such as melting furnaces, and more particularly to a control system for Bretthauer et al.",
"(Patent No. US 4,663,764) disclose method and apparatus for balancing the electrical parameters in three-phase arc discharge furnaces, particularly also in order to compensate asymmetries in input inductances, by changing the transformer voltage and/or the electrode height positions. Barker [WO2006/089315] discloses an arc furnace control method for controlling an arc furnace which has a plurality of electrodes, the method including the steps of recursively estimating in real time values of parameters of circuit elements (i.e. voltage applied to the electrodes of the furnace, currents supplied to the electrodes of the furnace) of an equivalent electrical circuit for arc furnace in operation. The closest prior art fail to anticipate or render obvious a calculation method for operating resistance in a dual-electrode DC electric-smelting furnace for magnesium, the method including the steps of: calculating a raw material resistance: simplifying a raw material model as an electrode- centered cylindrical model, determining an electric-field strength of each point in an electric field generated by a raw material layer around an electrode in the cylindrical model, calculating a raw material voltage between two electrodes according to the electric-field strength of each point in the electric field, and further obtaining the raw material resistance between the two electrodes; calculating an electric arc-resistance relation model: determining a relation between an actual electric arc length and a distance from the electrode to a surface of a smelting pool, and calculating a relation between an electric arc voltage and the actual electric arc length, namely the electric arc-resistance relation model; calculating a smelting pool resistance, 5.",
"Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.” Contact information 6. Any inquiry concerning this communication or earlier communications from the examiner should be directed to MOHAMED CHARIOUI whose telephone number is (571)272-2213. The examiner can normally be reached Monday through Friday, from 9 am to 6 pm. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Andrew Schechter can be reached on (571) 272-2302. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool.",
"To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. Mohamed Charioui /MOHAMED CHARIOUI/Primary Examiner, Art Unit 2857"
] | https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2021-05-30.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Exhibit 10.70 (NELNET LOGO) [c81830c8183011.gif] August 4, 2008 Raymond J. Ciarvella 6783 W. Princeton Place Denver, CO 80235 Dear Ray: This letter will confirm our discussion and mutual agreement regarding your separation from permanent full time employment with Nelnet or its subsidiaries (including 5280 Solutions, LLC and collectively defined here as “Nelnet”) as of July 15, 2008 (the “Termination Date”). As we have discussed, the terms of our agreement are as follows, and any prior agreements or arrangements related to your employment are void.
1. Compensation and Benefits. You will receive the following compensation and benefits, which exceed amounts Nelnet would otherwise be required to pay you under our normal policies and procedures or any other law, rule or agreement:
a. In lieu of notice, in lieu of any other monies you may be entitled to, and the provisions of this Agreement, the amount of four hundred fifty thousand dollars ($450,000), less applicable taxes and other deductions (“Payment”) on or before August 15, 2008 via direct deposit to your bank account. The Payment includes any amount you may have been entitled to pursuant to the company’s incentive program for 2008. The Payment does not include (i) your regular payroll through the Termination Date; and (ii) all accrued but unused Earned Time Off (ETO) as of the Termination Date, both of which were paid to you on or about the Termination Date.
b. You and your dependents will be eligible for health insurance coverage (including dental and vision coverage if applicable) pursuant to the Comprehensive Omnibus Budget Reconciliation Act (“COBRA”), based on the coverage you had in place upon the Termination Date and at your own expense.
c. Effective July 15, 2008, your participation in the Nelnet 401(k) plan and the Employee Stock Purchase Plan as well as your accrual of ETO, and your disability insurance and life insurance benefits have ceased in accordance with the provisions of those plans. Disability and life insurance benefits are convertible to a personal plan at your option. All restricted shares of Nelnet Class A Common Stock in your name which had not vested as of July 15, 2008 will be cancelled.
d. You will receive Nelnet’s standard outplacement and career assistance services package via Lee Hecht Harrison, at Nelnet’s expense.
e. You have received, without charge, a laptop computer with operating software and applications substantially similar to the one you were provided while employed with Nelnet.
f. You will receive reimbursement for pre-approved business expenses (written approval of Nelnet’s President or Chief Financial Officer is required) which are incurred on behalf of Nelnet through July 15, 2008, upon submission of the same and subject to Nelnet’s standard policies for payment of such expenses.
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(NELNET LOGO) [c81830c8183011.gif]
2. Waiver of Claims. In consideration of the amounts to be paid to you, you waive and release Nelnet, Inc. and its employees, agents, officers, directors, and shareholders, partners and affiliated companies; of and from any claims, demands, actions, charges, and causes of action, known and unknown, of any kind whatsoever, including, but not limited to, all matters relating to or arising out of your employment with and separation from Nelnet and your compensation. This applies to claims under Title VII of the Civil Rights Act of 1964, as amended; the Employee Retirement Income Security Act of 1974, as amended; the Rehabilitation Act of 1973, as amended; the Age Discrimination in Employment Act of 1967, as amended; Section 1981 of the Civil Rights Act of 1866; Executive Orders 11246 and 11478; the National Labor Relations Act, as amended; the Fair Labor Standards Act of 1938, as amended; the Family and Medical Leave Act of 1993; the Equal Pay Act of 1963, as amended, the Older Workers Benefit Protection Act; the Americans with Disabilities Act; the Civil Rights Act of 1991; and any other law or ordinance, or any other basis of action, up to and including the date you execute this agreement. You further waive any rights and release Nelnet from any obligation to pay for any leave benefits of any kind upon ending of employment, whether accrued or not, including ETO and amounts pursuant to any incentive program.
3. Other Items
a. Confidentiality and Trade Secrets. This letter is confidential and may not be disclosed to any other person except as required by law or to your spouse, accountants or attorneys for legitimate purposes. You possess many trade secrets of Nelnet, such as customer lists, marketing strategies and financial information, all of which you must keep confidential at all times unless disclosure is authorized in writing by Nelnet.
b. Agreement Not to Compete. For a period of twelve (12) months following the Termination Date, you agree not to engage, either directly or indirectly, in owning, managing, operating, joining, controlling, being employed by or participating in any manner in the ownership, management, operation or control of, or to be connected in any manner with any person, firm, corporation, company (other than Nelnet), partnership, joint venture or the like which in any way, either directly or indirectly, is engaged in any activity which is directly or indirectly competitive with Nelnet, without the prior express written consent and permission of Nelnet, provided, however, the foregoing does not prevent your ownership of shareholdings of 1% or less of publicly traded companies. Notwithstanding the foregoing, the provisions of this paragraph shall only apply to the products and services offered by or in development at Nelnet (including 5280 Solutions, LLC), and the activities in which Nelnet (including 5280 Solutions, LLC) was engaged as of the Termination Date and with which you were involved during your employment, all as set forth on Exhibit “A” hereto. This Agreement shall supersede and terminate any existing employment agreement, oral or written, between you and Nelnet. The period of your agreement not to compete shall be extended to include any period of time in which you are or were engaged in activities constituting a breach of this paragraph and any period of time required to litigate with respect to such activities, provided such litigation results in a finding that you were engaged in activities constituting a breach hereof. You and Nelnet agree that a breach hereof will cause irreparable injury to Nelnet, and that monetary damage would not provide an adequate remedy for such breach and that therefore Nelnet may elect to have this paragraph specifically enforced by any court having equity jurisdiction, without the requirement of posting bond or other security.
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c. Nonsolicitation. You will not at any time for a period of twelve (12) months from and after the Termination Date, directly or indirectly solicit any employee of Nelnet to leave the employ of their employer.
d. Employment Inquiries. In keeping with our standard policies, Nelnet will answer external employment-related inquiries by indicating only the position(s) held by you, your dates of employment, your responsibilities, and a confirmation of your last salary. Please direct all such inquiries to Nelnet’s People Services department.
e. Statements. You agree not to make written or oral statements or take any action directly or indirectly, which you know or reasonably should know to be disparaging or negative concerning Nelnet, and you agree not to suggest to anyone that any such statements be made or to urge or influence any person to make any such statement. You will refrain from expressing any disparaging or negative opinions concerning your separation from Nelnet, any of Nelnet’s officers, directors, or employees, or any other matters relative to Nelnet’s reputation as an employer.
f. Indemnification. As a former corporate officer of Nelnet, Nelnet will continue to provide you with indemnification relating to events which occurred while you were a corporate officer, to the fullest extent permitted under applicable law and Nelnet’s by-laws (including but not limited to any director and officer liability insurance to the extent provided under Nelnet’s policy).
g. REVIEW AND REVOCATION PERIODS. YOU HAVE TWENTY ONE (21) DAYS FROM JULY 15, 2008 TO REVIEW AND CONSIDER THIS AGREEMENT BEFORE SIGNING IT. YOU ARE ADVISED TO CONSULT WITH AN ATTORNEY BEFORE SIGNING THIS AGREEMENT. ALSO, YOU MAY REVOKE THIS AGREEMENT WITHIN SEVEN (7) DAYS OF SIGNING IT, BY DELIVERING A WRITTEN NOTICE OF REVOCATION TO: EVAN ROTH, 3015 S. PARKER RD. SUITE 400, AURORA, CO 80014. THE AGREEMENT WILL NOT BECOME EFFECTIVE OR ENFORCEABLE AND THE PAYMENTS AND BENEFITS WILL NOT BE MADE OR BECOME EFFECTIVE UNTIL THE END OF THIS REVOCATION PERIOD. IF YOU REVOKE THIS AGREEMENT, IT WILL NOT BE EFFECTIVE OR ENFORCED, AND YOU WILL NOT RECEIVE ANY PAYMENTS HEREUNDER.
h. The terms of this Agreement have been changed from that initially provided to you on July 15, 2008. The changes were made as a result of negotiations between you and Nelnet. It is agreed that the changes, whether material or immaterial, do not restart the running of the 21 day period to review and consider the Agreement and that the running of the 21 day period shall be deemed to have started on July 15, 2008.
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i. In the event you sign this Agreement prior to the 21 day time period, you hereby state and affirm that: (1) your decision to accept such shortening of time is knowing and voluntary; (2) your decision to accept such shortening of time was not induced by Nelnet through fraud or misrepresentation, and (3) your decision to accept such shortening of time was not induced by Nelnet through a threat to withdraw or alter the offer prior to the expiration of the 21 day time period, or by providing different terms to employees who sign the release prior to the expiration of such time period.
j. This agreement shall be interpreted, construed and enforced in accordance with the laws of the State of Nebraska.
Ray, thank you for your service to Nelnet. We wish you all the best in the future. Please sign below to acknowledge your agreement to the terms of this letter. Sincerely, -s- Mike Dunlap [c81830c8183010.gif] Mike Dunlap, Chief Executive Officer Nelnet, Inc. I have read and understand the terms of my mutual separation agreement from Nelnet as described above. I am entering into this agreement voluntarily and have had an opportunity to consult with an attorney before signing this agreement.
/s/ Raymond J. Ciarvella Raymond J. Ciarvella
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(NELNET LOGO) [c81830c8183011.gif] EXHIBIT “A” ACTIVITIES PROTECTED BY NONCOMPETITION AGREEMENT The following activities, products and services are subject to the agreement of noncompetition set forth in paragraph 3.b. of the letter agreement to which this Exhibit “A” is attached.
1. Education loan origination, disbursement, processing and servicing services 2. Computer software systems, programs and applications for origination, disbursement, processing and servicing of education loans in the United States and Canada 3. GoHazel 4. GenerationVoice 5. Dynamic Forms 6. Enterprise content management solutions (Dynamic Payables, Dynamic Filer, UConnect and related offerings) 7. TRACS time tracking 8. Certified Mail 9. Contract Compass 10. Transcript Broker 11. Webmentum 12. Student Manager | [
"Exhibit 10.70 (NELNET LOGO) [c81830c8183011.gif] August 4, 2008 Raymond J. Ciarvella 6783 W. Princeton Place Denver, CO 80235 Dear Ray: This letter will confirm our discussion and mutual agreement regarding your separation from permanent full time employment with Nelnet or its subsidiaries (including 5280 Solutions, LLC and collectively defined here as “Nelnet”) as of July 15, 2008 (the “Termination Date”). As we have discussed, the terms of our agreement are as follows, and any prior agreements or arrangements related to your employment are void. 1. Compensation and Benefits.",
"You will receive the following compensation and benefits, which exceed amounts Nelnet would otherwise be required to pay you under our normal policies and procedures or any other law, rule or agreement: a. In lieu of notice, in lieu of any other monies you may be entitled to, and the provisions of this Agreement, the amount of four hundred fifty thousand dollars ($450,000), less applicable taxes and other deductions (“Payment”) on or before August 15, 2008 via direct deposit to your bank account. The Payment includes any amount you may have been entitled to pursuant to the company’s incentive program for 2008.",
"The Payment does not include (i) your regular payroll through the Termination Date; and (ii) all accrued but unused Earned Time Off (ETO) as of the Termination Date, both of which were paid to you on or about the Termination Date. b. You and your dependents will be eligible for health insurance coverage (including dental and vision coverage if applicable) pursuant to the Comprehensive Omnibus Budget Reconciliation Act (“COBRA”), based on the coverage you had in place upon the Termination Date and at your own expense.",
"c. Effective July 15, 2008, your participation in the Nelnet 401(k) plan and the Employee Stock Purchase Plan as well as your accrual of ETO, and your disability insurance and life insurance benefits have ceased in accordance with the provisions of those plans. Disability and life insurance benefits are convertible to a personal plan at your option. All restricted shares of Nelnet Class A Common Stock in your name which had not vested as of July 15, 2008 will be cancelled. d. You will receive Nelnet’s standard outplacement and career assistance services package via Lee Hecht Harrison, at Nelnet’s expense. e. You have received, without charge, a laptop computer with operating software and applications substantially similar to the one you were provided while employed with Nelnet. f. You will receive reimbursement for pre-approved business expenses (written approval of Nelnet’s President or Chief Financial Officer is required) which are incurred on behalf of Nelnet through July 15, 2008, upon submission of the same and subject to Nelnet’s standard policies for payment of such expenses.",
"-------------------------------------------------------------------------------- (NELNET LOGO) [c81830c8183011.gif] 2. Waiver of Claims. In consideration of the amounts to be paid to you, you waive and release Nelnet, Inc. and its employees, agents, officers, directors, and shareholders, partners and affiliated companies; of and from any claims, demands, actions, charges, and causes of action, known and unknown, of any kind whatsoever, including, but not limited to, all matters relating to or arising out of your employment with and separation from Nelnet and your compensation. This applies to claims under Title VII of the Civil Rights Act of 1964, as amended; the Employee Retirement Income Security Act of 1974, as amended; the Rehabilitation Act of 1973, as amended; the Age Discrimination in Employment Act of 1967, as amended; Section 1981 of the Civil Rights Act of 1866; Executive Orders 11246 and 11478; the National Labor Relations Act, as amended; the Fair Labor Standards Act of 1938, as amended; the Family and Medical Leave Act of 1993; the Equal Pay Act of 1963, as amended, the Older Workers Benefit Protection Act; the Americans with Disabilities Act; the Civil Rights Act of 1991; and any other law or ordinance, or any other basis of action, up to and including the date you execute this agreement.",
"You further waive any rights and release Nelnet from any obligation to pay for any leave benefits of any kind upon ending of employment, whether accrued or not, including ETO and amounts pursuant to any incentive program. 3. Other Items a. Confidentiality and Trade Secrets. This letter is confidential and may not be disclosed to any other person except as required by law or to your spouse, accountants or attorneys for legitimate purposes. You possess many trade secrets of Nelnet, such as customer lists, marketing strategies and financial information, all of which you must keep confidential at all times unless disclosure is authorized in writing by Nelnet.",
"b. Agreement Not to Compete. For a period of twelve (12) months following the Termination Date, you agree not to engage, either directly or indirectly, in owning, managing, operating, joining, controlling, being employed by or participating in any manner in the ownership, management, operation or control of, or to be connected in any manner with any person, firm, corporation, company (other than Nelnet), partnership, joint venture or the like which in any way, either directly or indirectly, is engaged in any activity which is directly or indirectly competitive with Nelnet, without the prior express written consent and permission of Nelnet, provided, however, the foregoing does not prevent your ownership of shareholdings of 1% or less of publicly traded companies.",
"Notwithstanding the foregoing, the provisions of this paragraph shall only apply to the products and services offered by or in development at Nelnet (including 5280 Solutions, LLC), and the activities in which Nelnet (including 5280 Solutions, LLC) was engaged as of the Termination Date and with which you were involved during your employment, all as set forth on Exhibit “A” hereto. This Agreement shall supersede and terminate any existing employment agreement, oral or written, between you and Nelnet. The period of your agreement not to compete shall be extended to include any period of time in which you are or were engaged in activities constituting a breach of this paragraph and any period of time required to litigate with respect to such activities, provided such litigation results in a finding that you were engaged in activities constituting a breach hereof. You and Nelnet agree that a breach hereof will cause irreparable injury to Nelnet, and that monetary damage would not provide an adequate remedy for such breach and that therefore Nelnet may elect to have this paragraph specifically enforced by any court having equity jurisdiction, without the requirement of posting bond or other security. -------------------------------------------------------------------------------- (NELNET LOGO) [c81830c8183011.gif] c. Nonsolicitation. You will not at any time for a period of twelve (12) months from and after the Termination Date, directly or indirectly solicit any employee of Nelnet to leave the employ of their employer.",
"d. Employment Inquiries. In keeping with our standard policies, Nelnet will answer external employment-related inquiries by indicating only the position(s) held by you, your dates of employment, your responsibilities, and a confirmation of your last salary. Please direct all such inquiries to Nelnet’s People Services department. e. Statements. You agree not to make written or oral statements or take any action directly or indirectly, which you know or reasonably should know to be disparaging or negative concerning Nelnet, and you agree not to suggest to anyone that any such statements be made or to urge or influence any person to make any such statement. You will refrain from expressing any disparaging or negative opinions concerning your separation from Nelnet, any of Nelnet’s officers, directors, or employees, or any other matters relative to Nelnet’s reputation as an employer. f. Indemnification. As a former corporate officer of Nelnet, Nelnet will continue to provide you with indemnification relating to events which occurred while you were a corporate officer, to the fullest extent permitted under applicable law and Nelnet’s by-laws (including but not limited to any director and officer liability insurance to the extent provided under Nelnet’s policy).",
"g. REVIEW AND REVOCATION PERIODS. YOU HAVE TWENTY ONE (21) DAYS FROM JULY 15, 2008 TO REVIEW AND CONSIDER THIS AGREEMENT BEFORE SIGNING IT. YOU ARE ADVISED TO CONSULT WITH AN ATTORNEY BEFORE SIGNING THIS AGREEMENT. ALSO, YOU MAY REVOKE THIS AGREEMENT WITHIN SEVEN (7) DAYS OF SIGNING IT, BY DELIVERING A WRITTEN NOTICE OF REVOCATION TO: EVAN ROTH, 3015 S. PARKER RD. SUITE 400, AURORA, CO 80014. THE AGREEMENT WILL NOT BECOME EFFECTIVE OR ENFORCEABLE AND THE PAYMENTS AND BENEFITS WILL NOT BE MADE OR BECOME EFFECTIVE UNTIL THE END OF THIS REVOCATION PERIOD. IF YOU REVOKE THIS AGREEMENT, IT WILL NOT BE EFFECTIVE OR ENFORCED, AND YOU WILL NOT RECEIVE ANY PAYMENTS HEREUNDER. h. The terms of this Agreement have been changed from that initially provided to you on July 15, 2008. The changes were made as a result of negotiations between you and Nelnet. It is agreed that the changes, whether material or immaterial, do not restart the running of the 21 day period to review and consider the Agreement and that the running of the 21 day period shall be deemed to have started on July 15, 2008. -------------------------------------------------------------------------------- (NELNET LOGO) [c81830c8183011.gif] i. In the event you sign this Agreement prior to the 21 day time period, you hereby state and affirm that: (1) your decision to accept such shortening of time is knowing and voluntary; (2) your decision to accept such shortening of time was not induced by Nelnet through fraud or misrepresentation, and (3) your decision to accept such shortening of time was not induced by Nelnet through a threat to withdraw or alter the offer prior to the expiration of the 21 day time period, or by providing different terms to employees who sign the release prior to the expiration of such time period.",
"j. This agreement shall be interpreted, construed and enforced in accordance with the laws of the State of Nebraska. Ray, thank you for your service to Nelnet. We wish you all the best in the future. Please sign below to acknowledge your agreement to the terms of this letter. Sincerely, -s- Mike Dunlap [c81830c8183010.gif] Mike Dunlap, Chief Executive Officer Nelnet, Inc. I have read and understand the terms of my mutual separation agreement from Nelnet as described above. I am entering into this agreement voluntarily and have had an opportunity to consult with an attorney before signing this agreement. /s/ Raymond J. Ciarvella Raymond J. Ciarvella -------------------------------------------------------------------------------- (NELNET LOGO) [c81830c8183011.gif] EXHIBIT “A” ACTIVITIES PROTECTED BY NONCOMPETITION AGREEMENT The following activities, products and services are subject to the agreement of noncompetition set forth in paragraph 3.b. of the letter agreement to which this Exhibit “A” is attached. 1. Education loan origination, disbursement, processing and servicing services 2.",
"Computer software systems, programs and applications for origination, disbursement, processing and servicing of education loans in the United States and Canada 3. GoHazel 4. GenerationVoice 5. Dynamic Forms 6. Enterprise content management solutions (Dynamic Payables, Dynamic Filer, UConnect and related offerings) 7. TRACS time tracking 8. Certified Mail 9. Contract Compass 10. Transcript Broker 11. Webmentum 12. Student Manager"
] | https://github.com/TheAtticusProject/cuad | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
|
Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . Applicants’ remarks and amendments, filed on January 28, 2021, have been carefully considered. No claims have been canceled or added; claims 1-19 remain presently pending in this application.
Information Disclosure Statement Applicants’ request for a signed and initialed copy of the Information Disclosure Statement filed on September 4, 2020, is duly noted; said signed and initialed copy accompanies this Office Action.
Election/Restrictions Claims 1, 3-11, and 13-19 remain withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected hydrogen sulfide mixture (claims 1 and 3), a nonelected method (claims 4-6 and 13), a nonelected filling container (claims 7, 9-11, 16, 18, and 19), and a nonelected filling container (claims 8, 14, 15, and 17), there being no allowable generic or linking claim. Election was made without traverse in the reply filed on September 4, 2020. Claims 2 and 12 are presently under consideration by the Examiner.
Withdrawn Objections and Rejections The following objections and rejections of record, stated in the previous Office Action, have been withdrawn in view of Applicants’ claim amendments and persuasive traversing arguments: a. The objection to claim 12; b. The 35 U.S.C. 102(a)(1) rejection of claim 2 as being anticipated by Cox, Jr. (U. S. Patent No. 6,960,330); c. The 35 U.S.C. 102(a)(1) rejection of claim 2 as being anticipated by Hardison (U. S. Patent No. 4,784,775); and d. The 35 U.S.C. 103 rejection of claims 2 and 12 as being unpatentable over Hasenberg et al. (U. S. Patent Publication No. 2015/0266734).
New Ground of Rejection The following New Ground of Rejection is being made in view of the Examiner’s reconsideration of claims 2 and 12, and in view of the newly discovered reference to Tsutsumishita et al. (U. S. Patent No. 3,903,250). The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim Rejections - 35 USC § 112 Claim 12 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements. Claim 12 appears to further limit the subject matter of claim 2 (from which claim 12 depends), as the limitations therein are more directed to a ratio of the volume of the filling container (in which the hydrogen sulfide mixture resides) to the amount of the hydrogen sulfide mixture therein, as opposed to further defining or characterizing the hydrogen sulfide mixture.
Claim Rejections - 35 USC § 103 Claims 2 and 12 are rejected under 35 U.S.C. 103 as being unpatentable over Tsutsumishita et al. (U. S. Patent No. 3,903,250). Regarding claim 2, Tsutsumishita et al. teach a deodorized waste water, derived from a mixture of (1) waste water effluent comprising hydrogen sulfide and either (2a) kerosene or (2b) a distillate light oil, said mixture being separated into oil and the water in a settler. The water portion is fed to a desalting apparatus (considered to read upon the The water effluents from the desalting apparatus are considered to read upon Applicants’ claimed “hydrogen sulfide mixture”. Tsutsumishita et al. do not explicitly teach or suggest that the limitations of the Applicants’ claims regarding the hydrogen sulfide mixture being present as a liquid phase, having a moisture concentration of 0.01 mol ppm or more and less than 0.75 mol ppm, as recited in claim 2. Assuming the amounts of hydrogen sulfide in the water effluents from the desalting apparatus (3 ppm; 2 ppm) are in terms of weight, the skilled artisan can determine these amounts in term of mol ppm, based on the molecular weight of hydrogen sulfide (34.1 g/mol): 3 ppm x 1 mol/34.1 g = 0.088 mol ppm 2 ppm x 1 mol/34.1 g = 0.058 mol ppm, thereby reading upon Applicants’ claim limitation “at least one part of the hydrogen sulfide mixture is present as a liquid phase, and a moisture concentration of the liquid phase is 0.01 mol ppm or more and less than 0.75 mol ppm.” Regarding claim 12, it is considered that although Tsutsumishita et al. do not explicitly teach or suggest a ratio of the internal volume of the .
Conclusion The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. The references cited but not relied upon in this Office Action provide technological background in the art of waste waters comprising hydrogen sulfide, and treatment thereof. Any inquiry concerning this communication or earlier communications from the examiner should be directed to PATRICIA L HAILEY whose telephone number is (571)272-1369. The examiner can normally be reached on Monday-Friday, 7 a.m. to 3:30 p.m. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Ching-Yiu (Coris) Fung, can be reached on 571-270- Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see https://ppair-my.uspto.gov/pair/PrivatePair. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/Patricia L. Hailey/Primary Examiner, Art Unit 1732 March 24, 2021 | 2021-03-26T06:44:58 | [
"Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . Applicants’ remarks and amendments, filed on January 28, 2021, have been carefully considered. No claims have been canceled or added; claims 1-19 remain presently pending in this application. Information Disclosure Statement Applicants’ request for a signed and initialed copy of the Information Disclosure Statement filed on September 4, 2020, is duly noted; said signed and initialed copy accompanies this Office Action.",
"Election/Restrictions Claims 1, 3-11, and 13-19 remain withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected hydrogen sulfide mixture (claims 1 and 3), a nonelected method (claims 4-6 and 13), a nonelected filling container (claims 7, 9-11, 16, 18, and 19), and a nonelected filling container (claims 8, 14, 15, and 17), there being no allowable generic or linking claim. Election was made without traverse in the reply filed on September 4, 2020. Claims 2 and 12 are presently under consideration by the Examiner.",
"Withdrawn Objections and Rejections The following objections and rejections of record, stated in the previous Office Action, have been withdrawn in view of Applicants’ claim amendments and persuasive traversing arguments: a. The objection to claim 12; b. The 35 U.S.C. 102(a)(1) rejection of claim 2 as being anticipated by Cox, Jr. (U. S. Patent No. 6,960,330); c. The 35 U.S.C. 102(a)(1) rejection of claim 2 as being anticipated by Hardison (U. S. Patent No. 4,784,775); and d. The 35 U.S.C. 103 rejection of claims 2 and 12 as being unpatentable over Hasenberg et al. (U. S. Patent Publication No. 2015/0266734).",
"New Ground of Rejection The following New Ground of Rejection is being made in view of the Examiner’s reconsideration of claims 2 and 12, and in view of the newly discovered reference to Tsutsumishita et al. (U. S. Patent No. 3,903,250). The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action. Claim Rejections - 35 USC § 112 Claim 12 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements. Claim 12 appears to further limit the subject matter of claim 2 (from which claim 12 depends), as the limitations therein are more directed to a ratio of the volume of the filling container (in which the hydrogen sulfide mixture resides) to the amount of the hydrogen sulfide mixture therein, as opposed to further defining or characterizing the hydrogen sulfide mixture.",
"Claim Rejections - 35 USC § 103 Claims 2 and 12 are rejected under 35 U.S.C. 103 as being unpatentable over Tsutsumishita et al. (U. S. Patent No. 3,903,250). Regarding claim 2, Tsutsumishita et al. teach a deodorized waste water, derived from a mixture of (1) waste water effluent comprising hydrogen sulfide and either (2a) kerosene or (2b) a distillate light oil, said mixture being separated into oil and the water in a settler. The water portion is fed to a desalting apparatus (considered to read upon the The water effluents from the desalting apparatus are considered to read upon Applicants’ claimed “hydrogen sulfide mixture”. Tsutsumishita et al. do not explicitly teach or suggest that the limitations of the Applicants’ claims regarding the hydrogen sulfide mixture being present as a liquid phase, having a moisture concentration of 0.01 mol ppm or more and less than 0.75 mol ppm, as recited in claim 2. Assuming the amounts of hydrogen sulfide in the water effluents from the desalting apparatus (3 ppm; 2 ppm) are in terms of weight, the skilled artisan can determine these amounts in term of mol ppm, based on the molecular weight of hydrogen sulfide (34.1 g/mol): 3 ppm x 1 mol/34.1 g = 0.088 mol ppm 2 ppm x 1 mol/34.1 g = 0.058 mol ppm, thereby reading upon Applicants’ claim limitation “at least one part of the hydrogen sulfide mixture is present as a liquid phase, and a moisture concentration of the liquid phase is 0.01 mol ppm or more and less than 0.75 mol ppm.” Regarding claim 12, it is considered that although Tsutsumishita et al.",
"do not explicitly teach or suggest a ratio of the internal volume of the . Conclusion The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. The references cited but not relied upon in this Office Action provide technological background in the art of waste waters comprising hydrogen sulfide, and treatment thereof. Any inquiry concerning this communication or earlier communications from the examiner should be directed to PATRICIA L HAILEY whose telephone number is (571)272-1369. The examiner can normally be reached on Monday-Friday, 7 a.m. to 3:30 p.m. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Ching-Yiu (Coris) Fung, can be reached on 571-270- Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system.",
"Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see https://ppair-my.uspto.gov/pair/PrivatePair. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000. /Patricia L. Hailey/Primary Examiner, Art Unit 1732 March 24, 2021"
] | https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2021-04-04.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-92,798-01
EX PARTE GONZALO NUNCIO GONZALEZ, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 2018-2123-C1A IN THE 19TH DISTRICT COURT FROM MCLENNAN COUNTY
Per curiam.
ORDER
Applicant pleaded guilty to one count of assault against a public servant and one count of
possession of a controlled substance, and was sentenced to five years’ imprisonment for each count,
to run concurrently. He did not appeal his conviction. Applicant filed this application for a writ of
habeas corpus in the county of conviction, and the district clerk forwarded it to this Court. See TEX .
CODE CRIM . PROC. art. 11.07.
On May 21, 2021, the trial court entered an order designating issues. The district clerk
prematurely forwarded this application to this Court before the trial court made findings of fact and
conclusions of law. We remand this application to the trial court to complete its evidentiary
investigation and make findings of fact and conclusions of law. The trial court shall make findings of fact and conclusions of law within ninety days from
the date of this order. The district clerk shall then immediately forward to this Court the trial court’s
findings and conclusions and the record developed on remand, including, among other things,
affidavits, motions, objections, proposed findings and conclusions, orders, and transcripts from
hearings and depositions. See TEX . R. APP . P. 73.4(b)(4). Any extensions of time must be requested
by the trial court and obtained from this Court.
Filed: July 28, 2021 Do not publish | 08-02-2021 | [
"IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-92,798-01 EX PARTE GONZALO NUNCIO GONZALEZ, Applicant ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 2018-2123-C1A IN THE 19TH DISTRICT COURT FROM MCLENNAN COUNTY Per curiam. ORDER Applicant pleaded guilty to one count of assault against a public servant and one count of possession of a controlled substance, and was sentenced to five years’ imprisonment for each count, to run concurrently. He did not appeal his conviction. Applicant filed this application for a writ of habeas corpus in the county of conviction, and the district clerk forwarded it to this Court.",
"See TEX . CODE CRIM . PROC. art. 11.07. On May 21, 2021, the trial court entered an order designating issues. The district clerk prematurely forwarded this application to this Court before the trial court made findings of fact and conclusions of law. We remand this application to the trial court to complete its evidentiary investigation and make findings of fact and conclusions of law. The trial court shall make findings of fact and conclusions of law within ninety days from the date of this order. The district clerk shall then immediately forward to this Court the trial court’s findings and conclusions and the record developed on remand, including, among other things, affidavits, motions, objections, proposed findings and conclusions, orders, and transcripts from hearings and depositions. See TEX . R. APP .",
"P. 73.4(b)(4). Any extensions of time must be requested by the trial court and obtained from this Court. Filed: July 28, 2021 Do not publish"
] | https://www.courtlistener.com/api/rest/v3/opinions/4708313/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Continued Examination Under 37 CFR 1.114 A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 8 March 2022 has been entered. Claim Objections Claims 1 and 6 are objected to because of the following informalities: The claim contains the limitation “mapping attributes of each query suggestion of the first set personalized query suggestions and the second set of non-personalized query suggestions to a feature space.” The claims are missing an “of” in to describe “the first set [of] personalized query suggestions.” Appropriate correction is required.
Claim Rejections - 35 USC § 103 In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action: A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 1, 2, 3, 5-8, 10-13, 15-18, and 21-24 are rejected under 35 U.S.C. 103 as being unpatentable over Govani (US Pre-Grant Publication 2013/0054631) in view of Kadouch et al. (US Pre-Grant Publication 2016/0217181).
As to claim 1, Govani teaches a method, implemented on at least one computing device each of which has at least one processor, storage, and a communication platform connected to a network to provide query suggestions, the method comprising: Receiving, in a person session involving a person interacting with a search application, a portion of a search query from the person (see paragraph [0034] and [0046]. A user may begin to type the query “Bamboo.” Because “typing” is occurring to Govani is a “person”); sending the portion of the search query to a user corpus database storing a person corpus to obtain a first set of personalized query suggestions based on the portion of the search query (see paragraphs [0027]. Govani stores a social media data store including social network data. As noted in paragraph [0027], the social data store may store “information used by the suggestion service” as well as “possible search suggestions associated with a query.” Paragraph [0046] shows receiving and displaying a list of suggested search queries), wherein the person corpus is derived based on a person-centric space including data cross linked from a private space associated with person [and] a semi-private space … based on cross-linking keys identified from the data (see paragraphs [0027]-[0028]. Govani stores a social media data store including social network data. This is a “person corpus.” The data store may include data from multiple different social networking sites, or “data cross linked from a plurality of data sources.” The social data component is only able to access user data from a user’s online social network if the user is currently logged in, [0036]-[0037]. This indicates the use of a “private space associated with a person.” As noted in paragraphs [0037], among the information analyzed is information of friends or other entities, which indicates a semi-private space. As noted in paragraph [0040], the data component is able to aggregate “like” data for different entities and their relation to the user, indicating the presence of “cross-linking key”);
wherein each query suggestion of the first set of personalized query suggestions and the second set of non-personalized query suggestions is provided by applying a model specific to a data source from which the query suggestion is provided (see paragraphs [0035]-[0039] for the application of a model to the suggested search queries relying on private social media data versus application of a model using search history data. See paragraphs [0046]-[0047]. Suggested search queries based in social data are ranked higher than suggested search queries NOT based in social data. Thus, there exist a second set of query suggestions based on information from an additional data source. Paragraph [0047] notes that an initial set of search queries is determined, and mapping attributes of each query suggestion of the first set [of] personalized query suggestions and the second set of non-personalized query suggestions to a feature space (see paragraphs [0051]-[0052] and [0046]. The attributes of each query suggestion are analyzed); ranking, based on the mapping, query suggestions from the first set of personalized query suggestions and the second set of non-personalized query suggestions to generate a ranked list of query suggestions (see paragraphs [0051]-[0052] and [0046]. The attributes of each query suggestion are analyzed); and presenting at least some of the ranked query suggestions to the person, so as to facilitate the person to submit a complete search query (see paragraphs [0046] and [0052]. The user is able to select a search query suggestion). Govani does not clearly teach: wherein the person corpus is derived based on a person-centric space including data cross linked from a public space based on cross-linking keys identified from the data; sending the portion of the search query to an additional data source, disjoint from the person corpus, to obtain a second set of query suggestions based on the portion of the search query, Kadouch teaches: wherein the person corpus is derived based on a person-centric space including data cross linked from a private space associated with person and a public space based sending the portion of the search query to an additional data source, disjoint from the person corpus, to obtain a second set of non-personalized query suggestions based on the portion of the search query without considering a previous query within the person session (see paragraphs [0047]-[0048]. As indicated in paragraph [0047], multiple sources may be queries, including a knowledge graph and a database. Claim [0047] specifically refers to checking different sources and analyzing each of the sources differently). It would have been obvious to one of ordinary skill in the art at the time the invention was filed to have modified Govani by the teachings of Kadouch because both references are directed towards providing a user with suggestions. Kadouch merely provides multiple different sources of data to analyze in a knowledge base, including public and private knowledge bases in addition to the private and semi-private knowledge bases of Govani. This will increase the variety and scope of suggestions that may be provided to a user of Govani.
As to claim 2, Govani as modified teaches wherein the at least one data source private to the person includes: private electronic mails; a private calendar; a private contact list (see Govani paragraph [0036]. Social network data may be accessed while logged in);
private bookmarks; private visual information;4821-7511-4463.v1Application No.: 14/875,072 Page 3private voice information; and private log information.
As to claim 3, Govani as modified teaches the method of claim 1, wherein the additional data source includes: Queries mined from query logs with respect to a general population of persons without considering the person’s current search behavior (see Govani paragraph [0038]-[0039]. A general social network is used containing data that “is not as specific to the user as the social network data from the user’s online social network.” Paragraph [0038] appears to describe mining search and selection logs of general social networks).
As to claim 5, Govani teaches the method of claim 1, wherein the portion includes a prefix of a search query (see Govani paragraphs [0034]-[0035]).
As to claim 16, Govani teaches the method of claim 1, further comprising: presenting the ranked first set of personalized query suggestions prior to the ranked second set of non-personalized query suggestions (see Govani paragraphs [0046] and [0051]-[0052]).
As to claim 17, Govani teaches the method of claim 1, further comprising: Govani paragraphs [0046] and [0051]-[0052]); and presenting at least one suggestion out of the ranked list of suggestions with the score (see Govani paragraphs [0046] and [0051]-[0052]).
As to claim 21, Govani teaches the method of claim 1, wherein each query suggestion of the first set of personalized query suggestions and the second set of non-personalized query suggestions is mapped to the feature space based on at least one attribute associated with the query suggestion, the attribute indicating at least one statistic related to the query suggestion (see Govani paragraphs [0046] and [0051]-[0052]).
As to claim 22, Govani teaches the method of claim 1, wherein the model to extract the query suggestion from the data source is selected based on a type of content included in the data source (see Govani paragraphs [0047]-[0050]).
As to claim 23, Govani teaches the method of claim 1, wherein deriving the person corpus further comprises: determining a domain of the data (see Govani paragraphs [0027]-[0028], [0036], and [0040]); and identifying the cross-linking keys from the data based on the domain (see Govani paragraphs [0027]-[0028], [0036], and [0040]).
As to claim 24, Govani teaches the method of claim 1, wherein the model is trained to extract the query suggestion based on a type of information included in the additional data source (see Govani paragraph [0034]).
As to claim 6 and 11, see the rejection of claim 1. As to claims 7 and 12, see the rejection of claim 2. As to claims 8 and 13, see the rejection of claim 3. As to claims 10 and 15, see the rejection of claim 5. As to claim 18, see the rejection of claim 16.
Claims 4, 9, and 14 are rejected under 35 U.S.C. 103 as being unpatentable over Govani (US Pre-Grant Publication 2013/0054631) in view of Kadouch et al. (US Pre-Grant Publication 2016/0217181), and further in view of McFarlane et al. (US Pre-Grant Publication 2011/0307498).
As to claim 4, Govani teaches the method of claim 1. Govani does not explicitly teach wherein the operation of ranking comprises: normalizing each of the mapped query suggestions in the feature space to generate a normalized feature set; estimating a score for each query suggestion based on the normalized feature set; and
McFarlane teaches wherein the operation of ranking comprises: normalizing each of the mapped query suggestions in the feature space to generate a normalized feature set (see paragraphs [0044]-[0045] and [0050]. Query suggestions are scored. These scores include normalized values. As noted in paragraph [0050], normalized values represent processed factor values); estimating a score for each query suggestion based on the normalized feature set (see paragraphs [0044]-[0045]); and ranking each query suggestion from the first set of personalized query suggestions and the second set of non-personalized query suggestions based on the score of the query suggestion (see paragraphs [0044]-[0045] and [0053]. The search suggestions are ranked. As noted above, Govani teaches ranking personalized and non-personalized query suggestions, see paragraphs [0046] and [0051]-[0052]). It would have been obvious to one of ordinary skill in the art at the time the invention was filed to have modified Govani by the teachings of McFarlane because McFarlane provides additional metrics for scoring search suggestions. This will allow an administrator of Govani to more finely tune search suggestion responses for a user, producing a more accurate ranking.
As to claims 9 and 14, see the rejection of claim 4.
Response to Arguments Applicant's remaining arguments filed 8 March 2022 have been fully considered but they are not persuasive.
Applicant argues that “neither Govani nor Kadouch teaches or suggests the recited step of “sending the portion of the search query to an additional data source, disjoint from the person corpus, to obtain a second set of non-personalized query suggestions based on the portion of the search query without considering a previous query within the person session [involving a person interacting with a search application],” let alone the recited step of “ranking … query suggestions from the first set of personalized query suggestions and the second set of non-personalized query suggestions to generate a ranked list of query suggestions.” In response to this argument, Examiner notes that Govani does appear to disclose the limitation “sending…” limitation as claimed. As noted in paragraph [0038], the suggested search query may be determined using “social networking data gathered from a plurality of different social networking sites,” where the data “is not as specific to the user as the social network data from the user’s online social network.” The recommendations resulting from this data source use “like” data associated with a suggested search query – which is not “considering a previous query within the person session [involving a person interacting with a search application].” Thus, the data is non-personalized and does not consider a previous query within the previous session. As noted in Govani paragraphs [0051]-[0052] and [0046], the attributes of each query suggestion are analyzed and a ranking of suggested search queries is calculated. Govani does show “ranking … query suggestions from the first set of personalized query suggestions and the second set of non-personalized query suggestions to generate a ranked list of query suggestions” to the extent claimed.
Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to CHARLES D ADAMS whose telephone number is (571)272-3938. The examiner can normally be reached M-F, 9-5:30 EST. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Neveen Abel-Jalil can be reached on 571-270-0474. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For
/CHARLES D ADAMS/ Primary Examiner, Art Unit 2152 | 2022-04-01T11:53:23 | [
"Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . Continued Examination Under 37 CFR 1.114 A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 8 March 2022 has been entered. Claim Objections Claims 1 and 6 are objected to because of the following informalities: The claim contains the limitation “mapping attributes of each query suggestion of the first set personalized query suggestions and the second set of non-personalized query suggestions to a feature space.” The claims are missing an “of” in to describe “the first set [of] personalized query suggestions.” Appropriate correction is required. Claim Rejections - 35 USC § 103 In the event the determination of the status of the application as subject to AIA 35 U.S.C.",
"102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status. The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action: A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains.",
"Patentability shall not be negated by the manner in which the invention was made. Claims 1, 2, 3, 5-8, 10-13, 15-18, and 21-24 are rejected under 35 U.S.C. 103 as being unpatentable over Govani (US Pre-Grant Publication 2013/0054631) in view of Kadouch et al. (US Pre-Grant Publication 2016/0217181). As to claim 1, Govani teaches a method, implemented on at least one computing device each of which has at least one processor, storage, and a communication platform connected to a network to provide query suggestions, the method comprising: Receiving, in a person session involving a person interacting with a search application, a portion of a search query from the person (see paragraph [0034] and [0046]. A user may begin to type the query “Bamboo.” Because “typing” is occurring to Govani is a “person”); sending the portion of the search query to a user corpus database storing a person corpus to obtain a first set of personalized query suggestions based on the portion of the search query (see paragraphs [0027]. Govani stores a social media data store including social network data. As noted in paragraph [0027], the social data store may store “information used by the suggestion service” as well as “possible search suggestions associated with a query.” Paragraph [0046] shows receiving and displaying a list of suggested search queries), wherein the person corpus is derived based on a person-centric space including data cross linked from a private space associated with person [and] a semi-private space … based on cross-linking keys identified from the data (see paragraphs [0027]-[0028].",
"Govani stores a social media data store including social network data. This is a “person corpus.” The data store may include data from multiple different social networking sites, or “data cross linked from a plurality of data sources.” The social data component is only able to access user data from a user’s online social network if the user is currently logged in, [0036]-[0037]. This indicates the use of a “private space associated with a person.” As noted in paragraphs [0037], among the information analyzed is information of friends or other entities, which indicates a semi-private space. As noted in paragraph [0040], the data component is able to aggregate “like” data for different entities and their relation to the user, indicating the presence of “cross-linking key”); wherein each query suggestion of the first set of personalized query suggestions and the second set of non-personalized query suggestions is provided by applying a model specific to a data source from which the query suggestion is provided (see paragraphs [0035]-[0039] for the application of a model to the suggested search queries relying on private social media data versus application of a model using search history data.",
"See paragraphs [0046]-[0047]. Suggested search queries based in social data are ranked higher than suggested search queries NOT based in social data. Thus, there exist a second set of query suggestions based on information from an additional data source. Paragraph [0047] notes that an initial set of search queries is determined, and mapping attributes of each query suggestion of the first set [of] personalized query suggestions and the second set of non-personalized query suggestions to a feature space (see paragraphs [0051]-[0052] and [0046]. The attributes of each query suggestion are analyzed); ranking, based on the mapping, query suggestions from the first set of personalized query suggestions and the second set of non-personalized query suggestions to generate a ranked list of query suggestions (see paragraphs [0051]-[0052] and [0046]. The attributes of each query suggestion are analyzed); and presenting at least some of the ranked query suggestions to the person, so as to facilitate the person to submit a complete search query (see paragraphs [0046] and [0052]. The user is able to select a search query suggestion).",
"Govani does not clearly teach: wherein the person corpus is derived based on a person-centric space including data cross linked from a public space based on cross-linking keys identified from the data; sending the portion of the search query to an additional data source, disjoint from the person corpus, to obtain a second set of query suggestions based on the portion of the search query, Kadouch teaches: wherein the person corpus is derived based on a person-centric space including data cross linked from a private space associated with person and a public space based sending the portion of the search query to an additional data source, disjoint from the person corpus, to obtain a second set of non-personalized query suggestions based on the portion of the search query without considering a previous query within the person session (see paragraphs [0047]-[0048]. As indicated in paragraph [0047], multiple sources may be queries, including a knowledge graph and a database.",
"Claim [0047] specifically refers to checking different sources and analyzing each of the sources differently). It would have been obvious to one of ordinary skill in the art at the time the invention was filed to have modified Govani by the teachings of Kadouch because both references are directed towards providing a user with suggestions. Kadouch merely provides multiple different sources of data to analyze in a knowledge base, including public and private knowledge bases in addition to the private and semi-private knowledge bases of Govani. This will increase the variety and scope of suggestions that may be provided to a user of Govani. As to claim 2, Govani as modified teaches wherein the at least one data source private to the person includes: private electronic mails; a private calendar; a private contact list (see Govani paragraph [0036]. Social network data may be accessed while logged in); private bookmarks; private visual information;4821-7511-4463.v1Application No.",
": 14/875,072 Page 3private voice information; and private log information. As to claim 3, Govani as modified teaches the method of claim 1, wherein the additional data source includes: Queries mined from query logs with respect to a general population of persons without considering the person’s current search behavior (see Govani paragraph [0038]-[0039]. A general social network is used containing data that “is not as specific to the user as the social network data from the user’s online social network.” Paragraph [0038] appears to describe mining search and selection logs of general social networks). As to claim 5, Govani teaches the method of claim 1, wherein the portion includes a prefix of a search query (see Govani paragraphs [0034]-[0035]). As to claim 16, Govani teaches the method of claim 1, further comprising: presenting the ranked first set of personalized query suggestions prior to the ranked second set of non-personalized query suggestions (see Govani paragraphs [0046] and [0051]-[0052]). As to claim 17, Govani teaches the method of claim 1, further comprising: Govani paragraphs [0046] and [0051]-[0052]); and presenting at least one suggestion out of the ranked list of suggestions with the score (see Govani paragraphs [0046] and [0051]-[0052]).",
"As to claim 21, Govani teaches the method of claim 1, wherein each query suggestion of the first set of personalized query suggestions and the second set of non-personalized query suggestions is mapped to the feature space based on at least one attribute associated with the query suggestion, the attribute indicating at least one statistic related to the query suggestion (see Govani paragraphs [0046] and [0051]-[0052]). As to claim 22, Govani teaches the method of claim 1, wherein the model to extract the query suggestion from the data source is selected based on a type of content included in the data source (see Govani paragraphs [0047]-[0050]). As to claim 23, Govani teaches the method of claim 1, wherein deriving the person corpus further comprises: determining a domain of the data (see Govani paragraphs [0027]-[0028], [0036], and [0040]); and identifying the cross-linking keys from the data based on the domain (see Govani paragraphs [0027]-[0028], [0036], and [0040]). As to claim 24, Govani teaches the method of claim 1, wherein the model is trained to extract the query suggestion based on a type of information included in the additional data source (see Govani paragraph [0034]).",
"As to claim 6 and 11, see the rejection of claim 1. As to claims 7 and 12, see the rejection of claim 2. As to claims 8 and 13, see the rejection of claim 3. As to claims 10 and 15, see the rejection of claim 5. As to claim 18, see the rejection of claim 16. Claims 4, 9, and 14 are rejected under 35 U.S.C. 103 as being unpatentable over Govani (US Pre-Grant Publication 2013/0054631) in view of Kadouch et al. (US Pre-Grant Publication 2016/0217181), and further in view of McFarlane et al. (US Pre-Grant Publication 2011/0307498). As to claim 4, Govani teaches the method of claim 1. Govani does not explicitly teach wherein the operation of ranking comprises: normalizing each of the mapped query suggestions in the feature space to generate a normalized feature set; estimating a score for each query suggestion based on the normalized feature set; and McFarlane teaches wherein the operation of ranking comprises: normalizing each of the mapped query suggestions in the feature space to generate a normalized feature set (see paragraphs [0044]-[0045] and [0050]. Query suggestions are scored.",
"These scores include normalized values. As noted in paragraph [0050], normalized values represent processed factor values); estimating a score for each query suggestion based on the normalized feature set (see paragraphs [0044]-[0045]); and ranking each query suggestion from the first set of personalized query suggestions and the second set of non-personalized query suggestions based on the score of the query suggestion (see paragraphs [0044]-[0045] and [0053]. The search suggestions are ranked. As noted above, Govani teaches ranking personalized and non-personalized query suggestions, see paragraphs [0046] and [0051]-[0052]). It would have been obvious to one of ordinary skill in the art at the time the invention was filed to have modified Govani by the teachings of McFarlane because McFarlane provides additional metrics for scoring search suggestions. This will allow an administrator of Govani to more finely tune search suggestion responses for a user, producing a more accurate ranking. As to claims 9 and 14, see the rejection of claim 4.",
"Response to Arguments Applicant's remaining arguments filed 8 March 2022 have been fully considered but they are not persuasive. Applicant argues that “neither Govani nor Kadouch teaches or suggests the recited step of “sending the portion of the search query to an additional data source, disjoint from the person corpus, to obtain a second set of non-personalized query suggestions based on the portion of the search query without considering a previous query within the person session [involving a person interacting with a search application],” let alone the recited step of “ranking … query suggestions from the first set of personalized query suggestions and the second set of non-personalized query suggestions to generate a ranked list of query suggestions.” In response to this argument, Examiner notes that Govani does appear to disclose the limitation “sending…” limitation as claimed.",
"As noted in paragraph [0038], the suggested search query may be determined using “social networking data gathered from a plurality of different social networking sites,” where the data “is not as specific to the user as the social network data from the user’s online social network.” The recommendations resulting from this data source use “like” data associated with a suggested search query – which is not “considering a previous query within the person session [involving a person interacting with a search application].” Thus, the data is non-personalized and does not consider a previous query within the previous session. As noted in Govani paragraphs [0051]-[0052] and [0046], the attributes of each query suggestion are analyzed and a ranking of suggested search queries is calculated. Govani does show “ranking … query suggestions from the first set of personalized query suggestions and the second set of non-personalized query suggestions to generate a ranked list of query suggestions” to the extent claimed.",
"Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to CHARLES D ADAMS whose telephone number is (571)272-3938. The examiner can normally be reached M-F, 9-5:30 EST. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Neveen Abel-Jalil can be reached on 571-270-0474. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of published or unpublished applications may be obtained from Patent Center.",
"Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For /CHARLES D ADAMS/ Primary Examiner, Art Unit 2152"
] | https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-03-27.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
322DECISIONS OF NATIONAL LABOR RELATIONS BOARDThe MartinBros.Container & Timber ProductsCorp.andInternationalWoodworkers of Amer-ica, AFL-CIO. Case 26-CA-2865May 10, 1968DECISION AND ORDERBy MEMBERS BROWN, JENKINS, AND ZAGORIAOn January 30, 1968, Trial Examiner Thomas A.Ricci issued his Decision in the above-entitledproceeding, finding that the Respondent had notengaged in the unfair labor practices alleged in thecomplaint and recommending that the complaint bedismissed in its entirety, as set forth in the attachedTrial Examiner's Decision. Thereafter, the GeneralCounsel filed exceptions to the Trial Examiner'sDecision and a supporting brief, and Respondentfiled an answering brief.Pursuant to the provisions of Section 3(b) of theNational Labor Relations Act, as amended, the Na-tionalLabor Relations Board has delegated itspowers in connection with this case to a three-member panel.The Board has reviewed the rulings of the TrialExaminer made at the hearing and finds that noprejudicial error was committed. The rulings arehereby affirmed. The Board has considered theTrialExaminer'sDecision, the exceptions andbriefs, and the entire record in the case, and herebyadopts the findings, conclusions, and recommenda-tions of the Trial Examiner.ORDERPursuant to Section 10(c) of the National LaborRelationsAct, as amended, the National LaborRelations Board adopts as its Order the Recom-mended Order of the Trial Examiner and herebyorders that the complaint herein be, and it herebyis, dismissed in its entirety.TRIAL EXAMINER'S DECISIONSTATEMENT OF THE CASETHOMAS A. Ricci, Trial Examiner: A hearing inthe above-entitled proceeding was held before theduly designated Trial Examiner on November 27,1967, at Martin, Tennessee, on complaint of theGeneral Counsel against The Martin Bros. Con-tainer and Timber Products Corp., herein called theRespondent, or the Company. The issue presentediswhether the Respondent violated Section 8(a)(3)of the Act in the discharge of one employee. Briefswere filed after the close of the hearing by theGeneral Counsel and the Respondent.171 NLRB No. 46Upon the, entire record, and from my observationof the witnesses, I make the following:FINDINGS OF FACT1.THE BUSINESS OF THE RESPONDENTThe Respondent is an Ohio corporation engagedin the manufacture of wireboard shipping con-tainers, and maintains a plant at Martin,Tennessee.During the past 12 months it purchased andreceived at its Martin plant,the sole location in-volved in this proceeding,raw materials and sup-plies valued in excessof $50,000 directly frompoints located outside the State of Tennessee. Dur-ing the same period it sold and shipped productsfrom this plant valued in excessof $50,000 directlyto points located outside that State.Ifind that theRespondent is engaged in commerce within themeaning ofthe Actand that it will effectuate thepoliciesof the Actto exercise jurisdiction herein.II.THE LABOR ORGANIZATION INVOLVEDInternationalWoodworkersofAmerica,AFL-CIO,herein calledthe Union, is a labor or-ganizationwithinthe meaningof Section 2(5) ofthe Act.III.THE ALLEGED UNFAIR LABOR PRACTICEIt has always been a rule of conduct in this plantthat any employee who punches the timeclock cardof another workman is subject to disciplinarydischarge. This rule, among others, appears in writ-ing on a notice posted about the plant, with a copygiven every employee when first hired. On August21, 1967, employee Bob Courtney punched thetimecard of fellow worker Henry McDaniel, whilethe latter was parking his car, in which the two hadcome to work, on the lot outside the building.Courtney's card was on another clock rack at theother side of the plant. Two hours later the plantsuperintendent discharged him for the stated reasonthat he had violated the known rule.There is very little dispute as to the facts of thecase.Courtney knew he could be discharged forpunching someone else's card. There was a collec-tive-bargaining agreement in effect with the Union,he was its vice president, and he participated active-lyand regularly in grievance committee con-ferences with management. In these circumstanceshis assertion, at one point in his testimony, that hedid not know of the rule, serves little to enhance hisclaim of unfair treatment. And of course the Com-pany knew of his position in the Union.In his brief the General Counsel advances twotheories in support of the complaint allegation thatCourtney was not discharged because of the ruleviolation, but to rid the plant of a prounion em-ployee. The first is an argument resting upon as-serted disparate treatment between Courtney and MARTIN BROS.CONTAINER CORP.323another employee. A week earlier a foreman hadreason to suspect that Evans had punched his wife'scard, both of them also union members, and thenext day did no more than warn him of the dangerthat inhered in punching cards for other employees.It is argued that, because Evans was only warnedbut Courtney discharged, the "Respondent mustgive an adequate explanation for this disparity oftreatment."The second contention is that therecord evidence in its entirety shows such animusagainst the Union in the mind of management, al-beit none directed against Courtney personally, asto warrant an inference that the rule violation wasused as a pretext to cloak the illegal motivation ofweakening the Union throughout the plant. I thinkneither theory finds support in this record.Foreman Fred Martin testified that on August 11,as he watched the employees lined up after work topunch their cards-they sometimes fall over them-selves in the rush, he saw Mrs. Evans walk awayfrom the line and leave the plant with her husband.It looked to him that she had not punched her card.The next morning he told Evans "did he know itwas against the company rules to punch anotheremployee's timecard.Evans answered he did not,but"wouldn't' do it again."Martin'sdirecttestimony that he never mentioned this incident toPlantSuperintendent Skibinski until after thedischarge of Courtney became general talk in theplant is perfectly credible.When he did, Skibinskitold him he should have "written them up," mean-ing a written warning notice. Beyond this, there isno probative evidence that any other rank-and-fileemployee had ever punched the timecard ofanother, certainlynonethat the Company wasdefinitely aware of. Talk and rumor they may havebeen;indeed Foreman Robert Ziefle was posted atthe timeclock, on the morning Courtney made hismistake, for the very purpose of watching the em-ployees as they punched in. But this is far short ofrealproof of other offenses, and the generaltestimony by Government witnesses-employeesand Vern Ussery, the union regional representativewho does not work in the plant-that "others hadpunched too," "nonunionemployees involved,too," proved little. Aside from Ussery's mention ofa Mrs. Grissom, when these witnesses were asked togive names, they refused.'Itwas conceded the rule does not apply to super-visors,who are salaried and receive their full payregardless of hours, late arrival, or early departure.In contrast, an employee 1 minute late is docked 15minutes.Thus, the fact, also admitted, thatForeman Ziefle's wife, a production worker, on oc-casionpuncheshiscardwhen they arrivetogether-when he carries bundles, he said-can-not logically be a makeweight factor in thedisparate treatment theory of illegality urged by theGeneral Counsel.The two incidents-that of Evans and that ofCourtney-are not truly comparable, and if the twomen were in the end accorded different treatment,there could be rational explanation. Foreman Mar-tinwas not sure in the evening that Evans hadreallythepunched his wife's card; even when he spokeof itnext day it was more in the form of aquestion, than in terms of positive charge. Courtneywas brazen, even signaling the foreman to keep stillabout it when he realized he had been seen. TheGeneral Counsel makes much of the fact he was avery prominent unioneer, a great pusher of em-ployee rights against the Company in the day-to-day running of the plant, as witness his constant ap-pearances on their behalf at grievance meetings.Could it not be said that for this same reason therewas a greater duty upon him, more conversant withworking rules because of his representation activi-ties, to obey them in his personal comportment? Icannot find this is truly a case of disparate treat-ment between union and nonunion employees.After all, Evans was himself on checkoff.But even assuming, contrary to the fact, that theRespondent excused one employee and dischargeda union officer for like offense, there remains whatmay well be a fatal weakness in the theory of pre-sumptive guilt by the Respondent. The argument isthat when the misconduct of a plain union memberisoverlooked, and that of an officer punished, itfollows, absent any other persuasive explanationfurnished by the employer, that the reason for thediscipline was the second man's special status in theunion. The disparate treatment of itself does sup-port an inference that the reason for taking actionagainst the second offender was not the fact of therule infraction. This reasoning establishes a nega-tiveproposition.A finding of illegal motivation,however, requires an affirmative conclusion thatthe real reason was the man's superior standing in'Courtney testified that at the moment of discharge he told Skibinski"there had been others that had been punched," and that the superinten-dent replied "they've been punched in every morning and punched out of anight and not hereand drawed pay for it and never had come in theplant"Before actually discharging Courtney the superintendent advisedthe union president,Goodin,of his decision,as the practice required Ac-cording to Goodin he told Skibmski-this punching in and out, otherpeople's cards has been going on ever since I've been here,"and that theanswer was"Yeah,Iknow thatI've got to start on somebody . It'sgot to be stopped"Ussery added that,later in the day when union officersattempted to adjust the problem with management, he also told Skibinski"many of the other employees had been punching cards," and that Sktbm-ski answered he was aware of" these other people punching cards inHerby Nevil,also a union committeeman at the time, quoted Skibinski assaying he had never seen it, but "I know its been going on -Clemons Miller, the company general manager,testified he knew of noother particular case in which such a rule violation had occurred, althoughhe had "heard it mentioned about other ones " And Skibinski denied say-ing he knew of past offenses His testimony is that he told the union pre-sident instead "JohnIhave never seen or heard of anybody punchinganother man's card and if it's a common practicewe've even had onetime, Fred Martin watching to see if anybody would punch a card out afterwork time -However the foregoing testimony may indicate suspicion by manage-ment, I find it inadequate to prove that in fact there had been past offensesactually known by the company supervisors353-177 0 - 72 - 22 324DECISIONSOF NATIONALLABOR RELATIONS BOARDthe union. But the only factual support for such apositive inference is the very fact the man was thevice president. If the punching of another em-ployee's card was not thereason for the discharge,what othercharacteristicthat distinguished Court-ney from others could furnish the possible clue tothe real motivation-his disposition,his religion, hissocialdesirability,hiswork performance? Thiswould not be the case of disparate treatment of aman engagedin otherwise lawfully prohibited unionactivity.Courtneywas doingnothing that con-cernedthe Union when he ran afoul of the not im-proper rule. In short,as a matterof logic, there isan essential element lackingfor the requisite find-ing that Skibinskiwas thinking of the Union whenhe discharged Courtney. In other words, theGeneral Counselisaskingfor a presumption, out-side the record, to supply one of the connectinglinksnecessaryto provea prima faciecase againstthe Respondent under this theory of the complaint.So much for disparate treatmentper se.Entirelyapart from the first theory-but obviously advancedas tangentialsubstitution for a logical weakness-the General Counsel offered evidence said to provetheRespondentwas opposed to the Uniongenerally. It is doubtful that general animus couldin any event overcome the conceded proof of Justcause for discharge in this case. The evidence fallsshort of proving the prime allegation of the com-plaint in any event.Employee James Danner was a union stewardand committeeman who attended all the grievanceconferences, which were many. Late in May, 3monthsbefore Courtney's discharge, he quarreledwith Skibinski while certain grievances were beingconsidered, one of which was Danner's personalcomplaint that a foreman had performed somework driving his forklift. Danner had also filed, inhis own behalf, three exactly similar grievances inFebruary and two the previous December. In addi-tion,he had also filed two other grievances for him-self, one on December 12 and one on January 19.In the heat of the discussion, Skibinski said tohim-according to Danner's testimony not effec-tively denied by the superintendent-"if I didn'tquit filing so many grievances he was going to makeit so hard on me I'd be glad to walk out the gate ...if I spilled one load, that would be all." ApparentlyDanner's job was to move lumber about the plantwith the forklift, and spilling lumber would haveshown ineptitude. Tempers were cooled whenUnion President Goodin then told Skibinski "to getoff Danner's back."The only further evidence of dislike for theUnion appears in the testimony of John Wynne,also a unionsteward. He related how on about Au-gust 1,another employee, James Kiezer, who wasnot a unionmember, quit in a huff 1 day duringworking hours because ForemanMartinhadpromised him a raise and promotion to foreman butwas too slow in delivering. When he saw Kiezerwalk off the job, Wynne said to Martin: "If I had ofdid James like he did me and walked out on you alllike that ... you would fire me, wouldn't you.... IfIwalked out, what would you have done if it wouldhave been me." Martin s answer, according toWynne was: "Yes, Preacher, I would have. I'dstoop three times to a nonunion man before I wouldonce to aunionemployee." In his testimony Martindid not address himself at all to this incident.Whatever can be said of the significance of thesetwo comments-one by Skibinski and one by Mar-tin-as indicative of animosityagainst theUnion assuch, they cannot serve to prove thatthe dischargeof Courtneywas an antiunion gesture by theRespondent. Whenever there isa suggestion of hid-den motivation, and particularincidents remotefrom the alleged pretextual dischargeare said tosupport a finding of illegal purpose, it is only fair toconsider also other seemingly unrelatedbut no lessrelevant facts. The Respondenthas been in con-tractual relations with the Union for 2 years andtheir affairs have always proceeded amicably. All ofthe many grievances filed have been settled to theUnion's satisfaction without necessity of further in-volvement.Courtney was not the first to bedischarged summarily and without prior warning. Itwas stipulated that four other employees weresimilarly terminated for various serious offenses.And the statement in the General Counsel's briefthat in Courtney's casethe Respondent departedfrom an established rule that writtenwarnings mustcome first in the case of serious offenses-he didnot define "serious"-has no substantial support inthe record. The only evidence on this question isthat of Plant Manager Miller, who said there is nouniform practice on rule violations, and that, whilethere are oral warnings, written warnings, and even3-day disciplinary layoffs, the disciplinary action tobe taken depends "... if we feel as though it's areal serious thing, of course-Imean,you've gotstealing or something like that there, something likethat where there is no warning, we just automati-cally discharge them." And when Skibinski decidedto release Courtney, he first advised the union pre-sident, because, as Goodin testified, the superinten-dent was "supposed to under the contract.'However theissue beviewed-under theper setheory of disparate treatment or as an alleged pre-text case-the evidence in its totality does not sup-port the essential allegation of the complaint withsubstantialproof. I shall therefore recommenddismissal with respect to Courtney's discharge.Idoubt it would be wise to be over critical ofthings said in the general give and take of grievanceconference discussions, really as aspect of the col-lective-bargaining process, where tempers are likelyto flare and the very release of tensions leads to in-dustrial peace. There therefore cannot be, or atleast there should not be, an unfair labor practicefinding based on Skibinski's outburst to Dannerback in May. As to Foreman Martin's statement to MARTIN BROS. CONTAINER CORP.325Wynne, that he would tend to favor nonunion em-recommend dismissal of the complaint in its en-ployees against union members, it borders closetirety.upon a violation of Section 8(a)(1) of the Act. Inthe circumstances of this case,however, it beingRECOMMENDATIONthe only incident upon which an unfair labor prac-tice finding could be predicated, no useful purposeIt is hereby recommended that the complaintwould be served by the finding, or by any cease-against The Martin Bros. Container and Timberand-desist order based upon it. I shall thereforeProducts Corp. be, and it hereby is, dismissed. | [
"322DECISIONS OF NATIONAL LABOR RELATIONS BOARDThe MartinBros.Container & Timber ProductsCorp.andInternationalWoodworkers of Amer-ica, AFL-CIO. Case 26-CA-2865May 10, 1968DECISION AND ORDERBy MEMBERS BROWN, JENKINS, AND ZAGORIAOn January 30, 1968, Trial Examiner Thomas A.Ricci issued his Decision in the above-entitledproceeding, finding that the Respondent had notengaged in the unfair labor practices alleged in thecomplaint and recommending that the complaint bedismissed in its entirety, as set forth in the attachedTrial Examiner's Decision. Thereafter, the GeneralCounsel filed exceptions to the Trial Examiner'sDecision and a supporting brief, and Respondentfiled an answering brief.Pursuant to the provisions of Section 3(b) of theNational Labor Relations Act, as amended, the Na-tionalLabor Relations Board has delegated itspowers in connection with this case to a three-member panel.The Board has reviewed the rulings of the TrialExaminer made at the hearing and finds that noprejudicial error was committed. The rulings arehereby affirmed.",
"The Board has considered theTrialExaminer'sDecision, the exceptions andbriefs, and the entire record in the case, and herebyadopts the findings, conclusions, and recommenda-tions of the Trial Examiner.ORDERPursuant to Section 10(c) of the National LaborRelationsAct, as amended, the National LaborRelations Board adopts as its Order the Recom-mended Order of the Trial Examiner and herebyorders that the complaint herein be, and it herebyis, dismissed in its entirety.TRIAL EXAMINER'S DECISIONSTATEMENT OF THE CASETHOMAS A. Ricci, Trial Examiner: A hearing inthe above-entitled proceeding was held before theduly designated Trial Examiner on November 27,1967, at Martin, Tennessee, on complaint of theGeneral Counsel against The Martin Bros. Con-tainer and Timber Products Corp., herein called theRespondent, or the Company.",
"The issue presentediswhether the Respondent violated Section 8(a)(3)of the Act in the discharge of one employee. Briefswere filed after the close of the hearing by theGeneral Counsel and the Respondent.171 NLRB No. 46Upon the, entire record, and from my observationof the witnesses, I make the following:FINDINGS OF FACT1.THE BUSINESS OF THE RESPONDENTThe Respondent is an Ohio corporation engagedin the manufacture of wireboard shipping con-tainers, and maintains a plant at Martin,Tennessee.During the past 12 months it purchased andreceived at its Martin plant,the sole location in-volved in this proceeding,raw materials and sup-plies valued in excessof $50,000 directly frompoints located outside the State of Tennessee.",
"Dur-ing the same period it sold and shipped productsfrom this plant valued in excessof $50,000 directlyto points located outside that State.Ifind that theRespondent is engaged in commerce within themeaning ofthe Actand that it will effectuate thepoliciesof the Actto exercise jurisdiction herein.II.THE LABOR ORGANIZATION INVOLVEDInternationalWoodworkersofAmerica,AFL-CIO,herein calledthe Union, is a labor or-ganizationwithinthe meaningof Section 2(5) ofthe Act.III.THE ALLEGED UNFAIR LABOR PRACTICEIt has always been a rule of conduct in this plantthat any employee who punches the timeclock cardof another workman is subject to disciplinarydischarge. This rule, among others, appears in writ-ing on a notice posted about the plant, with a copygiven every employee when first hired. On August21, 1967, employee Bob Courtney punched thetimecard of fellow worker Henry McDaniel, whilethe latter was parking his car, in which the two hadcome to work, on the lot outside the building.Courtney's card was on another clock rack at theother side of the plant.",
"Two hours later the plantsuperintendent discharged him for the stated reasonthat he had violated the known rule.There is very little dispute as to the facts of thecase.Courtney knew he could be discharged forpunching someone else's card. There was a collec-tive-bargaining agreement in effect with the Union,he was its vice president, and he participated active-lyand regularly in grievance committee con-ferences with management. In these circumstanceshis assertion, at one point in his testimony, that hedid not know of the rule, serves little to enhance hisclaim of unfair treatment. And of course the Com-pany knew of his position in the Union.In his brief the General Counsel advances twotheories in support of the complaint allegation thatCourtney was not discharged because of the ruleviolation, but to rid the plant of a prounion em-ployee.",
"The first is an argument resting upon as-serted disparate treatment between Courtney and MARTIN BROS.CONTAINER CORP.323another employee. A week earlier a foreman hadreason to suspect that Evans had punched his wife'scard, both of them also union members, and thenext day did no more than warn him of the dangerthat inhered in punching cards for other employees.It is argued that, because Evans was only warnedbut Courtney discharged, the \"Respondent mustgive an adequate explanation for this disparity oftreatment. \"The second contention is that therecord evidence in its entirety shows such animusagainst the Union in the mind of management, al-beit none directed against Courtney personally, asto warrant an inference that the rule violation wasused as a pretext to cloak the illegal motivation ofweakening the Union throughout the plant. I thinkneither theory finds support in this record.Foreman Fred Martin testified that on August 11,as he watched the employees lined up after work topunch their cards-they sometimes fall over them-selves in the rush, he saw Mrs. Evans walk awayfrom the line and leave the plant with her husband.It looked to him that she had not punched her card.The next morning he told Evans \"did he know itwas against the company rules to punch anotheremployee's timecard.Evans answered he did not,but\"wouldn't' do it again.",
"\"Martin'sdirecttestimony that he never mentioned this incident toPlantSuperintendent Skibinski until after thedischarge of Courtney became general talk in theplant is perfectly credible.When he did, Skibinskitold him he should have \"written them up,\" mean-ing a written warning notice. Beyond this, there isno probative evidence that any other rank-and-fileemployee had ever punched the timecard ofanother, certainlynonethat the Company wasdefinitely aware of. Talk and rumor they may havebeen;indeed Foreman Robert Ziefle was posted atthe timeclock, on the morning Courtney made hismistake, for the very purpose of watching the em-ployees as they punched in. But this is far short ofrealproof of other offenses, and the generaltestimony by Government witnesses-employeesand Vern Ussery, the union regional representativewho does not work in the plant-that \"others hadpunched too,\" \"nonunionemployees involved,too,\" proved little. Aside from Ussery's mention ofa Mrs. Grissom, when these witnesses were asked togive names, they refused.",
"'Itwas conceded the rule does not apply to super-visors,who are salaried and receive their full payregardless of hours, late arrival, or early departure.In contrast, an employee 1 minute late is docked 15minutes.Thus, the fact, also admitted, thatForeman Ziefle's wife, a production worker, on oc-casionpuncheshiscardwhen they arrivetogether-when he carries bundles, he said-can-not logically be a makeweight factor in thedisparate treatment theory of illegality urged by theGeneral Counsel.The two incidents-that of Evans and that ofCourtney-are not truly comparable, and if the twomen were in the end accorded different treatment,there could be rational explanation. Foreman Mar-tinwas not sure in the evening that Evans hadreallythepunched his wife's card; even when he spokeof itnext day it was more in the form of aquestion, than in terms of positive charge. Courtneywas brazen, even signaling the foreman to keep stillabout it when he realized he had been seen.",
"TheGeneral Counsel makes much of the fact he was avery prominent unioneer, a great pusher of em-ployee rights against the Company in the day-to-day running of the plant, as witness his constant ap-pearances on their behalf at grievance meetings.Could it not be said that for this same reason therewas a greater duty upon him, more conversant withworking rules because of his representation activi-ties, to obey them in his personal comportment? Icannot find this is truly a case of disparate treat-ment between union and nonunion employees.After all, Evans was himself on checkoff.But even assuming, contrary to the fact, that theRespondent excused one employee and dischargeda union officer for like offense, there remains whatmay well be a fatal weakness in the theory of pre-sumptive guilt by the Respondent. The argument isthat when the misconduct of a plain union memberisoverlooked, and that of an officer punished, itfollows, absent any other persuasive explanationfurnished by the employer, that the reason for thediscipline was the second man's special status in theunion. The disparate treatment of itself does sup-port an inference that the reason for taking actionagainst the second offender was not the fact of therule infraction.",
"This reasoning establishes a nega-tiveproposition.A finding of illegal motivation,however, requires an affirmative conclusion thatthe real reason was the man's superior standing in'Courtney testified that at the moment of discharge he told Skibinski\"there had been others that had been punched,\" and that the superinten-dent replied \"they've been punched in every morning and punched out of anight and not hereand drawed pay for it and never had come in theplant\"Before actually discharging Courtney the superintendent advisedthe union president,Goodin,of his decision,as the practice required Ac-cording to Goodin he told Skibmski-this punching in and out, otherpeople's cards has been going on ever since I've been here,\"and that theanswer was\"Yeah,Iknow thatI've got to start on somebody .",
"It'sgot to be stopped\"Ussery added that,later in the day when union officersattempted to adjust the problem with management, he also told Skibinski\"many of the other employees had been punching cards,\" and that Sktbm-ski answered he was aware of\" these other people punching cards inHerby Nevil,also a union committeeman at the time, quoted Skibinski assaying he had never seen it, but \"I know its been going on -Clemons Miller, the company general manager,testified he knew of noother particular case in which such a rule violation had occurred, althoughhe had \"heard it mentioned about other ones \" And Skibinski denied say-ing he knew of past offenses His testimony is that he told the union pre-sident instead \"JohnIhave never seen or heard of anybody punchinganother man's card and if it's a common practicewe've even had onetime, Fred Martin watching to see if anybody would punch a card out afterwork time -However the foregoing testimony may indicate suspicion by manage-ment, I find it inadequate to prove that in fact there had been past offensesactually known by the company supervisors353-177 0 - 72 - 22 324DECISIONSOF NATIONALLABOR RELATIONS BOARDthe union.",
"But the only factual support for such apositive inference is the very fact the man was thevice president. If the punching of another em-ployee's card was not thereason for the discharge,what othercharacteristicthat distinguished Court-ney from others could furnish the possible clue tothe real motivation-his disposition,his religion, hissocialdesirability,hiswork performance? Thiswould not be the case of disparate treatment of aman engagedin otherwise lawfully prohibited unionactivity.Courtneywas doingnothing that con-cernedthe Union when he ran afoul of the not im-proper rule. In short,as a matterof logic, there isan essential element lackingfor the requisite find-ing that Skibinskiwas thinking of the Union whenhe discharged Courtney. In other words, theGeneral Counselisaskingfor a presumption, out-side the record, to supply one of the connectinglinksnecessaryto provea prima faciecase againstthe Respondent under this theory of the complaint.So much for disparate treatmentper se.Entirelyapart from the first theory-but obviously advancedas tangentialsubstitution for a logical weakness-the General Counsel offered evidence said to provetheRespondentwas opposed to the Uniongenerally. It is doubtful that general animus couldin any event overcome the conceded proof of Justcause for discharge in this case. The evidence fallsshort of proving the prime allegation of the com-plaint in any event.Employee James Danner was a union stewardand committeeman who attended all the grievanceconferences, which were many. Late in May, 3monthsbefore Courtney's discharge, he quarreledwith Skibinski while certain grievances were beingconsidered, one of which was Danner's personalcomplaint that a foreman had performed somework driving his forklift. Danner had also filed, inhis own behalf, three exactly similar grievances inFebruary and two the previous December.",
"In addi-tion,he had also filed two other grievances for him-self, one on December 12 and one on January 19.In the heat of the discussion, Skibinski said tohim-according to Danner's testimony not effec-tively denied by the superintendent-\"if I didn'tquit filing so many grievances he was going to makeit so hard on me I'd be glad to walk out the gate ...if I spilled one load, that would be all.\" ApparentlyDanner's job was to move lumber about the plantwith the forklift, and spilling lumber would haveshown ineptitude. Tempers were cooled whenUnion President Goodin then told Skibinski \"to getoff Danner's back. \"The only further evidence of dislike for theUnion appears in the testimony of John Wynne,also a unionsteward. He related how on about Au-gust 1,another employee, James Kiezer, who wasnot a unionmember, quit in a huff 1 day duringworking hours because ForemanMartinhadpromised him a raise and promotion to foreman butwas too slow in delivering.",
"When he saw Kiezerwalk off the job, Wynne said to Martin: \"If I had ofdid James like he did me and walked out on you alllike that ... you would fire me, wouldn't you.... IfIwalked out, what would you have done if it wouldhave been me.\" Martin s answer, according toWynne was: \"Yes, Preacher, I would have. I'dstoop three times to a nonunion man before I wouldonce to aunionemployee.\" In his testimony Martindid not address himself at all to this incident.Whatever can be said of the significance of thesetwo comments-one by Skibinski and one by Mar-tin-as indicative of animosityagainst theUnion assuch, they cannot serve to prove thatthe dischargeof Courtneywas an antiunion gesture by theRespondent.",
"Whenever there isa suggestion of hid-den motivation, and particularincidents remotefrom the alleged pretextual dischargeare said tosupport a finding of illegal purpose, it is only fair toconsider also other seemingly unrelatedbut no lessrelevant facts. The Respondenthas been in con-tractual relations with the Union for 2 years andtheir affairs have always proceeded amicably. All ofthe many grievances filed have been settled to theUnion's satisfaction without necessity of further in-volvement.Courtney was not the first to bedischarged summarily and without prior warning. Itwas stipulated that four other employees weresimilarly terminated for various serious offenses.And the statement in the General Counsel's briefthat in Courtney's casethe Respondent departedfrom an established rule that writtenwarnings mustcome first in the case of serious offenses-he didnot define \"serious\"-has no substantial support inthe record.",
"The only evidence on this question isthat of Plant Manager Miller, who said there is nouniform practice on rule violations, and that, whilethere are oral warnings, written warnings, and even3-day disciplinary layoffs, the disciplinary action tobe taken depends \"... if we feel as though it's areal serious thing, of course-Imean,you've gotstealing or something like that there, something likethat where there is no warning, we just automati-cally discharge them.\" And when Skibinski decidedto release Courtney, he first advised the union pre-sident, because, as Goodin testified, the superinten-dent was \"supposed to under the contract. 'However theissue beviewed-under theper setheory of disparate treatment or as an alleged pre-text case-the evidence in its totality does not sup-port the essential allegation of the complaint withsubstantialproof. I shall therefore recommenddismissal with respect to Courtney's discharge.Idoubt it would be wise to be over critical ofthings said in the general give and take of grievanceconference discussions, really as aspect of the col-lective-bargaining process, where tempers are likelyto flare and the very release of tensions leads to in-dustrial peace. There therefore cannot be, or atleast there should not be, an unfair labor practicefinding based on Skibinski's outburst to Dannerback in May.",
"As to Foreman Martin's statement to MARTIN BROS. CONTAINER CORP.325Wynne, that he would tend to favor nonunion em-recommend dismissal of the complaint in its en-ployees against union members, it borders closetirety.upon a violation of Section 8(a)(1) of the Act. Inthe circumstances of this case,however, it beingRECOMMENDATIONthe only incident upon which an unfair labor prac-tice finding could be predicated, no useful purposeIt is hereby recommended that the complaintwould be served by the finding, or by any cease-against The Martin Bros. Container and Timberand-desist order based upon it.",
"I shall thereforeProducts Corp. be, and it hereby is, dismissed."
] | https://www.nlrb.gov/cases-decisions/decisions/board-decisions | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
|
ALLOWANCE Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Reasons for Allowance The following is an examiner’s statement of reasons for allowance:
The prior art of record fails to teach the invention as particularly claimed: Sigmon, Jr. et al. (US 2007/0028288 A1) and Boudreau et al. (US 2004/0117858 A1)
However, none of the references, alone or in combination, teach or suggest a data port communicatively coupled to a hosting service for receiving video content that is uncompressed from the hosting service; an encoder for encoding the video content that is uncompressed to generate encoded video content; and a local network interface communicatively coupled to a client device for streaming the encoded video content to the client device through a communication network. Thus, the claimed invention is not anticipated by nor obvious over the closest prior art.
Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.”
Conclusion The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Tran (US 2007/0207782 A1), Letovsky et al. (US 2002/0147047 A1), Katz et al. (US 6,343,086 B1), Kost et al. (US 2002/0154691 A1), Hsieh et al. (US 5,995,150), Long et al. (US 5,550,982), Loh (US 2003/0005204 A1)
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ALLEN CHAN whose telephone number is (571)270-5529. The examiner can normally be reached Monday-Friday, 11:00 AM EST to 7:00 PM EST. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Dmitry Suhol can be reached on (571) 272-4430. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/ALLEN CHAN/Primary Examiner, Art Unit 3715 9/10/2022 | 2022-09-15T14:52:38 | [
"ALLOWANCE Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . Reasons for Allowance The following is an examiner’s statement of reasons for allowance: The prior art of record fails to teach the invention as particularly claimed: Sigmon, Jr. et al. (US 2007/0028288 A1) and Boudreau et al. (US 2004/0117858 A1) However, none of the references, alone or in combination, teach or suggest a data port communicatively coupled to a hosting service for receiving video content that is uncompressed from the hosting service; an encoder for encoding the video content that is uncompressed to generate encoded video content; and a local network interface communicatively coupled to a client device for streaming the encoded video content to the client device through a communication network. Thus, the claimed invention is not anticipated by nor obvious over the closest prior art. Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.” Conclusion The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.",
"Tran (US 2007/0207782 A1), Letovsky et al. (US 2002/0147047 A1), Katz et al. (US 6,343,086 B1), Kost et al. (US 2002/0154691 A1), Hsieh et al. (US 5,995,150), Long et al. (US 5,550,982), Loh (US 2003/0005204 A1) Any inquiry concerning this communication or earlier communications from the examiner should be directed to ALLEN CHAN whose telephone number is (571)270-5529. The examiner can normally be reached Monday-Friday, 11:00 AM EST to 7:00 PM EST. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Dmitry Suhol can be reached on (571) 272-4430. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users.",
"To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000. /ALLEN CHAN/Primary Examiner, Art Unit 3715 9/10/2022"
] | https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-09-18.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
1 UNITED STATES DISTRICT COURT
2 NORTHERN DISTRICT OF CALIFORNIA
3 DWAYNE C SMITH, et al., 4 Case No. 18-cv-05612-YGR Plaintiffs, 5 v. CASE MANAGEMENT AND 6 PRETRIAL ORDER NATIONSTAR MORTGAGE LLC, 7 Defendant. 8
9 TO ALL PARTIES AND COUNSEL OF RECORD:
10 The Court hereby sets the following trial and pretrial dates:
11 PRETRIAL SCHEDULE 12 CASE MANAGEMENT CONFERENCE: Monday, February 10, 2020 at 2:00 p.m. Northern District of California United States District Court
13 PREVIOUSLY REFERRED TO ADR FOR COURT October 2, 2019 Mediation date set MEDIATION. MEDIATION IS SET FOR: 14 LAST DAY TO JOIN PARTIES OR AMEND With Court Approval or good cause by 15 PLEADINGS: Motions under FRCP Rule 16(b)(4) 16 NON-EXPERT DISCOVERY CUTOFF: January 31, 2020 17 DISCLOSURE OF EXPERT REPORTS: 18 Opening: February 7, 2020 ALL EXPERTS, RETAINED AND NON-RETAINED 19 MUST PROVIDE WRITTEN REPORTS COMPLIANT Rebuttal: February 17, 2020 WITH FRCP 26(A)(2)(B): 20 EXPERT DISCOVERY CUTOFF: February 28, 2020 21 DISPOSITIVE MOTIONS1 / DAUBERT MOTIONS To 22 April 28, 2020; filed by 3/31/2020 BE HEARD BY: 23
24
25 The parties must comply with both the Court’s Standing Order in Civil Cases and Standing 26
27 1 See Standing Order regarding Pre-filing Conference Requirements for motions for 28 summary judgment. 1 Order for Pretrial Instructions in Civil Cases for additional deadlines and procedures. All
2 Standing Orders are available on the Court’s website at http://www.cand.uscourts.gov/ygrorders.
3 IT IS SO ORDERED.
4 Dated: September 3, 2019
5 ______________________________________ YVONNE GONZALEZ ROGERS 6 United States District Judge 7
8
9
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"1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 DWAYNE C SMITH, et al., 4 Case No. 18-cv-05612-YGR Plaintiffs, 5 v. CASE MANAGEMENT AND 6 PRETRIAL ORDER NATIONSTAR MORTGAGE LLC, 7 Defendant. 8 9 TO ALL PARTIES AND COUNSEL OF RECORD: 10 The Court hereby sets the following trial and pretrial dates: 11 PRETRIAL SCHEDULE 12 CASE MANAGEMENT CONFERENCE: Monday, February 10, 2020 at 2:00 p.m. Northern District of California United States District Court 13 PREVIOUSLY REFERRED TO ADR FOR COURT October 2, 2019 Mediation date set MEDIATION. MEDIATION IS SET FOR: 14 LAST DAY TO JOIN PARTIES OR AMEND With Court Approval or good cause by 15 PLEADINGS: Motions under FRCP Rule 16(b)(4) 16 NON-EXPERT DISCOVERY CUTOFF: January 31, 2020 17 DISCLOSURE OF EXPERT REPORTS: 18 Opening: February 7, 2020 ALL EXPERTS, RETAINED AND NON-RETAINED 19 MUST PROVIDE WRITTEN REPORTS COMPLIANT Rebuttal: February 17, 2020 WITH FRCP 26(A)(2)(B): 20 EXPERT DISCOVERY CUTOFF: February 28, 2020 21 DISPOSITIVE MOTIONS1 / DAUBERT MOTIONS To 22 April 28, 2020; filed by 3/31/2020 BE HEARD BY: 23 24 25 The parties must comply with both the Court’s Standing Order in Civil Cases and Standing 26 27 1 See Standing Order regarding Pre-filing Conference Requirements for motions for 28 summary judgment. 1 Order for Pretrial Instructions in Civil Cases for additional deadlines and procedures.",
"All 2 Standing Orders are available on the Court’s website at http://www.cand.uscourts.gov/ygrorders. 3 IT IS SO ORDERED. 4 Dated: September 3, 2019 5 ______________________________________ YVONNE GONZALEZ ROGERS 6 United States District Judge 7 8 9 10 11 12 Northern District of California United States District Court 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2"
] | https://www.courtlistener.com/api/rest/v3/recap-documents/105179476/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
DETAILED ACTION Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . Continued Examination Under 37 CFR 1.114 A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 11/30/2021 has been entered. Claim Rejections - 35 USC § 103 The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action: A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 1, 7-12, and 18-19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Fan (CN102829668A) in view of Potier (FR2843448). Regarding claim 1, Fan teaches a condenser (Fig. 4 & “condensing” - ¶[0002]), comprising: a fluid inlet (see inlet denoted by arrow to 3) in an upper manifold (3); a fluid outlet (see outlet denoted by arrow out of 4) in a lower manifold (4); multiport tubes (2) extending between the upper and lower manifold, wherein the multiport tubes are provided with a plurality of separate flow channels (see flow channels in 2) which are delimited by outer opposite side walls (see left and right walls of 2 in A-A) and internal intermediate walls (see top and bottom walls of 2 in A-A) extending between the outer opposite side walls of the tubes, the multiport tubes providing a flow path between the upper manifold and the lower manifold, wherein the multiport tubes define a channel space (see spaces between adjacent tubes 2) between the multiport tubes; and a plurality of cooling plates (5) between the upper manifold Fan does not teach the plurality of cooling plates extending between the upper manifold and the lower manifold, as they extend perpendicular to the lengths of the tubes.
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified Fan to include the cooling plates extending between the upper manifold and lower manifold, as taught by Potier, as it has been held obvious to provide a simple substitution of one known element for another to obtain predictable results (see MPEP 2143 I). Here, both perpendicular and parallel fins, extending between an upper and lower header, are known to provide suitable cooling surfaces for such a heat exchanger, as taught by Potier (see fins 32 Fig. 1-7, Page 2, lines 40-55). Regarding claim 7, Fan teaches the limitations of claim 1, and Fan as modified further teaches the condenser comprises a natural convection condenser (Fan as modified above is capable of operating in such a manner). Regarding claim 8, Fan teaches the limitations of claim 1, and Fan as modified further teaches a fan (fan - ¶[0045]) generating an airflow between the cooling plates. Regarding claim 9, Fan teaches the limitations of claim 1, and Fan as modified further teaches the condenser comprises a natural convection condenser provided by a fan (fan - ¶[0045]) assisting vertical flow of air upwards between the cooling plates (Fan as modified above is capable of operating in such a manner).
The recitation “wherein the condenser receives fluid from and passes fluid to an evaporator cooling a high current or voltage device” is considered a statement of intended use. The applicant is reminded that a recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus satisfying the structural limitations of the claim, as is the case here; refer to MPEP2114(II). In the instant case, the claim is directed to “a condenser” and thus any condenser capable of receiving fluid from an evaporator for cooling a high current or voltage device will be considered to meet this claim limitation. Regarding claim 11, Fan teaches a condenser (Fig. 4 & “condensing” - ¶[0002]), comprising: a first manifold (3); a second manifold (4); multiport tubes (2) extending between the first and second manifolds, wherein the multiport tubes are provided with a plurality of separate flow channels (see flow channels in 2) that provide a flow path between the first manifold and the second manifold; and a plurality of cooling plates (5) between the first manifold and the second manifold, wherein the cooling plates (5) are in thermal contact with the multiport tubes (via plates 1) to receive a heat load from fluid in the flow channels, the cooling plates having opposite outer edges which extend outwardly away from the multiport tubes beyond a periphery of a space defined between the first manifold and the second manifold (see B-B, in which fins 5 extend beyond the manifolds 3 & 4), the condenser having a perpendicular configuration with the plurality of cooling plates (5) that have side surfaces which . Fan does not teach the plurality of cooling plates extending between the upper manifold and the lower manifold, as they extend perpendicular to the lengths of the tubes. Potier teaches wherein it is known in the art to use cooling plates that extend either perpendicular to the tubes, or cooling plates that extend between the manifolds in the direction of the length of the tubes (see fins 32 Fig. 1-7, Page 2, lines 40-55), in order to provide cooling surfaces to the heat exchanger (see fins 32 Fig. 1-7, Page 2, lines 40-55). Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified Fan to include the cooling plates extending between the upper manifold and lower manifold, as taught by Potier, as it has been held obvious to provide a simple substitution of one known element for another to obtain Regarding claim 12, Fan teaches the limitations of claim 11, and Fan as modified further teaches the multiport tubes (2) define the channel space (see spaces therebetween) between the multiport tubes, and wherein the cooling plates (5) comprise the outer edges that protrude out from the channel space and are directed away from the channel space. Regarding claim 18, Fan teaches a condenser (Fig. 4 & “condensing” - ¶[0002]), comprising: a first manifold (3); a second manifold (4); multiport tubes (2) extending between the first and second manifolds, wherein the multiport tubes are provided with a plurality of separate flow channels (see flow channels in 2) that provide a flow path between the first manifold and the second manifold; and a first plurality of cooling plates (right fins 5, A-A) and a second plurality of cooling plates (left fins 5, A-A) between the first manifold and the second manifold, wherein the first plurality of cooling plates (right 5) and the second plurality of cooling plates (left 5) are in thermal contact (via plates 1) with the multiport tubes to receive a heat load from fluid in the flow channels, the first plurality of cooling plates and the second plurality of cooling plates having opposite outer edges (see outer edges thereof) which extend outwardly away from the multiport tubes beyond a periphery of a space defined between the first manifold and the second manifold (see B-B, in which fins 5 extend beyond the manifolds 3 & 4), the condenser having a perpendicular configuration with the first plurality of cooling plates and the second plurality of cooling plates that have side surfaces which are perpendicular to outer opposite side walls of the multiport tubes, the first plurality of cooling Fan does not teach the plurality of cooling plates extending between the upper manifold and the lower manifold, as they extend perpendicular to the lengths of the tubes. Potier teaches wherein it is known in the art to use cooling plates that extend either perpendicular to the tubes, or cooling plates that extend between the manifolds in the direction of the length of the tubes (see fins 32 Fig. 1-7, Page 2, lines 40-55), in order to provide cooling surfaces to the heat exchanger (see fins 32 Fig. 1-7, Page 2, lines 40-55). Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified Fan to include the cooling plates extending between the upper manifold and lower manifold, as taught by Potier, as it has been held obvious to provide a simple substitution of one known element for another to obtain predictable results (see MPEP 2143 I). Here, both perpendicular and parallel fins, extending between an upper and lower header, are known to provide suitable cooling surfaces for such a heat exchanger, as taught by Potier (see fins 32 Fig. 1-7, Page 2, lines 40-55).
Response to Arguments Applicant’s arguments with respect to the claim(s) have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument. Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to ERIC S RUPPERT whose telephone number is (571)272-9911. The examiner can normally be reached Monday - Friday 8 am - 4 pm. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Len Tran can be reached on 571-272-1184. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available
/ERIC S RUPPERT/Primary Examiner, Art Unit 3763 | 2022-01-23T10:27:59 | [
"DETAILED ACTION Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . Continued Examination Under 37 CFR 1.114 A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 11/30/2021 has been entered. Claim Rejections - 35 USC § 103 The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action: A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains.",
"Patentability shall not be negated by the manner in which the invention was made. Claims 1, 7-12, and 18-19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Fan (CN102829668A) in view of Potier (FR2843448). Regarding claim 1, Fan teaches a condenser (Fig. 4 & “condensing” - ¶[0002]), comprising: a fluid inlet (see inlet denoted by arrow to 3) in an upper manifold (3); a fluid outlet (see outlet denoted by arrow out of 4) in a lower manifold (4); multiport tubes (2) extending between the upper and lower manifold, wherein the multiport tubes are provided with a plurality of separate flow channels (see flow channels in 2) which are delimited by outer opposite side walls (see left and right walls of 2 in A-A) and internal intermediate walls (see top and bottom walls of 2 in A-A) extending between the outer opposite side walls of the tubes, the multiport tubes providing a flow path between the upper manifold and the lower manifold, wherein the multiport tubes define a channel space (see spaces between adjacent tubes 2) between the multiport tubes; and a plurality of cooling plates (5) between the upper manifold Fan does not teach the plurality of cooling plates extending between the upper manifold and the lower manifold, as they extend perpendicular to the lengths of the tubes. Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified Fan to include the cooling plates extending between the upper manifold and lower manifold, as taught by Potier, as it has been held obvious to provide a simple substitution of one known element for another to obtain predictable results (see MPEP 2143 I).",
"Here, both perpendicular and parallel fins, extending between an upper and lower header, are known to provide suitable cooling surfaces for such a heat exchanger, as taught by Potier (see fins 32 Fig. 1-7, Page 2, lines 40-55). Regarding claim 7, Fan teaches the limitations of claim 1, and Fan as modified further teaches the condenser comprises a natural convection condenser (Fan as modified above is capable of operating in such a manner). Regarding claim 8, Fan teaches the limitations of claim 1, and Fan as modified further teaches a fan (fan - ¶[0045]) generating an airflow between the cooling plates. Regarding claim 9, Fan teaches the limitations of claim 1, and Fan as modified further teaches the condenser comprises a natural convection condenser provided by a fan (fan - ¶[0045]) assisting vertical flow of air upwards between the cooling plates (Fan as modified above is capable of operating in such a manner). The recitation “wherein the condenser receives fluid from and passes fluid to an evaporator cooling a high current or voltage device” is considered a statement of intended use. The applicant is reminded that a recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus satisfying the structural limitations of the claim, as is the case here; refer to MPEP2114(II). In the instant case, the claim is directed to “a condenser” and thus any condenser capable of receiving fluid from an evaporator for cooling a high current or voltage device will be considered to meet this claim limitation.",
"Regarding claim 11, Fan teaches a condenser (Fig. 4 & “condensing” - ¶[0002]), comprising: a first manifold (3); a second manifold (4); multiport tubes (2) extending between the first and second manifolds, wherein the multiport tubes are provided with a plurality of separate flow channels (see flow channels in 2) that provide a flow path between the first manifold and the second manifold; and a plurality of cooling plates (5) between the first manifold and the second manifold, wherein the cooling plates (5) are in thermal contact with the multiport tubes (via plates 1) to receive a heat load from fluid in the flow channels, the cooling plates having opposite outer edges which extend outwardly away from the multiport tubes beyond a periphery of a space defined between the first manifold and the second manifold (see B-B, in which fins 5 extend beyond the manifolds 3 & 4), the condenser having a perpendicular configuration with the plurality of cooling plates (5) that have side surfaces which . Fan does not teach the plurality of cooling plates extending between the upper manifold and the lower manifold, as they extend perpendicular to the lengths of the tubes. Potier teaches wherein it is known in the art to use cooling plates that extend either perpendicular to the tubes, or cooling plates that extend between the manifolds in the direction of the length of the tubes (see fins 32 Fig.",
"1-7, Page 2, lines 40-55), in order to provide cooling surfaces to the heat exchanger (see fins 32 Fig. 1-7, Page 2, lines 40-55). Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified Fan to include the cooling plates extending between the upper manifold and lower manifold, as taught by Potier, as it has been held obvious to provide a simple substitution of one known element for another to obtain Regarding claim 12, Fan teaches the limitations of claim 11, and Fan as modified further teaches the multiport tubes (2) define the channel space (see spaces therebetween) between the multiport tubes, and wherein the cooling plates (5) comprise the outer edges that protrude out from the channel space and are directed away from the channel space. Regarding claim 18, Fan teaches a condenser (Fig.",
"4 & “condensing” - ¶[0002]), comprising: a first manifold (3); a second manifold (4); multiport tubes (2) extending between the first and second manifolds, wherein the multiport tubes are provided with a plurality of separate flow channels (see flow channels in 2) that provide a flow path between the first manifold and the second manifold; and a first plurality of cooling plates (right fins 5, A-A) and a second plurality of cooling plates (left fins 5, A-A) between the first manifold and the second manifold, wherein the first plurality of cooling plates (right 5) and the second plurality of cooling plates (left 5) are in thermal contact (via plates 1) with the multiport tubes to receive a heat load from fluid in the flow channels, the first plurality of cooling plates and the second plurality of cooling plates having opposite outer edges (see outer edges thereof) which extend outwardly away from the multiport tubes beyond a periphery of a space defined between the first manifold and the second manifold (see B-B, in which fins 5 extend beyond the manifolds 3 & 4), the condenser having a perpendicular configuration with the first plurality of cooling plates and the second plurality of cooling plates that have side surfaces which are perpendicular to outer opposite side walls of the multiport tubes, the first plurality of cooling Fan does not teach the plurality of cooling plates extending between the upper manifold and the lower manifold, as they extend perpendicular to the lengths of the tubes. Potier teaches wherein it is known in the art to use cooling plates that extend either perpendicular to the tubes, or cooling plates that extend between the manifolds in the direction of the length of the tubes (see fins 32 Fig.",
"1-7, Page 2, lines 40-55), in order to provide cooling surfaces to the heat exchanger (see fins 32 Fig. 1-7, Page 2, lines 40-55). Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified Fan to include the cooling plates extending between the upper manifold and lower manifold, as taught by Potier, as it has been held obvious to provide a simple substitution of one known element for another to obtain predictable results (see MPEP 2143 I). Here, both perpendicular and parallel fins, extending between an upper and lower header, are known to provide suitable cooling surfaces for such a heat exchanger, as taught by Potier (see fins 32 Fig.",
"1-7, Page 2, lines 40-55). Response to Arguments Applicant’s arguments with respect to the claim(s) have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument. Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to ERIC S RUPPERT whose telephone number is (571)272-9911. The examiner can normally be reached Monday - Friday 8 am - 4 pm. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Len Tran can be reached on 571-272-1184.",
"The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available /ERIC S RUPPERT/Primary Examiner, Art Unit 3763"
] | https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-01-23.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
PUBLISHED ORDER FINDING RESPONDENT IN CONTEMPT OF COURT, IMPOSING FINE, ORDERING DISGORGEMENT OF FEES, AND DIRECTING IMPRISONMENT Underlying suspension. Since November 2010, Respondent has been the subject of five show cause proceedings for noncooperation with the Commission. In Cause No. 49S00-1103-DI-168, he was suspended for noncooperation on July 19, 2011, and his noneooperation suspension was converted to indefinite suspension on March 8, 2012. The noneooperation cases that were still pending were dismissed as moot. In brief, Respondent has been sus*845pended from the practice of law in this state continually since July 19, 2011. Prior contempt proceeding. The Commission filed a "Verified Motion for Rule to Show Cause" in January 2012, alleging the Respondent continued to practice law after he was suspended. His actions included sending correspondence to opposing counsel, serving discovery requests, appearing in court, filing documents in pending cases, filing an appearance and a complaint in a new case, and accepting a retainer of $500 from an existing client for new work. On April 3, 2012, the Court entered an "Order Finding Contempt," finding "compelling evidence that Respondent continued to practice law unabated in multiple cases in heedless disregard of this Court's suspension orders." For these "egregious violations," the Court ordered Respondent to pay a fine of $2,500, disgorge the $500 retainer he received while suspended, and be imprisoned for 30 days unless he paid the fine and disgorged the retainer within ten days from the date of service of the order. The Court warned Respondent that it would take his contempt into consideration in any future disciplinary actions. On April 18, 2012, Respondent filed a verified "Report of Compliance," and on May 15, 2012, the Court entered an order directing that the record show that Respondent had complied with the Court's Order Finding Contempt, thus avoiding imprisonment. The Commission's second charge of contempt. The Commission filed a "Verified Motion for Rule to Show Cause" on September 18, 2013, alleging that Respondent engaged in acts in violation of his suspension even after his April 18, 2012, Report of Compliance by giving legal advice to clients E.P. and J.P. in an ongoing eminent domain case. In support, the Commission attached emails, dating from April 26, 2012, in which Respondent advised the clients regarding a tax issue in the eminent domain case. Finally, in an email dated July 20, 2012, E.P. told Respondent: Based on information I received today I am demanding all the money I have deposited with you; Approximately $4,000. You did not show for the June 6, 2012 hearing and fight for my position. The state made a judgment for the lower amount resulting in over $12,000 in reduction. You have not answered my recent e-mail and have left yourself open for a complaint from me to the bar and possibly thru the courts. Also, it was brought to my attention that you still have your license suspended. You were giving me legal advice and had no license. (Irregularities in original.) Respondent responded with a brief email on July 25, 2012, saying that he would retrieve the clients' file materials and ship them to the clients. ‘ The Court entered an Order to Show Cause on September 28, 2013, directing Respondent to show cause why he should not be held in contempt for disobedience to the Court's order suspending him from practice. Respondent filed a "Verified Response" on October 10, 2013, admitting that he communicated via email with the clients as represented by the Commission. He states: I did not intend to mislead them or cause them harm. I simply did not want to let them down. In retrospect, my actions were unprofessional and improper. I am truly sorry and offer my sincere, humble apologies to the [clients] and to this Honorable Court. Imposition of punishment for contempt. This Court has inherent and statutory authority to punish contempt of court by fine *846and imprisonment. See Matter of Mittower, 693 N.E.2d 555, 559 (Ind.1998). In determining an appropriate punishment, the Court considers, among other factors, any continuing risk to the public or profession. See id. It is difficult to imagine contempt more culpable than that displayed by Respondent. The Court's Order Finding Contempt already found him guilty of egregious violations of his suspension. Respondent avoided imprisonment only by promptly paying a substantial fine and disgorging an improper fee. Within days, he was violating his suspension order again. His acknowledgment that his actions were unprofessional and improper "in retrospect" shows a profound lack of insight into his duties as an attorney and of respect for this Court's authority. The Court therefore imposes the following sanctions for Respondent's contempt of this Court: 1. The Court ORDERS that Respondent be fined the sum of $3,000. Respondent shall remit this amount within ninety (90) days of service of this order to the Clerk of the Indiana Supreme Court, Court of Appeals and Tax Court. 2. Because of Respondent's dishonest and unethical dealings with clients E.P. and J.P., the Court further ORDERS that Respondent disgorge all legal fees he received from E.P. and J.P. in connection with the eminent domain case, as well as any deposits of funds not properly used on their behalf, within ninety (90) days of service of this order, and that Respondent file and serve a verified accounting and report that these amounts have been refunded to the clients within five (5) days of making the refund. 3. For his continued egregious violation of his suspension, the Court further ORDERS that Respondent be sentenced to a term of imprisonment for a period of ten (10) days, beginning January 2, 2014, without the benefit of good time. The Sheriff of the Supreme Court of Indiana is directed to take Respondent into eustody and turn him over to the Indiana Department of Correction on that date. In carrying out this order, the Sheriff of the Supreme Court of- Indiana may seek the assistance of the Indiana State Police and any other law enforcement officer, and any such law enforcement officer shall provide the requested assistance. 4. Finally, if Respondent does not comply with the payment, accounting, and reporting deadlines set forth in paragraphs 1 and 2 above, this Court shall order that Respondent be sentenced to an additional term of imprisonment for a period of thirty (30) days. The Clerk of this Court is directed to serve a certified copy of this Order upon Respondent or his counsel by deliifering a certified copy personally, or by sending a certified copy of it by registered or certified mail, return receipt requested. The Clerk is directed to forward a copy of this Order to the Indiana Supreme Court Disciplinary Commission. The Clerk is further directed to post this order to the Court's website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court's decisions. All Justices concur. | 07-24-2022 | [
"PUBLISHED ORDER FINDING RESPONDENT IN CONTEMPT OF COURT, IMPOSING FINE, ORDERING DISGORGEMENT OF FEES, AND DIRECTING IMPRISONMENT Underlying suspension. Since November 2010, Respondent has been the subject of five show cause proceedings for noncooperation with the Commission. In Cause No. 49S00-1103-DI-168, he was suspended for noncooperation on July 19, 2011, and his noneooperation suspension was converted to indefinite suspension on March 8, 2012. The noneooperation cases that were still pending were dismissed as moot. In brief, Respondent has been sus*845pended from the practice of law in this state continually since July 19, 2011.",
"Prior contempt proceeding. The Commission filed a \"Verified Motion for Rule to Show Cause\" in January 2012, alleging the Respondent continued to practice law after he was suspended. His actions included sending correspondence to opposing counsel, serving discovery requests, appearing in court, filing documents in pending cases, filing an appearance and a complaint in a new case, and accepting a retainer of $500 from an existing client for new work.",
"On April 3, 2012, the Court entered an \"Order Finding Contempt,\" finding \"compelling evidence that Respondent continued to practice law unabated in multiple cases in heedless disregard of this Court's suspension orders.\" For these \"egregious violations,\" the Court ordered Respondent to pay a fine of $2,500, disgorge the $500 retainer he received while suspended, and be imprisoned for 30 days unless he paid the fine and disgorged the retainer within ten days from the date of service of the order. The Court warned Respondent that it would take his contempt into consideration in any future disciplinary actions. On April 18, 2012, Respondent filed a verified \"Report of Compliance,\" and on May 15, 2012, the Court entered an order directing that the record show that Respondent had complied with the Court's Order Finding Contempt, thus avoiding imprisonment. The Commission's second charge of contempt. The Commission filed a \"Verified Motion for Rule to Show Cause\" on September 18, 2013, alleging that Respondent engaged in acts in violation of his suspension even after his April 18, 2012, Report of Compliance by giving legal advice to clients E.P. and J.P. in an ongoing eminent domain case.",
"In support, the Commission attached emails, dating from April 26, 2012, in which Respondent advised the clients regarding a tax issue in the eminent domain case. Finally, in an email dated July 20, 2012, E.P. told Respondent: Based on information I received today I am demanding all the money I have deposited with you; Approximately $4,000. You did not show for the June 6, 2012 hearing and fight for my position. The state made a judgment for the lower amount resulting in over $12,000 in reduction. You have not answered my recent e-mail and have left yourself open for a complaint from me to the bar and possibly thru the courts.",
"Also, it was brought to my attention that you still have your license suspended. You were giving me legal advice and had no license. (Irregularities in original.) Respondent responded with a brief email on July 25, 2012, saying that he would retrieve the clients' file materials and ship them to the clients. ‘ The Court entered an Order to Show Cause on September 28, 2013, directing Respondent to show cause why he should not be held in contempt for disobedience to the Court's order suspending him from practice.",
"Respondent filed a \"Verified Response\" on October 10, 2013, admitting that he communicated via email with the clients as represented by the Commission. He states: I did not intend to mislead them or cause them harm. I simply did not want to let them down. In retrospect, my actions were unprofessional and improper. I am truly sorry and offer my sincere, humble apologies to the [clients] and to this Honorable Court. Imposition of punishment for contempt. This Court has inherent and statutory authority to punish contempt of court by fine *846and imprisonment. See Matter of Mittower, 693 N.E.2d 555, 559 (Ind.1998).",
"In determining an appropriate punishment, the Court considers, among other factors, any continuing risk to the public or profession. See id. It is difficult to imagine contempt more culpable than that displayed by Respondent. The Court's Order Finding Contempt already found him guilty of egregious violations of his suspension. Respondent avoided imprisonment only by promptly paying a substantial fine and disgorging an improper fee. Within days, he was violating his suspension order again. His acknowledgment that his actions were unprofessional and improper \"in retrospect\" shows a profound lack of insight into his duties as an attorney and of respect for this Court's authority. The Court therefore imposes the following sanctions for Respondent's contempt of this Court: 1. The Court ORDERS that Respondent be fined the sum of $3,000. Respondent shall remit this amount within ninety (90) days of service of this order to the Clerk of the Indiana Supreme Court, Court of Appeals and Tax Court. 2. Because of Respondent's dishonest and unethical dealings with clients E.P. and J.P., the Court further ORDERS that Respondent disgorge all legal fees he received from E.P. and J.P. in connection with the eminent domain case, as well as any deposits of funds not properly used on their behalf, within ninety (90) days of service of this order, and that Respondent file and serve a verified accounting and report that these amounts have been refunded to the clients within five (5) days of making the refund.",
"3. For his continued egregious violation of his suspension, the Court further ORDERS that Respondent be sentenced to a term of imprisonment for a period of ten (10) days, beginning January 2, 2014, without the benefit of good time. The Sheriff of the Supreme Court of Indiana is directed to take Respondent into eustody and turn him over to the Indiana Department of Correction on that date. In carrying out this order, the Sheriff of the Supreme Court of- Indiana may seek the assistance of the Indiana State Police and any other law enforcement officer, and any such law enforcement officer shall provide the requested assistance.",
"4. Finally, if Respondent does not comply with the payment, accounting, and reporting deadlines set forth in paragraphs 1 and 2 above, this Court shall order that Respondent be sentenced to an additional term of imprisonment for a period of thirty (30) days. The Clerk of this Court is directed to serve a certified copy of this Order upon Respondent or his counsel by deliifering a certified copy personally, or by sending a certified copy of it by registered or certified mail, return receipt requested. The Clerk is directed to forward a copy of this Order to the Indiana Supreme Court Disciplinary Commission. The Clerk is further directed to post this order to the Court's website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court's decisions. All Justices concur."
] | https://www.courtlistener.com/api/rest/v3/opinions/7077594/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
DETAILED ACTION Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . Specification The specification is objected to as failing to provide proper antecedent basis for the claimed subject matter. See 37 CFR 1.75(d)(1) and MPEP § 608.01(o). Correction of the following is required: limitations appearing in Claims 21, 29, and 36, requiring a range for the elastic modulus of the viscoelastic polymer and a range for the effective stiffness of the striking face must be reflected in the specification, in order to support the claim limitations. The examiner notes that the disclosure added to the specification will alter the status of the application from a continuation to a continuation in part, with regard to prior application 16/117,777. Claim Rejections - 35 USC § 103 In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status. The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action: A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 21, 22, 24-30, 32-37, 39, and 40 is/are rejected under 35 U.S.C. 103 as being unpatentable over Golden et al., U.S. Patent Application No. 2018/0200593, in view of Taylor et al., U.S. Patent Application No. 2020/0353325. As to Claims 21 and 24, Golden teaches a golf club comprising a sole portion, a topline, a toe portion, a heel portion, a back portion, and a striking face, paragraph 0018. The striking face may have a thickness between 1.2 and 1.9 mm, paragraph 0019. Golden teaches that a cavity may be defined by the sole portion, the topline, the toe portion, the heel portion, the back portion, and the striking face, and a viscoelastic polymer may substantially fill the cavity and be in contact with the rear surface of the striking face, paragraph 0018. Golden teaches that the numerical value of the elastic modulus of the viscoelastic polymer, measured in megapascals may be equal to or less than 258.33 plus the numerical value of the effective stiffness of the striking face, as claimed, multiplied by – 1.16, and that the numerical value of the elastic modulus of the viscoelastic polymer, measured in megapascals, may be equal to or greater than 63.33 plus the numerical value of the effective stiffness of the striking face, as claimed, multiplied by – 0.33, paragraph 0039. The golf club head may display a coefficient of restitution above 0.80, paragraph 0003. Golden teaches that the effective stiffness may be selected to promote optimal ball speed, paragraph 0034, indicating In re Aller, 105 USPQ 233. Golden, discloses the claimed invention except for indicating that the elastic modulus of the viscoelastic polymer may be less than or equal to 60 MPa (less than 40 MPa). Taylor teaches a golf club head having a cavity (slot) filled with a viscoelastic polymer having an elastic modulus less than or equal to 60 MPa (less than 40 MPa), paragraphs 0195, 0198, 0199, 0225. It would have been obvious to one of ordinary skill in the art at the effective filing date to provide Golden, as modified, with filler material having an elastic modulus within the claimed range, as taught by Taylor, to provide Golden, as modified, with a known substitute filler material. As to Claim 22, Golden teaches that the thickness, as in Claim 21, may be an average thickness, paragraph 0003. As to Claim 25, Golden teaches that the polymer may comprise butyl rubber, paragraph 0003. As to Claim 26, Golden teaches that the viscoelastic polymer may have a tangent delta peak temperature between – 70 and – 20 degrees C, at 1Hz, paragraph 0002. As to Claim 27, Golden teaches that the tangent delta peak temperature may satisfy the claimed inequalities with regard to the predicted glass transition temperature according to the Fox Equation and according to the Gordon-Taylor Equation, paragraph 0027. As to Claim 28, Golden teaches that the golf club head may be configured to produce a sound having a plurality of modes including a mode between 2 and 4 kHz, where the sound power is more than double that of other modes, see As to Claims 30 and 32-37, 39, and 40, Golden is applied as in Claims 22, 25, 26, 27, 28, 22, 28, and 26, respectively. As to Claim 29, Golden, as modified, together with the cited case law, is applied as in Claim 21, with the same obviousness rationale being found applicable. Further, Golden teaches that the striking face may have thickness between 1.7and 2.2 mm, paragraph 0019. As to Claim 36, Golden, as modified, together with the cited case law, is applied as in Claim 21, with the same obviousness rationale being found applicable, wherein Taylor is applied for a disclosure of viscoelastic polymer elastic modulus less than or equal to 80 MPa, paragraphs 0195, 0198, 0199, 0225. Response to Arguments Applicant's arguments filed 14 March 2022 have been fully considered but they are not persuasive. In response to applicant’s argument that, although the claimed ranges for the elastic modulus of the viscoelastic polymer and the effective stiffness of the striking face are not specifically set forth in the written description portion of the specification, a person of ordinary skill in the art would have been able to derive the ranges from the set of examples presented, the examiner maintains the position that a set of examples may not serve to establish specific limitations for ranges generally displayed in examples. To comply with the written description requirement of 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, first paragraph, or to be entitled to an earlier priority date or filing date under 35 U.S.C. 119, 120, 365, or 386, each claim limitation must be expressly, implicitly, or inherently supported in the originally filed disclosure. When an explicit limitation in a claim "is not present in the written description whose benefit is sought it must be shown that a person of ordinary skill would have understood, at the time the patent application was filed, that the description requires that limitation." Hyatt v. Boone, 146 F.3d In re Wright, 866 F.2d 422, 425, 9 USPQ2d 1649, 1651 (Fed. Cir. 1989), MPEP 2163 II A 3 (b). Conclusion THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a). A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JOHN ELLIOTT SIMMS JR whose telephone number is (571)270-7474. The examiner can normally be reached 8:30 am - 5:00 pm - M-F. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/JOHN E SIMMS JR/Primary Examiner, Art Unit 3711 21 March 2022 | 2022-04-01T11:53:23 | [
"DETAILED ACTION Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . Specification The specification is objected to as failing to provide proper antecedent basis for the claimed subject matter. See 37 CFR 1.75(d)(1) and MPEP § 608.01(o). Correction of the following is required: limitations appearing in Claims 21, 29, and 36, requiring a range for the elastic modulus of the viscoelastic polymer and a range for the effective stiffness of the striking face must be reflected in the specification, in order to support the claim limitations. The examiner notes that the disclosure added to the specification will alter the status of the application from a continuation to a continuation in part, with regard to prior application 16/117,777. Claim Rejections - 35 USC § 103 In the event the determination of the status of the application as subject to AIA 35 U.S.C.",
"102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status. The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action: A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made. Claims 21, 22, 24-30, 32-37, 39, and 40 is/are rejected under 35 U.S.C.",
"103 as being unpatentable over Golden et al., U.S. Patent Application No. 2018/0200593, in view of Taylor et al., U.S. Patent Application No. 2020/0353325. As to Claims 21 and 24, Golden teaches a golf club comprising a sole portion, a topline, a toe portion, a heel portion, a back portion, and a striking face, paragraph 0018. The striking face may have a thickness between 1.2 and 1.9 mm, paragraph 0019. Golden teaches that a cavity may be defined by the sole portion, the topline, the toe portion, the heel portion, the back portion, and the striking face, and a viscoelastic polymer may substantially fill the cavity and be in contact with the rear surface of the striking face, paragraph 0018.",
"Golden teaches that the numerical value of the elastic modulus of the viscoelastic polymer, measured in megapascals may be equal to or less than 258.33 plus the numerical value of the effective stiffness of the striking face, as claimed, multiplied by – 1.16, and that the numerical value of the elastic modulus of the viscoelastic polymer, measured in megapascals, may be equal to or greater than 63.33 plus the numerical value of the effective stiffness of the striking face, as claimed, multiplied by – 0.33, paragraph 0039. The golf club head may display a coefficient of restitution above 0.80, paragraph 0003. Golden teaches that the effective stiffness may be selected to promote optimal ball speed, paragraph 0034, indicating In re Aller, 105 USPQ 233. Golden, discloses the claimed invention except for indicating that the elastic modulus of the viscoelastic polymer may be less than or equal to 60 MPa (less than 40 MPa). Taylor teaches a golf club head having a cavity (slot) filled with a viscoelastic polymer having an elastic modulus less than or equal to 60 MPa (less than 40 MPa), paragraphs 0195, 0198, 0199, 0225. It would have been obvious to one of ordinary skill in the art at the effective filing date to provide Golden, as modified, with filler material having an elastic modulus within the claimed range, as taught by Taylor, to provide Golden, as modified, with a known substitute filler material.",
"As to Claim 22, Golden teaches that the thickness, as in Claim 21, may be an average thickness, paragraph 0003. As to Claim 25, Golden teaches that the polymer may comprise butyl rubber, paragraph 0003. As to Claim 26, Golden teaches that the viscoelastic polymer may have a tangent delta peak temperature between – 70 and – 20 degrees C, at 1Hz, paragraph 0002. As to Claim 27, Golden teaches that the tangent delta peak temperature may satisfy the claimed inequalities with regard to the predicted glass transition temperature according to the Fox Equation and according to the Gordon-Taylor Equation, paragraph 0027. As to Claim 28, Golden teaches that the golf club head may be configured to produce a sound having a plurality of modes including a mode between 2 and 4 kHz, where the sound power is more than double that of other modes, see As to Claims 30 and 32-37, 39, and 40, Golden is applied as in Claims 22, 25, 26, 27, 28, 22, 28, and 26, respectively. As to Claim 29, Golden, as modified, together with the cited case law, is applied as in Claim 21, with the same obviousness rationale being found applicable. Further, Golden teaches that the striking face may have thickness between 1.7and 2.2 mm, paragraph 0019.",
"As to Claim 36, Golden, as modified, together with the cited case law, is applied as in Claim 21, with the same obviousness rationale being found applicable, wherein Taylor is applied for a disclosure of viscoelastic polymer elastic modulus less than or equal to 80 MPa, paragraphs 0195, 0198, 0199, 0225. Response to Arguments Applicant's arguments filed 14 March 2022 have been fully considered but they are not persuasive. In response to applicant’s argument that, although the claimed ranges for the elastic modulus of the viscoelastic polymer and the effective stiffness of the striking face are not specifically set forth in the written description portion of the specification, a person of ordinary skill in the art would have been able to derive the ranges from the set of examples presented, the examiner maintains the position that a set of examples may not serve to establish specific limitations for ranges generally displayed in examples.",
"To comply with the written description requirement of 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, first paragraph, or to be entitled to an earlier priority date or filing date under 35 U.S.C. 119, 120, 365, or 386, each claim limitation must be expressly, implicitly, or inherently supported in the originally filed disclosure. When an explicit limitation in a claim \"is not present in the written description whose benefit is sought it must be shown that a person of ordinary skill would have understood, at the time the patent application was filed, that the description requires that limitation.\" Hyatt v. Boone, 146 F.3d In re Wright, 866 F.2d 422, 425, 9 USPQ2d 1649, 1651 (Fed. Cir. 1989), MPEP 2163 II A 3 (b).",
"Conclusion THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a). A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action.",
"In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action. Any inquiry concerning this communication or earlier communications from the examiner should be directed to JOHN ELLIOTT SIMMS JR whose telephone number is (571)270-7474. The examiner can normally be reached 8:30 am - 5:00 pm - M-F. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free).",
"If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000. /JOHN E SIMMS JR/Primary Examiner, Art Unit 3711 21 March 2022"
] | https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-03-27.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
DETAILED ACTION
EXAMINER'S AMENDMENT An examiner’s amendment to the record appears below. Should the changes and/or additions be unacceptable to applicant, an amendment may be filed as provided by 37 CFR 1.312. To ensure consideration of such an amendment, it MUST be submitted no later than the payment of the issue fee. Authorization for this examiner’s amendment was given in a telephone interview with Applicant Representative Kyle Helgemoe on 8/09/21. The application has been amended as follows: Claims 7-8 have been cancelled. 1. (Currently Amended) A system, comprising: a central unit; a radiating point located remotely from the central unit and communicatively coupled to the central unit, wherein the radiating point is configured to provide radio frequency signals to a coverage zone via one or more antennas, wherein the operating frequency range of the radiating point is approximately between 380 MHz and 3.8 GHz; a radar sensor communicatively coupled to the radiating point and configured to capture image data in the coverage zone of the radiating point, wherein the radar sensor includes a plurality of transmitters and receivers coupled to an antenna array, wherein the radar sensor is configured to operate in a non-interfering frequency range compared to an operating frequency range of the radiating point; wherein one or more components of the system are configured to:
adjust power consumption of the radiating point based on the user detection data.
17. (Currently Amended) A method, comprising: determining a number of users in a coverage area of a radiating point of a system based on image data captured by a radar sensor, wherein the radiating point is located remotely from a central unit of the system and communicatively coupled to the central unit, wherein the radiating point is configured to provide radio frequency signals to a coverage zone via one or more antennas, wherein the operating frequency range of the radiating point is approximately between 380 MHz and 3.8 GHz, wherein the radar sensor includes a plurality of transmitters and receivers coupled to an antenna array, wherein the radar sensor is configured to operate in a non-interfering frequency range compared to an operating frequency range of the radiating point; and adjusting power consumption of the radiating point based on the number of users in the coverage area of the radiating point.
Allowable Subject Matter Claims 1-6 and 9-21 allowed. The following is an examiner’s statement of reasons for allowance: Regarding claims 1 and 17, the prior art fails to teach “the radar sensor is configured to operate in a non-inferering frequency range compared to an operating frequency range of the radiating point”, in linking with other subject matters in the claims.
Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Examiner Tu Nguyen whose telephone number is (571)272-7883. The examiner can normally be reached on 8AM-5PM Eastern Time. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, Applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor Rafael Perez-Gutierrez can be reached on 571-272-7915. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300 or mailed to: Commisioner for Patents P.O. Box 1450 Alexandria, VA 22313-1450 Hand-delivered responses should be brought to Customer Service Window Randolph Building 401 Delany Street Alexandria, VA 22314
Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see http://pair-direct.uspto.gov. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/TU X NGUYEN/ Primary Examiner, Art Unit 2642 | 2021-08-14T15:01:05 | [
"DETAILED ACTION EXAMINER'S AMENDMENT An examiner’s amendment to the record appears below. Should the changes and/or additions be unacceptable to applicant, an amendment may be filed as provided by 37 CFR 1.312. To ensure consideration of such an amendment, it MUST be submitted no later than the payment of the issue fee. Authorization for this examiner’s amendment was given in a telephone interview with Applicant Representative Kyle Helgemoe on 8/09/21.",
"The application has been amended as follows: Claims 7-8 have been cancelled. 1. (Currently Amended) A system, comprising: a central unit; a radiating point located remotely from the central unit and communicatively coupled to the central unit, wherein the radiating point is configured to provide radio frequency signals to a coverage zone via one or more antennas, wherein the operating frequency range of the radiating point is approximately between 380 MHz and 3.8 GHz; a radar sensor communicatively coupled to the radiating point and configured to capture image data in the coverage zone of the radiating point, wherein the radar sensor includes a plurality of transmitters and receivers coupled to an antenna array, wherein the radar sensor is configured to operate in a non-interfering frequency range compared to an operating frequency range of the radiating point; wherein one or more components of the system are configured to: adjust power consumption of the radiating point based on the user detection data.",
"17. (Currently Amended) A method, comprising: determining a number of users in a coverage area of a radiating point of a system based on image data captured by a radar sensor, wherein the radiating point is located remotely from a central unit of the system and communicatively coupled to the central unit, wherein the radiating point is configured to provide radio frequency signals to a coverage zone via one or more antennas, wherein the operating frequency range of the radiating point is approximately between 380 MHz and 3.8 GHz, wherein the radar sensor includes a plurality of transmitters and receivers coupled to an antenna array, wherein the radar sensor is configured to operate in a non-interfering frequency range compared to an operating frequency range of the radiating point; and adjusting power consumption of the radiating point based on the number of users in the coverage area of the radiating point.",
"Allowable Subject Matter Claims 1-6 and 9-21 allowed. The following is an examiner’s statement of reasons for allowance: Regarding claims 1 and 17, the prior art fails to teach “the radar sensor is configured to operate in a non-inferering frequency range compared to an operating frequency range of the radiating point”, in linking with other subject matters in the claims. Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to Examiner Tu Nguyen whose telephone number is (571)272-7883. The examiner can normally be reached on 8AM-5PM Eastern Time.",
"Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, Applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor Rafael Perez-Gutierrez can be reached on 571-272-7915. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300 or mailed to: Commisioner for Patents P.O. Box 1450 Alexandria, VA 22313-1450 Hand-delivered responses should be brought to Customer Service Window Randolph Building 401 Delany Street Alexandria, VA 22314 Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR.",
"Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see http://pair-direct.uspto.gov. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000. /TU X NGUYEN/ Primary Examiner, Art Unit 2642"
] | https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2021-08-22.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
474 F. Supp. 2d 37 (2007) Grace S. ANTON, Individually and as Administrator of the estate of Elizabeth Ann Anton, Decedent, Plaintiff, v. PROSPECT CAFÉ MILANO, INC., t/a Café Milano, Defendant. Civil Action No. 04-1526 (RMU). United States District Court, District of Columbia. February 5, 2007. Patrick M. Regan, Paul J. Cornoni, Jonathan E. Halperin, Regan Zambri & Long, PLLC, Athanasios Basdekis, Regan, Halperin & Long, P.L.L.C., Washington, DC, Steven M. Frei, Hall, Sickels, Frei, Kattenburg, P.C., Reston, VA, for Plaintiff. Joseph L. Beavers, Daniel R. Lanier, Miles & Stockbridge P.C., Baltimore, MD, Benjamin S. Boyd, DLA Piper U.S. LLP, Washington, DC, for Defendant.
MEMORANDUM OPINION URBINA, District Judge.
GRANTING IN PART AND DENYING IN PART THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION Early in the morning of September 7, 2003, Elizabeth Anton (represented in this action by her mother, Grace Anton), a hostess at the defendant restaurant, fell from an eighth floor residential balcony to her death. Anton was intoxicated at the time of her death and was twenty years of age. The plaintiff claims that the defendant served the decedent alcohol at its restaurant and that this action led ultimately to the decedent's death. The defendant now moves for summary judgment, arguing that doctrines of assumption of the risk and contributory negligence bar the plaintiff's suit and that the plaintiff lacks adequate evidence to prove its prima facie case. Because the plaintiff concedes dismissal of Count II, brought under the Virginia Survival Statute, and concedes dismissal of Count III, brought under the District of Columbia Wrongful Death Act, the court grants summary judgment as to those claims. Because assumption of the risk and contributory negligence are factual matters upon which reasonable jurors could disagree, and because the sufficiency of the evidence is ample to survive summary judgment, the court denies summary *38 judgment as to Count I and Count IV of the plaintiff's complaint.
II. BACKGROUND
A. Factual Background The decedent, Elizabeth Anton, was, until the time of her death, employed as a hostess at Café Milano on Prospect Street in Georgetown, Washington, D.C. Café Milano is owned by the defendant, Prospect Café Milano, Inc. Compl. ¶ 10. On September 6, 2003, the decedent worked an evening shift at Café Milano. Id. Following her shift, the plaintiff alleges that the decedent remained at the restaurant and the defendant's employees or agents served her alcoholic beverages. Id. ¶¶ 11, 12. According to the plaintiff, the defendant's employees had actual knowledge that the decedent was under 21 years old. Id. ¶ 13. The plaintiff claims that the practice of serving alcohol to underage employees was common at the defendant restaurant. Id. ¶ 14. At approximately 2:00 a.m. on September 7, 2003, the decedent and assistant manager Pierre Chacra departed the restaurant for Chacra's residence at 1200 N. Veitch St., in Arlington, Virginia. Id. ¶ 15. At 2:33 a.m., Chacra called 911 to inform them that the decedent had fallen from his balcony. Id. ¶ 18. The injuries sustained by Anton proved fatal. Id. ¶ 19.
B. Procedural Background On September 2, 2004, the decedent's mother, Grace Anton, filed a lawsuit in this court as the administrator of her daughter's estate against the defendant restaurant claiming that the restaurant's negligence in serving alcohol to the decedent was a proximate cause of her death. See Compl. She seeks twenty million dollars in compensatory damages plus interest and costs. Id. As part of the plaintiff's pursuit of discovery material, the plaintiff deposed Chacra on September 21, 2005. Pl.'s Mot. at 2. Chacra appeared at the deposition with his criminal attorney, who, for virtually every question asked by the plaintiff's attorney, advised his client to assert his Fifth Amendment privilege against self-incrimination. Id. at 3. On February 27, 2006, the court issued a memorandum opinion denying the plaintiff's motion to compel Chacra's testimony. Mem. Op. (Feb. 27, 2006). Specifically, the court ruled that Chacra had appropriately invoked his Fifth Amendment privilege in refusing to answer questions regarding the events immediately preceding the decedent's death. Id. Following a period of discovery, the defendant now moves for summary judgment. The defendant supports its motion on several fronts. First, the defendant contends that due to Chacra's refusal to testify, the plaintiff lacks sufficient evidentiary support for its theory of the case and will be unable, as a matter of law, to demonstrate to the jury that the defendant's actions constituted the proximate cause of the plaintiff's death. Def.'s Mot. at 6-10. Second, as to Count I, which is brought under Virginia's wrongful death statute, the defendant argues that doctrines of assumption of the risk and contributory negligence bar the plaintiff's claim. The court turns now to the defendant's motion.
III. ANALYSIS
A. Legal Standard for a Motion for Summary Judgment Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); Diamond v. *39 Atwood, 43 F.3d 1538, 1540 (D.C.Cir.1995). To determine which facts are "material," a court must look to the substantive law on which each claim rests. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). A "genuine issue" is one whose resolution could establish an element of a claim or defense and, therefore, affect the outcome of the action. Celotex, 477 U.S. at 322, 106 S. Ct. 2548; Anderson, 477 U.S. at 248, 106 S. Ct. 2505. In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party's favor and accept the nonmoving party's evidence as true. Anderson, 477 U.S. at 255, 106 S. Ct. 2505. A nonmoving party, however, must establish more than "the mere existence of a scintilla of evidence" in support of its position. Id. at 252, 106 S. Ct. 2505. To prevail on a motion for summary judgment, the moving party must show that the nonmoving party "fail[ed] to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S. Ct. 2548. By pointing to the absence of evidence proffered by the nonmoving party, a moving party may succeed on summary judgment. Id. In addition, the nonmoving party may not rely solely on allegations or conclusory statements. Greene v. Dalton, 164 F.3d 671, 675 (D.C.Cir.1999); Harding v. Gray, 9 F.3d 150, 154 (D.C.Cir.1993). Rather, the nonmoving party must present specific facts that would enable a reasonable jury to find in its favor. Greene, 164 F.3d at 675. If the evidence "is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50, 106 S. Ct. 2505 (internal citations omitted).
B. The Court Denies the Defendant's Motion for Summary Judgment as to Claims I and IV
1. The Defendant Fails to Demonstrate that the Plaintiff Cannot Prove Causation The defendant argues that the plaintiff will be unable to prove causation at trial. Def.'s Mot. at 6. In support of this assertion, the defendant notes that Chacra has lawfully asserted his Fifth Amendment privilege against self-incrimination. Id. Furthermore, according to a declaration appended to the defendant's reply in support of its motion for summary judgment, Chacra will continue to "assert [his] Fifth Amendment right [as to all] facts concerning Elizabeth Ann Anton and her death." Def.'s Reply, Ex. 1 ¶ 7. The defendant also maintains that statements made by Chacra to the police in a 911 call and immediately following Anton's death constitute inadmissible hearsay. Id. In other words, the defendant argues that the plaintiff cannot prove causation absent Chacra's testimony or police statements. Id. at 8. The defendant is incorrect. Assuming that Chacra's police statements are inadmissible hearsay[1], the plaintiff's remaining arsenal of evidence consists of police incident reports detailing police officers' observations and conclusions after surveying Chacra's apartment and the location of the decedent's death,[2]*40 Pl.'s Opp'n, Exs. 2, 6-8, an affidavit from Dr. Alphonse Pokis detailing his observations and conclusions regarding the decedent's intoxication and likely resultant mental impairments, id. Ex. 4, a garage access record from Chacra's apartment building on the night of the death, id. Ex. 5, and a deposition of Adam Brunelle, presumably an employee at the defendant restaurant, detailing events preceding the decedent's leaving the restaurant on the night of her death, id. Ex. 9. With regard to the cause of Anton's death, Dr. Poklis concluded that the decedent's intoxication "proximately affected Elizabeth Anton's initial decision making process in attempting to sit on the Tailing from which she fell and, further, while attempting to sit on the raising, these impairments caused by her intoxication would have directly and proximately affected her ability to properly coordinate, balance and sit on the railing from which she fell." Id. Ex. 4, ¶ 12. Strictly speaking, Dr. Poklis's affidavit does not indicate any conclusion that Anton's intoxication proximately caused Anton's death, but only that her intoxication "affected . . . her decision making process" and "affected her ability to properly coordinate." Id. A reasonable person could conclude that the doctor's testimony does not demonstrate proximate causation between the defendant's actions and the decedent's fall. In other words, to find proximate causation, a reasonable person would have to infer that her intoxication not only "affected . . . her decision making process," and "affected" her coordination, as Dr. Poklis suggests, but that her intoxication caused her to fall which was the proximate cause of her death. Nevertheless, however, at the summary judgment stage the court construes all reasonable inferences in the plaintiff's favor. Anderson, 477 U.S. at 255, 106 S. Ct. 2505. Applied to this case, the court presumes that a reasonable fact finder could infer causation from the statements made by Dr. Poklis. And recognizing that the defendant, as the moving party, carries the burden of proof, Celotex, 477 U.S. at 322, 106 S. Ct. 2548, the court notes that the defendant's motion and reply brief are conspicuously devoid of any argument challenging the appropriateness, relevance or probative nature of Dr. Poklis's affidavit vis-a-vis causation. Accordingly, the plaintiff s evidence is sufficient to survive summary judgment.
2. Contributory Negligence and Assumption of the Risk are Fact Issues for a Jury The defendant argues that the Virginia legal doctrines of contributory negligence and assumption of the risk preclude recovery. Def.'s Mot. at 10-13. To the defendant, because the plaintiff asserts the Virginia Wrongful Death Statute as its first cause of action, the substantive law of that state must apply. Id. at 10. The plaintiff maintains that the substantive law of the District of Columbia (save for the actual Virginia statute invoked) must apply. Pl.'s Opp'n at 15. The plaintiff would have the court piece together a substantive legal regime and apply D.C. law to a Virginia statute solely because the plaintiff has concluded that "Virginia policy would not be advanced through the application of that state's laws to that state's statutes". Id. at 17. Though the court is not prepared to reject the plaintiff's suggestion outright, the court maintains reservations as to the application of D.C. law to a Virginia statute. This reservation is particularly acute given Virginia's interest in the proper application of its laws (which the plaintiff ignores in its rejection of any Virginia policy interest in this case) and the lack of relevant analysis by the plaintiff to the contrary. The court need not issue a ruling on this issue at the present time, however, because even assuming the *41 applicability of those doctrines, they do not warrant summary judgment.[3] For both contributory negligence and assumption of the risk, the court will defer to a jury's conclusion, absent evidence so clear that no reasonable juror could conclude otherwise. Hot Shot Express, Inc. v. Brooks, 264 Va. 126, 135, 563 S.E.2d 764 (2002) (holding that "[o]rdinarily, whether a plaintiff is guilty of contributory negligence is a jury issue. The issue becomes one of law for resolution by the trial court only when reasonable minds could not differ about the conclusion from the evidence"); Thurmond v. Prince William Professional Baseball Club, 265 Va. 59, 64, 574 S.E.2d 246 (2003). In the present case, the defendant has not adequately demonstrated that the plaintiff's negligence contributed to her fall sufficient for the court to deprive a jury of the opportunity to come to this decision on its own. Though perhaps not likely, a reasonable jury might conclude that the decedent's intoxication was the sole cause of her decision to scale the railing, which ultimately led to her demise. If so, the jury could conclude that the decedent was not contributorily negligent. Likewise with assumption of the risk, a reasonable jury could, in theory, conclude that the doctrine does not bar liability because the decedent's intoxication prevented her from appreciating the danger of the action she ultimately undertook. For both doctrines, the defendant's burden at the summary judgment stage is far higher than at trial, for it must convince the court not only of the efficacy of those defenses, but that no reasonable jury could conclude Otherwise. Hot Shot Express, Inc., 264 Va. at 135, 563 S.E.2d 764; Thurmond, 265 Va. at 64, 574 S.E.2d 246.
IV. CONCLUSION For the foregoing reasons, the court grants in part and denies in part the defendant's motion for summary judgment. An order directing the parties in a manner consistent with this Memorandum Opinion is separately and contemporaneously issued this 5th day of February, 2007. NOTES [1] Because summary judgment is inappropriate even assuming the court precludes Chacra's police statements from trial, the court need not render such an evidentiary ruling for the disposition of the instant summary judgment motion. The court will consider these matters if and when the defendant moves to exclude the statements at a later stage in the litigation. [2] Though the police officers' reports include statements regarding conversations with Chacra, the court for the time assumes inadmissibility and ignores those portions of the records. [3] As with the defendant's suggestion that the court should exclude Chacra's testimony, the court will decide whether contributory negligence and assumption of the risk defenses apply in the current case at a later stage in this litigation upon motion. And if called upon to consider the matter, the court expects the parties' briefing to be befitting of pleadings in a federal court (i.e., substantially different from that presented thus far). | 10-30-2013 | [
"474 F. Supp. 2d 37 (2007) Grace S. ANTON, Individually and as Administrator of the estate of Elizabeth Ann Anton, Decedent, Plaintiff, v. PROSPECT CAFÉ MILANO, INC., t/a Café Milano, Defendant. Civil Action No. 04-1526 (RMU). United States District Court, District of Columbia. February 5, 2007. Patrick M. Regan, Paul J. Cornoni, Jonathan E. Halperin, Regan Zambri & Long, PLLC, Athanasios Basdekis, Regan, Halperin & Long, P.L.L.C., Washington, DC, Steven M. Frei, Hall, Sickels, Frei, Kattenburg, P.C., Reston, VA, for Plaintiff. Joseph L. Beavers, Daniel R. Lanier, Miles & Stockbridge P.C., Baltimore, MD, Benjamin S. Boyd, DLA Piper U.S. LLP, Washington, DC, for Defendant. MEMORANDUM OPINION URBINA, District Judge. GRANTING IN PART AND DENYING IN PART THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT I. INTRODUCTION Early in the morning of September 7, 2003, Elizabeth Anton (represented in this action by her mother, Grace Anton), a hostess at the defendant restaurant, fell from an eighth floor residential balcony to her death. Anton was intoxicated at the time of her death and was twenty years of age.",
"The plaintiff claims that the defendant served the decedent alcohol at its restaurant and that this action led ultimately to the decedent's death. The defendant now moves for summary judgment, arguing that doctrines of assumption of the risk and contributory negligence bar the plaintiff's suit and that the plaintiff lacks adequate evidence to prove its prima facie case. Because the plaintiff concedes dismissal of Count II, brought under the Virginia Survival Statute, and concedes dismissal of Count III, brought under the District of Columbia Wrongful Death Act, the court grants summary judgment as to those claims. Because assumption of the risk and contributory negligence are factual matters upon which reasonable jurors could disagree, and because the sufficiency of the evidence is ample to survive summary judgment, the court denies summary *38 judgment as to Count I and Count IV of the plaintiff's complaint.",
"II. BACKGROUND A. Factual Background The decedent, Elizabeth Anton, was, until the time of her death, employed as a hostess at Café Milano on Prospect Street in Georgetown, Washington, D.C. Café Milano is owned by the defendant, Prospect Café Milano, Inc. Compl. ¶ 10. On September 6, 2003, the decedent worked an evening shift at Café Milano. Id. Following her shift, the plaintiff alleges that the decedent remained at the restaurant and the defendant's employees or agents served her alcoholic beverages. Id. ¶¶ 11, 12. According to the plaintiff, the defendant's employees had actual knowledge that the decedent was under 21 years old. Id. ¶ 13. The plaintiff claims that the practice of serving alcohol to underage employees was common at the defendant restaurant. Id. ¶ 14. At approximately 2:00 a.m. on September 7, 2003, the decedent and assistant manager Pierre Chacra departed the restaurant for Chacra's residence at 1200 N. Veitch St., in Arlington, Virginia. Id. ¶ 15.",
"At 2:33 a.m., Chacra called 911 to inform them that the decedent had fallen from his balcony. Id. ¶ 18. The injuries sustained by Anton proved fatal. Id. ¶ 19. B. Procedural Background On September 2, 2004, the decedent's mother, Grace Anton, filed a lawsuit in this court as the administrator of her daughter's estate against the defendant restaurant claiming that the restaurant's negligence in serving alcohol to the decedent was a proximate cause of her death. See Compl. She seeks twenty million dollars in compensatory damages plus interest and costs. Id. As part of the plaintiff's pursuit of discovery material, the plaintiff deposed Chacra on September 21, 2005. Pl. 's Mot. at 2. Chacra appeared at the deposition with his criminal attorney, who, for virtually every question asked by the plaintiff's attorney, advised his client to assert his Fifth Amendment privilege against self-incrimination. Id.",
"at 3. On February 27, 2006, the court issued a memorandum opinion denying the plaintiff's motion to compel Chacra's testimony. Mem. Op. (Feb. 27, 2006). Specifically, the court ruled that Chacra had appropriately invoked his Fifth Amendment privilege in refusing to answer questions regarding the events immediately preceding the decedent's death. Id. Following a period of discovery, the defendant now moves for summary judgment. The defendant supports its motion on several fronts. First, the defendant contends that due to Chacra's refusal to testify, the plaintiff lacks sufficient evidentiary support for its theory of the case and will be unable, as a matter of law, to demonstrate to the jury that the defendant's actions constituted the proximate cause of the plaintiff's death.",
"Def. 's Mot. at 6-10. Second, as to Count I, which is brought under Virginia's wrongful death statute, the defendant argues that doctrines of assumption of the risk and contributory negligence bar the plaintiff's claim. The court turns now to the defendant's motion. III. ANALYSIS A. Legal Standard for a Motion for Summary Judgment Summary judgment is appropriate when \"the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); Diamond v. *39 Atwood, 43 F.3d 1538, 1540 (D.C.Cir.1995). To determine which facts are \"material,\" a court must look to the substantive law on which each claim rests. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). A \"genuine issue\" is one whose resolution could establish an element of a claim or defense and, therefore, affect the outcome of the action.",
"Celotex, 477 U.S. at 322, 106 S. Ct. 2548; Anderson, 477 U.S. at 248, 106 S. Ct. 2505. In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party's favor and accept the nonmoving party's evidence as true. Anderson, 477 U.S. at 255, 106 S. Ct. 2505. A nonmoving party, however, must establish more than \"the mere existence of a scintilla of evidence\" in support of its position. Id.",
"at 252, 106 S. Ct. 2505. To prevail on a motion for summary judgment, the moving party must show that the nonmoving party \"fail[ed] to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.\" Celotex, 477 U.S. at 322, 106 S. Ct. 2548. By pointing to the absence of evidence proffered by the nonmoving party, a moving party may succeed on summary judgment.",
"Id. In addition, the nonmoving party may not rely solely on allegations or conclusory statements. Greene v. Dalton, 164 F.3d 671, 675 (D.C.Cir.1999); Harding v. Gray, 9 F.3d 150, 154 (D.C.Cir.1993). Rather, the nonmoving party must present specific facts that would enable a reasonable jury to find in its favor. Greene, 164 F.3d at 675. If the evidence \"is merely colorable, or is not significantly probative, summary judgment may be granted.\" Anderson, 477 U.S. at 249-50, 106 S. Ct. 2505 (internal citations omitted). B. The Court Denies the Defendant's Motion for Summary Judgment as to Claims I and IV 1.",
"The Defendant Fails to Demonstrate that the Plaintiff Cannot Prove Causation The defendant argues that the plaintiff will be unable to prove causation at trial. Def. 's Mot. at 6. In support of this assertion, the defendant notes that Chacra has lawfully asserted his Fifth Amendment privilege against self-incrimination. Id. Furthermore, according to a declaration appended to the defendant's reply in support of its motion for summary judgment, Chacra will continue to \"assert [his] Fifth Amendment right [as to all] facts concerning Elizabeth Ann Anton and her death.\" Def. 's Reply, Ex. 1 ¶ 7. The defendant also maintains that statements made by Chacra to the police in a 911 call and immediately following Anton's death constitute inadmissible hearsay. Id. In other words, the defendant argues that the plaintiff cannot prove causation absent Chacra's testimony or police statements. Id.",
"at 8. The defendant is incorrect. Assuming that Chacra's police statements are inadmissible hearsay[1], the plaintiff's remaining arsenal of evidence consists of police incident reports detailing police officers' observations and conclusions after surveying Chacra's apartment and the location of the decedent's death,[2]*40 Pl. 's Opp'n, Exs. 2, 6-8, an affidavit from Dr. Alphonse Pokis detailing his observations and conclusions regarding the decedent's intoxication and likely resultant mental impairments, id. Ex. 4, a garage access record from Chacra's apartment building on the night of the death, id. Ex. 5, and a deposition of Adam Brunelle, presumably an employee at the defendant restaurant, detailing events preceding the decedent's leaving the restaurant on the night of her death, id. Ex. 9. With regard to the cause of Anton's death, Dr. Poklis concluded that the decedent's intoxication \"proximately affected Elizabeth Anton's initial decision making process in attempting to sit on the Tailing from which she fell and, further, while attempting to sit on the raising, these impairments caused by her intoxication would have directly and proximately affected her ability to properly coordinate, balance and sit on the railing from which she fell.\"",
"Id. Ex. 4, ¶ 12. Strictly speaking, Dr. Poklis's affidavit does not indicate any conclusion that Anton's intoxication proximately caused Anton's death, but only that her intoxication \"affected . . . her decision making process\" and \"affected her ability to properly coordinate.\" Id. A reasonable person could conclude that the doctor's testimony does not demonstrate proximate causation between the defendant's actions and the decedent's fall. In other words, to find proximate causation, a reasonable person would have to infer that her intoxication not only \"affected . . .",
"her decision making process,\" and \"affected\" her coordination, as Dr. Poklis suggests, but that her intoxication caused her to fall which was the proximate cause of her death. Nevertheless, however, at the summary judgment stage the court construes all reasonable inferences in the plaintiff's favor. Anderson, 477 U.S. at 255, 106 S. Ct. 2505. Applied to this case, the court presumes that a reasonable fact finder could infer causation from the statements made by Dr. Poklis. And recognizing that the defendant, as the moving party, carries the burden of proof, Celotex, 477 U.S. at 322, 106 S. Ct. 2548, the court notes that the defendant's motion and reply brief are conspicuously devoid of any argument challenging the appropriateness, relevance or probative nature of Dr. Poklis's affidavit vis-a-vis causation.",
"Accordingly, the plaintiff s evidence is sufficient to survive summary judgment. 2. Contributory Negligence and Assumption of the Risk are Fact Issues for a Jury The defendant argues that the Virginia legal doctrines of contributory negligence and assumption of the risk preclude recovery. Def. 's Mot. at 10-13. To the defendant, because the plaintiff asserts the Virginia Wrongful Death Statute as its first cause of action, the substantive law of that state must apply. Id. at 10. The plaintiff maintains that the substantive law of the District of Columbia (save for the actual Virginia statute invoked) must apply. Pl. 's Opp'n at 15.",
"The plaintiff would have the court piece together a substantive legal regime and apply D.C. law to a Virginia statute solely because the plaintiff has concluded that \"Virginia policy would not be advanced through the application of that state's laws to that state's statutes\". Id. at 17. Though the court is not prepared to reject the plaintiff's suggestion outright, the court maintains reservations as to the application of D.C. law to a Virginia statute. This reservation is particularly acute given Virginia's interest in the proper application of its laws (which the plaintiff ignores in its rejection of any Virginia policy interest in this case) and the lack of relevant analysis by the plaintiff to the contrary. The court need not issue a ruling on this issue at the present time, however, because even assuming the *41 applicability of those doctrines, they do not warrant summary judgment. [3] For both contributory negligence and assumption of the risk, the court will defer to a jury's conclusion, absent evidence so clear that no reasonable juror could conclude otherwise.",
"Hot Shot Express, Inc. v. Brooks, 264 Va. 126, 135, 563 S.E.2d 764 (2002) (holding that \"[o]rdinarily, whether a plaintiff is guilty of contributory negligence is a jury issue. The issue becomes one of law for resolution by the trial court only when reasonable minds could not differ about the conclusion from the evidence\"); Thurmond v. Prince William Professional Baseball Club, 265 Va. 59, 64, 574 S.E.2d 246 (2003). In the present case, the defendant has not adequately demonstrated that the plaintiff's negligence contributed to her fall sufficient for the court to deprive a jury of the opportunity to come to this decision on its own. Though perhaps not likely, a reasonable jury might conclude that the decedent's intoxication was the sole cause of her decision to scale the railing, which ultimately led to her demise. If so, the jury could conclude that the decedent was not contributorily negligent. Likewise with assumption of the risk, a reasonable jury could, in theory, conclude that the doctrine does not bar liability because the decedent's intoxication prevented her from appreciating the danger of the action she ultimately undertook.",
"For both doctrines, the defendant's burden at the summary judgment stage is far higher than at trial, for it must convince the court not only of the efficacy of those defenses, but that no reasonable jury could conclude Otherwise. Hot Shot Express, Inc., 264 Va. at 135, 563 S.E.2d 764; Thurmond, 265 Va. at 64, 574 S.E.2d 246. IV. CONCLUSION For the foregoing reasons, the court grants in part and denies in part the defendant's motion for summary judgment. An order directing the parties in a manner consistent with this Memorandum Opinion is separately and contemporaneously issued this 5th day of February, 2007. NOTES [1] Because summary judgment is inappropriate even assuming the court precludes Chacra's police statements from trial, the court need not render such an evidentiary ruling for the disposition of the instant summary judgment motion.",
"The court will consider these matters if and when the defendant moves to exclude the statements at a later stage in the litigation. [2] Though the police officers' reports include statements regarding conversations with Chacra, the court for the time assumes inadmissibility and ignores those portions of the records. [3] As with the defendant's suggestion that the court should exclude Chacra's testimony, the court will decide whether contributory negligence and assumption of the risk defenses apply in the current case at a later stage in this litigation upon motion. And if called upon to consider the matter, the court expects the parties' briefing to be befitting of pleadings in a federal court (i.e., substantially different from that presented thus far)."
] | https://www.courtlistener.com/api/rest/v3/opinions/2579698/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
MARY W. T. CONNALLY, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.Connally v. CommissionerDocket No. 60434.United States Board of Tax Appeals32 B.T.A. 920; 1935 BTA LEXIS 872; July 11, 1935, Promulgated *872 1. The respondent's determination as to the fair market value of lands acquired by the petitioner from her mother's estate sustained upon evidence of record. 2. Respondent's prayer for affirmative relief by correction of error made in his original audit, granted. 3. Deduction from gross income for legal expenses paid in the taxable year allowed in part. James I. Mason, Esq., for the petitioner. Samuel L. Young, Esq., for the respondent. TURNER *920 This proceeding involves an income tax deficiency determined by the respondent for 1928, in the amount of $15,255.10. The question presented by the petitioner is whether or not the petitioner realized taxable gain by reason of the involuntary conversion, through condemnation proceedings, of certain lands belonging to her. In his answer the respondent claims that in computing the taxable gain he applied section 214(a)(12) of the Revenue Act of 1921 instead of section 112(f) of the Revenue Act of 1928, which is applicable, *921 and by so doing, erroneously reduced the net gain by a proration between basic cost and tentative profit of the amount used in the purchase of similar property*873 by way of replacement. Prayer is accordingly made for an increased deficiency. FINDINGS OF FACT. The petitioner is one of three surviving daughters of Alice T. Connally, who died October 20, 1917, leaving an estate in lands and other property situated at and near Asheville, North Carolina. At her death Alice T. Connally left a will, by the terms of which she bequeathed all of her estate, after debts and certain minor bequests were paid, to her three daughters, equally. This will was probated in Buncombe County, North Carolina, and the three daughters qualified as executrices. The pertinent provisions of the will read as follows: FERNIHURST Asheville, North Carolina, Feb. 26, 1912.In event of my death I bequeath to my three daughters Mary Connally Coxe, Alice Connally Cheesborough, and Curry Connally Andrews all that I possess real and personal to be divided equally between them the three daughters acting as Executors without giving bond * * *. * * * To the Executors - Nov. 1, 1912. It is my wish that "my cabin" and Black Mt. Land, North Fork Boundary should be assigned to Mary Connally Coxe as a part of her legacy. The timber being cut, it is not*874 so valuable - at whatever valuation you decide upon - the other two daughters are to receive the same amount in other property. * * * The daughters carried out this expressed wish of their mother and by mutual agreement divided the residue of the estate among themselves, according to their own appraisals of value and apportionments of the property. This division was accomplished without aid of court, by conveyances to each other through joint deeds, assignments, and releases of title to the lands and other parcels of property allocated under their agreements. Title to the Black Mountain lands, which were situated immediately north of the city of Asheville, was confirmed in the petitioner by a deed executed by her sisters and their husbands on September 10, 1920. Originally it was thought that this tract contained approximately 3,719 acres, but in 1928, when it was acquired by the city of Asheville, it was described as being a tract of 2,629.19 acres. On November 20, 1918, the daughters filed a Federal estate tax return for the estate of Mary T. Connally, in which they placed a value of $15,000 on the Black Mountain lands. In the inventory of *922 the estate filed*875 in the Superior Court of Buncombe County, North Carolina, on January 24, 1918, the value was fixed at $19,742. The Black Mountain property was very rough and only a small portion was suitable for farming. It had been cut over and contained very little merchantable timber, and most of this was second growth. In 1925 the Asheville area suffered a severe drought, and there was an extreme shortage of water in the city of Asheville, which resulted in steps being taken to acquire additional lands as a watershed for the city. Several tracts were considered, but due to its proximity and the fact that a stream known as North Fork traversed the property and offered certain advantages, the city of Asheville, in 1927, instituted condemnation proceedings to acquire petitioner's lands and considerable adjoining acreage. In these proceedings the condemnation jury appointed by the court to determine and assess the petitioner's damages fixed the value of the lands so taken at $182,709.50, which sum was paid to her in the taxable year. Up to the present time the property so acquired has not been developed for water purposes. The reasons for the failure to use the property are that the city*876 of Asheville has not grown to the extent anticipated and sufficient water has been obtained through the development of what is known as the Bee Tree Watershed. On December 27, 1928, the petitioner made application to the Commissioner of Internal Revenue to establish a replacement fund of the proceeds of the condemnation sale. In that application she stated that the lands condemned had an estimated March 1, 1913, value of $36,531.66 and estimated her taxable gain at $100,000. A bond filed with the application was later withdrawn and the application was abandoned by the petitioner before action on it was taken by respondent. Of the sum received by the petitioner from the city of Asheville, $39,973.13 was invested in other lands similar to those sold. At neither October 20, 1917, nor September 10, 1920, was there any market or demand for the property in question for watershed purposes. During the taxable year the petitioner paid the sum of $5,000 to each of two attorneys for legal services rendered in connection with the condemnation and sale of her Black Mountain lands. The petitioner did not report any of the land proceeds in her income tax return for the year received. *877 She made claim, however, in her return, for a deduction of $17,388.64 as expenditures for legal services connected with the condemnation proceedings. In auditing the petitioner's income tax return for 1928 the respondent found that she realized a taxable gain from the sale of the Black *923 Mountain lands to the city of Asheville. In arriving at this result, respondent used $36,531.66 as his cost base for the lands, this sum being the March 1, 1913, value assigned to them in petitioner's application for a replacement fund. Against the taxable profit the respondent allowed a credit of $34,137.05 which was a proportionate part of a replacement expenditure of $39,973.13, but disallowed the expense deduction of $17,388.64 mentioned above. OPINION. TURNER: The principal point contended for by the petitioner is that in no event can any part of the money paid to her for condemned lands be taxed as profit, because all of it represents "compensation for losses sustained", and, being payment for losses, the proceeds can not be taxed as gains. From the standpoint of taxable profit, there is no magic in the term "compensation." When applied to awards in condemnation matters, *878 it relates entirely to the value of property at the date of its appropriation to public use, plus any special damages suffered by the owner. It therefore has nothing to do with the cost of the property taken and may represent profit, or actual loss to the owner, depending entirely upon whether its amount is greater or less than his investment in the property. The petitioner relies chiefly on the decision of the Supreme Court in . Clearly that case is not in point. The question there was whether the proceeds of certain insurance policies payable to a corporation on the life of one of its officers should be included in gross income. The court held that such proceeds did not constitute income under the statute as then worded and specifically avoided the question as to whether or not Congress, if it so desired, might require the inclusion of such payments in corporate income. Contrasting that situation with the situation here, Congress, in section 112(f) 1 of the Revenue Act of 1928, has specifically provided for the taxation of profits on *924 property condemned for public uses, and, as we have*879 pointed out in the preceding paragraph, the mere fact that under the law a person is entitled to be indemnified for property at its fair market value as of the date condemned is in no way determinative of the fact as to whether or not there is an actual realization of gain. *880 The petitioner and the respondent agree that the fair market value of the property on March 1, 1913, is not the proper basis for computing the petitioner's gain from its disposition, but differ as to whether the fair market value on September 10, 1920, when the deed to the property was signed by her sisters and their husbands, or the fair market value on October 20, 1917, the date of her mother's death, is the correct basis for computing the gain. This question is governed by section 113(a)(5) 2 of the 1928 Act, which fixes the basic date, in such cases, as that of the death of the decedent. Under this provision of the statute the fair market value of the property on October 20, 1917, is the basis for determining the gain realized by the petitioner as a result of the condemnation proceedings. *881 On the question of land values, a voluminous record made up of depositions and testimony given at the hearing has been produced. Each of the parties called a great number of witnesses. Included among these witnesses were forest rangers familiar with that section of the country, county or city officials, local business men, and other individuals who had some knowledge of the tract of land involved. Among the witnesses whose depositions were introduced by the petitioner to establish land values were five individuals who served on the condemnation jury in 1927. This jury, having fixed petitioner's award from the city for the taking of the lands, reassembled at her request on August 24, 1931, to determine by retrospective appraisement the fair market value of the lands in September 1920. At their meeting these former jurymen used as a base for their calculations their 1927 award of $182,709.50, which, by a graduated scale of shrinkage, they reduced to what they believed to be a proper level for the year 1920. By such process they decided that $146,167.60 "would be about right" for the lands in the former year. Briefly stated, the evidence in the case shows quite clearly that*882 the petitioner's property was rough cut-over mountain land and the *925 portion suitable for farming was negligible. There was no market or demand for it in 1917 for watershed purposes. In fact, there seems to have been very little demand for such property for any purpose except possibly camp purposes. The possible inclusion of the property as a part of the watershed of the city of Asheville had received no serious consideration, and very likely no consideration at all until the drought of 1925. Since its acquisition by the city of Asheville, its water facilities have not been developed and it does not now appear that they will ever be developed unless and until the population of Asheville materially increases. A great many tracts of cut-over mountain land in the Ashville area had sold at a price ranging from $5 per acre to $12 per acre. Making due allowance for such agricultural land as the tract contained and such timber, mostly second growth, as remained on the land and its suitability in 1917 for any purposes disclosed by the record, we are convinced that the fair market value of the property on October 20, 1917, was not in excess of $36,531.66. The petitioner has*883 not shown that her gain from the property computed on that amount as the basis was in any way excessive. Of the $17,388.64 claimed by the petitioner as a deduction, representing fees paid for legal services, the record shows that during the taxable year she did expend a total of $10,000 for legal services in connection with the condemnation proceedings. This item of $10,000 so expended should be applied against the gross amount received by her in computing the gain realized as a result of the condemnation of her property. Cf. . On the remaining issue, affirmatively pleaded by him, the respondent is sustained. It is apparent that in computing the deficiency as originally determined the petitioner's taxable profit was reduced by prorating the amount used in the repurchase of similar lands between the basic cost of the original lands and the tentative profit, computed without regard to the possibility of replacement. This method of computation was proper under section 214(a)(12) of the Revenue Act of 1921. However, under the provisions of section 112(f), supra, of the Revenue Act of 1928, which governs this case, the only limitation*884 on the recognition of the gain in full is that it may not exceed the amount of money remaining after replacement purchases are made. Decision will be entered under Rule 50.Footnotes1. SEC. 112. RECOGNITION OF GAIN OR LOSS. * * * (f) Involuntary conversions.↩ - If property (as a result of its destruction in whole or in part, theft or seizure, or an exercise of the power of requisition or condemnation, or the threat or imminence thereof) is compulsorily or involuntarily converted into property similar or related in service or use to the property so converted, or into money which is forthwith in good faith, under regulations prescribed by the Commissioner with the approval of the Secretary, expended in the acquisition of other property similar or related in service or use to the property so converted, or in the acquisition of control of a corporation owning such other property, or in the establishment of a replacement fund, no gain or loss shall be recognized. If any part of the money is not so expanded, the gain, if any, shall be recognized, but in an amount not in excess of the money which is not so expended. 2. SEC. 113. BASIS FOR DETERMINING GAIN OR LOSS. (a) Property acquired after February 28, 1913. - The basis for determining the gain or loss from the sale or other disposition of property acquired after February 28, 1913, shall be the cost of such property; except that - * * * (5) PROPERTY TRANSMITTED AT DEATH. - * * * if real property was acquired by general or specific devise or by intestacy, the basis shall be the fair market value of the property at the time of the death of the decedent. * * * ↩ | 11-21-2020 | [
"MARY W. T. CONNALLY, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.Connally v. CommissionerDocket No. 60434.United States Board of Tax Appeals32 B.T.A. 920; 1935 BTA LEXIS 872; July 11, 1935, Promulgated *872 1. The respondent's determination as to the fair market value of lands acquired by the petitioner from her mother's estate sustained upon evidence of record. 2. Respondent's prayer for affirmative relief by correction of error made in his original audit, granted. 3. Deduction from gross income for legal expenses paid in the taxable year allowed in part. James I. Mason, Esq., for the petitioner. Samuel L. Young, Esq., for the respondent. TURNER *920 This proceeding involves an income tax deficiency determined by the respondent for 1928, in the amount of $15,255.10. The question presented by the petitioner is whether or not the petitioner realized taxable gain by reason of the involuntary conversion, through condemnation proceedings, of certain lands belonging to her.",
"In his answer the respondent claims that in computing the taxable gain he applied section 214(a)(12) of the Revenue Act of 1921 instead of section 112(f) of the Revenue Act of 1928, which is applicable, *921 and by so doing, erroneously reduced the net gain by a proration between basic cost and tentative profit of the amount used in the purchase of similar property*873 by way of replacement. Prayer is accordingly made for an increased deficiency. FINDINGS OF FACT. The petitioner is one of three surviving daughters of Alice T. Connally, who died October 20, 1917, leaving an estate in lands and other property situated at and near Asheville, North Carolina. At her death Alice T. Connally left a will, by the terms of which she bequeathed all of her estate, after debts and certain minor bequests were paid, to her three daughters, equally.",
"This will was probated in Buncombe County, North Carolina, and the three daughters qualified as executrices. The pertinent provisions of the will read as follows: FERNIHURST Asheville, North Carolina, Feb. 26, 1912.In event of my death I bequeath to my three daughters Mary Connally Coxe, Alice Connally Cheesborough, and Curry Connally Andrews all that I possess real and personal to be divided equally between them the three daughters acting as Executors without giving bond * * *. * * * To the Executors - Nov. 1, 1912.",
"It is my wish that \"my cabin\" and Black Mt. Land, North Fork Boundary should be assigned to Mary Connally Coxe as a part of her legacy. The timber being cut, it is not*874 so valuable - at whatever valuation you decide upon - the other two daughters are to receive the same amount in other property. * * * The daughters carried out this expressed wish of their mother and by mutual agreement divided the residue of the estate among themselves, according to their own appraisals of value and apportionments of the property. This division was accomplished without aid of court, by conveyances to each other through joint deeds, assignments, and releases of title to the lands and other parcels of property allocated under their agreements.",
"Title to the Black Mountain lands, which were situated immediately north of the city of Asheville, was confirmed in the petitioner by a deed executed by her sisters and their husbands on September 10, 1920. Originally it was thought that this tract contained approximately 3,719 acres, but in 1928, when it was acquired by the city of Asheville, it was described as being a tract of 2,629.19 acres. On November 20, 1918, the daughters filed a Federal estate tax return for the estate of Mary T. Connally, in which they placed a value of $15,000 on the Black Mountain lands. In the inventory of *922 the estate filed*875 in the Superior Court of Buncombe County, North Carolina, on January 24, 1918, the value was fixed at $19,742. The Black Mountain property was very rough and only a small portion was suitable for farming.",
"It had been cut over and contained very little merchantable timber, and most of this was second growth. In 1925 the Asheville area suffered a severe drought, and there was an extreme shortage of water in the city of Asheville, which resulted in steps being taken to acquire additional lands as a watershed for the city. Several tracts were considered, but due to its proximity and the fact that a stream known as North Fork traversed the property and offered certain advantages, the city of Asheville, in 1927, instituted condemnation proceedings to acquire petitioner's lands and considerable adjoining acreage.",
"In these proceedings the condemnation jury appointed by the court to determine and assess the petitioner's damages fixed the value of the lands so taken at $182,709.50, which sum was paid to her in the taxable year. Up to the present time the property so acquired has not been developed for water purposes. The reasons for the failure to use the property are that the city*876 of Asheville has not grown to the extent anticipated and sufficient water has been obtained through the development of what is known as the Bee Tree Watershed.",
"On December 27, 1928, the petitioner made application to the Commissioner of Internal Revenue to establish a replacement fund of the proceeds of the condemnation sale. In that application she stated that the lands condemned had an estimated March 1, 1913, value of $36,531.66 and estimated her taxable gain at $100,000. A bond filed with the application was later withdrawn and the application was abandoned by the petitioner before action on it was taken by respondent. Of the sum received by the petitioner from the city of Asheville, $39,973.13 was invested in other lands similar to those sold. At neither October 20, 1917, nor September 10, 1920, was there any market or demand for the property in question for watershed purposes. During the taxable year the petitioner paid the sum of $5,000 to each of two attorneys for legal services rendered in connection with the condemnation and sale of her Black Mountain lands. The petitioner did not report any of the land proceeds in her income tax return for the year received. *877 She made claim, however, in her return, for a deduction of $17,388.64 as expenditures for legal services connected with the condemnation proceedings.",
"In auditing the petitioner's income tax return for 1928 the respondent found that she realized a taxable gain from the sale of the Black *923 Mountain lands to the city of Asheville. In arriving at this result, respondent used $36,531.66 as his cost base for the lands, this sum being the March 1, 1913, value assigned to them in petitioner's application for a replacement fund. Against the taxable profit the respondent allowed a credit of $34,137.05 which was a proportionate part of a replacement expenditure of $39,973.13, but disallowed the expense deduction of $17,388.64 mentioned above. OPINION. TURNER: The principal point contended for by the petitioner is that in no event can any part of the money paid to her for condemned lands be taxed as profit, because all of it represents \"compensation for losses sustained\", and, being payment for losses, the proceeds can not be taxed as gains.",
"From the standpoint of taxable profit, there is no magic in the term \"compensation.\" When applied to awards in condemnation matters, *878 it relates entirely to the value of property at the date of its appropriation to public use, plus any special damages suffered by the owner. It therefore has nothing to do with the cost of the property taken and may represent profit, or actual loss to the owner, depending entirely upon whether its amount is greater or less than his investment in the property. The petitioner relies chiefly on the decision of the Supreme Court in . Clearly that case is not in point. The question there was whether the proceeds of certain insurance policies payable to a corporation on the life of one of its officers should be included in gross income.",
"The court held that such proceeds did not constitute income under the statute as then worded and specifically avoided the question as to whether or not Congress, if it so desired, might require the inclusion of such payments in corporate income. Contrasting that situation with the situation here, Congress, in section 112(f) 1 of the Revenue Act of 1928, has specifically provided for the taxation of profits on *924 property condemned for public uses, and, as we have*879 pointed out in the preceding paragraph, the mere fact that under the law a person is entitled to be indemnified for property at its fair market value as of the date condemned is in no way determinative of the fact as to whether or not there is an actual realization of gain.",
"*880 The petitioner and the respondent agree that the fair market value of the property on March 1, 1913, is not the proper basis for computing the petitioner's gain from its disposition, but differ as to whether the fair market value on September 10, 1920, when the deed to the property was signed by her sisters and their husbands, or the fair market value on October 20, 1917, the date of her mother's death, is the correct basis for computing the gain. This question is governed by section 113(a)(5) 2 of the 1928 Act, which fixes the basic date, in such cases, as that of the death of the decedent. Under this provision of the statute the fair market value of the property on October 20, 1917, is the basis for determining the gain realized by the petitioner as a result of the condemnation proceedings. *881 On the question of land values, a voluminous record made up of depositions and testimony given at the hearing has been produced. Each of the parties called a great number of witnesses. Included among these witnesses were forest rangers familiar with that section of the country, county or city officials, local business men, and other individuals who had some knowledge of the tract of land involved. Among the witnesses whose depositions were introduced by the petitioner to establish land values were five individuals who served on the condemnation jury in 1927. This jury, having fixed petitioner's award from the city for the taking of the lands, reassembled at her request on August 24, 1931, to determine by retrospective appraisement the fair market value of the lands in September 1920.",
"At their meeting these former jurymen used as a base for their calculations their 1927 award of $182,709.50, which, by a graduated scale of shrinkage, they reduced to what they believed to be a proper level for the year 1920. By such process they decided that $146,167.60 \"would be about right\" for the lands in the former year. Briefly stated, the evidence in the case shows quite clearly that*882 the petitioner's property was rough cut-over mountain land and the *925 portion suitable for farming was negligible. There was no market or demand for it in 1917 for watershed purposes. In fact, there seems to have been very little demand for such property for any purpose except possibly camp purposes.",
"The possible inclusion of the property as a part of the watershed of the city of Asheville had received no serious consideration, and very likely no consideration at all until the drought of 1925. Since its acquisition by the city of Asheville, its water facilities have not been developed and it does not now appear that they will ever be developed unless and until the population of Asheville materially increases. A great many tracts of cut-over mountain land in the Ashville area had sold at a price ranging from $5 per acre to $12 per acre. Making due allowance for such agricultural land as the tract contained and such timber, mostly second growth, as remained on the land and its suitability in 1917 for any purposes disclosed by the record, we are convinced that the fair market value of the property on October 20, 1917, was not in excess of $36,531.66. The petitioner has*883 not shown that her gain from the property computed on that amount as the basis was in any way excessive. Of the $17,388.64 claimed by the petitioner as a deduction, representing fees paid for legal services, the record shows that during the taxable year she did expend a total of $10,000 for legal services in connection with the condemnation proceedings.",
"This item of $10,000 so expended should be applied against the gross amount received by her in computing the gain realized as a result of the condemnation of her property. Cf. . On the remaining issue, affirmatively pleaded by him, the respondent is sustained. It is apparent that in computing the deficiency as originally determined the petitioner's taxable profit was reduced by prorating the amount used in the repurchase of similar lands between the basic cost of the original lands and the tentative profit, computed without regard to the possibility of replacement. This method of computation was proper under section 214(a)(12) of the Revenue Act of 1921. However, under the provisions of section 112(f), supra, of the Revenue Act of 1928, which governs this case, the only limitation*884 on the recognition of the gain in full is that it may not exceed the amount of money remaining after replacement purchases are made.",
"Decision will be entered under Rule 50.Footnotes1. SEC. 112. RECOGNITION OF GAIN OR LOSS. * * * (f) Involuntary conversions.↩ - If property (as a result of its destruction in whole or in part, theft or seizure, or an exercise of the power of requisition or condemnation, or the threat or imminence thereof) is compulsorily or involuntarily converted into property similar or related in service or use to the property so converted, or into money which is forthwith in good faith, under regulations prescribed by the Commissioner with the approval of the Secretary, expended in the acquisition of other property similar or related in service or use to the property so converted, or in the acquisition of control of a corporation owning such other property, or in the establishment of a replacement fund, no gain or loss shall be recognized. If any part of the money is not so expanded, the gain, if any, shall be recognized, but in an amount not in excess of the money which is not so expended. 2.",
"SEC. 113. BASIS FOR DETERMINING GAIN OR LOSS. (a) Property acquired after February 28, 1913. - The basis for determining the gain or loss from the sale or other disposition of property acquired after February 28, 1913, shall be the cost of such property; except that - * * * (5) PROPERTY TRANSMITTED AT DEATH. - * * * if real property was acquired by general or specific devise or by intestacy, the basis shall be the fair market value of the property at the time of the death of the decedent. * * * ↩"
] | https://www.courtlistener.com/api/rest/v3/opinions/4619125/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
DETAILED ACTION Election/Restrictions Applicant’s election without traverse of Group I, claims 1-12 in the reply filed on June 17, 2021 is acknowledged. Claim 13 is withdrawn from consideration.
Claim Objections Claim 1 is objected to because of the following informalities: In claim 1, line 3, the examiner suggests removing “a corresponding” as it does not appear to be necessary.
Claim Rejections - 35 USC § 112 The following is a quotation of 35 U.S.C. 112(b): (b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph: The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-12 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention. In claim 1 and many of the dependent claims, “the metal terminal” lacks sufficient antecedent basis because it is first referred to as “at least one metal terminal.” It is unclear which metal terminal(s) is/are being referred to.
Claim Rejections - 35 USC § 103 In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status. The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action: A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows: 1. Determining the scope and contents of the prior art. 2. Ascertaining the differences between the prior art and the claims at issue. 3. Resolving the level of ordinary skill in the pertinent art. 4. Considering objective evidence present in the application indicating obviousness or nonobviousness. This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention. s 1-12 are rejected under 35 U.S.C. 103 as being unpatentable over Sasamori et al. (“Sasamori”, US 2006/0022788 A1). Regarding claims 1-12, Sasamori discloses a coil component used in a compact electronic device is formed by fixing with an adhesive a drum core made of a magnetic substance which has a winding core part and flange parts and provided integrally with a winding core part, a winding wire which is formed by winding an insulating coating conducting wire around the winding core part of the drum core, and a cylindrical ring core made of a magnetic substance disposed at an outer periphery of the drum core around which the winding wire is wound with a space from the outer periphery of the drum core ([0004]). The ends of the winding wire are led out onto the joint parts of the metal plate terminal, and are electrically connected by soldering, laser, or the like and thermo-compression bonding ([0007]). In thermos-compression bonding, a pressing surface at a tip end of a heater chip is pressed against the end of the winding wire, and has to be heated and pressurized for a long time ([0009]). The metal plate terminal has a section in a horseshoe shape (reads on hoop element), and is fixed with an adhesive with the side surface part as a fixing part to the ring core ([0006]). Sasamori teaches using epoxy resin adhesive ([0056]) and bonding by thermos-compression bonding by the heater chip ([0053]). As to claim 3, Sasamori does not expressly teach grinding the contact surface of the pressing member before heating. However, grinding, polishing, and other shape/surface-modifying processes are very well known in the art and would be obvious to one of ordinary skill in the art at the effective filing date of the invention.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DANIEL H. LEE whose telephone number is (571)270-7711. The examiner can normally be reached on M-F 8:30-5:00. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Michael Orlando can be reached on 5712705038. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see https://ppair-my.uspto.gov/pair/PrivatePair. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/DANIEL H LEE/ Primary Examiner, Art Unit 1746 | 2021-07-18T10:43:56 | [
"DETAILED ACTION Election/Restrictions Applicant’s election without traverse of Group I, claims 1-12 in the reply filed on June 17, 2021 is acknowledged. Claim 13 is withdrawn from consideration. Claim Objections Claim 1 is objected to because of the following informalities: In claim 1, line 3, the examiner suggests removing “a corresponding” as it does not appear to be necessary. Claim Rejections - 35 USC § 112 The following is a quotation of 35 U.S.C. 112(b): (b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention. The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph: The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention. Claims 1-12 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C.",
"112, the applicant), regards as the invention. In claim 1 and many of the dependent claims, “the metal terminal” lacks sufficient antecedent basis because it is first referred to as “at least one metal terminal.” It is unclear which metal terminal(s) is/are being referred to. Claim Rejections - 35 USC § 103 In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status. The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action: A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.",
"The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows: 1. Determining the scope and contents of the prior art. 2. Ascertaining the differences between the prior art and the claims at issue. 3. Resolving the level of ordinary skill in the pertinent art. 4. Considering objective evidence present in the application indicating obviousness or nonobviousness. This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C.",
"102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention. s 1-12 are rejected under 35 U.S.C. 103 as being unpatentable over Sasamori et al. (“Sasamori”, US 2006/0022788 A1). Regarding claims 1-12, Sasamori discloses a coil component used in a compact electronic device is formed by fixing with an adhesive a drum core made of a magnetic substance which has a winding core part and flange parts and provided integrally with a winding core part, a winding wire which is formed by winding an insulating coating conducting wire around the winding core part of the drum core, and a cylindrical ring core made of a magnetic substance disposed at an outer periphery of the drum core around which the winding wire is wound with a space from the outer periphery of the drum core ([0004]).",
"The ends of the winding wire are led out onto the joint parts of the metal plate terminal, and are electrically connected by soldering, laser, or the like and thermo-compression bonding ([0007]). In thermos-compression bonding, a pressing surface at a tip end of a heater chip is pressed against the end of the winding wire, and has to be heated and pressurized for a long time ([0009]). The metal plate terminal has a section in a horseshoe shape (reads on hoop element), and is fixed with an adhesive with the side surface part as a fixing part to the ring core ([0006]). Sasamori teaches using epoxy resin adhesive ([0056]) and bonding by thermos-compression bonding by the heater chip ([0053]). As to claim 3, Sasamori does not expressly teach grinding the contact surface of the pressing member before heating. However, grinding, polishing, and other shape/surface-modifying processes are very well known in the art and would be obvious to one of ordinary skill in the art at the effective filing date of the invention. Any inquiry concerning this communication or earlier communications from the examiner should be directed to DANIEL H. LEE whose telephone number is (571)270-7711.",
"The examiner can normally be reached on M-F 8:30-5:00. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Michael Orlando can be reached on 5712705038. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only.",
"For more information about the PAIR system, see https://ppair-my.uspto.gov/pair/PrivatePair. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000. /DANIEL H LEE/ Primary Examiner, Art Unit 1746"
] | https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2021-07-18.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN
JULIUS LAWSON ,
Petitioner, ORDER v. Case No. 19-cv-469-wmc M. MARSKE,
Respondent.
Petitioner Julius Lawson seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241.
Petitioner has neither paid the $5 filing fee nor requested leave to proceed without
prepayment of the filing fee. For this case to move forward, petitioner must pay the $5 filing
fee or submit a properly supported motion for leave to proceed without prepayment of the
filing fee no later than July 2, 2019. Any motion for leave to proceed without prepayment of
the filing fee must include a certified copy of an inmate trust fund account statement (or
institutional equivalent) for the six-month period beginning approximately December 10,
2018 through the date of the petition, June 10, 2019.
ORDER
IT IS ORDERED that:
1. Petitioner Julius Lawson may have until July 2, 2019, to pay the $5 filing fee
or submit a properly supported motion for leave to proceed without prepayment of the filing
fee. 2. If petitioner does not submit either the $5 payment or a motion for leave to
proceed without prepayment before July 2, 2019, I will assume that petitioner wishes to
withdraw this petition.
Entered this 11th day of June, 2019.
BY THE COURT:
/s/
PETER OPPENEER Magistrate Judge | 2019-06-11 | [
"IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN JULIUS LAWSON , Petitioner, ORDER v. Case No. 19-cv-469-wmc M. MARSKE, Respondent. Petitioner Julius Lawson seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner has neither paid the $5 filing fee nor requested leave to proceed without prepayment of the filing fee. For this case to move forward, petitioner must pay the $5 filing fee or submit a properly supported motion for leave to proceed without prepayment of the filing fee no later than July 2, 2019. Any motion for leave to proceed without prepayment of the filing fee must include a certified copy of an inmate trust fund account statement (or institutional equivalent) for the six-month period beginning approximately December 10, 2018 through the date of the petition, June 10, 2019.",
"ORDER IT IS ORDERED that: 1. Petitioner Julius Lawson may have until July 2, 2019, to pay the $5 filing fee or submit a properly supported motion for leave to proceed without prepayment of the filing fee. 2. If petitioner does not submit either the $5 payment or a motion for leave to proceed without prepayment before July 2, 2019, I will assume that petitioner wishes to withdraw this petition. Entered this 11th day of June, 2019. BY THE COURT: /s/ PETER OPPENEER Magistrate Judge"
] | https://www.courtlistener.com/api/rest/v3/recap-documents/90456678/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Opinions of the United 1999 Decisions States Court of Appeals for the Third Circuit
11-30-1999
Childrens Seashore v Waldman Precedential or Non-Precedential:
Docket 99-5024
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1999
Recommended Citation "Childrens Seashore v Waldman" (1999). 1999 Decisions. Paper 312. http://digitalcommons.law.villanova.edu/thirdcircuit_1999/312
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 1999 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. Filed November 30, 1999
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 99-5024
CHILDREN'S SEASHORE HOUSE, Appellant
v.
WILLIAM WALDMAN, COMMISSIONER OF THE NEW JERSEY DEPARTMENT OF HUMAN SERVICES; KAREN SQUARRELL, ACTING DIRECTOR, OF THE NEW JERSEY DEPARTMENT OF HUMAN SERVICES, DIVISION OF MEDICAL ASSISTANCE
On Appeal from the United States District Court for the District of New Jersey (D.C. Civ. No. 98-02377) District Judge: Honorable Anne E. Thompson
Argued September 17, 1999
BEFORE: GREENBERG, SCIRICA, and RENDELL, Circuit Judges
(Filed: November 30, 1999) Mark H. Gallant (argued) Kimberly A. Bane Cozen and O'Connor The Atrium 1900 Market Street Philadelphia, PA 19103
Attorneys for Appellant
John J. Farmer, Jr. Attorney General of New Jersey Nancy Kaplen Assistant Attorney General Rhonda S. Berliner-Gold (argued) Mary A. Hurley Deputy Attorneys General R.J. Hughes Justice Complex P.O. Box 112 Trenton, N.J. 08625
Attorneys for Appellees
OPINION OF THE COURT
GREENBERG, Circuit Judge.
I. STATEMENT OF THE CASE
Appellant, Children's Seashore House ("CSH"), a Philadelphia hospital that until 1990 had been located in Atlantic City, New Jersey, provides acute medical rehabilitation care to seriously injured or ill pediatric patients. CSH brought this action in the district court on May 8, 1998, seeking declaratory and injunctive relief to compel the New Jersey Department of Human Services to make disproportionate share hospital ("DSH") adjustments on account of CSH's treatment of Medicaid enrollees from New Jersey. In particular, CSH sued the commissioner of the Department and the director of its Division of Medical Assistance ("New Jersey") under 42 U.S.C.S 1983 in their official capacities to challenge New Jersey's amendment to
2 its Medicaid Plan effective September 20, 1996, which provides for the denial of DSH payments to hospitals located outside of New Jersey. CSH alleged that this policy violated CSH's rights under Title XIX of the Social Security Act, 42 U.S.C. SS 1396 et seq. ("Medicaid Act"), and the Equal Protection Clause of the Fourteenth Amendment. New Jersey asserts that it had made the DSH payments to out-of-state hospitals until July 1, 1993, but that thereafter while it was contemplating the amendment's adoption, it discontinued the payments. CSH contends, however, that New Jersey never made DSH payments to it after it moved to Philadelphia.
On September 25, 1998, New Jersey filed a motion to dismiss or in the alternative for summary judgment. On November 9, 1998, CSH filed a motion, which the district court referred to a magistrate judge, to amend its complaint to assert a claim under the Commerce Clause. The district court then decided the case in an opinion dated December 7, 1998, in which it indicated that in its discretion it was determining the "matter as a motion to dismiss" which it granted. Of course, the district court therefore did not make a ruling on the motion for summary judgment, and neither the magistrate judge nor the district court ever ruled on CSH's motion to amend. CSH then appealed.
II. STATUTORY FRAMEWORK
In order that this matter be understood, we set forth the statutory background of the case. Medicaid is a joint federal-state program that provides for the payment of medical services pursuant to the Medicaid Act to the poor, elderly, and disabled. See Rite Aid of Pa., Inc. v. Houstoun, 171 F.3d 842, 845 (3d Cir. 1999). To participate, a state must submit a State Plan to the Secretary of Health and Human Services and obtain its approval of the plan detailing how the state will disburse Medicaid money. Id. at 846. A state may change its plan by obtaining approval of a State Plan Amendment. Id. The United States makes contributions to a state's program provided its plan is consistent with the applicable Medicaid Act provisions.
Beginning in 1981, Congress provided additional payments for disproportionate share hospitals, meaning
3 hospitals serving a high percentage of indigent patients. The two provisions regarding DSH adjustments relevant to this case are 42 U.S.C. S 1396a(a)(13)(A) ("a-13") and 42 U.S.C. S 1396r-4 ("r-4"). A-13 provides for a public process through which a state determines and sets reimbursement rates, while r-4 outlines the specifications regarding DSH adjustments. As it now reads a-13 states in its entirety:
A State plan for medical assistance must --
(13) provide --
(A) for a public process for determination of rates of payment under the plan for hospital services, nursing facility services, and services of intermediate care facilities for the mentally retarded under which --
(i) proposed rates, the methodologies underlying the establishment of such rates, and justifications for the proposed rates are published,
(ii) providers, beneficiaries and their representatives, and other concerned State residents are given a reasonable opportunity for review and comment on the proposed rates, methodologies, and justifications,
(iii) final rates, the methodologies underlying the establishment of such rates, and justifications for such final rates are published, and
(iv) in the case of hospitals, such rates take into account (in a manner consistent with [r-4]) the situation of hospitals which serve a disproportionate number of low-income patients with special needs . . . .
42 U.S.C. S 1396a(a)(13)(A) (emphasis added).
When Congress adopted the current version of a-13 in the Balanced Budget Act of 1997 it repealed the following language, commonly known as the Boren Amendment, that stated:
A State plan for medical assistance must --
(13) provide --
4 (A) for payment (except where the State agency is subject to an order under section 1396m of this title) of the hospital services, nursing facility services, and services in an intermediate care facility for the mentally retarded provided under the plan through the use of rates . . . which, in the case of hospitals . . . which serve a disproportionate number of low income patients with special needs . . . which the State finds, and makes assurances satisfactory to the Secretary, are reasonable and adequate to meet the costs which must be incurred by efficiently and economically operated facilities in order to provide care and services in conformity with applicable State and Federal laws, regulations, and quality and safety standards. . . .
42 U.S.C. S 1396a(a)(13)(A) (West 1992) (repealed) (emphasis added).
Both the Boren Amendment and the 1997 amendment to a-13 are cross referenced with r-4. Thus, while r-4 continues to set the parameters for a state's provision of DSH adjustments, Congress in amending a-13 replaced the Boren Amendment's language requiring a state to pay "reasonable and adequate" rates with language mandating that a state provide a "public process" by which rates are determined in accordance with r-4. See Children's Hosp. and Health Ctr. v. Belshe, 188 F.3d 1090, 1094 (9th Cir. 1999).
A State Plan must provide for payment for covered services supplied by out-of-state hospitals to the state's own Medicaid program enrollees. See 42 U.S.C. S 1396a(a)(16); 42 C.F.R. S 431.52(b); West Virginia Univ. Hosps. Inc. v. Casey, 885 F.2d 11, 29 (3d Cir. 1989), aff'd on other grounds, 499 U.S. 83, 111 S. Ct. 1138 (1991). Moreover, it is clear that if Congress had not repealed the Boren Amendment in 1997, we would be bound to follow the holdings in West Virginia v. Casey that a state cannot set disproportionately low rates for out-of-state hospital services rendered -- including DSH adjustments-- for its Medicaid enrollees merely because the hospital is an out-of- state provider and that the out-of-state hospitals can enforce their rights to appropriate treatment. Id. at 17-22,
5 28-29; see also Wilder v. Virginia Hosp. Ass'n , 496 U.S. 498, 110 S. Ct. 2510 (1990). But inasmuch as we based West Virginia v. Casey on our conclusion that 771Pennsylvania's denial of adjustments to out-of-state
hospitals violated the "reasonable and adequate" requirement of a-13 as it then existed, see 885 F.2d at 29, we now must determine whether Congress's removal of the "reasonable and adequate" language from a-13 requires a different result than that we reached in West Virginia v. Casey. Inasmuch as we conclude that the repeal of the Boren Amendment does require a result different from that in West Virginia v. Casey so that CSH cannot prevail on its direct statutory claim, we must decide whether its equal protection claim should have survived New Jersey's motion to dismiss.
III. THE DISTRICT COURT OPINION
As we stated above, the district court dismissed CSH's complaint on New Jersey's motion to dismiss pursuant to Rule 12(b)(6).1 The court held that CSH lacks standing to bring its statutory claim because Congress intended to foreclose private enforcement of DSH adjustment payments when it repealed the Boren Amendment in 1997, and because r-4 itself did not confer standing on CSH. Applying the test the Supreme Court set forth in Blessing v. Freestone, 520 U.S. 329, 117 S. Ct. 1353 (1997), the court recognized that hospitals like CSH are the intended beneficiaries of r-4. The court reasoned, however, that while r-4 mandates that a state's Medicaid plan provide for an appropriate increase in Medicaid payments to DSHs based on specific rate adjustment procedures, unlike the Boren Amendment r-4 "does not mandate actual payment." Accordingly, the court held that r-4 "does not impose a binding obligation on New Jersey to actually afford CSH _________________________________________________________________
1. New Jersey indicated that it was moving to dismiss pursuant to Fed. R. Civ. P. 12(c). Rule 12(c), however, deals with motions for judgment on the pleadings. As a practical matter, however, in the context of this case there is no real distinction between the two types of motions. See Churchill v. Star Enter., 183 F.3d 184, 190 n.5 (3d Cir. 1999). Thus, inasmuch as the district court treated the motion under Rule 12(b)(6) standards, we will as well.
6 payment, such that CSH has a federal right to payment under S 1983." Moreover, the court found that Congress's repeal of the Boren Amendment supported this conclusion as Congress eliminated the statutory provision mandating "reasonable and adequate" payment that had been regarded as conferring standing upon plaintiffs in the past. The court found its conclusions buttressed by statements of congressional intent to eliminate causes of action for hospitals and nursing facilities challenging the adequacy of the rates they receive.2
When the court addressed CSH's equal protection claim, it held that CSH could not maintain a valid claim because (1) the Medicaid Act does not "specifically" require states to fund out-of-state DSHs; (2) New Jersey was not treating CSH differently than it treated any other out-of-state hospital; and (3) the federal government had approved New Jersey's current Medicaid plan, including its policy not to provide for DSH adjustments to out-of-state hospitals, as conforming with Medicaid's requirements. Nevertheless, the court believed that its ruling was in tension with our rejection of what it called "Pennsylvania's alleged rational basis for excluding out of state hospitals from its Medicaid program" in West Virginia v. Casey, 885 F.2d at 29. But the court distinguished that case by pointing out that while "the West Virginia hospital which brought suit served an extremely high number of Pennsylvania residents," "[CSH's] complaint makes no such [equivalent] allegation. . . ." Accordingly, the court dismissed CSH's equal protection claim in addition to its statutory claim to enforce the Medicaid Act.
IV. DISCUSSION
CSH argues that the district court failed to recognize that r-4 authorizes actions to enforce DSH adjustments because r-4 delineates rights established by Congress for the specific benefit of DSHs and obligates the states to make supplemental payments to these hospitals. CSH contends _________________________________________________________________
2. The court also held that Medicaid's public notice provisions do not confer standing because they "are less than specific, mandatory requirements." CSH does not challenge this conclusion on this appeal.
7 that, in repealing the Boren Amendment, Congress did not repeal the requirement in r-4 mandating payment of adjustments to DSHs, but actually fortified the states' obligations to these providers. According to CSH, the court's assessment of the legislative history was erroneous, as the court relied upon statements concerning versions of the 1997 amendment to the Medicaid Act that Congress later changed and in any case did not address enforcement of the DSH provisions.
Additionally, CSH asserts that it has alleged a viable 42 U.S.C. S 1983 claim under the Equal Protection and Commerce Clauses. CSH contends that if viewed under either heightened or rational-basis scrutiny, the denial of benefits to hospitals based upon their domiciles violates both clauses. Finally, CSH contends that the district court's reliance on federal approval of New Jersey's plan cannot support its result.
We will affirm the district court's order dismissing CSH's statutory claim seeking to enforce the Medicaid Act with respect to DSH payments in light of the passage of the Balanced Budget Act of 1997 amending a-13. We, however, will reverse the order of dismissal to the extent that it dismissed the equal protection claim and will remand the case to the district court for further consideration of that claim as well as CSH's motion for leave to amend its complaint to assert a Commerce Clause claim.
A. Standard of Review
We exercise plenary review over the district court's order granting the motion to dismiss. See McClintock v. Eichelberger, 169 F.3d 812, 816 (3d Cir.), cert. denied, 120 S. Ct. 182 (1999). Furthermore, we must consider all factual allegations pled in the complaint as true and can affirm the district court's order of dismissal only if we are certain that CSH cannot prove any set of facts in support of its claim that would entitle it to relief. Moreover, regarding CSH's equal protection claim, "[s]ince this is aS 1983 action, [CSH is] entitled to relief if [its] complaint sufficiently alleges deprivation of any right secured by the Constitution. In considering a Rule 12(b)(6) motion, we do not inquire
8 whether [CSH] will ultimately prevail, only whether [it is] entitled to offer evidence to support [its] claims." Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) (citations omitted).
B. CHS's Statutory Claim to Enforce the Disproportionate Share Adjustments
CSH argues that even if Congress's passage of the Balanced Budget Act of 1997 eliminated its ability under a- 13 to enforce the DSH adjustments, nevertheless a court can enforce the adjustments under r-4. As noted above, the district court rejected this argument because it reasoned that r-4 does not impose a binding obligation on states to pay the adjustments. A-13 now mandates that a state provide for "a public process" for determination of rates. The process requires publication of the proposed rates together with the methodologies and justifications used to establish to those rates. Providers, beneficiaries, and other concerned state residents must be given a reasonable opportunity for review of and comment on the proposed rates, methodologies and justifications. Then thefinal rates, as well as methodologies and justifications for the rates, must be published. Finally, the rates must take into account the situation of DSHs in a manner consistent with r-4. See 42 U.S.C. S 1396a(a)(13)(A).
In Blessing v. Freestone, 520 U.S. at 340-41, 117 S.Ct. at 1359 (citations omitted), the Supreme Court said that a federal statute gives rise to a privately enforceable right if a court finds all three of the following circumstances present:
First, Congress must have intended that the provision in question benefit the plaintiff. Second, the plaintiff must demonstrate that the right assertedly protected by the statute is not so `vague and amorphous' that its enforcement would strain judicial competence. Third, the statute must unambiguously impose a binding obligation on the States.
We think it is clear that by amending a-13 in 1997, Congress eliminated the Boren Amendment's requirement that a state must provide for and assure the Secretary of Health and Human Services that its rates are "reasonable and adequate." As we recognized in Rite Aid v. Houstoun,
9 the Boren Amendment set procedural and substantive requirements: "The Boren Amendment instructed state agencies to make findings and assurances that their Medicaid reimbursement rates promote economy, efficiency, quality of care, and equal access. . . ." 171 F.3d at 852. Yet, by replacing the Boren Amendment with a requirement that a state establish a public process by which its rates would be determined, Congress has removed a party's ability to enforce any substantive right. See HCMF Corp. v. Gilmore, 26 F. Supp. 2d 873, 880 (W.D. Va. 1998) ("With the repeal of the Boren Amendment nothing remains that remotely resembles a federal right to reasonable and adequate rates. There is no federal statutory language to parse. There is only a state standard. It follows that there can be no prospective relief under S 1396a(a)(13). . . .").
The legislative history confirms this reading of the statute. H.R. Conf. Rep. No. 105-217 (1997), reprinted in 1997 U.S.C.C.A.N. 176, 488, begins its discussion of the proposed change to a-13 with this description of the law under the Boren Amendment:
Under so-called Boren amendments, states are required to pay hospitals, nursing facilities, and intermediate care facilities for the mentally retarded (ICFs/MR) rates that are `reasonable and adequate' to cover the costs which must be incurred by `efficiently and economically operated facilities.' A number of courts found that state systems failed to meet the test of `reasonableness' and some states have had to increase payments to these providers.
The conference agreement, which became the new a-13, according to the report "[r]epeals the Boren amendments and establishes a public process under which proposed rates, methodologies underlying the rates and the justifications for such rates are published and subject to public review and comment, and final rates are published with underlying methodologies and justifications." Id. at 489.
Thus, unless r-4 establishes an enforceable right on its own, CSH does not have an enforceable statutory claim. Yet, r-4 imposes neither procedural nor substantive
10 requirements on a state that provide a basis for CSH to press its claims. Rather, r-4 is a definitional provision that describes certain procedures that a state must satisfy, such as submitting a qualifying plan to the Secretary of Health and Human Services by a certain date to establish an adequate state disproportionate share hospital adjustment plan. 42 U.S.C. S 1396r-4(a). Moreover, r-4 sets the parameters of what is a DSH, what constitutes an adequate payment adjustment, and what limits are placed on federal financial participation and on state allotments for each year. We are satisfied that CSH cannot predicate its claim on these provisions. For this reason, we will affirm the district court's dismissal of CSH's section 1983 statutory claim and its finding that CSH cannot successfully maintain an action to enforce the Medicaid Act with respect to DSH adjustments.3
C. Equal Protection
CSH claims that New Jersey's policy discriminates on its face against out-of-state hospitals in favor of domestic enterprises.4 The Supreme Court has held that according to equal protection jurisprudence, "whatever the extent of a State's authority to exclude foreign corporations from doing business within its boundaries, that authority does not _________________________________________________________________
3. CSH cites Orthopaedic Hospital v. Belshe , 103 F.3d 1491 (9th Cir. 1997), cert. denied, 118 S. Ct. 684 (1998), Rite Aid v. Houstoun, 171 F.3d 842, and Doe v. Chiles, 136 F.3d 709 (11th Cir. 1998), for the proposition that "[t]he Boren Amendment is only one of several provisions of the Medicaid Act on which providers have based S 1983 claims." Brief at 14. While this is true, none of these cases was predicated upon the current version of a-13 or upon r-4. Moreover, these cases are all distinguishable from the current situation because each of them rested upon different provisions of the Medicaid Act that "unlike r- 4" have a substantive or procedural requirement.
4. CSH argues that this denial rises to the level of burdening a fundamental right and is therefore subject to strict scrutiny. However, inasmuch as CSH concentrates its argument upon a rational basis model of equal protection, we will as well. In any event, we have no need at this time to determine whether this is a strict scrutiny case because CSH's complaint survives a motion to dismiss in which only a rational basis justification is implicated.
11 justify imposition of more onerous taxes or other burdens on foreign corporations than those imposed on domestic corporations, unless the discrimination between foreign and domestic corporations bears a rational relation to a legitimate state purpose." Metropolitan Life Ins. Co. v. Ward, 470 U.S. 869, 875, 105 S. Ct. 1676, 1680 (1985) (internal quotation marks omitted).5
As we noted above, the district court rested its rejection of CSH's equal protection claim upon its belief that federal law does not require New Jersey to pay out-of-state hospitals because of federal approval of New Jersey's Medicaid plan including New Jersey's express statement that it would not provide for adjustments to out-of-state providers, and because the "current Medicaid statute does not specifically require States to fund DSH facilities outside their own borders." The court distinguished West Virginia v. Casey on the ground that "the West Virginia hospital which brought suit served an extremely high number of Pennsylvania residents." Moreover, the court thought that it was significant that New Jersey was not treating CSH differently than other hospitals outside of that state.
New Jersey in a supplemental letter brief urges that we affirm the district court's order dismissing the equal protection claim for the following reasons:
First, New Jersey does not have sufficient information and data with which to determine whether an out-of- state hospital is entitled to DSH payments under the varying rules for making the determination. Indeed, as set forth in the State's main brief, any state can treat any hospital as a DSH hospital. Second, it would be an onerous task for New Jersey to monitor whether an out-of-state hospital has already been fully compensated by either its home state or other states 6 in _________________________________________________________________
5. Likewise, the courts consider discriminatory treatment based upon a citizen's state of residence a potential violation of the Privileges and Immunities Clause. See Lunding v. New York Tax Appeals Tribunal, 118 S. Ct. 766, 774 (1998) ("Where nonresidents are subject to different treatment, there must be reasonable ground for . . . diversity of treatment.") (internal quotation marks omitted).
6. This assumes that if all states were required to make DSH payments to out-of-state hospitals, other states may also be obligated to make DSH
12 accordance with 42 U.S.C. S 1396r-4(g), which limits the amount of DSH payments an individual hospital is entitled to receive.
Third, as now codified at 42 U.S.C. S 1396r-4(f), states' DSH allotments were changed so that set amounts are provided for each year beginning with Fiscal Year 1998. Clearly Congress reached a decision about how much each individual state was entitled to receive and there is no evidence that it considered, in its calculation, that a state may be required to give away significant portions of its DSH allotment to other states, particularly given the significant lobbying by the states which occurred prior to the final figures being enacted into law.
Fourth, this calculation is further complicated because it is not possible for New Jersey to anticipate where its residents may ultimately receive care. The statute either applies to out-of-state hospitals or it does not; there is no basis to limit DSH payments only to `border' hospitals.
Fifth, once a hospital qualifies for a DSH payment, the hospital can use that money for any purpose, even non-medical purposes, because DSH payments are not payments for services provided. Nor would the hospital be required to even use the money received from New Jersey on New Jersey patients.
Lastly, out-of-state hospitals already receive DSH payments from the home state covering care provided to out-of-state residents. The home state is required to take into account treatment of out-of-state indigent patients when determining whether a hospital qualifies for DSH payments and how much DSH that hospital is entitled to receive.
Section 1923(b)(2) of the Act bases the Medicaid utilization rate on a formula that includes patient _________________________________________________________________
payments to a particular hospital. For example, a hospital could claim a DSH payment from any state as long as it treated at least one resident from that state. [This footnote is quoted from the letter brief.]
13 days furnished to patients eligible for Medicaid . . . [t]he State must consider the total number of patient days attributable to Medicaid recipients regardless of which state would be responsible for payment for the service. This is to ensure that each hospital that meets the . . . [DSH] requirement[s] is accorded disproportionate share status regardless of the origin of those patients. Id. [55 Fed. Reg. at 10079 (emphasis added)].
It is unreasonable to conclude that Congress intended to have both other states and the home state count the same patient days, and reimburse for the same patient days. These six reasons for New Jersey's denial of out- of-state DSH payments more than satisfies the rational relationship test.
In our view, the district court's rationales cannot support a dismissal of the action. The absence of a provision in the Medicaid Act requiring that states fund DSH facilities outside their borders does not mean that a state constitutionally can differentiate between in-state and out- of-state facilities. Rather, it means simply that there is no statutory requirement for equal treatment. Furthermore, federal approval of the amendment to the plan at most could foreclose a statutory argument challenging the denial of DSH payments. Moreover, the fact that New Jersey treats all out-of-state facilities equally by denying them DSH payments does not address the issue CSH raises as it is complaining about its treatment as compared to treatment of New Jersey facilities, not as compared to treatment of other out-of-state facilities. In the circumstances, we cannot uphold the district court's reasoning on why CSH has failed to allege a claim on which relief can be granted on the equal protection claim.
Additionally, we cannot uphold the Rule 12(b)(6) dismissal on the basis of New Jersey's arguments that we quote above, as its contentions introduce matters into the case that go far beyond the complaint and even the pleadings as a whole and introduce factual questions which we cannot address at this time.7 In short, we are not _________________________________________________________________
7. We realize that a court on a motion to dismiss can consider matters of public record, see Churchill v. Star Enter., 183 F.3d 184, 190 n.5 (3d Cir. 1999), but New Jersey's contentions go beyond that record.
14 satisfied from the complaint or even all the pleadings that CSH will not be able to prove any set of facts that will entitle it to relief.
Accordingly, while we express no view on whether CSH ultimately will prevail on the equal protection claim, we think that the claim should have survived New Jersey's motion to dismiss. See also West Virginia v. Casey, 885 F.2d at 29 ("Pennsylvania's excuse of administrative burden does not, in this case, provide a rational basis for[the hospital's] grossly diminished reimbursement rates."). Therefore, we will remand the case to the district court for further proceedings on that claim. On the remand CSH may renew its motion to amend to assert its Commerce Clause claim.
V. CONCLUSION
For the foregoing reasons we will affirm the order of December 7, 1998, to the extent that it dismissed CSH's statutory claims but will reverse it to the extent that it dismissed the equal protection claim. We will remand the matter to the district court for further proceedings consistent with this decision. The parties will bear their own costs on this appeal.
A True Copy: Teste:
Clerk of the United States Court of Appeals for the Third Circuit
15 | 10-13-2015 | [
"Opinions of the United 1999 Decisions States Court of Appeals for the Third Circuit 11-30-1999 Childrens Seashore v Waldman Precedential or Non-Precedential: Docket 99-5024 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1999 Recommended Citation \"Childrens Seashore v Waldman\" (1999). 1999 Decisions. Paper 312. http://digitalcommons.law.villanova.edu/thirdcircuit_1999/312 This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 1999 Decisions by an authorized administrator of Villanova University School of Law Digital Repository.",
"For more information, please contact Benjamin.Carlson@law.villanova.edu. Filed November 30, 1999 UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 99-5024 CHILDREN'S SEASHORE HOUSE, Appellant v. WILLIAM WALDMAN, COMMISSIONER OF THE NEW JERSEY DEPARTMENT OF HUMAN SERVICES; KAREN SQUARRELL, ACTING DIRECTOR, OF THE NEW JERSEY DEPARTMENT OF HUMAN SERVICES, DIVISION OF MEDICAL ASSISTANCE On Appeal from the United States District Court for the District of New Jersey (D.C. Civ. No. 98-02377) District Judge: Honorable Anne E. Thompson Argued September 17, 1999 BEFORE: GREENBERG, SCIRICA, and RENDELL, Circuit Judges (Filed: November 30, 1999) Mark H. Gallant (argued) Kimberly A. Bane Cozen and O'Connor The Atrium 1900 Market Street Philadelphia, PA 19103 Attorneys for Appellant John J. Farmer, Jr. Attorney General of New Jersey Nancy Kaplen Assistant Attorney General Rhonda S. Berliner-Gold (argued) Mary A. Hurley Deputy Attorneys General R.J. Hughes Justice Complex P.O. Box 112 Trenton, N.J. 08625 Attorneys for Appellees OPINION OF THE COURT GREENBERG, Circuit Judge. I. STATEMENT OF THE CASE Appellant, Children's Seashore House (\"CSH\"), a Philadelphia hospital that until 1990 had been located in Atlantic City, New Jersey, provides acute medical rehabilitation care to seriously injured or ill pediatric patients. CSH brought this action in the district court on May 8, 1998, seeking declaratory and injunctive relief to compel the New Jersey Department of Human Services to make disproportionate share hospital (\"DSH\") adjustments on account of CSH's treatment of Medicaid enrollees from New Jersey. In particular, CSH sued the commissioner of the Department and the director of its Division of Medical Assistance (\"New Jersey\") under 42 U.S.C.S 1983 in their official capacities to challenge New Jersey's amendment to 2 its Medicaid Plan effective September 20, 1996, which provides for the denial of DSH payments to hospitals located outside of New Jersey.",
"CSH alleged that this policy violated CSH's rights under Title XIX of the Social Security Act, 42 U.S.C. SS 1396 et seq. (\"Medicaid Act\"), and the Equal Protection Clause of the Fourteenth Amendment. New Jersey asserts that it had made the DSH payments to out-of-state hospitals until July 1, 1993, but that thereafter while it was contemplating the amendment's adoption, it discontinued the payments. CSH contends, however, that New Jersey never made DSH payments to it after it moved to Philadelphia. On September 25, 1998, New Jersey filed a motion to dismiss or in the alternative for summary judgment. On November 9, 1998, CSH filed a motion, which the district court referred to a magistrate judge, to amend its complaint to assert a claim under the Commerce Clause. The district court then decided the case in an opinion dated December 7, 1998, in which it indicated that in its discretion it was determining the \"matter as a motion to dismiss\" which it granted. Of course, the district court therefore did not make a ruling on the motion for summary judgment, and neither the magistrate judge nor the district court ever ruled on CSH's motion to amend. CSH then appealed.",
"II. STATUTORY FRAMEWORK In order that this matter be understood, we set forth the statutory background of the case. Medicaid is a joint federal-state program that provides for the payment of medical services pursuant to the Medicaid Act to the poor, elderly, and disabled. See Rite Aid of Pa., Inc. v. Houstoun, 171 F.3d 842, 845 (3d Cir. 1999). To participate, a state must submit a State Plan to the Secretary of Health and Human Services and obtain its approval of the plan detailing how the state will disburse Medicaid money.",
"Id. at 846. A state may change its plan by obtaining approval of a State Plan Amendment. Id. The United States makes contributions to a state's program provided its plan is consistent with the applicable Medicaid Act provisions. Beginning in 1981, Congress provided additional payments for disproportionate share hospitals, meaning 3 hospitals serving a high percentage of indigent patients. The two provisions regarding DSH adjustments relevant to this case are 42 U.S.C. S 1396a(a)(13)(A) (\"a-13\") and 42 U.S.C. S 1396r-4 (\"r-4\"). A-13 provides for a public process through which a state determines and sets reimbursement rates, while r-4 outlines the specifications regarding DSH adjustments. As it now reads a-13 states in its entirety: A State plan for medical assistance must -- (13) provide -- (A) for a public process for determination of rates of payment under the plan for hospital services, nursing facility services, and services of intermediate care facilities for the mentally retarded under which -- (i) proposed rates, the methodologies underlying the establishment of such rates, and justifications for the proposed rates are published, (ii) providers, beneficiaries and their representatives, and other concerned State residents are given a reasonable opportunity for review and comment on the proposed rates, methodologies, and justifications, (iii) final rates, the methodologies underlying the establishment of such rates, and justifications for such final rates are published, and (iv) in the case of hospitals, such rates take into account (in a manner consistent with [r-4]) the situation of hospitals which serve a disproportionate number of low-income patients with special needs . .",
". . 42 U.S.C. S 1396a(a)(13)(A) (emphasis added). When Congress adopted the current version of a-13 in the Balanced Budget Act of 1997 it repealed the following language, commonly known as the Boren Amendment, that stated: A State plan for medical assistance must -- (13) provide -- 4 (A) for payment (except where the State agency is subject to an order under section 1396m of this title) of the hospital services, nursing facility services, and services in an intermediate care facility for the mentally retarded provided under the plan through the use of rates . .",
". which, in the case of hospitals . . . which serve a disproportionate number of low income patients with special needs . . . which the State finds, and makes assurances satisfactory to the Secretary, are reasonable and adequate to meet the costs which must be incurred by efficiently and economically operated facilities in order to provide care and services in conformity with applicable State and Federal laws, regulations, and quality and safety standards. . . . 42 U.S.C. S 1396a(a)(13)(A) (West 1992) (repealed) (emphasis added). Both the Boren Amendment and the 1997 amendment to a-13 are cross referenced with r-4. Thus, while r-4 continues to set the parameters for a state's provision of DSH adjustments, Congress in amending a-13 replaced the Boren Amendment's language requiring a state to pay \"reasonable and adequate\" rates with language mandating that a state provide a \"public process\" by which rates are determined in accordance with r-4.",
"See Children's Hosp. and Health Ctr. v. Belshe, 188 F.3d 1090, 1094 (9th Cir. 1999). A State Plan must provide for payment for covered services supplied by out-of-state hospitals to the state's own Medicaid program enrollees. See 42 U.S.C. S 1396a(a)(16); 42 C.F.R. S 431.52(b); West Virginia Univ. Hosps. Inc. v. Casey, 885 F.2d 11, 29 (3d Cir. 1989), aff'd on other grounds, 499 U.S. 83, 111 S. Ct. 1138 (1991). Moreover, it is clear that if Congress had not repealed the Boren Amendment in 1997, we would be bound to follow the holdings in West Virginia v. Casey that a state cannot set disproportionately low rates for out-of-state hospital services rendered -- including DSH adjustments-- for its Medicaid enrollees merely because the hospital is an out-of- state provider and that the out-of-state hospitals can enforce their rights to appropriate treatment. Id.",
"at 17-22, 5 28-29; see also Wilder v. Virginia Hosp. Ass'n , 496 U.S. 498, 110 S. Ct. 2510 (1990). But inasmuch as we based West Virginia v. Casey on our conclusion that 771Pennsylvania's denial of adjustments to out-of-state hospitals violated the \"reasonable and adequate\" requirement of a-13 as it then existed, see 885 F.2d at 29, we now must determine whether Congress's removal of the \"reasonable and adequate\" language from a-13 requires a different result than that we reached in West Virginia v. Casey. Inasmuch as we conclude that the repeal of the Boren Amendment does require a result different from that in West Virginia v. Casey so that CSH cannot prevail on its direct statutory claim, we must decide whether its equal protection claim should have survived New Jersey's motion to dismiss.",
"III. THE DISTRICT COURT OPINION As we stated above, the district court dismissed CSH's complaint on New Jersey's motion to dismiss pursuant to Rule 12(b)(6).1 The court held that CSH lacks standing to bring its statutory claim because Congress intended to foreclose private enforcement of DSH adjustment payments when it repealed the Boren Amendment in 1997, and because r-4 itself did not confer standing on CSH. Applying the test the Supreme Court set forth in Blessing v. Freestone, 520 U.S. 329, 117 S. Ct. 1353 (1997), the court recognized that hospitals like CSH are the intended beneficiaries of r-4. The court reasoned, however, that while r-4 mandates that a state's Medicaid plan provide for an appropriate increase in Medicaid payments to DSHs based on specific rate adjustment procedures, unlike the Boren Amendment r-4 \"does not mandate actual payment.\"",
"Accordingly, the court held that r-4 \"does not impose a binding obligation on New Jersey to actually afford CSH _________________________________________________________________ 1. New Jersey indicated that it was moving to dismiss pursuant to Fed. R. Civ. P. 12(c). Rule 12(c), however, deals with motions for judgment on the pleadings. As a practical matter, however, in the context of this case there is no real distinction between the two types of motions. See Churchill v. Star Enter., 183 F.3d 184, 190 n.5 (3d Cir. 1999). Thus, inasmuch as the district court treated the motion under Rule 12(b)(6) standards, we will as well.",
"6 payment, such that CSH has a federal right to payment under S 1983.\" Moreover, the court found that Congress's repeal of the Boren Amendment supported this conclusion as Congress eliminated the statutory provision mandating \"reasonable and adequate\" payment that had been regarded as conferring standing upon plaintiffs in the past. The court found its conclusions buttressed by statements of congressional intent to eliminate causes of action for hospitals and nursing facilities challenging the adequacy of the rates they receive.2 When the court addressed CSH's equal protection claim, it held that CSH could not maintain a valid claim because (1) the Medicaid Act does not \"specifically\" require states to fund out-of-state DSHs; (2) New Jersey was not treating CSH differently than it treated any other out-of-state hospital; and (3) the federal government had approved New Jersey's current Medicaid plan, including its policy not to provide for DSH adjustments to out-of-state hospitals, as conforming with Medicaid's requirements. Nevertheless, the court believed that its ruling was in tension with our rejection of what it called \"Pennsylvania's alleged rational basis for excluding out of state hospitals from its Medicaid program\" in West Virginia v. Casey, 885 F.2d at 29. But the court distinguished that case by pointing out that while \"the West Virginia hospital which brought suit served an extremely high number of Pennsylvania residents,\" \"[CSH's] complaint makes no such [equivalent] allegation.",
". . .\" Accordingly, the court dismissed CSH's equal protection claim in addition to its statutory claim to enforce the Medicaid Act. IV. DISCUSSION CSH argues that the district court failed to recognize that r-4 authorizes actions to enforce DSH adjustments because r-4 delineates rights established by Congress for the specific benefit of DSHs and obligates the states to make supplemental payments to these hospitals. CSH contends _________________________________________________________________ 2. The court also held that Medicaid's public notice provisions do not confer standing because they \"are less than specific, mandatory requirements.\" CSH does not challenge this conclusion on this appeal. 7 that, in repealing the Boren Amendment, Congress did not repeal the requirement in r-4 mandating payment of adjustments to DSHs, but actually fortified the states' obligations to these providers. According to CSH, the court's assessment of the legislative history was erroneous, as the court relied upon statements concerning versions of the 1997 amendment to the Medicaid Act that Congress later changed and in any case did not address enforcement of the DSH provisions.",
"Additionally, CSH asserts that it has alleged a viable 42 U.S.C. S 1983 claim under the Equal Protection and Commerce Clauses. CSH contends that if viewed under either heightened or rational-basis scrutiny, the denial of benefits to hospitals based upon their domiciles violates both clauses. Finally, CSH contends that the district court's reliance on federal approval of New Jersey's plan cannot support its result. We will affirm the district court's order dismissing CSH's statutory claim seeking to enforce the Medicaid Act with respect to DSH payments in light of the passage of the Balanced Budget Act of 1997 amending a-13. We, however, will reverse the order of dismissal to the extent that it dismissed the equal protection claim and will remand the case to the district court for further consideration of that claim as well as CSH's motion for leave to amend its complaint to assert a Commerce Clause claim. A.",
"Standard of Review We exercise plenary review over the district court's order granting the motion to dismiss. See McClintock v. Eichelberger, 169 F.3d 812, 816 (3d Cir. ), cert. denied, 120 S. Ct. 182 (1999). Furthermore, we must consider all factual allegations pled in the complaint as true and can affirm the district court's order of dismissal only if we are certain that CSH cannot prove any set of facts in support of its claim that would entitle it to relief. Moreover, regarding CSH's equal protection claim, \"[s]ince this is aS 1983 action, [CSH is] entitled to relief if [its] complaint sufficiently alleges deprivation of any right secured by the Constitution. In considering a Rule 12(b)(6) motion, we do not inquire 8 whether [CSH] will ultimately prevail, only whether [it is] entitled to offer evidence to support [its] claims.\"",
"Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) (citations omitted). B. CHS's Statutory Claim to Enforce the Disproportionate Share Adjustments CSH argues that even if Congress's passage of the Balanced Budget Act of 1997 eliminated its ability under a- 13 to enforce the DSH adjustments, nevertheless a court can enforce the adjustments under r-4. As noted above, the district court rejected this argument because it reasoned that r-4 does not impose a binding obligation on states to pay the adjustments. A-13 now mandates that a state provide for \"a public process\" for determination of rates. The process requires publication of the proposed rates together with the methodologies and justifications used to establish to those rates. Providers, beneficiaries, and other concerned state residents must be given a reasonable opportunity for review of and comment on the proposed rates, methodologies and justifications.",
"Then thefinal rates, as well as methodologies and justifications for the rates, must be published. Finally, the rates must take into account the situation of DSHs in a manner consistent with r-4. See 42 U.S.C. S 1396a(a)(13)(A). In Blessing v. Freestone, 520 U.S. at 340-41, 117 S.Ct. at 1359 (citations omitted), the Supreme Court said that a federal statute gives rise to a privately enforceable right if a court finds all three of the following circumstances present: First, Congress must have intended that the provision in question benefit the plaintiff. Second, the plaintiff must demonstrate that the right assertedly protected by the statute is not so `vague and amorphous' that its enforcement would strain judicial competence. Third, the statute must unambiguously impose a binding obligation on the States. We think it is clear that by amending a-13 in 1997, Congress eliminated the Boren Amendment's requirement that a state must provide for and assure the Secretary of Health and Human Services that its rates are \"reasonable and adequate.\" As we recognized in Rite Aid v. Houstoun, 9 the Boren Amendment set procedural and substantive requirements: \"The Boren Amendment instructed state agencies to make findings and assurances that their Medicaid reimbursement rates promote economy, efficiency, quality of care, and equal access.",
". . .\" 171 F.3d at 852. Yet, by replacing the Boren Amendment with a requirement that a state establish a public process by which its rates would be determined, Congress has removed a party's ability to enforce any substantive right. See HCMF Corp. v. Gilmore, 26 F. Supp. 2d 873, 880 (W.D. Va. 1998) (\"With the repeal of the Boren Amendment nothing remains that remotely resembles a federal right to reasonable and adequate rates. There is no federal statutory language to parse. There is only a state standard. It follows that there can be no prospective relief under S 1396a(a)(13). . .",
". \"). The legislative history confirms this reading of the statute. H.R. Conf. Rep. No. 105-217 (1997), reprinted in 1997 U.S.C.C.A.N. 176, 488, begins its discussion of the proposed change to a-13 with this description of the law under the Boren Amendment: Under so-called Boren amendments, states are required to pay hospitals, nursing facilities, and intermediate care facilities for the mentally retarded (ICFs/MR) rates that are `reasonable and adequate' to cover the costs which must be incurred by `efficiently and economically operated facilities.' A number of courts found that state systems failed to meet the test of `reasonableness' and some states have had to increase payments to these providers. The conference agreement, which became the new a-13, according to the report \"[r]epeals the Boren amendments and establishes a public process under which proposed rates, methodologies underlying the rates and the justifications for such rates are published and subject to public review and comment, and final rates are published with underlying methodologies and justifications.\"",
"Id. at 489. Thus, unless r-4 establishes an enforceable right on its own, CSH does not have an enforceable statutory claim. Yet, r-4 imposes neither procedural nor substantive 10 requirements on a state that provide a basis for CSH to press its claims. Rather, r-4 is a definitional provision that describes certain procedures that a state must satisfy, such as submitting a qualifying plan to the Secretary of Health and Human Services by a certain date to establish an adequate state disproportionate share hospital adjustment plan. 42 U.S.C. S 1396r-4(a). Moreover, r-4 sets the parameters of what is a DSH, what constitutes an adequate payment adjustment, and what limits are placed on federal financial participation and on state allotments for each year. We are satisfied that CSH cannot predicate its claim on these provisions. For this reason, we will affirm the district court's dismissal of CSH's section 1983 statutory claim and its finding that CSH cannot successfully maintain an action to enforce the Medicaid Act with respect to DSH adjustments.3 C. Equal Protection CSH claims that New Jersey's policy discriminates on its face against out-of-state hospitals in favor of domestic enterprises.4 The Supreme Court has held that according to equal protection jurisprudence, \"whatever the extent of a State's authority to exclude foreign corporations from doing business within its boundaries, that authority does not _________________________________________________________________ 3. CSH cites Orthopaedic Hospital v. Belshe , 103 F.3d 1491 (9th Cir.",
"1997), cert. denied, 118 S. Ct. 684 (1998), Rite Aid v. Houstoun, 171 F.3d 842, and Doe v. Chiles, 136 F.3d 709 (11th Cir. 1998), for the proposition that \"[t]he Boren Amendment is only one of several provisions of the Medicaid Act on which providers have based S 1983 claims.\" Brief at 14. While this is true, none of these cases was predicated upon the current version of a-13 or upon r-4. Moreover, these cases are all distinguishable from the current situation because each of them rested upon different provisions of the Medicaid Act that \"unlike r- 4\" have a substantive or procedural requirement. 4. CSH argues that this denial rises to the level of burdening a fundamental right and is therefore subject to strict scrutiny.",
"However, inasmuch as CSH concentrates its argument upon a rational basis model of equal protection, we will as well. In any event, we have no need at this time to determine whether this is a strict scrutiny case because CSH's complaint survives a motion to dismiss in which only a rational basis justification is implicated. 11 justify imposition of more onerous taxes or other burdens on foreign corporations than those imposed on domestic corporations, unless the discrimination between foreign and domestic corporations bears a rational relation to a legitimate state purpose.\" Metropolitan Life Ins. Co. v. Ward, 470 U.S. 869, 875, 105 S. Ct. 1676, 1680 (1985) (internal quotation marks omitted).5 As we noted above, the district court rested its rejection of CSH's equal protection claim upon its belief that federal law does not require New Jersey to pay out-of-state hospitals because of federal approval of New Jersey's Medicaid plan including New Jersey's express statement that it would not provide for adjustments to out-of-state providers, and because the \"current Medicaid statute does not specifically require States to fund DSH facilities outside their own borders.\" The court distinguished West Virginia v. Casey on the ground that \"the West Virginia hospital which brought suit served an extremely high number of Pennsylvania residents.\" Moreover, the court thought that it was significant that New Jersey was not treating CSH differently than other hospitals outside of that state. New Jersey in a supplemental letter brief urges that we affirm the district court's order dismissing the equal protection claim for the following reasons: First, New Jersey does not have sufficient information and data with which to determine whether an out-of- state hospital is entitled to DSH payments under the varying rules for making the determination.",
"Indeed, as set forth in the State's main brief, any state can treat any hospital as a DSH hospital. Second, it would be an onerous task for New Jersey to monitor whether an out-of-state hospital has already been fully compensated by either its home state or other states 6 in _________________________________________________________________ 5. Likewise, the courts consider discriminatory treatment based upon a citizen's state of residence a potential violation of the Privileges and Immunities Clause. See Lunding v. New York Tax Appeals Tribunal, 118 S. Ct. 766, 774 (1998) (\"Where nonresidents are subject to different treatment, there must be reasonable ground for .",
". . diversity of treatment.\") (internal quotation marks omitted). 6. This assumes that if all states were required to make DSH payments to out-of-state hospitals, other states may also be obligated to make DSH 12 accordance with 42 U.S.C. S 1396r-4(g), which limits the amount of DSH payments an individual hospital is entitled to receive. Third, as now codified at 42 U.S.C. S 1396r-4(f), states' DSH allotments were changed so that set amounts are provided for each year beginning with Fiscal Year 1998. Clearly Congress reached a decision about how much each individual state was entitled to receive and there is no evidence that it considered, in its calculation, that a state may be required to give away significant portions of its DSH allotment to other states, particularly given the significant lobbying by the states which occurred prior to the final figures being enacted into law.",
"Fourth, this calculation is further complicated because it is not possible for New Jersey to anticipate where its residents may ultimately receive care. The statute either applies to out-of-state hospitals or it does not; there is no basis to limit DSH payments only to `border' hospitals. Fifth, once a hospital qualifies for a DSH payment, the hospital can use that money for any purpose, even non-medical purposes, because DSH payments are not payments for services provided. Nor would the hospital be required to even use the money received from New Jersey on New Jersey patients. Lastly, out-of-state hospitals already receive DSH payments from the home state covering care provided to out-of-state residents. The home state is required to take into account treatment of out-of-state indigent patients when determining whether a hospital qualifies for DSH payments and how much DSH that hospital is entitled to receive. Section 1923(b)(2) of the Act bases the Medicaid utilization rate on a formula that includes patient _________________________________________________________________ payments to a particular hospital.",
"For example, a hospital could claim a DSH payment from any state as long as it treated at least one resident from that state. [This footnote is quoted from the letter brief.] 13 days furnished to patients eligible for Medicaid . . . [t]he State must consider the total number of patient days attributable to Medicaid recipients regardless of which state would be responsible for payment for the service. This is to ensure that each hospital that meets the . .",
". [DSH] requirement[s] is accorded disproportionate share status regardless of the origin of those patients. Id. [55 Fed. Reg. at 10079 (emphasis added)]. It is unreasonable to conclude that Congress intended to have both other states and the home state count the same patient days, and reimburse for the same patient days. These six reasons for New Jersey's denial of out- of-state DSH payments more than satisfies the rational relationship test. In our view, the district court's rationales cannot support a dismissal of the action. The absence of a provision in the Medicaid Act requiring that states fund DSH facilities outside their borders does not mean that a state constitutionally can differentiate between in-state and out- of-state facilities. Rather, it means simply that there is no statutory requirement for equal treatment.",
"Furthermore, federal approval of the amendment to the plan at most could foreclose a statutory argument challenging the denial of DSH payments. Moreover, the fact that New Jersey treats all out-of-state facilities equally by denying them DSH payments does not address the issue CSH raises as it is complaining about its treatment as compared to treatment of New Jersey facilities, not as compared to treatment of other out-of-state facilities. In the circumstances, we cannot uphold the district court's reasoning on why CSH has failed to allege a claim on which relief can be granted on the equal protection claim. Additionally, we cannot uphold the Rule 12(b)(6) dismissal on the basis of New Jersey's arguments that we quote above, as its contentions introduce matters into the case that go far beyond the complaint and even the pleadings as a whole and introduce factual questions which we cannot address at this time.7 In short, we are not _________________________________________________________________ 7. We realize that a court on a motion to dismiss can consider matters of public record, see Churchill v. Star Enter., 183 F.3d 184, 190 n.5 (3d Cir.",
"1999), but New Jersey's contentions go beyond that record. 14 satisfied from the complaint or even all the pleadings that CSH will not be able to prove any set of facts that will entitle it to relief. Accordingly, while we express no view on whether CSH ultimately will prevail on the equal protection claim, we think that the claim should have survived New Jersey's motion to dismiss. See also West Virginia v. Casey, 885 F.2d at 29 (\"Pennsylvania's excuse of administrative burden does not, in this case, provide a rational basis for[the hospital's] grossly diminished reimbursement rates.\"). Therefore, we will remand the case to the district court for further proceedings on that claim.",
"On the remand CSH may renew its motion to amend to assert its Commerce Clause claim. V. CONCLUSION For the foregoing reasons we will affirm the order of December 7, 1998, to the extent that it dismissed CSH's statutory claims but will reverse it to the extent that it dismissed the equal protection claim. We will remand the matter to the district court for further proceedings consistent with this decision. The parties will bear their own costs on this appeal.",
"A True Copy: Teste: Clerk of the United States Court of Appeals for the Third Circuit 15"
] | https://www.courtlistener.com/api/rest/v3/opinions/3010904/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
376 Pa. Super. 166 (1988) 545 A.2d 371 Torriona MITCHELL, Appellant, v. Anthony Charles HOPSON. Supreme Court of Pennsylvania. Argued May 3, 1988. Filed August 3, 1988. *167 Lorraine M. Bittner, Pittsburgh, for appellant. Before CIRILLO, President Judge, and BECK and POPOVICH, JJ. CIRILLO, President Judge: This is an appeal from an order entered by the Court of Common Pleas of Allegheny County. On October 3, 1985, appellant Torriona Mitchell initiated this action by filing a complaint for support of her infant son, Anthony Charles Hopson, Jr. (Anthony), who was born on September 20, 1985. When Anthony was born, Ms. Mitchell applied for and was determined to be eligible to receive monetary public assistance for Anthony from Aid to Families with Dependent Children (A.F.D.C.). As a condition to receiving this public assistance, Ms. Mitchell was required to file this support action against the man she alleges to be her son's father, namely Anthony Charles Hopson. Pursuant to Ms. Mitchell's complaint, an informal conference was held at which Mr. Hopson denied paternity of Anthony. Immediately following the conference, the court issued an order, pursuant to section 6133 of the Uniform Act on Blood Tests to Determine Paternity,[1] requiring the parties to present themselves promptly at 9:15 a.m. on July 17, 1986, at the University Health Center of Pittsburgh for blood tests. The parties complied with the order and the Human Leucocyte Antigen (H.L.A.) blood test was performed. *168 The test results, which excluded Mr. Hopson as the father of Anthony, were then sent to the family court division of the court of common pleas and entered onto the court docket. Shortly thereafter, the trial court entered the following order: AND NOW, this 22nd day of August, 1986, it appearing to the Court that Plaintiff has filed a complaint against Defendant for support for a child born out of wedlock and that the blood test results, a copy of which are attached hereto, have excluded the Defendant as the father of the child Anthony Hopson, Jr., born September 20, 1985, it is hereby ordered as follows: 1.) A rule is issued on Plaintiff to show cause why the support complaint should not be dismissed. 2.) In the event that Plaintiff has any reason why this case should not be dismissed she must file a statement of such reasons . . . 3.) If no such statement is filed within thirty (30) days of the date of this order, the case is dismissed. The order also assessed the cost of the blood test, $450.00, against Ms. Mitchell. On August 25, 1986, Ms. Mitchell, who was unrepresented by counsel at the time, filed a handwritten statement in which she asserted that she still had cause to believe that Mr. Hopson was the father of her son Anthony. In support of this contention, she stated that the child resembled Mr. Hopson and had hereditary medical problems which run in Mr. Hopson's family. Ms. Mitchell also expressed her belief that there had been a mix-up in the blood samples used in the H.L.A. blood test and requested that another test be performed at her expense. In response to Ms. Mitchell's request for a second blood test, a pre-trial conference at which both parties were to be *169 present was scheduled for December 2, 1986. At that time, only Ms. Mitchell appeared. Following the conference, the trial court entered an order directing Ms. Mitchell to pay six hundred dollars ($600.00) within thirty days. Upon receipt of the sum, additional blood tests were to be scheduled. In the event Ms. Mitchell did not pay the stated amount, her action was to be dismissed. After the entry of this order, Ms. Mitchell secured legal counsel who assisted her in filing a petition for reconsideration. In the petition, she explained her financial inability to pay the six hundred dollars within the thirty day period. In addition, she requested that the costs of the first blood test be assessed against the county, that a second set of blood tests be scheduled at a specific hospital where she would be better able to make payment arrangements, and that she be permitted to pursue her action. In an order dated January 6, 1987, the trial court denied her petition without comment. Thereafter, on August 26, 1987, the court entered an order dismissing Ms. Mitchell's support action due to her failure to comply with the court's order to pay the cost of the additional blood tests. Subsequently, on September 22, 1987, Ms. Mitchell filed this appeal. Ms. Mitchell raises the following issues for our review: (1) whether the trial court's sua sponte dismissal of this action without a hearing and based upon blood test results never admitted into evidence violates case and statutory law, violates her right to due process, and is an abuse of discretion; and (2) whether the trial court's order directing the prepayment and the assessment of the costs of blood tests upon her violates case and statutory law as well as her right to due process. In its opinion filed pursuant to Pa.R.A.P. 1925(a), the trial court responded to the first issue raised by Ms. Mitchell by stating that: In dismissing the instant action, this Court did what it was compelled to do since the initial blood tests conclusively excluded HOPSON as being the father of MITCHELL'S minor child. Had this case gone through the futile *170 exercise of trial, this Court would have been required, pursuant to Section 6136 of the [Uniform] Act [on Blood Tests to Determine Paternity], to grant a compulsory non-suit in favor of HOPSON. . . . The Court was mandated by the conclusive results of the blood tests to resolve the issue of paternity in favor of HOPSON, which it did when it dismissed MITCHELL'S Complaint for Support. The Uniform Act on Blood Tests to Determine Paternity (Uniform Act) applies to all civil matters. 42 Pa.C.S. § 6132(a) (1982). Since all actions in which the paternity of a child born out of wedlock is in dispute are civil actions, 23 Pa.C.S. § 4343 (Supp. 1987), the Uniform Act applies to the case at hand. Section 6136 of the Uniform Act, which is titled "Effect of test results," states the following: If the court finds that the conclusions of all the experts as disclosed by the evidence based upon the tests are that the alleged father is not the father of the child, the question of paternity, parentage, or identity of a child shall be resolved accordingly. If the experts disagree in their findings or conclusions, the question shall be submitted upon all the evidence. 42 Pa.C.S. § 6136 (1982). This section directs trial courts to resolve cases accordingly if they find that the conclusions of all the experts as disclosed by the evidence based upon the tests are that the alleged father is not the father of the child; it does not authorize trial courts to dismiss or resolve actions involving paternity disputes on the basis of blood tests when those blood tests have never been entered into evidence. In Commonwealth ex rel. Valentine v. Strongel, 246 Pa.Super. 466, 371 A.2d 931 (1977), Ms. Valentine filed a petition for support of her illegitimate child. Mr. Strongel, the alleged father, denied paternity. Consequently, prior to trial, the court ordered that blood tests be performed on Ms. Valentine, Mr. Strongel and the child. The experts who performed the tests made written reports of their findings to the court. In addition, the results were mailed to both parties. At trial, however, no one testified regarding the *171 blood test results. Consequently, on appeal, we found that there was absolutely no evidence in the record of the occurrence or result of any blood test and that it was error for the trial court to consider the blood tests in making its determination regarding the paternity dispute. The instant case did not even progress to the stage of trial. Rather, the trial court dismissed this action sua sponte following the hearing it held on Ms. Mitchell's request for an additional blood test. This was clearly error. Although the blood tests were performed pursuant to the court's direction, it is up to the parties involved in this action to move for the admission of the tests into evidence. Moreover, unless the blood tests are put into evidence, they cannot be considered by the court in resolving the paternity dispute. "The right of a litigant to in-court presentation of evidence and the right to confront and cross-examine adverse witnesses are essential requisites of due process." Coble v. Coble, 323 Pa.Super. 445, 447, 470 A.2d 1002, 1003 (1984). By dismissing Ms. Mitchell's action on the basis of the blood test results, the trial court denied Ms. Mitchell her right to due process as well as her right to confrontation. Consequently, we must vacate the trial court's order dismissing Ms. Mitchell's action. Further, we direct the trial court to hold a hearing to resolve the issue of Mr. Hopson's paternity of Anthony. At the hearing, the parties must be given the opportunity to move the results of the blood test into evidence. See Turek v. Hardy, 312 Pa.Super 158, 164, 458 A.2d 562, 565 (1983) ("Before results of H.L.A. testing are admissible, a proper foundation must be laid"). In addition, Ms. Mitchell must be given the opportunity not only to argue against the validity of the results (assuming the results are actually moved into evidence), but also to offer evidence regarding other factors which are relevant to establishing Mr. Hopson's paternity of Anthony, such as Anthony's physical resemblance to Mr. Hopson. See Tyler v. King, 344 Pa.Super. 78, 96, 496 A.2d 16, 25 (1985) (comparison of child's physical traits to those of alleged father a valid comparison in paternity cases); Commonwealth ex rel. Lonesome v. Johnson, 231 Pa.Super. 335, 331 *172 A.2d 702, 704 (1974) (clear physical resemblance between child and alleged father considered as evidence of his paternity). At the close of the evidence, the trial court must decide whether Ms. Mitchell has proven by a preponderance of the evidence admitted during the course of the hearing that Mr. Hopson is Anthony's biological father. If the blood test results have not been entered into the evidence by one of the parties, the trial court may not rely upon them in rendering its verdict. Regarding the second issue raised by Ms. Mitchell, we note that in Koleski v. Park, 363 Pa.Super. 22, 525 A.2d 405 (1987), we limited the right to subsequent blood extraction to those situations in which the proponent of further testing shows by a preponderance of the evidence that the initial test was defective and that a subsequent test is needed for an accurate determination of paternity. In addition, we held that this showing is to be made at a hearing in which the only issue involved is the validity of the tests. If the proponent of the additional testing satisfies the required showing, then further testing is to be ordered by the court. Further testing may not be conditioned upon the prepayment of the cost of the testing. In Johnson v. Brinker, 326 Pa.Super. 464, 474 A.2d 333 (1984), we ruled that an order for submission to blood tests to determine paternity may not require any indigent party to pay any portion of costs of the blood tests as a condition precedent to their administration. This holding applies equally well to those situations in which the right to additional blood testing is found to exist. In this case, although the December 2, 1986, hearing was untranscribed, it appears from the trial court's order and subsequent opinion, that this hearing was held solely to address the issue of the necessity for further blood testing. Thus, it would seem to satisfy the hearing requirement formulated in Koleski. Following the hearing, however, the trial court entered an order which provided for additional blood testing on the condition that Ms. Mitchell pay for the cost of the blood test within thirty days of the court's order. This order was improper and must be vacated. We *173 note that in the trial court's Rule 1925(a) opinion, the court determined that it should not have granted Ms. Mitchell's request for another blood test.[2] On remand the trial court must enter an order either unconditionally granting additional blood testing or denying the same. The trial court also assessed the costs of the first blood test against Ms. Mitchell.[3] However, in its opinion, the trial court states that "it would appear that since the Department of Public Welfare mandates, as a prerequisite to assistance entitlement, that an indigent individual file a Complaint for Support if necessary to establish the paternity of the child born out of wedlock, that agency should be responsible for the costs associated with that proceeding." We agree with this determination. As a condition to receiving monetary assistance for Anthony from A.F.D.C., Ms. Mitchell is required to cooperate in establishing Anthony's paternity and in obtaining support payments to which Anthony might be entitled. 42 U.S.C. § 602(a)(26); 62 P.S. §§ 432.7(a)(3), (4). It is, however, the Department of Public Welfare which is actually charged with the responsibility of establishing paternity and securing support payments. See 45 C.F.R. § 302.31 (1987). The *174 Department of Public Welfare is Pennsylvania's "IV-D Agency." Accordingly, it bears the responsibility of administering and supervising the Commonwealth's A.F.D.C. program. See 42 U.S.C. § 601 et seq. Under 42 U.S.C. § 654, the Department of Public Welfare is required to establish the paternity of children born out of wedlock and to enter into "cooperative agreements with appropriate courts and law enforcement officials . . . including the entering into of financial arrangements with such courts and officials in order to assure optimum results under its program." 42 U.S.C. §§ 654(4), (7). This statute clearly contemplates payment for blood tests, not by the recipients of public assistance funds, but by the Department of Public Welfare or the local domestic relations office with whom it contracts. See 62 P.S. § 432.7(e)(1). Accordingly, on remand, the trial court should re-evaluate its order assessing the costs of the blood test on Ms. Mitchell. Based on the foregoing discussion, we vacate the following orders of the trial court: (1) the order assessing the costs of the first blood test on Ms. Mitchell; (2) the order conditioning the additional blood test on Ms. Mitchell's payment of six hundred dollars in thirty days; and (3) the order dismissing the action. In addition, we remand for further proceedings consistent with the preceding instruction. Jurisdiction relinquished. NOTES [1] Section 6133 states:
In any matter subject to this subchapter in which paternity, parentage or identity of a child is a relevant fact, the court upon its own initiative or upon suggestion made by or on behalf of any person whose blood is involved may, or upon motion of any party to the action made at a time so as not to delay the proceedings unduly, shall order the mother, child and alleged father to submit to blood tests. If any party refuses to submit to such test, the court may resolve the question of paternity, parentage, or identity of a child against such party, or enforce its order if the rights of others and the interests of justice so require. 42 Pa.C.S. § 6133 (1982). [2] In reaching this conclusion the trial court observed the limitation to subsequent blood extraction which we formulated in Koleski, and then reasoned that:
The limitations placed upon granting a request for a second blood test indicate that the instant proceeding did not present such circumstances so as to compel the second test. MITCHELL did not demonstrate that the initial test was so defective as to necessitate a second test to determine paternity. The only question raised as to the validity of the first test was MITCHELL'S suspicion that HOPSON'S tardiness in some fashion may have impaired the test results. Absent something more than a mere surmise, this Court cannot and should not have granted MITCHELL'S request. [3] Section 6135 of the Uniform Act states:
The compensation of each expert witness appointed by the court shall be fixed at a reasonable amount. It shall be paid as the court shall order. Subject to general rules, the court may order that it be paid by the parties in such proportions and at such times as it shall prescribe or that the proportion of any party be paid by the county and that after payment by the parties or the county, or both, all or part or none of it be taxed as costs in the action. . . . 42 Pa.C.S. § 6135. | 10-30-2013 | [
"376 Pa. Super. 166 (1988) 545 A.2d 371 Torriona MITCHELL, Appellant, v. Anthony Charles HOPSON. Supreme Court of Pennsylvania. Argued May 3, 1988. Filed August 3, 1988. *167 Lorraine M. Bittner, Pittsburgh, for appellant. Before CIRILLO, President Judge, and BECK and POPOVICH, JJ. CIRILLO, President Judge: This is an appeal from an order entered by the Court of Common Pleas of Allegheny County. On October 3, 1985, appellant Torriona Mitchell initiated this action by filing a complaint for support of her infant son, Anthony Charles Hopson, Jr. (Anthony), who was born on September 20, 1985. When Anthony was born, Ms. Mitchell applied for and was determined to be eligible to receive monetary public assistance for Anthony from Aid to Families with Dependent Children (A.F.D.C.).",
"As a condition to receiving this public assistance, Ms. Mitchell was required to file this support action against the man she alleges to be her son's father, namely Anthony Charles Hopson. Pursuant to Ms. Mitchell's complaint, an informal conference was held at which Mr. Hopson denied paternity of Anthony. Immediately following the conference, the court issued an order, pursuant to section 6133 of the Uniform Act on Blood Tests to Determine Paternity,[1] requiring the parties to present themselves promptly at 9:15 a.m. on July 17, 1986, at the University Health Center of Pittsburgh for blood tests. The parties complied with the order and the Human Leucocyte Antigen (H.L.A.) blood test was performed. *168 The test results, which excluded Mr. Hopson as the father of Anthony, were then sent to the family court division of the court of common pleas and entered onto the court docket. Shortly thereafter, the trial court entered the following order: AND NOW, this 22nd day of August, 1986, it appearing to the Court that Plaintiff has filed a complaint against Defendant for support for a child born out of wedlock and that the blood test results, a copy of which are attached hereto, have excluded the Defendant as the father of the child Anthony Hopson, Jr., born September 20, 1985, it is hereby ordered as follows: 1.)",
"A rule is issued on Plaintiff to show cause why the support complaint should not be dismissed. 2.) In the event that Plaintiff has any reason why this case should not be dismissed she must file a statement of such reasons . . . 3.) If no such statement is filed within thirty (30) days of the date of this order, the case is dismissed. The order also assessed the cost of the blood test, $450.00, against Ms. Mitchell. On August 25, 1986, Ms. Mitchell, who was unrepresented by counsel at the time, filed a handwritten statement in which she asserted that she still had cause to believe that Mr. Hopson was the father of her son Anthony. In support of this contention, she stated that the child resembled Mr. Hopson and had hereditary medical problems which run in Mr. Hopson's family. Ms. Mitchell also expressed her belief that there had been a mix-up in the blood samples used in the H.L.A. blood test and requested that another test be performed at her expense. In response to Ms. Mitchell's request for a second blood test, a pre-trial conference at which both parties were to be *169 present was scheduled for December 2, 1986.",
"At that time, only Ms. Mitchell appeared. Following the conference, the trial court entered an order directing Ms. Mitchell to pay six hundred dollars ($600.00) within thirty days. Upon receipt of the sum, additional blood tests were to be scheduled. In the event Ms. Mitchell did not pay the stated amount, her action was to be dismissed. After the entry of this order, Ms. Mitchell secured legal counsel who assisted her in filing a petition for reconsideration.",
"In the petition, she explained her financial inability to pay the six hundred dollars within the thirty day period. In addition, she requested that the costs of the first blood test be assessed against the county, that a second set of blood tests be scheduled at a specific hospital where she would be better able to make payment arrangements, and that she be permitted to pursue her action. In an order dated January 6, 1987, the trial court denied her petition without comment. Thereafter, on August 26, 1987, the court entered an order dismissing Ms. Mitchell's support action due to her failure to comply with the court's order to pay the cost of the additional blood tests. Subsequently, on September 22, 1987, Ms. Mitchell filed this appeal. Ms. Mitchell raises the following issues for our review: (1) whether the trial court's sua sponte dismissal of this action without a hearing and based upon blood test results never admitted into evidence violates case and statutory law, violates her right to due process, and is an abuse of discretion; and (2) whether the trial court's order directing the prepayment and the assessment of the costs of blood tests upon her violates case and statutory law as well as her right to due process.",
"In its opinion filed pursuant to Pa.R.A.P. 1925(a), the trial court responded to the first issue raised by Ms. Mitchell by stating that: In dismissing the instant action, this Court did what it was compelled to do since the initial blood tests conclusively excluded HOPSON as being the father of MITCHELL'S minor child. Had this case gone through the futile *170 exercise of trial, this Court would have been required, pursuant to Section 6136 of the [Uniform] Act [on Blood Tests to Determine Paternity], to grant a compulsory non-suit in favor of HOPSON. . . .",
"The Court was mandated by the conclusive results of the blood tests to resolve the issue of paternity in favor of HOPSON, which it did when it dismissed MITCHELL'S Complaint for Support. The Uniform Act on Blood Tests to Determine Paternity (Uniform Act) applies to all civil matters. 42 Pa.C.S. § 6132(a) (1982). Since all actions in which the paternity of a child born out of wedlock is in dispute are civil actions, 23 Pa.C.S. § 4343 (Supp. 1987), the Uniform Act applies to the case at hand.",
"Section 6136 of the Uniform Act, which is titled \"Effect of test results,\" states the following: If the court finds that the conclusions of all the experts as disclosed by the evidence based upon the tests are that the alleged father is not the father of the child, the question of paternity, parentage, or identity of a child shall be resolved accordingly. If the experts disagree in their findings or conclusions, the question shall be submitted upon all the evidence. 42 Pa.C.S. § 6136 (1982). This section directs trial courts to resolve cases accordingly if they find that the conclusions of all the experts as disclosed by the evidence based upon the tests are that the alleged father is not the father of the child; it does not authorize trial courts to dismiss or resolve actions involving paternity disputes on the basis of blood tests when those blood tests have never been entered into evidence. In Commonwealth ex rel.",
"Valentine v. Strongel, 246 Pa.Super. 466, 371 A.2d 931 (1977), Ms. Valentine filed a petition for support of her illegitimate child. Mr. Strongel, the alleged father, denied paternity. Consequently, prior to trial, the court ordered that blood tests be performed on Ms. Valentine, Mr. Strongel and the child. The experts who performed the tests made written reports of their findings to the court. In addition, the results were mailed to both parties.",
"At trial, however, no one testified regarding the *171 blood test results. Consequently, on appeal, we found that there was absolutely no evidence in the record of the occurrence or result of any blood test and that it was error for the trial court to consider the blood tests in making its determination regarding the paternity dispute. The instant case did not even progress to the stage of trial. Rather, the trial court dismissed this action sua sponte following the hearing it held on Ms. Mitchell's request for an additional blood test. This was clearly error. Although the blood tests were performed pursuant to the court's direction, it is up to the parties involved in this action to move for the admission of the tests into evidence. Moreover, unless the blood tests are put into evidence, they cannot be considered by the court in resolving the paternity dispute. \"The right of a litigant to in-court presentation of evidence and the right to confront and cross-examine adverse witnesses are essential requisites of due process.\" Coble v. Coble, 323 Pa.Super. 445, 447, 470 A.2d 1002, 1003 (1984).",
"By dismissing Ms. Mitchell's action on the basis of the blood test results, the trial court denied Ms. Mitchell her right to due process as well as her right to confrontation. Consequently, we must vacate the trial court's order dismissing Ms. Mitchell's action. Further, we direct the trial court to hold a hearing to resolve the issue of Mr. Hopson's paternity of Anthony. At the hearing, the parties must be given the opportunity to move the results of the blood test into evidence. See Turek v. Hardy, 312 Pa.Super 158, 164, 458 A.2d 562, 565 (1983) (\"Before results of H.L.A. testing are admissible, a proper foundation must be laid\"). In addition, Ms. Mitchell must be given the opportunity not only to argue against the validity of the results (assuming the results are actually moved into evidence), but also to offer evidence regarding other factors which are relevant to establishing Mr. Hopson's paternity of Anthony, such as Anthony's physical resemblance to Mr. Hopson.",
"See Tyler v. King, 344 Pa.Super. 78, 96, 496 A.2d 16, 25 (1985) (comparison of child's physical traits to those of alleged father a valid comparison in paternity cases); Commonwealth ex rel. Lonesome v. Johnson, 231 Pa.Super. 335, 331 *172 A.2d 702, 704 (1974) (clear physical resemblance between child and alleged father considered as evidence of his paternity). At the close of the evidence, the trial court must decide whether Ms. Mitchell has proven by a preponderance of the evidence admitted during the course of the hearing that Mr. Hopson is Anthony's biological father. If the blood test results have not been entered into the evidence by one of the parties, the trial court may not rely upon them in rendering its verdict.",
"Regarding the second issue raised by Ms. Mitchell, we note that in Koleski v. Park, 363 Pa.Super. 22, 525 A.2d 405 (1987), we limited the right to subsequent blood extraction to those situations in which the proponent of further testing shows by a preponderance of the evidence that the initial test was defective and that a subsequent test is needed for an accurate determination of paternity. In addition, we held that this showing is to be made at a hearing in which the only issue involved is the validity of the tests.",
"If the proponent of the additional testing satisfies the required showing, then further testing is to be ordered by the court. Further testing may not be conditioned upon the prepayment of the cost of the testing. In Johnson v. Brinker, 326 Pa.Super. 464, 474 A.2d 333 (1984), we ruled that an order for submission to blood tests to determine paternity may not require any indigent party to pay any portion of costs of the blood tests as a condition precedent to their administration. This holding applies equally well to those situations in which the right to additional blood testing is found to exist. In this case, although the December 2, 1986, hearing was untranscribed, it appears from the trial court's order and subsequent opinion, that this hearing was held solely to address the issue of the necessity for further blood testing.",
"Thus, it would seem to satisfy the hearing requirement formulated in Koleski. Following the hearing, however, the trial court entered an order which provided for additional blood testing on the condition that Ms. Mitchell pay for the cost of the blood test within thirty days of the court's order. This order was improper and must be vacated. We *173 note that in the trial court's Rule 1925(a) opinion, the court determined that it should not have granted Ms. Mitchell's request for another blood test. [2] On remand the trial court must enter an order either unconditionally granting additional blood testing or denying the same. The trial court also assessed the costs of the first blood test against Ms.",
"Mitchell. [3] However, in its opinion, the trial court states that \"it would appear that since the Department of Public Welfare mandates, as a prerequisite to assistance entitlement, that an indigent individual file a Complaint for Support if necessary to establish the paternity of the child born out of wedlock, that agency should be responsible for the costs associated with that proceeding.\" We agree with this determination. As a condition to receiving monetary assistance for Anthony from A.F.D.C., Ms. Mitchell is required to cooperate in establishing Anthony's paternity and in obtaining support payments to which Anthony might be entitled. 42 U.S.C. § 602(a)(26); 62 P.S. §§ 432.7(a)(3), (4).",
"It is, however, the Department of Public Welfare which is actually charged with the responsibility of establishing paternity and securing support payments. See 45 C.F.R. § 302.31 (1987). The *174 Department of Public Welfare is Pennsylvania's \"IV-D Agency.\" Accordingly, it bears the responsibility of administering and supervising the Commonwealth's A.F.D.C. program. See 42 U.S.C. § 601 et seq. Under 42 U.S.C. § 654, the Department of Public Welfare is required to establish the paternity of children born out of wedlock and to enter into \"cooperative agreements with appropriate courts and law enforcement officials .",
". . including the entering into of financial arrangements with such courts and officials in order to assure optimum results under its program.\" 42 U.S.C. §§ 654(4), (7). This statute clearly contemplates payment for blood tests, not by the recipients of public assistance funds, but by the Department of Public Welfare or the local domestic relations office with whom it contracts. See 62 P.S. § 432.7(e)(1). Accordingly, on remand, the trial court should re-evaluate its order assessing the costs of the blood test on Ms. Mitchell. Based on the foregoing discussion, we vacate the following orders of the trial court: (1) the order assessing the costs of the first blood test on Ms. Mitchell; (2) the order conditioning the additional blood test on Ms. Mitchell's payment of six hundred dollars in thirty days; and (3) the order dismissing the action. In addition, we remand for further proceedings consistent with the preceding instruction.",
"Jurisdiction relinquished. NOTES [1] Section 6133 states: In any matter subject to this subchapter in which paternity, parentage or identity of a child is a relevant fact, the court upon its own initiative or upon suggestion made by or on behalf of any person whose blood is involved may, or upon motion of any party to the action made at a time so as not to delay the proceedings unduly, shall order the mother, child and alleged father to submit to blood tests. If any party refuses to submit to such test, the court may resolve the question of paternity, parentage, or identity of a child against such party, or enforce its order if the rights of others and the interests of justice so require. 42 Pa.C.S. § 6133 (1982). [2] In reaching this conclusion the trial court observed the limitation to subsequent blood extraction which we formulated in Koleski, and then reasoned that: The limitations placed upon granting a request for a second blood test indicate that the instant proceeding did not present such circumstances so as to compel the second test.",
"MITCHELL did not demonstrate that the initial test was so defective as to necessitate a second test to determine paternity. The only question raised as to the validity of the first test was MITCHELL'S suspicion that HOPSON'S tardiness in some fashion may have impaired the test results. Absent something more than a mere surmise, this Court cannot and should not have granted MITCHELL'S request. [3] Section 6135 of the Uniform Act states: The compensation of each expert witness appointed by the court shall be fixed at a reasonable amount.",
"It shall be paid as the court shall order. Subject to general rules, the court may order that it be paid by the parties in such proportions and at such times as it shall prescribe or that the proportion of any party be paid by the county and that after payment by the parties or the county, or both, all or part or none of it be taxed as costs in the action. . . . 42 Pa.C.S. § 6135."
] | https://www.courtlistener.com/api/rest/v3/opinions/1525319/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
DETAILED ACTION Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . Continued Examination Under 37 CFR 1.114 A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on October 25, 2021 has been entered. This Office action is responsive to an amendment filed October 25, 2021. Claims 1-11, 13-27 & 29-34 are pending. Claims 12 & 28 has been canceled. Claims 1, 14 & 29-30 have been amended. New claim 34 has been added. Claim Rejections - 35 USC § 101 35 U.S.C. 101 reads as follows: Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1-11, 13-27 & 29-34 is/are rejected under 35 U.S.C. 101 because the claimed invention is directed to a mental process without significantly more. Claim(s) 1 recite(s), at least in part the following step(s): “calculate a radius, representing how close the vector representation of the locomotion signal and the breathing signal have to be to be counted as a point for cross-recurrence quantification analysis (cRQA);” “generate cRQA data, by comparing the vector representation of the breathing signal to the vector representation of the locomotion signal, based on the calculated radius;” “calculate at least one cRQA parameter based on the cRQA dataset,” “generate an estimate of chronic obstructive pulmonary disease (COPD) severity in the patient according to the cRQA parameter.” These step(s), when given its/their broadest reasonable interpretation(s), describe(s) carrying out said step(s) mentally (i.e. a mental task in the human mind) and/or mathematically but for the recitation of generic computer components (i.e. circuitry including one or more processing devices). In other words, absent the recitation of the “circuitry including one or more processing devices,” nothing “generat[ing]” steps involve the user mathematically “generat[ing] a cross-recurrence quantification analysis (cRQA) parameter,” “comparing between the breathing data to the locomotion data,” and “generat[ing] an estimate of chronic obstructive pulmonary disease (COPD) severity in the patient by comparing the cRQA parameter to a reference value” “calculat[ing] a radius, representing how close the vector representation of the locomotion signal and the breathing signal have to be to be counted as a point for cross-recurrence quantification analysis (cRQA);” “generat[ing] cRQA data, by comparing the vector representation of the breathing signal to the vector representation of the locomotion signal, based on the calculated radius;” and “calculat[ing] at least one cRQA parameter based on the cRQA dataset” through a mathematical processes, and/or the user manually through pen and paper, mentally, and/or visually “generat[ing] an estimate of chronic obstructive pulmonary disease (COPD) severity in the patient according to the cRQA parameter.” In view of the foregoing, claim(s) 1 recite(s) an abstract idea. The judicial exception(s) is/are not integrated into a practical application. Particularly, the claim(s) recite(s) the following additional element(s): “a breathing sensor; a locomotion sensor; circuitry, including one or more processing devices, to communicate with the breathing sensor and the locomotion sensor to: receive, from the breathing sensor, a breathing signal representative of breathing activity of a patient over a time interval, receive, from the locomotion sensor, a locomotion signal representative of locomotive activity of the patient over the time interval, determine whether the received breathing and locomotion signals have adequate characteristics for use in generating a COPD severity estimate, if the received breathing and/or locomotion signals are determined as inadequate, then produce an instruction notification to the patient regarding the patient's breathing pace, if the received breathing and locomotion signals are determined as adequate, then: use a false-nearest-neighbor algorithm to determine an embedding dimension of a vector representation of the locomotion signal and the breathing signal, use an average mutual information algorithm to determine a time delay, representing a spacing between samples of the locomotion signal and breathing signal, to produce the vector representation of the locomotion signal and the breathing signal” and “generate a notification based on the COPD severity estimate, and send the notification to a computing device of the patient and/or a computing device of a care provider.” Neither the arrangement of the additional elements, nor the additional elements The claim(s) include(s) the additional step(s)/element(s) recited above. The additional step(s)/element(s) are not sufficient to amount to significantly more than the judicial exception(s) since such additional step(s)/element(s) are generically claimed to enable the collection of data by performing the basic functions of: (i) receiving, processing, and/or calculating data, and/or (ii) automating mental tasks. The courts have recognized these functions to be well-understood, routine, and conventional functions when claimed in a merely generic manner. Therefore, the Office takes Official notice that the instantly claimed additional steps/elements are well-understood, routine and convention. Merely adding hardware that performs ‘“well understood, routine, conventional activities]’ previously known to the industry” will not make claims patent-eligible (In re TLI Communications LLC) (see also par 0149, 0151, 0159 & 0167 of the instant publication describing, inter alia, the Bioharness 3 from Zephyr Technology Corp., Annapolis, MD (par 0149) and Matlab from Matworks, Inc., Concord, MA (par 0159) and par 0089-0105 of US 2008/0162088 and col. 15, lines 43-67 and col. 17, lines 4-13 of US 6,159,147; see at least figs. 1-2 of US 5,730,144 Katz et al.; see par 0212 of US 2010/0244818 and par 0115 of US 2015/0096026; at least fig. 5 of US 2007/0239220). In other words, the additional step(s)/element(s) amount(s) to no more than mere instructions to apply the exception(s) using generic computer component(s). Mere instructions to apply an exception using a generic computer component cannot provide an inventive concept. Accordingly, Claim(s) 1 do(es) not amount to significantly more than the abstract idea itself. In regards to claims 2-11, 13 & 31-33, the claimed invention(s) further recite(s) additional element(s) that do(es) not integrate the judicial exception into a practical application and is/are not sufficient to amount to significantly more than the judicial exception for the reasons provided supra. In regards to claim(s) 34, the claimed invention further describes the judicial exception in detail without however integrating said judicial exception into a practical application and/or providing additional elements that are sufficient to amount to significantly more than the judicial exception for reasons provided supra. Claim(s) 14 recite(s), at least in part the following step(s): “generate a cross-recurrence quantification analysis (cRQA) parameter between the breathing data and the locomotion data, wherein generation of the cRQA parameter includes identification of a diagonal line in a cross-recurrence data set between the breathing data and the locomotion data, and the diagonal line includes multiple diagonal points occurring within an interval of 100 milliseconds” and “generate an estimate of COPD severity in the patient by comparing the cRQA parameter and a reference value,” “wherein the cRQA parameter between the breathing data and the locomotion data includes a percent determinism,” “wherein an increased percent determinism is associated with an estimate of greater severity of COPD,” “wherein the cRQA parameter between the breathing data and the locomotion data includes a mean diagonal line length,” “wherein an increased mean diagonal line length is associated with an estimate of greater severity of COPD,” “wherein the cRQA parameter between the breathing data and the locomotion data includes an entropy,” “wherein an increased entropy is associated with an estimate of greater severity of COPD,” “wherein the cRQA parameter between the breathing data and the locomotion data includes a percent recurrence,” “wherein a decreased percent recurrence is associated with an estimate of greater severity of COPD,” “wherein the reference value is a value of the cRQA parameter from a reference population,” “wherein the reference value is a previously obtained value of the cRQA parameter from the patient,” “wherein the estimate of COPD severity in the patient is an indication that the patient's COPD has increased in severity from a previous time,” “wherein the estimate of COPD severity in the patient is an indication that the patient's COPD is elevated with respect to a reference population.” These step(s), when given its/their broadest reasonable interpretation(s), describe(s) carrying out said step(s) mentally (i.e. a mental task in the human mind) and/or mathematically but for the recitation of generic computer components. In other words, absent the recitation of one or more computer readable media having instructions thereon that…cause the patient monitoring apparatus, nothing precludes the claimed step from practically being performed mentally (i.e. a mental task in the human mind) and/or through mathematical processes. For example, absent the limitation(s) “one or more computer readable media having instructions thereon that…cause the patient monitoring apparatus to…generate…” in the step(s), the “generat[ing]” step(s) involve the user mathematically “generat[ing] a cross-recurrence quantification analysis (cRQA) parameter between the breathing data and the locomotion data, wherein generation of the cRQA parameter includes identification of a diagonal line in a cross-recurrence data set between the breathing data and the locomotion data, and the diagonal line includes multiple diagonal points occurring within an interval of 100 milliseconds” through mathematical processes, and/or the user manually through pen and paper, mentally and/or visually “generat[ing] an estimate of COPD severity in the patient by comparing the cRQA parameter between the breathing data and the locomotion data and a reference value.” In view of the foregoing, claim(s) 14 recite(s) an abstract idea. The judicial exception(s) is/are not integrated into a practical application. Particularly, the claim(s) recite(s) the following additional element(s): “receive breathing data and locomotion data to a fourth circuitry, wherein the breathing data is representative of breathing activity of the patient over a time interval, and the locomotion data is representative of locomotive activity of the patient over the time interval,” “determine whether the received breathing and locomotion signals have adequate characteristics for use in generating a COPD severity estimate; APPLICANT(S): Nicholas StergiouSERIAL NO.:15/327,339FILED:January 18, 2017Page 6if the received breathing and/or locomotion signals are determined as inadequate, then produce an instruction notification to the patient regarding the patient's breathing pace, if the received breathing and locomotion signals are determined as adequate, then,” “generate a notification of the COPD severity estimate; and send the notification to a computing device pertaining to at least one of the patient and a care provider,” and “wherein the display of the estimate of COPD severity in the patient includes an indicator of an activity level of the patient.” Neither the arrangement of the additional elements, nor the additional elements themselves, apply, rely on, or use the judicial exception recited supra in a manner that imposes a meaningful limit on the judicial exception. Rather, the additional element(s) is/are recited with a high level of generality (i.e., as a generic data collection means performing a generic data collection function, a generic data display means performing a generic display function, and/or a generic computer performing a generic computer function) such that it amounts to no more than instructions to apply the exception using a generic computer component. Therefore, the additional element(s) does not integrate the exception(s) into a practical application because it does not impose any meaningful limits on practicing the abstract idea. The claim is directed to an abstract idea. The claim(s) include(s) the additional step(s)/element(s) recited above. The additional step(s)/element(s) are not sufficient to amount to significantly more than the judicial exception(s) since such additional step(s)/element(s) are generically claimed to enable an insignificant extra-solution activity including the collection of data by performing the basic functions of: (i) receiving, processing, and/or calculating data, and/or (ii) automating mental tasks. The courts have recognized these functions to be well-understood, routine, and conventional functions when claimed in a merely generic manner. Therefore, the Office takes Official notice that the instantly claimed additional steps/elements are well-understood, routine and conventional. Merely adding hardware that performs ‘“well understood, routine, conventional activities]’ previously known to the industry” will not make claims patent-eligible (In re TLI Communications LLC) (see also par 0149, 0151, 0159 & 0167 of the instant publication describing, inter alia, the Bioharness 3 from Zephyr Technology Corp., Annapolis, MD (par 0149) and Matlab from Matworks, Inc., Concord, MA (par 0159) and par 0089-0105 of US 2008/0162088 and col. 15, lines 43-67 and col. 17, lines 4-13 of US 6,159,147; see at least figs. 1-2 of US 5,730,144 Katz et al.; see par 0212 of US 2010/0244818 and par 0115 of US 2015/0096026; at least fig. 5 of US 2007/0239220). In other words, the additional step(s)/element(s) amount(s) to no more than mere instructions to apply the exception(s) using generic computer component(s). Mere instructions to apply an exception using a generic computer component cannot provide an inventive concept. Accordingly, Claim(s) 14 do(es) not amount to significantly more than the abstract idea itself. In regards to claims 15-26, the claimed invention further describes the judicial exception in detail without however integrating said judicial exception into a practical application and/or providing additional elements that are sufficient to amount to significantly more than the judicial exception for reasons provided supra. In regards to claim 27, the claimed invention(s) further recite(s) additional element(s) that do(es) not integrate the judicial exception into a practical application and is/are not sufficient to amount to significantly more than the judicial exception for the reasons provided supra. Claim(s) 29 recite(s), at least in part the following step(s): “means for generating a cross-recurrence quantification analysis (cRQA) parameter between the breathing data and the locomotion data” and “means for generating an estimate of COPD severity in the patient by comparing the cRQA parameter to a reference value.” These step(s), when given its/their broadest reasonable interpretation(s), describe(s) carrying out said step(s) mentally (i.e. a mental task in the human mind) but for the recitation of generic computer components. In other words, absent the recitation of means for generating an estimate of COPD severity, nothing precludes the claimed step from practically being performed mentally (i.e. a mental task in the human mind) and/or mathematically. For example, absent the limitation(s) “means for generating an estimate of COPD severity” in the step(s), the “generating” in the step(s) involves the user mathematically “generating a cross-recurrence quantification analysis (cRQA) parameter between the breathing data and the locomotion data” through mathematical processes and/or the user manually through pen and paper, mentally and/or visually “generating an estimate of COPD severity in the patient by comparing the cRQA parameter to a reference value.” In view of the foregoing, claim(s) 29 recite(s) an abstract idea. The judicial exception(s) is/are not integrated into a practical application. Particularly, the claim(s) recite(s) the following additional element(s): “means for generating breathing data and locomotion data, wherein the breathing data is based on a breathing signal that is representative of breathing activity of a patient over a time interval, the locomotion data is based on a locomotion signal representative of locomotive activity of the patient over the time interval, and the means for generating breathing data and locomotion data include means for resampling the breathing signal or the locomotion signal so that the breathing data and the locomotion data are sampled at consistent times,” “means for determining whether the received breathing and locomotion signals have adequate characteristics for use in generating a chronic obstructive pulmonary disease (COPD) severity estimate, and for producing an instruction notification to the patient regarding the patient's breathing pace if not,” and “means for generating a notification comprising the COPD severity estimate; and means for sending the notification to a computing device of the patient and/or a computing device of a care provider.” Neither the arrangement of the additional elements, nor the additional elements themselves, apply, rely on, or use the judicial exception recited supra in a manner that imposes a meaningful limit on the judicial exception. Rather, the additional element(s) is/are recited with a high level of generality (i.e., as a generic data collection means performing a generic data collection function, a generic data display means performing a generic display function, and/or a generic computer performing a generic computer function) such that it amounts to no more than instructions to apply the exception using a generic computer component. Therefore, the additional element(s) does not integrate the exception(s) into a practical application because it does not impose any meaningful limits on practicing the abstract idea. The claim is directed to an abstract idea. The claim(s) include(s) the additional step(s)/element(s) recited above. The additional step(s)/element(s) are not sufficient to amount to significantly more than the judicial exception(s) since such additional step(s)/element(s) are generically claimed to enable an insignificant extra-solution activity including the collection of data by performing the basic functions of: (i) receiving, processing, and/or calculating data, and/or (ii) automating mental tasks. The courts have recognized these functions to be well-understood, routine, and conventional functions when claimed in a merely generic manner. Therefore, the Office takes Official notice that the instantly claimed additional steps/elements are well-understood, routine and convention. Merely adding hardware that performs ‘“well understood, routine, conventional activities]’ previously known to the industry” will not make claims patent-eligible (In re TLI Communications LLC) (see also par 0149, 0151, 0159 & 0167 of the instant publication describing, inter alia, the Bioharness 3 from Zephyr Technology Corp., Annapolis, MD (par 0149) and Matlab from Matworks, Inc., Concord, MA (par 0159) and par 0089-0105 of US 2008/0162088 and col. 15, lines 43-67 and col. 17, lines 4-13 of US 6,159,147; see at least figs. 1-2 of US 5,730,144 Katz et al.; see par 0212 of US 2010/0244818 and par 0115 of US 2015/0096026; at least fig. 5 of US 2007/0239220). In other words, the additional step(s)/element(s) amount(s) to no more than mere instructions to apply the exception(s) using generic computer component(s). Mere instructions to apply an exception using a generic computer component cannot provide an inventive concept. Accordingly, Claim(s) 29 do(es) not amount to significantly more than the abstract idea itself. Claim(s) 30 recite(s), at least in part the following step(s): “generating a cRQA parameter between the breathing data and the locomotion data, wherein generation of the cRQA parameter includes identification of a diagonal line in a cross-recurrence data set between the breathing data and the locomotion data, and the diagonal line includes multiple diagonal points occurring within an interval of 100 milliseconds; generating an estimate of chronic obstructive pulmonary disease (COPD) severity in the patient by the cRQA parameter to a reference value.” These step(s), when given its/their broadest reasonable interpretation(s), describe(s) carrying out said step(s) mentally (i.e. a mental task in the human mind) but for the recitation of generic computer components. In other words, absent the recitation of the patient monitoring apparatus, nothing precludes the claimed step from practically being performed mentally (i.e. a mental task in the human mind). For example, the “generating” step(s) involve the user mathematically “generating a cRQA parameter between the breathing data and the locomotion data, wherein generation of the cRQA parameter includes identification of a diagonal line in a cross-recurrence data set between the breathing data and the locomotion data, and the diagonal line includes multiple diagonal points occurring within an interval of 100 milliseconds” through mathematical processes, and/or the user manually through pen and paper, mentally and/or visually “generating an estimate of chronic obstructive pulmonary disease (COPD) severity in the patient by the cRQA parameter to a reference value.” In view of the foregoing, claim(s) 30 recite(s) an abstract idea. The judicial exception(s) is/are not integrated into a practical application. Particularly, the claim(s) recite(s) the following additional element(s): “receiving breathing signal and locomotion signal, wherein the breathing signal is representative of breathing activity of the patient over a time interval, and the locomotion signal is representative of locomotive activity of the patient over the time interval,” “determining whether the received breathing and locomotion signals have adequate characteristics for use in generating a COPD severity estimate, if the received breathing and/or locomotion signals are determined as inadequate, then producing an instruction notification to the patient regarding the patient's breathing pace, if the received breathing and locomotion signals are determined as adequate, then,” “generating breathing data based on the breathing signal, wherein generating breathing data includes applying a first frequency-based filter to the breathing signal; generating locomotion data based on the locomotion signal, wherein generating locomotion data includes applying a second frequency-based filter to the locomotion signal” and “generating a notification of the COPD severity estimate: and sending the notification to a computing device of the patient and/or a computing device of a care provider.” Neither the arrangement of the additional elements, nor the additional elements themselves, apply, rely on, or use the judicial exception recited supra in a manner that imposes a meaningful limit on the judicial exception. Rather, the additional element(s) is/are recited with a high level of generality (i.e., as a generic data collection means performing a generic data collection function, a generic data display means performing a generic display function, and/or a generic computer performing a generic computer function) such that it amounts to no more than instructions to apply the exception using a generic computer component. Therefore, the additional element(s) does not integrate the exception(s) into a practical application because it does not impose any meaningful limits on practicing the abstract idea. The claim is directed to an abstract idea and/or law of nature. The claim(s) include(s) the additional step(s)/element(s) recited above. The additional step(s)/element(s) are not sufficient to amount to significantly more than the judicial exception(s) since such additional step(s)/element(s) are generically claimed to enable an insignificant extra-solution activity including the collection of data by performing the basic functions of: (i) receiving, processing, and/or calculating data, and/or (ii) automating mental tasks. The courts have recognized these functions to be well-understood, routine, and conventional functions when claimed in a merely generic manner. Therefore, the Office takes Official notice that the instantly claimed additional steps/elements are well-understood, routine and convention. Merely adding hardware that performs ‘“well understood, routine, conventional activities]’ previously known to the industry” will not make claims patent-eligible (In re TLI Communications LLC) (see also par 0149, 0151, 0159 & 0167 of the instant publication describing, inter alia, the Bioharness 3 from Zephyr Technology Corp., Annapolis, MD (par 0149) and Matlab from Matworks, Inc., Concord, MA (par 0159) and par 0089-0105 of US 2008/0162088 and col. 15, lines 43-67 and col. 17, lines 4-13 of US 6,159,147; see at least figs. 1-2 of US 5,730,144 Katz et al.; see par 0212 of US 2010/0244818 and par 0115 of US 2015/0096026; at least fig. 5 of US 2007/0239220). In other words, the additional step(s)/element(s) amount(s) to no more than mere instructions to apply the exception(s) using generic computer component(s). Mere instructions to apply an exception using a generic computer component cannot provide an inventive concept. Accordingly, Claim(s) 30 do(es) not amount to significantly more than the abstract idea itself. Claim Rejections - 35 USC § 112 The following is a quotation of the first paragraph of 35 U.S.C. 112(a): (a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112: The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1-11, 13-27 & 29-34 is/are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. At line 15 of claim 1 and at line 10 of claim 14, the claim requires the limitations “produce an instruction notification to the patient regarding the patient’s breathing pace,” which were not part of the specification as originally filed. Instead, par 0118 of the originally published application describes producing an instruction notification to the patient regarding the patient’s walking pace. At lines 10-11 of claim 29 and at line 11 of claim 30, the claim requires the limitations “producing an instruction notification to the patient regarding the patient’s breathing pace,” which were not part of the specification as originally filed. Instead, par 0118 of the originally published application describes producing an instruction notification to the patient regarding the patient’s walking pace. The following is a quotation of 35 U.S.C. 112(b): (b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph: The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-11, 13 & 29-33 is/are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention. In regards to claim 1, at lines 14 & 16, the term “if” renders the claim indefinite; for example, it is unclear whether or not the limitations following the term are part of the claim; the Office suggests that Applicant amend the claim to recite --when-- instead of “if.” In regards to claim 14, at lines 9 & 11, the term “if” renders the claim indefinite; for example, it is unclear whether or not the limitations following the term are part of the claim; the Office suggests that Applicant amend the claim to recite --when-- instead of “if.” In regards to claim 29, at line 11, the term “if” renders the claim indefinite; for example, it is unclear whether or not the limitations following the term are part of the claim; the Office suggests that Applicant amend the claim to recite --when-- instead of “if.” In regards to claim 30, at lines 10 & 12, the term “if” renders the claim indefinite; for example, it is unclear whether or not the limitations following the term are part of the claim; the Office suggests that Applicant amend the claim to recite --when-- instead of “if,” at line 19, the limitation “cRQA” renders the claim indefinite; for example, since Applicant is his/her own lexicographer, one cannot be certain what the term cRQA stands for in the claim. Response to Arguments Applicant's arguments filed October 25, 2021 with respect to the 101 rejections have been fully considered but they are not persuasive. Applicant contends that the instant claims are not mental steps. The Office respectfully traverses. For example, Applicant’s newly claim limitations to ascertaining the existence of adequate data, using a false nearest neighbor algorithm and an average mutual information algorithm pertain to the further recitation of additional element(s) that do(es) not integrate the judicial exception into a practical application and is/are not sufficient to amount to significantly more than the judicial exception for the reasons provided supra. For example, a false nearest neighbor algorithm and an average mutual information (AMI) algorithm are algorithms that not even described in the instant specification since they are well-known routine and understood in the treatment of chaotic data (see at least figs. 1-2 of US 5,730,144 Katz et al., par 0212 of US 2010/0244818 and par 0115 of US 2015/0096026); and ascertaining the existence of adequate data is equally well-known, routine and understood (at least fig. 5 of US 2007/0239220). Applicant contends that the claim(s) “do(es) not fall under mathematical patent-ineligible concepts as an alleged mathematical formula is not explicitly recited in the claim.” First, the Office notes that the instant claim(s) relies on mathematical calculations as explained supra under the abstract idea. Moreover, MPEP § 2106.04(a)(2) clearly reads as follows: When determining whether a claim recites a mathematical concept (i.e., mathematical relationships, mathematical formulas or equations, and mathematical calculations), examiners should consider whether the claim recites a mathematical concept or merely limitations that are based on or involve a mathematical concept. A claim does not recite a mathematical concept (i.e., the claim limitations do not fall within the mathematical concept grouping), if it is only based on or involves a mathematical concept. See, e.g., Thales Visionix, Inc. v. United States, 850 F.3d 1343, 1348-49, 121 USPQ2d 1898, 1902-03 (Fed. Cir. 2017) (determining that the claims to a particular configuration of inertial sensors and a particular method of using the raw data from the sensors in order to more accurately calculate the position and orientation of an object on a moving platform did not merely recite "the abstract idea of using mathematical equations for determining the relative position of a moving object to a moving reference frame’."). For example, a limitation that is merely based on or involves a mathematical concept described in the specification may not be sufficient to fall into this grouping, provided the mathematical concept itself is not recited in the claim. It is important to note that a mathematical concept need not be expressed in mathematical symbols, because "[w]ords used in a claim operating on data to solve a problem can serve the same purpose as a formula." In re Grams, 888 F.2d 835, 837 and n.1, 12 USPQ2d 1824, 1826 and n.1 (Fed. Cir. 1989). See, e.g., SAP America, Inc. v. InvestPic, LLC, 898 F.3d 1161, 1163, 127 USPQ2d 1597, 1599 (Fed. Cir. 2018) (holding that claims to a ‘‘series of mathematical calculations based on selected information’’ are directed to abstract ideas); Digitech Image Techs., LLC v. Elecs. for Imaging, Inc., 758 F.3d 1344, 1350, 111 USPQ2d 1717, 1721 (Fed. Cir. 2014) (holding that claims to a ‘‘process of organizing information through mathematical correlations’’ are directed to an abstract idea); and Bancorp Servs., LLC v. Sun Life Assurance Co. of Can. (U.S.), 687 F.3d 1266, 1280, 103 USPQ2d 1425, 1434 (Fed. Cir. 2012) (identifying the concept of ‘‘managing a stable value protected life insurance policy by performing calculations and manipulating the results’’ as an abstract idea). Although the claim(s) need not explicitly recite a mathematical formula in order to recite a mathematical concept, the Office notes that the instant claim(s) explicitly recite mathematical concepts including steps such as “calculat[ing] at least one cRQA parameter.” Therefore, the Office submits that the claim(s) are directed to a mental process and/or a mathematical process without significantly more. In view of the foregoing, the 101 rejections are maintained. Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to RENE T TOWA whose telephone number is (313)446-6655. The examiner can normally be reached on Mon-Fri, 9:00 AM-5:00 PM. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Jason M. Sims can be reached on 571-272-7540. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see http://pair-direct.uspto.gov. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/RENE T TOWA/Primary Examiner, Art Unit 3791 | 2021-11-27T07:34:23 | [
"DETAILED ACTION Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . Continued Examination Under 37 CFR 1.114 A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.",
"Applicant's submission filed on October 25, 2021 has been entered. This Office action is responsive to an amendment filed October 25, 2021. Claims 1-11, 13-27 & 29-34 are pending. Claims 12 & 28 has been canceled. Claims 1, 14 & 29-30 have been amended. New claim 34 has been added. Claim Rejections - 35 USC § 101 35 U.S.C. 101 reads as follows: Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.",
"Claims 1-11, 13-27 & 29-34 is/are rejected under 35 U.S.C. 101 because the claimed invention is directed to a mental process without significantly more. Claim(s) 1 recite(s), at least in part the following step(s): “calculate a radius, representing how close the vector representation of the locomotion signal and the breathing signal have to be to be counted as a point for cross-recurrence quantification analysis (cRQA);” “generate cRQA data, by comparing the vector representation of the breathing signal to the vector representation of the locomotion signal, based on the calculated radius;” “calculate at least one cRQA parameter based on the cRQA dataset,” “generate an estimate of chronic obstructive pulmonary disease (COPD) severity in the patient according to the cRQA parameter.” These step(s), when given its/their broadest reasonable interpretation(s), describe(s) carrying out said step(s) mentally (i.e.",
"a mental task in the human mind) and/or mathematically but for the recitation of generic computer components (i.e. circuitry including one or more processing devices). In other words, absent the recitation of the “circuitry including one or more processing devices,” nothing “generat[ing]” steps involve the user mathematically “generat[ing] a cross-recurrence quantification analysis (cRQA) parameter,” “comparing between the breathing data to the locomotion data,” and “generat[ing] an estimate of chronic obstructive pulmonary disease (COPD) severity in the patient by comparing the cRQA parameter to a reference value” “calculat[ing] a radius, representing how close the vector representation of the locomotion signal and the breathing signal have to be to be counted as a point for cross-recurrence quantification analysis (cRQA);” “generat[ing] cRQA data, by comparing the vector representation of the breathing signal to the vector representation of the locomotion signal, based on the calculated radius;” and “calculat[ing] at least one cRQA parameter based on the cRQA dataset” through a mathematical processes, and/or the user manually through pen and paper, mentally, and/or visually “generat[ing] an estimate of chronic obstructive pulmonary disease (COPD) severity in the patient according to the cRQA parameter.” In view of the foregoing, claim(s) 1 recite(s) an abstract idea. The judicial exception(s) is/are not integrated into a practical application.",
"Particularly, the claim(s) recite(s) the following additional element(s): “a breathing sensor; a locomotion sensor; circuitry, including one or more processing devices, to communicate with the breathing sensor and the locomotion sensor to: receive, from the breathing sensor, a breathing signal representative of breathing activity of a patient over a time interval, receive, from the locomotion sensor, a locomotion signal representative of locomotive activity of the patient over the time interval, determine whether the received breathing and locomotion signals have adequate characteristics for use in generating a COPD severity estimate, if the received breathing and/or locomotion signals are determined as inadequate, then produce an instruction notification to the patient regarding the patient's breathing pace, if the received breathing and locomotion signals are determined as adequate, then: use a false-nearest-neighbor algorithm to determine an embedding dimension of a vector representation of the locomotion signal and the breathing signal, use an average mutual information algorithm to determine a time delay, representing a spacing between samples of the locomotion signal and breathing signal, to produce the vector representation of the locomotion signal and the breathing signal” and “generate a notification based on the COPD severity estimate, and send the notification to a computing device of the patient and/or a computing device of a care provider.” Neither the arrangement of the additional elements, nor the additional elements The claim(s) include(s) the additional step(s)/element(s) recited above. The additional step(s)/element(s) are not sufficient to amount to significantly more than the judicial exception(s) since such additional step(s)/element(s) are generically claimed to enable the collection of data by performing the basic functions of: (i) receiving, processing, and/or calculating data, and/or (ii) automating mental tasks.",
"The courts have recognized these functions to be well-understood, routine, and conventional functions when claimed in a merely generic manner. Therefore, the Office takes Official notice that the instantly claimed additional steps/elements are well-understood, routine and convention. Merely adding hardware that performs ‘“well understood, routine, conventional activities]’ previously known to the industry” will not make claims patent-eligible (In re TLI Communications LLC) (see also par 0149, 0151, 0159 & 0167 of the instant publication describing, inter alia, the Bioharness 3 from Zephyr Technology Corp., Annapolis, MD (par 0149) and Matlab from Matworks, Inc., Concord, MA (par 0159) and par 0089-0105 of US 2008/0162088 and col. 15, lines 43-67 and col. 17, lines 4-13 of US 6,159,147; see at least figs. 1-2 of US 5,730,144 Katz et al. ; see par 0212 of US 2010/0244818 and par 0115 of US 2015/0096026; at least fig. 5 of US 2007/0239220).",
"In other words, the additional step(s)/element(s) amount(s) to no more than mere instructions to apply the exception(s) using generic computer component(s). Mere instructions to apply an exception using a generic computer component cannot provide an inventive concept. Accordingly, Claim(s) 1 do(es) not amount to significantly more than the abstract idea itself. In regards to claims 2-11, 13 & 31-33, the claimed invention(s) further recite(s) additional element(s) that do(es) not integrate the judicial exception into a practical application and is/are not sufficient to amount to significantly more than the judicial exception for the reasons provided supra. In regards to claim(s) 34, the claimed invention further describes the judicial exception in detail without however integrating said judicial exception into a practical application and/or providing additional elements that are sufficient to amount to significantly more than the judicial exception for reasons provided supra.",
"Claim(s) 14 recite(s), at least in part the following step(s): “generate a cross-recurrence quantification analysis (cRQA) parameter between the breathing data and the locomotion data, wherein generation of the cRQA parameter includes identification of a diagonal line in a cross-recurrence data set between the breathing data and the locomotion data, and the diagonal line includes multiple diagonal points occurring within an interval of 100 milliseconds” and “generate an estimate of COPD severity in the patient by comparing the cRQA parameter and a reference value,” “wherein the cRQA parameter between the breathing data and the locomotion data includes a percent determinism,” “wherein an increased percent determinism is associated with an estimate of greater severity of COPD,” “wherein the cRQA parameter between the breathing data and the locomotion data includes a mean diagonal line length,” “wherein an increased mean diagonal line length is associated with an estimate of greater severity of COPD,” “wherein the cRQA parameter between the breathing data and the locomotion data includes an entropy,” “wherein an increased entropy is associated with an estimate of greater severity of COPD,” “wherein the cRQA parameter between the breathing data and the locomotion data includes a percent recurrence,” “wherein a decreased percent recurrence is associated with an estimate of greater severity of COPD,” “wherein the reference value is a value of the cRQA parameter from a reference population,” “wherein the reference value is a previously obtained value of the cRQA parameter from the patient,” “wherein the estimate of COPD severity in the patient is an indication that the patient's COPD has increased in severity from a previous time,” “wherein the estimate of COPD severity in the patient is an indication that the patient's COPD is elevated with respect to a reference population.” These step(s), when given its/their broadest reasonable interpretation(s), describe(s) carrying out said step(s) mentally (i.e. a mental task in the human mind) and/or mathematically but for the recitation of generic computer components.",
"In other words, absent the recitation of one or more computer readable media having instructions thereon that…cause the patient monitoring apparatus, nothing precludes the claimed step from practically being performed mentally (i.e. a mental task in the human mind) and/or through mathematical processes. For example, absent the limitation(s) “one or more computer readable media having instructions thereon that…cause the patient monitoring apparatus to…generate…” in the step(s), the “generat[ing]” step(s) involve the user mathematically “generat[ing] a cross-recurrence quantification analysis (cRQA) parameter between the breathing data and the locomotion data, wherein generation of the cRQA parameter includes identification of a diagonal line in a cross-recurrence data set between the breathing data and the locomotion data, and the diagonal line includes multiple diagonal points occurring within an interval of 100 milliseconds” through mathematical processes, and/or the user manually through pen and paper, mentally and/or visually “generat[ing] an estimate of COPD severity in the patient by comparing the cRQA parameter between the breathing data and the locomotion data and a reference value.” In view of the foregoing, claim(s) 14 recite(s) an abstract idea. The judicial exception(s) is/are not integrated into a practical application. Particularly, the claim(s) recite(s) the following additional element(s): “receive breathing data and locomotion data to a fourth circuitry, wherein the breathing data is representative of breathing activity of the patient over a time interval, and the locomotion data is representative of locomotive activity of the patient over the time interval,” “determine whether the received breathing and locomotion signals have adequate characteristics for use in generating a COPD severity estimate; APPLICANT(S): Nicholas StergiouSERIAL NO. :15/327,339FILED:January 18, 2017Page 6if the received breathing and/or locomotion signals are determined as inadequate, then produce an instruction notification to the patient regarding the patient's breathing pace, if the received breathing and locomotion signals are determined as adequate, then,” “generate a notification of the COPD severity estimate; and send the notification to a computing device pertaining to at least one of the patient and a care provider,” and “wherein the display of the estimate of COPD severity in the patient includes an indicator of an activity level of the patient.” Neither the arrangement of the additional elements, nor the additional elements themselves, apply, rely on, or use the judicial exception recited supra in a manner that imposes a meaningful limit on the judicial exception.",
"Rather, the additional element(s) is/are recited with a high level of generality (i.e., as a generic data collection means performing a generic data collection function, a generic data display means performing a generic display function, and/or a generic computer performing a generic computer function) such that it amounts to no more than instructions to apply the exception using a generic computer component. Therefore, the additional element(s) does not integrate the exception(s) into a practical application because it does not impose any meaningful limits on practicing the abstract idea. The claim is directed to an abstract idea. The claim(s) include(s) the additional step(s)/element(s) recited above. The additional step(s)/element(s) are not sufficient to amount to significantly more than the judicial exception(s) since such additional step(s)/element(s) are generically claimed to enable an insignificant extra-solution activity including the collection of data by performing the basic functions of: (i) receiving, processing, and/or calculating data, and/or (ii) automating mental tasks. The courts have recognized these functions to be well-understood, routine, and conventional functions when claimed in a merely generic manner.",
"Therefore, the Office takes Official notice that the instantly claimed additional steps/elements are well-understood, routine and conventional. Merely adding hardware that performs ‘“well understood, routine, conventional activities]’ previously known to the industry” will not make claims patent-eligible (In re TLI Communications LLC) (see also par 0149, 0151, 0159 & 0167 of the instant publication describing, inter alia, the Bioharness 3 from Zephyr Technology Corp., Annapolis, MD (par 0149) and Matlab from Matworks, Inc., Concord, MA (par 0159) and par 0089-0105 of US 2008/0162088 and col. 15, lines 43-67 and col. 17, lines 4-13 of US 6,159,147; see at least figs. 1-2 of US 5,730,144 Katz et al. ; see par 0212 of US 2010/0244818 and par 0115 of US 2015/0096026; at least fig. 5 of US 2007/0239220). In other words, the additional step(s)/element(s) amount(s) to no more than mere instructions to apply the exception(s) using generic computer component(s). Mere instructions to apply an exception using a generic computer component cannot provide an inventive concept.",
"Accordingly, Claim(s) 14 do(es) not amount to significantly more than the abstract idea itself. In regards to claims 15-26, the claimed invention further describes the judicial exception in detail without however integrating said judicial exception into a practical application and/or providing additional elements that are sufficient to amount to significantly more than the judicial exception for reasons provided supra. In regards to claim 27, the claimed invention(s) further recite(s) additional element(s) that do(es) not integrate the judicial exception into a practical application and is/are not sufficient to amount to significantly more than the judicial exception for the reasons provided supra. Claim(s) 29 recite(s), at least in part the following step(s): “means for generating a cross-recurrence quantification analysis (cRQA) parameter between the breathing data and the locomotion data” and “means for generating an estimate of COPD severity in the patient by comparing the cRQA parameter to a reference value.” These step(s), when given its/their broadest reasonable interpretation(s), describe(s) carrying out said step(s) mentally (i.e. a mental task in the human mind) but for the recitation of generic computer components. In other words, absent the recitation of means for generating an estimate of COPD severity, nothing precludes the claimed step from practically being performed mentally (i.e.",
"a mental task in the human mind) and/or mathematically. For example, absent the limitation(s) “means for generating an estimate of COPD severity” in the step(s), the “generating” in the step(s) involves the user mathematically “generating a cross-recurrence quantification analysis (cRQA) parameter between the breathing data and the locomotion data” through mathematical processes and/or the user manually through pen and paper, mentally and/or visually “generating an estimate of COPD severity in the patient by comparing the cRQA parameter to a reference value.” In view of the foregoing, claim(s) 29 recite(s) an abstract idea. The judicial exception(s) is/are not integrated into a practical application. Particularly, the claim(s) recite(s) the following additional element(s): “means for generating breathing data and locomotion data, wherein the breathing data is based on a breathing signal that is representative of breathing activity of a patient over a time interval, the locomotion data is based on a locomotion signal representative of locomotive activity of the patient over the time interval, and the means for generating breathing data and locomotion data include means for resampling the breathing signal or the locomotion signal so that the breathing data and the locomotion data are sampled at consistent times,” “means for determining whether the received breathing and locomotion signals have adequate characteristics for use in generating a chronic obstructive pulmonary disease (COPD) severity estimate, and for producing an instruction notification to the patient regarding the patient's breathing pace if not,” and “means for generating a notification comprising the COPD severity estimate; and means for sending the notification to a computing device of the patient and/or a computing device of a care provider.” Neither the arrangement of the additional elements, nor the additional elements themselves, apply, rely on, or use the judicial exception recited supra in a manner that imposes a meaningful limit on the judicial exception.",
"Rather, the additional element(s) is/are recited with a high level of generality (i.e., as a generic data collection means performing a generic data collection function, a generic data display means performing a generic display function, and/or a generic computer performing a generic computer function) such that it amounts to no more than instructions to apply the exception using a generic computer component. Therefore, the additional element(s) does not integrate the exception(s) into a practical application because it does not impose any meaningful limits on practicing the abstract idea. The claim is directed to an abstract idea. The claim(s) include(s) the additional step(s)/element(s) recited above.",
"The additional step(s)/element(s) are not sufficient to amount to significantly more than the judicial exception(s) since such additional step(s)/element(s) are generically claimed to enable an insignificant extra-solution activity including the collection of data by performing the basic functions of: (i) receiving, processing, and/or calculating data, and/or (ii) automating mental tasks. The courts have recognized these functions to be well-understood, routine, and conventional functions when claimed in a merely generic manner. Therefore, the Office takes Official notice that the instantly claimed additional steps/elements are well-understood, routine and convention.",
"Merely adding hardware that performs ‘“well understood, routine, conventional activities]’ previously known to the industry” will not make claims patent-eligible (In re TLI Communications LLC) (see also par 0149, 0151, 0159 & 0167 of the instant publication describing, inter alia, the Bioharness 3 from Zephyr Technology Corp., Annapolis, MD (par 0149) and Matlab from Matworks, Inc., Concord, MA (par 0159) and par 0089-0105 of US 2008/0162088 and col. 15, lines 43-67 and col. 17, lines 4-13 of US 6,159,147; see at least figs. 1-2 of US 5,730,144 Katz et al. ; see par 0212 of US 2010/0244818 and par 0115 of US 2015/0096026; at least fig. 5 of US 2007/0239220). In other words, the additional step(s)/element(s) amount(s) to no more than mere instructions to apply the exception(s) using generic computer component(s).",
"Mere instructions to apply an exception using a generic computer component cannot provide an inventive concept. Accordingly, Claim(s) 29 do(es) not amount to significantly more than the abstract idea itself. Claim(s) 30 recite(s), at least in part the following step(s): “generating a cRQA parameter between the breathing data and the locomotion data, wherein generation of the cRQA parameter includes identification of a diagonal line in a cross-recurrence data set between the breathing data and the locomotion data, and the diagonal line includes multiple diagonal points occurring within an interval of 100 milliseconds; generating an estimate of chronic obstructive pulmonary disease (COPD) severity in the patient by the cRQA parameter to a reference value.” These step(s), when given its/their broadest reasonable interpretation(s), describe(s) carrying out said step(s) mentally (i.e.",
"a mental task in the human mind) but for the recitation of generic computer components. In other words, absent the recitation of the patient monitoring apparatus, nothing precludes the claimed step from practically being performed mentally (i.e. a mental task in the human mind). For example, the “generating” step(s) involve the user mathematically “generating a cRQA parameter between the breathing data and the locomotion data, wherein generation of the cRQA parameter includes identification of a diagonal line in a cross-recurrence data set between the breathing data and the locomotion data, and the diagonal line includes multiple diagonal points occurring within an interval of 100 milliseconds” through mathematical processes, and/or the user manually through pen and paper, mentally and/or visually “generating an estimate of chronic obstructive pulmonary disease (COPD) severity in the patient by the cRQA parameter to a reference value.” In view of the foregoing, claim(s) 30 recite(s) an abstract idea. The judicial exception(s) is/are not integrated into a practical application.",
"Particularly, the claim(s) recite(s) the following additional element(s): “receiving breathing signal and locomotion signal, wherein the breathing signal is representative of breathing activity of the patient over a time interval, and the locomotion signal is representative of locomotive activity of the patient over the time interval,” “determining whether the received breathing and locomotion signals have adequate characteristics for use in generating a COPD severity estimate, if the received breathing and/or locomotion signals are determined as inadequate, then producing an instruction notification to the patient regarding the patient's breathing pace, if the received breathing and locomotion signals are determined as adequate, then,” “generating breathing data based on the breathing signal, wherein generating breathing data includes applying a first frequency-based filter to the breathing signal; generating locomotion data based on the locomotion signal, wherein generating locomotion data includes applying a second frequency-based filter to the locomotion signal” and “generating a notification of the COPD severity estimate: and sending the notification to a computing device of the patient and/or a computing device of a care provider.” Neither the arrangement of the additional elements, nor the additional elements themselves, apply, rely on, or use the judicial exception recited supra in a manner that imposes a meaningful limit on the judicial exception.",
"Rather, the additional element(s) is/are recited with a high level of generality (i.e., as a generic data collection means performing a generic data collection function, a generic data display means performing a generic display function, and/or a generic computer performing a generic computer function) such that it amounts to no more than instructions to apply the exception using a generic computer component. Therefore, the additional element(s) does not integrate the exception(s) into a practical application because it does not impose any meaningful limits on practicing the abstract idea. The claim is directed to an abstract idea and/or law of nature. The claim(s) include(s) the additional step(s)/element(s) recited above. The additional step(s)/element(s) are not sufficient to amount to significantly more than the judicial exception(s) since such additional step(s)/element(s) are generically claimed to enable an insignificant extra-solution activity including the collection of data by performing the basic functions of: (i) receiving, processing, and/or calculating data, and/or (ii) automating mental tasks. The courts have recognized these functions to be well-understood, routine, and conventional functions when claimed in a merely generic manner.",
"Therefore, the Office takes Official notice that the instantly claimed additional steps/elements are well-understood, routine and convention. Merely adding hardware that performs ‘“well understood, routine, conventional activities]’ previously known to the industry” will not make claims patent-eligible (In re TLI Communications LLC) (see also par 0149, 0151, 0159 & 0167 of the instant publication describing, inter alia, the Bioharness 3 from Zephyr Technology Corp., Annapolis, MD (par 0149) and Matlab from Matworks, Inc., Concord, MA (par 0159) and par 0089-0105 of US 2008/0162088 and col. 15, lines 43-67 and col. 17, lines 4-13 of US 6,159,147; see at least figs. 1-2 of US 5,730,144 Katz et al. ; see par 0212 of US 2010/0244818 and par 0115 of US 2015/0096026; at least fig. 5 of US 2007/0239220).",
"In other words, the additional step(s)/element(s) amount(s) to no more than mere instructions to apply the exception(s) using generic computer component(s). Mere instructions to apply an exception using a generic computer component cannot provide an inventive concept. Accordingly, Claim(s) 30 do(es) not amount to significantly more than the abstract idea itself. Claim Rejections - 35 USC § 112 The following is a quotation of the first paragraph of 35 U.S.C. 112(a): (a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention. The following is a quotation of the first paragraph of pre-AIA 35 U.S.C.",
"112: The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention. Claims 1-11, 13-27 & 29-34 is/are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.",
"At line 15 of claim 1 and at line 10 of claim 14, the claim requires the limitations “produce an instruction notification to the patient regarding the patient’s breathing pace,” which were not part of the specification as originally filed. Instead, par 0118 of the originally published application describes producing an instruction notification to the patient regarding the patient’s walking pace. At lines 10-11 of claim 29 and at line 11 of claim 30, the claim requires the limitations “producing an instruction notification to the patient regarding the patient’s breathing pace,” which were not part of the specification as originally filed. Instead, par 0118 of the originally published application describes producing an instruction notification to the patient regarding the patient’s walking pace. The following is a quotation of 35 U.S.C. 112(b): (b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.",
"The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph: The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention. Claims 1-11, 13 & 29-33 is/are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention. In regards to claim 1, at lines 14 & 16, the term “if” renders the claim indefinite; for example, it is unclear whether or not the limitations following the term are part of the claim; the Office suggests that Applicant amend the claim to recite --when-- instead of “if.” In regards to claim 14, at lines 9 & 11, the term “if” renders the claim indefinite; for example, it is unclear whether or not the limitations following the term are part of the claim; the Office suggests that Applicant amend the claim to recite --when-- instead of “if.” In regards to claim 29, at line 11, the term “if” renders the claim indefinite; for example, it is unclear whether or not the limitations following the term are part of the claim; the Office suggests that Applicant amend the claim to recite --when-- instead of “if.” In regards to claim 30, at lines 10 & 12, the term “if” renders the claim indefinite; for example, it is unclear whether or not the limitations following the term are part of the claim; the Office suggests that Applicant amend the claim to recite --when-- instead of “if,” at line 19, the limitation “cRQA” renders the claim indefinite; for example, since Applicant is his/her own lexicographer, one cannot be certain what the term cRQA stands for in the claim.",
"Response to Arguments Applicant's arguments filed October 25, 2021 with respect to the 101 rejections have been fully considered but they are not persuasive. Applicant contends that the instant claims are not mental steps. The Office respectfully traverses. For example, Applicant’s newly claim limitations to ascertaining the existence of adequate data, using a false nearest neighbor algorithm and an average mutual information algorithm pertain to the further recitation of additional element(s) that do(es) not integrate the judicial exception into a practical application and is/are not sufficient to amount to significantly more than the judicial exception for the reasons provided supra. For example, a false nearest neighbor algorithm and an average mutual information (AMI) algorithm are algorithms that not even described in the instant specification since they are well-known routine and understood in the treatment of chaotic data (see at least figs. 1-2 of US 5,730,144 Katz et al., par 0212 of US 2010/0244818 and par 0115 of US 2015/0096026); and ascertaining the existence of adequate data is equally well-known, routine and understood (at least fig.",
"5 of US 2007/0239220). Applicant contends that the claim(s) “do(es) not fall under mathematical patent-ineligible concepts as an alleged mathematical formula is not explicitly recited in the claim.” First, the Office notes that the instant claim(s) relies on mathematical calculations as explained supra under the abstract idea. Moreover, MPEP § 2106.04(a)(2) clearly reads as follows: When determining whether a claim recites a mathematical concept (i.e., mathematical relationships, mathematical formulas or equations, and mathematical calculations), examiners should consider whether the claim recites a mathematical concept or merely limitations that are based on or involve a mathematical concept. A claim does not recite a mathematical concept (i.e., the claim limitations do not fall within the mathematical concept grouping), if it is only based on or involves a mathematical concept. See, e.g., Thales Visionix, Inc. v. United States, 850 F.3d 1343, 1348-49, 121 USPQ2d 1898, 1902-03 (Fed. Cir. 2017) (determining that the claims to a particular configuration of inertial sensors and a particular method of using the raw data from the sensors in order to more accurately calculate the position and orientation of an object on a moving platform did not merely recite \"the abstract idea of using mathematical equations for determining the relative position of a moving object to a moving reference frame’.\").",
"For example, a limitation that is merely based on or involves a mathematical concept described in the specification may not be sufficient to fall into this grouping, provided the mathematical concept itself is not recited in the claim. It is important to note that a mathematical concept need not be expressed in mathematical symbols, because \"[w]ords used in a claim operating on data to solve a problem can serve the same purpose as a formula.\" In re Grams, 888 F.2d 835, 837 and n.1, 12 USPQ2d 1824, 1826 and n.1 (Fed. Cir. 1989). See, e.g., SAP America, Inc. v. InvestPic, LLC, 898 F.3d 1161, 1163, 127 USPQ2d 1597, 1599 (Fed. Cir.",
"2018) (holding that claims to a ‘‘series of mathematical calculations based on selected information’’ are directed to abstract ideas); Digitech Image Techs., LLC v. Elecs. for Imaging, Inc., 758 F.3d 1344, 1350, 111 USPQ2d 1717, 1721 (Fed. Cir. 2014) (holding that claims to a ‘‘process of organizing information through mathematical correlations’’ are directed to an abstract idea); and Bancorp Servs., LLC v. Sun Life Assurance Co. of Can. (U.S.), 687 F.3d 1266, 1280, 103 USPQ2d 1425, 1434 (Fed. Cir. 2012) (identifying the concept of ‘‘managing a stable value protected life insurance policy by performing calculations and manipulating the results’’ as an abstract idea). Although the claim(s) need not explicitly recite a mathematical formula in order to recite a mathematical concept, the Office notes that the instant claim(s) explicitly recite mathematical concepts including steps such as “calculat[ing] at least one cRQA parameter.” Therefore, the Office submits that the claim(s) are directed to a mental process and/or a mathematical process without significantly more. In view of the foregoing, the 101 rejections are maintained. Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to RENE T TOWA whose telephone number is (313)446-6655. The examiner can normally be reached on Mon-Fri, 9:00 AM-5:00 PM.",
"Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Jason M. Sims can be reached on 571-272-7540. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see http://pair-direct.uspto.gov.",
"Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000. /RENE T TOWA/Primary Examiner, Art Unit 3791"
] | https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2021-11-28.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
In re: Albert LeMay, Jr. and Frances Calderone LeMay applying for certiorari. *476or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 228 So.2d 713. The application is denied. According to the facts, as stated to be by the Court of Appeal, the result reached by the Court is correct. | 07-24-2022 | [
"In re: Albert LeMay, Jr. and Frances Calderone LeMay applying for certiorari. *476or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 228 So.2d 713. The application is denied. According to the facts, as stated to be by the Court of Appeal, the result reached by the Court is correct."
] | https://www.courtlistener.com/api/rest/v3/opinions/7178480/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
552 F.2d 108 UNITED STATES of America, Appellant,v.William T. SOMERS et al. No. 76-2009. United States Court of Appeals,Third Circuit. Argued Dec. 2, 1976.Decided Feb. 25, 1977.
Jonathan L. Goldstein, U. S. Atty., for appellant; Maryanne T. Desmond, Asst. U. S. Atty., Newark, N. J., on brief. Ralph J. Kmiec, Cherry Hill, N. J., for Arthur W. Ponzio, appellee. Before FORMAN, ROSENN and GARTH, Circuit Judges. OPINION OF THE COURT GARTH, Circuit Judge.
1 In this appeal we are called upon to review the question which we had previously and, as now appears, erroneously stated should need no review.
2 In United States v. Salerno, (Appeal of William Silverman ), (hereinafter "Silverman I "), 538 F.2d 1005 (3d Cir. 1976), Judge Rosenn, writing for this Court, held: (1) that 28 U.S.C. § 2255 provides jurisdiction to challenge a sentence imposed under 18 U.S.C. § 4208(a)(2) prior to the adoption of the 1973 Parole Guidelines,1 when the intent of the sentencing judge is frustrated by the application of those guidelines; and (2) that because the intent of Silverman's sentencing judge was thwarted by the implementation of the guidelines, Silverman's original sentence could be modified.
3 In Silverman's case the intent of the original sentencing judge (who was no longer a member of the district court when Silverman sought resentencing) could be ascertained only by interpreting and construing the sentencing colloquy appearing in the sentencing transcript. Forecasting that such a circumstance unavailability of the original sentencing judge would be a rare one, Judge Rosenn wrote:
4 We do not believe that our holding will seriously burden either the district court or this court. Where the motion to vacate sentence can be directed to the sentencing judge, the question whether his sentencing expectations have been frustrated is easily resolved and there should be no need for review of that decision in the Court of Appeals. In the rare case, as here, when the original sentencing judge is no longer on a district court bench, and the record convincingly shows by the statement of the trial judge at sentencing that he intended to have the defendant receive meaningful parole consideration, then we believe that resentencing should be required. (emphasis supplied.)
5 Silverman I, 538 F.2d at 1009.
6 We now face the very circumstance foreseen by Judge Rosenn where the district court judge who (1) sentenced the defendant Ponzio on May 21, 1973, (2) was informed of the "new" Parole Guidelines, (3) found his original intent to have been frustrated by those guidelines, and (4) vacated the sentence under authority of Silverman. Believing that the original sentencing judge is in the best position to know his own intent and that his determination of that intent is conclusive, we affirm the order of the district court reducing Ponzio's sentence. In so doing, however, we do not relax or depart from the narrow holding of Silverman I as interpreted by the same panel of this Court which denied rehearing in Silverman II.2
I.
7 On March 8, 1973, appellee Ponzio was convicted with others of various counts of an indictment which, among other things, charged Ponzio with acts of extortion in violation of 18 U.S.C. § 1951 (The Hobbs Act) and § 1952 (The Travel Act).
8 On May 21, 1973, Ponzio was sentenced on Count I (conspiracy to violate The Hobbs Act) to prison for a term of six years
9 . . . (P)ursuant to the provisions of Title 18 U.S.C. § 4208(a)(2), defendant to be eligible for parole at such time as the Board of Parole shall determine.
10 Judgment of sentence, May 21, 1973.
11 His conviction on 15 other counts resulted in terms of five year imprisonment on each count, concurrent with each other count, and concurrent with the sentence imposed on Count I. In sum, therefore, although Ponzio faced a total term in prison of six years, the Parole Board had the discretion to release him on parole at any time.
12 Ponzio's conviction was affirmed by this Court on May 31, 1974, United States v. Somers, 496 F.2d 723 (3d Cir.), cert. denied, 419 U.S. 832, 95 S. Ct. 56, 42 L. Ed. 2d 58 (1974).3 As noted, the Supreme Court of the United States denied certiorari on October 15, 1974.
13 On November 19, 1974, Ponzio commenced serving his sentence and, thereafter, pursuant to a timely motion under Rule 35, F.R.Crim.P., made application for reduction of his sentence. On January 13, 1975, the judge who originally sentenced Ponzio reduced his sentence from six to five years imprisonment.
14 Thereafter, on July 26, 1976, Ponzio wrote a letter again seeking relief from his sentence. Treating that letter as a motion pursuant to 28 U.S.C. § 2255, on August 6, 1976, the original sentencing judge on authority of Silverman I4 granted Ponzio's motion, vacated his sentence and resentenced him to time served. The government thereupon applied for a stay of the district court's order, and sought to return Ponzio to custody. Both of the government's motions were denied.5 This appeal followed.6
II.
15 Our analysis begins with, and is controlled by Silverman I and II. Silverman I, relying upon the "legislative history of section 4208(a)(2) and district court sentencing practice thereunder,"7 held that where the implementation of the guidelines frustrated the sentencing judge's probable expectation (with respect to the original sentence imposed, viewed at the time of imposition), resentencing was required.
16 We recognize that the problem presented in Silverman I was that of ascertaining the intent of the original sentencing judge who was no longer available (in a sentencing context) to reveal his own prior intent. That problem, however, does not confront us here.
17 In this case, the district court judge who originally sentenced Ponzio on May 21, 1973 to a six year term under § 4208(a)(2) not only was available to rule on Ponzio's § 2255 proceeding, but he was also able, in an unequivocal fashion, to explain his May 1973 sentencing intent and expectations.
18 It is true that when Ponzio was sentenced on May 21, 1973, the only indication of the sentencing judge's intent was the imposition of sentence pursuant to § 4208(a)(2). However, the very selection of that statute as a sentencing vehicle, a choice made prior in time to the promulgation of the new guidelines, is significant. Without more, it tells us that the sentencing judge implicitly expected (and indeed, provided the mechanism for) early parole eligibility, conditioned only upon the Parole Board's satisfaction with Ponzio's institutional adjustment and rehabilitation progress. Silverman I, supra ; see also Garafola v. Benson, 505 F.2d 1212, 1218 (7th Cir. 1974); Lambert v. United States, 392 F. Supp. 113, 117 n.2 (N.D.Ga.1975). It is also true that during the Rule 35 hearing, and indeed, during the entire period between May 1973 and August 1976, no other expression of intent or expectation was voiced by the sentencing judge. It was only at the August 6, 1976 hearing in connection with Ponzio's § 2255 proceeding, that the district court judge for the first time expressly addressed the subject of his original sentencing expectations and intent.
19 As we have previously observed, directly after Ponzio had commenced serving his six year sentence in November 1974, he had moved to reduce his sentence under F.R.Crim.P. 35. The Parole Guidelines had been public knowledge for about one year at that time, and while Ponzio's application for reduction of sentence did not directly advance the Silverman theory presently relied upon, Ponzio's motion papers referred tangentially to the Guidelines in connection with a discussion of the sentence of a codefendant. Essentially, Ponzio's Rule 35 application dealt with disparity in sentences between Ponzio and his codefendants, hardship on Ponzio's family, and arguments addressed to rehabilitation and to the purposes of imprisonment (all of which Ponzio claimed to have satisfied or discharged). As a result of this application, the same judge who had originally sentenced Ponzio to six years imprisonment reduced his sentence to five years, but without opinion or comment.8
20 It was in this setting that Silverman I was filed by this Court on July 15, 1976. On July 26, 1976, Ponzio sent a letter to the sentencing judge seeking relief from further imprisonment. Viewing that letter as a petition under § 2255, argument was scheduled by the court on August 6, 1976.
21 It was then, for the first time, that what had been implicit in the district court's sentence, became explicit. The district court said:
22 . . . (B)ut sentence originally was imposed in May of 1973 and as pointed out in the opinion of the U. S. v. Salerno in late 1973, which was some period of time after the sentence was originally imposed upon you, the Board of Parole adopted new criteria and procedures for parole determinations. Those standards were not within the contemplation of this Court at the time that sentence was imposed upon you when the Court's sentence was that you be sentenced pursuant to the provisions of Section 4208 A2. (emphasis supplied.)
23 I may have indicated to you at that time, although I do not have the transcript before me, but I do know that there have been many, many times that defendants have appeared before this Court and I have indicated the liberality of that proceeding and have indicated that as long as you behaved yourself while in custody and demonstrated that you have been rehabilitated and ready to be returned to society, the Board of Parole would give you every consideration. As a matter of fact, numerous inmates have clamorously requested that sentences imposed be changed to § 4208 A2; because they felt that they would get earlier parole. That clamor had considerably subsided because it has been indicated to me as well as to many other federal judges that early parole is not being given under the new standards, procedures, and regulations adopted by the Board of Parole.
24 Now, also, at the time that I originally imposed sentence upon you and at the time that that sentence was reduced, I was clearly under the impression that the factors to be considered by a Parole Board would be whether you've paid your debt to society, how you behaved while you were in your institution, what the chances were of returning you to society, whether you have been rehabilitated. Those were the old standards. Now they have the new standards and it could be that you would serve maybe four years by the time the Parole Board made up its mind what to do.
25 As I've indicated further, I don't see eye to eye with this computerized, statistical, and generalized consideration of parole. My sentencing expectations have been frustrated by the Board's new guidelines and their procedures and their salient factors. And for those reasons, as well as for the more important reason that I am not without compassion, I think you've paid your debt to society. I think your family has been under a considerable strain, and I'm going to vacate the prior sentence that was imposed upon you and a new sentence will be imposed of the time you have already served, and I would sign an order to that effect, which I have before me. (emphasis supplied.)
26 Transcript, August 6, 1976, pp. 12-13, 14, 18-19.
27 In the final but unreported opinion which followed the August 6, 1976 hearing, but which incorporated the oral observations made at that hearing as they depicted his motivating factors, the district court judge wrote:
28 . . . (T)he legislative history of § 4208(a)(2) is comprehensively discussed in the Salerno opinion, and there is no need to repeat that history here. Prior to the adoption of the new guidelines which are now in effect, and which became effective in late 1973, the Parole Board based its decision primarily upon institutional behavior and the probability of recidivism. See C.F.R. § 2.4 (1973). Those were the criteria which were in effect at the time this defendant was sentenced, and with which this court was familiar when sentence was imposed. It was also this court's understanding that a defendant sentenced under § 4208(a)(2) would become immediately eligible for parole after sentence had been imposed. This is in sharp contrast to the other sentencing options available to a federal judge. See 18 U.S.C. § 4202, and 18 U.S.C. § 4208(a) (1).
29 It was the expectation of this court when the defendant was sentenced that he would receive early meaningful consideration for parole. The adoption of the new parole guidelines subsequent to the time of sentencing has frustrated that expectation. In fact, prior to the adoption of the new parole guidelines, this court was regularly inundated with requests from defendants and their counsel for sentences under § 4208(a)(2). Such requests are no longer made, largely, we think, because of the new guidelines. Not only does the Salerno opinion provide a jurisdictional basis upon which this court may act, the judicial conscience requires corrective action.
30 Op. August 25, 1976, pp. 3-4, 7.
III.
31 As we read Silverman I and II, it is the intent and expectation of the district court judge who sentences under § 4208(a)(2) which are controlling and which must be searched out to determine if relief may be ordered under 28 U.S.C. § 2255.9 In our judgment, there can be no better evidence of a sentencing judge's expectations or intent than his own statement of those facts.
32 We are aware that here the sentencing judge not only attributed the thwarting of his sentencing intent and expectations to the operation of the Guidelines, but he also relied upon an additional list of reasons to support his order reducing Ponzio's sentence. Had the district court's action resulted solely from these latter considerations (i. e., good conduct; time served; sufficient punishment; rehabilitation; family hardship; loss of pension; deterrence, etc.) we would have been obliged to reverse its order, for it is only in the case of frustration of the district court's sentencing expectations that the Silverman doctrine affords grounds for relief (under the "collateral attack" provisions of § 2255 (see note 9, supra )). We recognize that sentencing courts are not vested with those functions belonging to the Parole Board, D'Allesandro v. United States, 517 F.2d 429 (2d Cir. 1975), or "with (the) power(s) of a super parole board." Silverman II, supra. Hence, we will not countenance Silverman relief where the district court's basis for reducing sentence is predicated wholly upon considerations other than frustration of its original sentencing intent.
33 Here, however, we are not faced with that situation. Although the district court's opinion speaks of such extraneous matters, we cannot ignore the factor which we find to be at the core of the district court opinion the frustration of its original sentencing expectations which were specifically so expressed by the original sentencing judge. We do no more here than apply the Silverman principle as it has previously been announced by this Court but with the assurance of greater certainty insofar as knowledge of the district court judge's intent is concerned.
34 While reaffirming the viability of Silverman, we nevertheless restate the admonition found in Silverman II that the Silverman doctrine is a most narrow and inelastic principle which will not be expanded beyond its strict confines.
IV.
35 We conclude this opinion with an observation, collateral to the decision itself but nevertheless required to be made because of the effect which counsel's failure to supply necessary documents might have had upon our decision. As we have noted, the focal point for application of the Silverman doctrine is the district court judge's intent and expectations at the time of imposition of sentence. We would have expected, therefore, that the documents and transcripts relevant, and indeed essential, to that issue would be furnished to us as part of the appendix on this appeal. Such was not the case.
36 Had it not been for our independent inquiry and had we not obtained these documents through our own efforts, we would not have had available for examination:
37 the relevant docket entries;
38 the original judgment of sentence;
39 the original sentencing transcript of May 21, 1973;
40 the memoranda, motion and submissions in connection with the Rule 35 hearing;
41 Ponzio's § 2255 letter of petition;
42 the absolutely essential August 6, 1976 transcript;
43 the August 6, 1976 orders (vacating sentence and denying stay pending appeal) from which the government's appeal was taken;
44 the government's Notice of Appeal;
45 the district court's August 25, 1976 written opinion.
46 Not one of these documents, each of which was vital to our determination and to this opinion, appears in the appendix on appeal. This Court was required to make separate and independent inquiries to assemble the necessary record materials. Ponzio, the appellee apparently submitted no papers for inclusion in the appendix and did not even recite in his brief those portions of the district court's comments and opinion which supported his contentions and which were instrumental to this Court's application of the Silverman doctrine. The government's appendix merely sets forth a number of legal opinions which taken together, constitute no more than a frontal assault on this Court's Silverman decision.
47 While we recognize the obligations imposed upon the appellant by the Federal Rules of Appellate Procedure (F.R.A.P. 30(a) and this Court's Local Rules, we cannot countenance the appellee's failure to comply with the applicable provisions of F.R.A.P. 30(b). Nor can we understand or justify his reliance upon this Court to discharge his functions in "piecing out" and supporting the essential elements of the position which he advocates. While we deplore counsels' disregard of the requirements of our Rules, (F.R.A.P. 30, Third Cir.R. 21) we are even more dismayed by the level of appellate advocacy which has been exhibited on this appeal.10
48 Heretofore we have hesitated to suppress appellate papers or to dismiss appeals for failure to comply with appellate rules. However, presentations such as the instant one go a long way toward dispelling that hesitation. We can no longer afford the effort and time to prepare counsels' case and to supply counsels' record deficiencies. Henceforth, our displeasure with counsels' refusal, failure or unwillingness to master our procedures will necessarily result in the imposition of appropriate sanctions. Third Cir.R. 21(3).
V.
49 The August 6, 1976 order of the district court vacating Ponzio's original sentence and resentencing him to "the time already spent in jail" will be affirmed. The August 6, 1976 order of the district court denying the United States a stay pending appeal will be dismissed as moot. (See note 5 supra ).
1 Section 4208(a)(2) reads, in pertinent part: (a) Upon entering a judgment of conviction . . . requir(ing) that the defendant be sentenced to imprisonment for a term exceeding one year, . . . (2) the court may fix the maximum sentence of imprisonment to be served in which event the court may specify that the prisoner may become eligible for parole at such time as the board of parole may determine. The 1973 Parole Guidelines were published for the first time in the Federal Register on November 19, 1973. 28 C.F.R. § 2.52, 38 F.R. 31942 (Nov. 19, 1973).
2 United States v. Salerno (Silverman II ) 542 F.2d 628 (3d Cir. 1976) (Sur Petition for Rehearing)
3 A more detailed history of the facts and trial leading to Ponzio's conviction may be found in United States v. Somers, 496 F.2d 723 (3d Cir. 1974)
4 United States v. Salerno (Silverman I ) 538 F.2d 1005 (3d Cir. 1976). Silverman I was filed on July 15, 1976
5 In light of our disposition we have no occasion to comment upon the district court's actions in denying a stay of its order and refusing to return Ponzio to custody pending action on the government's appeal
6 The order from which the government appealed was not entered in a criminal proceeding, but rather in a § 2255 proceeding. Such an action is not a proceeding in the original criminal prosecution, but is rather an independent civil suit. Heflin v. United States, 358 U.S. 415, 418 n.7, 79 S. Ct. 451, 3 L. Ed. 2d 407 (1959). Accordingly, the action, being civil in nature, is governed by the rules, statutes and appellate practice, (United States v. Hayman, 342 U.S. 205, 209 n.4, 72 S. Ct. 263, 96 L. Ed. 232 (1951)) controlling civil actions. See Neely v. United States, 546 F.2d 1059 at 1064-1067 (3d Cir. 1976); Wright and Miller, Federal Practice and Procedure § 590 (1969). See also United States v. DiRusso, 548 F.2d 372, (1st Cir. 1976) (DiRusso II )
7 538 F.2d at 1008
8 While we recognize that the Rule 35 hearing came well after the implementation of the new Parole Guidelines, and that Ponzio's moving papers referred to, and included a copy of the Guidelines, we nevertheless are not persuaded that these circumstances require that relief be denied to this § 2255 application. While counsel undoubtedly had the "tools" (Guidelines) in his hands to fashion a remedy for Ponzio, he did not draw the district court judge's attention to the issue of the impact which the Parole Guidelines had upon Ponzio's initial sentence. Compare DiRusso II, note 6 supra Even the government does not contend that any reliance (if such there was) upon the Guidelines in a Rule 35 hearing would thereby "exhaust" § 2255 jurisdiction under Silverman I. The most that can be argued, granting that the district court had jurisdiction (see n.9 infra ), is that the court abused its discretion in affording § 2255 relief on the same grounds as had been urged in a Rule 35 hearing. Sanders v. United States, 373 U.S. 1, 83 S. Ct. 1068, 10 L. Ed. 2d 148 (1963) precludes any mechanistic application of the doctrine of res judicata in successive § 2255 proceedings. Sanders establishes those circumstances under which the district court may give weight to a prior denial of § 2255 relief. 373 U.S. at 15, 83 S. Ct. 1068. In emphasizing that the Sanders test is "the ends of justice", Justice Brennan concluded, id. at 17, 83 S.Ct. at 1078, that No matter how many prior applications for federal collateral relief a prisoner has made, the principle elaborated in Subpart A, supra, (Successive Motions on Grounds Previously Heard and Determined) cannot apply if a different ground is presented by the new application. So too, it cannot apply if the same ground was earlier presented but not adjudicated on the merits. In either case, full consideration of the merits of the new application can be avoided only if there has been an abuse of the writ or motion remedy; and this the Government has the burden of pleading. We believe that where the prior application for relief has been made under Rule 35, the Sanders res judicata criteria are the same. United States v. Jasper, 481 F.2d 976, 978-80 (3d Cir. 1973). We are satisfied (1) that the same ground that formed the basis for the § 2255 decision (new Parole Guidelines) was not relied upon by the district court when it reduced Ponzio's sentence from six to five years; and that therefore (2) the district court did not abuse its discretion. We cannot help but observe that at no time during the Rule 35 proceedings, was any reference to the Guidelines made by the district court. Moreover, a one year reduction in sentence, from six to five years, had no practical impact whatsoever on Ponzio's sentence, for the Parole Guidelines relative to Ponzio's offense, as cited to the court by Ponzio's attorney, indicated that, depending upon his parole prognosis, Ponzio would serve between 26 and 36 months. Supplemental Memorandum in Support of Motion for Reduction of Sentence, Cr. No. 323-72, at 3 (received at request of the Court). This latter circumstance, if no other, leads us to conclude that the Guidelines argument was never fairly presented to the district court at the Rule 35 hearing.
9 28 U.S.C. § 2255 provides in pertinent part: A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence. In Silverman I, 538 F.2d at 1008 n.4, this Court, on the jurisdictional aspect, held: The district judge also concluded and we agree that 28 U.S.C. § 2255, which provides in relevant part that a district court has jurisdiction of a motion "to vacate, set aside, or correct" a sentence imposed without jurisdiction, "in excess of the maximum authorized by law, or . . . otherwise subject to collateral attack," is an appropriate vehicle for making this claim. See Kortness v. United States, supra, 514 F.2d (167,) 170 ((8th Cir. 1975)); United States v. Perchalla, 407 F.2d 821, 823 (4th Cir. 1969). Cf. United States v. Hayman, 342 U.S. 205, 216-19, 72 S. Ct. 263, 96 L. Ed. 232 (1952). See also Jacobson v. United States, 542 F.2d 725 (8th Cir. 1976); United States v. Clinkenbeard, 542 F.2d 59 (8th Cir. 1976). On the surface it would appear that the First Circuit would disagree with our Silverman jurisdictional holding. See DiRusso II note 6 supra ; United States v. DiRusso, 535 F.2d 673 (1st Cir. 1976). However, a close reading of DiRusso II reveals that the question presented in Silverman and here has not yet been presented to that Court. See DiRusso II, at 375 n.2. A distinction is made in DiRusso II between those cases where "the sentences that were collaterally attacked had been imposed either prior to or contemporaneously with the promulgation and general awareness" of the new Guidelines. Both Silverman and Ponzio had been sentenced prior to the Guidelines; DiRusso had not. Nor are we convinced that the Rule 35 proceeding, see note 7 supra, under the peculiar factual circumstances present here, should yield a different result. Other circuits have apparently assumed that relief of the type afforded in Silverman is available only under 28 U.S.C. § 2241, thereby requiring the proceeding to be brought before a district court with jurisdiction over the prisoner or his custodian. See, e. g., Grasso v. Norton, 520 F.2d 27 (2d Cir. 1975); Garafola v. Benson, 505 F.2d 1212 (7th Cir. 1974); see also the discussions in Jacobson and Clinkenbeard, supra. This jurisdictional issue need not detain us, for Silverman I resolved that issue for this Court, and its holding may not be modified except by this Court en banc. Third Circuit Internal Operating Procedures, M.2. As we have observed, the government's petition for rehearing in Silverman I was denied by Silverman II, supra.
10 We have not overlooked Ponzio's motion to dismiss the government's appeal. Ponzio had moved to dismiss the appeal and to strike certain correspondence which forwarded copies of two recent opinions. (Clinkenbeard and Jacobson, supra ) bearing on the Silverman principle, on the ground that the form of the government's submission did not comply with the rules of this Court concerning filing of reply briefs. The cases submitted had been decided after all briefs were filed, and were furnished for the information of the Court and Ponzio. Apart from any other consideration requiring the denial of Ponzio's motion, we did not regard the government's submission as a "reply brief" within the purview of F.R.A.P. 28(c) Of more importance here, however, is that the views which we have expressed in text above reflect our concerns not with form but rather with substance; in particular, the omission of papers from the appendix which papers are crucial to the resolution of the issues before us. | 08-23-2011 | [
"552 F.2d 108 UNITED STATES of America, Appellant,v.William T. SOMERS et al. No. 76-2009. United States Court of Appeals,Third Circuit. Argued Dec. 2, 1976.Decided Feb. 25, 1977. Jonathan L. Goldstein, U. S. Atty., for appellant; Maryanne T. Desmond, Asst. U. S. Atty., Newark, N. J., on brief. Ralph J. Kmiec, Cherry Hill, N. J., for Arthur W. Ponzio, appellee. Before FORMAN, ROSENN and GARTH, Circuit Judges. OPINION OF THE COURT GARTH, Circuit Judge. 1 In this appeal we are called upon to review the question which we had previously and, as now appears, erroneously stated should need no review. 2 In United States v. Salerno, (Appeal of William Silverman ), (hereinafter \"Silverman I \"), 538 F.2d 1005 (3d Cir. 1976), Judge Rosenn, writing for this Court, held: (1) that 28 U.S.C.",
"§ 2255 provides jurisdiction to challenge a sentence imposed under 18 U.S.C. § 4208(a)(2) prior to the adoption of the 1973 Parole Guidelines,1 when the intent of the sentencing judge is frustrated by the application of those guidelines; and (2) that because the intent of Silverman's sentencing judge was thwarted by the implementation of the guidelines, Silverman's original sentence could be modified. 3 In Silverman's case the intent of the original sentencing judge (who was no longer a member of the district court when Silverman sought resentencing) could be ascertained only by interpreting and construing the sentencing colloquy appearing in the sentencing transcript. Forecasting that such a circumstance unavailability of the original sentencing judge would be a rare one, Judge Rosenn wrote: 4 We do not believe that our holding will seriously burden either the district court or this court.",
"Where the motion to vacate sentence can be directed to the sentencing judge, the question whether his sentencing expectations have been frustrated is easily resolved and there should be no need for review of that decision in the Court of Appeals. In the rare case, as here, when the original sentencing judge is no longer on a district court bench, and the record convincingly shows by the statement of the trial judge at sentencing that he intended to have the defendant receive meaningful parole consideration, then we believe that resentencing should be required. (emphasis supplied.) 5 Silverman I, 538 F.2d at 1009. 6 We now face the very circumstance foreseen by Judge Rosenn where the district court judge who (1) sentenced the defendant Ponzio on May 21, 1973, (2) was informed of the \"new\" Parole Guidelines, (3) found his original intent to have been frustrated by those guidelines, and (4) vacated the sentence under authority of Silverman.",
"Believing that the original sentencing judge is in the best position to know his own intent and that his determination of that intent is conclusive, we affirm the order of the district court reducing Ponzio's sentence. In so doing, however, we do not relax or depart from the narrow holding of Silverman I as interpreted by the same panel of this Court which denied rehearing in Silverman II.2 I. 7 On March 8, 1973, appellee Ponzio was convicted with others of various counts of an indictment which, among other things, charged Ponzio with acts of extortion in violation of 18 U.S.C. § 1951 (The Hobbs Act) and § 1952 (The Travel Act). 8 On May 21, 1973, Ponzio was sentenced on Count I (conspiracy to violate The Hobbs Act) to prison for a term of six years 9 .",
". . (P)ursuant to the provisions of Title 18 U.S.C. § 4208(a)(2), defendant to be eligible for parole at such time as the Board of Parole shall determine. 10 Judgment of sentence, May 21, 1973. 11 His conviction on 15 other counts resulted in terms of five year imprisonment on each count, concurrent with each other count, and concurrent with the sentence imposed on Count I. In sum, therefore, although Ponzio faced a total term in prison of six years, the Parole Board had the discretion to release him on parole at any time. 12 Ponzio's conviction was affirmed by this Court on May 31, 1974, United States v. Somers, 496 F.2d 723 (3d Cir. ), cert. denied, 419 U.S. 832, 95 S. Ct. 56, 42 L. Ed.",
"2d 58 (1974).3 As noted, the Supreme Court of the United States denied certiorari on October 15, 1974. 13 On November 19, 1974, Ponzio commenced serving his sentence and, thereafter, pursuant to a timely motion under Rule 35, F.R.Crim.P., made application for reduction of his sentence. On January 13, 1975, the judge who originally sentenced Ponzio reduced his sentence from six to five years imprisonment. 14 Thereafter, on July 26, 1976, Ponzio wrote a letter again seeking relief from his sentence. Treating that letter as a motion pursuant to 28 U.S.C. § 2255, on August 6, 1976, the original sentencing judge on authority of Silverman I4 granted Ponzio's motion, vacated his sentence and resentenced him to time served. The government thereupon applied for a stay of the district court's order, and sought to return Ponzio to custody. Both of the government's motions were denied.5 This appeal followed.6 II. 15 Our analysis begins with, and is controlled by Silverman I and II. Silverman I, relying upon the \"legislative history of section 4208(a)(2) and district court sentencing practice thereunder,\"7 held that where the implementation of the guidelines frustrated the sentencing judge's probable expectation (with respect to the original sentence imposed, viewed at the time of imposition), resentencing was required. 16 We recognize that the problem presented in Silverman I was that of ascertaining the intent of the original sentencing judge who was no longer available (in a sentencing context) to reveal his own prior intent.",
"That problem, however, does not confront us here. 17 In this case, the district court judge who originally sentenced Ponzio on May 21, 1973 to a six year term under § 4208(a)(2) not only was available to rule on Ponzio's § 2255 proceeding, but he was also able, in an unequivocal fashion, to explain his May 1973 sentencing intent and expectations. 18 It is true that when Ponzio was sentenced on May 21, 1973, the only indication of the sentencing judge's intent was the imposition of sentence pursuant to § 4208(a)(2).",
"However, the very selection of that statute as a sentencing vehicle, a choice made prior in time to the promulgation of the new guidelines, is significant. Without more, it tells us that the sentencing judge implicitly expected (and indeed, provided the mechanism for) early parole eligibility, conditioned only upon the Parole Board's satisfaction with Ponzio's institutional adjustment and rehabilitation progress. Silverman I, supra ; see also Garafola v. Benson, 505 F.2d 1212, 1218 (7th Cir. 1974); Lambert v. United States, 392 F. Supp. 113, 117 n.2 (N.D.Ga.1975). It is also true that during the Rule 35 hearing, and indeed, during the entire period between May 1973 and August 1976, no other expression of intent or expectation was voiced by the sentencing judge.",
"It was only at the August 6, 1976 hearing in connection with Ponzio's § 2255 proceeding, that the district court judge for the first time expressly addressed the subject of his original sentencing expectations and intent. 19 As we have previously observed, directly after Ponzio had commenced serving his six year sentence in November 1974, he had moved to reduce his sentence under F.R.Crim.P. 35. The Parole Guidelines had been public knowledge for about one year at that time, and while Ponzio's application for reduction of sentence did not directly advance the Silverman theory presently relied upon, Ponzio's motion papers referred tangentially to the Guidelines in connection with a discussion of the sentence of a codefendant. Essentially, Ponzio's Rule 35 application dealt with disparity in sentences between Ponzio and his codefendants, hardship on Ponzio's family, and arguments addressed to rehabilitation and to the purposes of imprisonment (all of which Ponzio claimed to have satisfied or discharged).",
"As a result of this application, the same judge who had originally sentenced Ponzio to six years imprisonment reduced his sentence to five years, but without opinion or comment.8 20 It was in this setting that Silverman I was filed by this Court on July 15, 1976. On July 26, 1976, Ponzio sent a letter to the sentencing judge seeking relief from further imprisonment. Viewing that letter as a petition under § 2255, argument was scheduled by the court on August 6, 1976. 21 It was then, for the first time, that what had been implicit in the district court's sentence, became explicit.",
"The district court said: 22 . . . (B)ut sentence originally was imposed in May of 1973 and as pointed out in the opinion of the U. S. v. Salerno in late 1973, which was some period of time after the sentence was originally imposed upon you, the Board of Parole adopted new criteria and procedures for parole determinations. Those standards were not within the contemplation of this Court at the time that sentence was imposed upon you when the Court's sentence was that you be sentenced pursuant to the provisions of Section 4208 A2.",
"(emphasis supplied.) 23 I may have indicated to you at that time, although I do not have the transcript before me, but I do know that there have been many, many times that defendants have appeared before this Court and I have indicated the liberality of that proceeding and have indicated that as long as you behaved yourself while in custody and demonstrated that you have been rehabilitated and ready to be returned to society, the Board of Parole would give you every consideration. As a matter of fact, numerous inmates have clamorously requested that sentences imposed be changed to § 4208 A2; because they felt that they would get earlier parole. That clamor had considerably subsided because it has been indicated to me as well as to many other federal judges that early parole is not being given under the new standards, procedures, and regulations adopted by the Board of Parole.",
"24 Now, also, at the time that I originally imposed sentence upon you and at the time that that sentence was reduced, I was clearly under the impression that the factors to be considered by a Parole Board would be whether you've paid your debt to society, how you behaved while you were in your institution, what the chances were of returning you to society, whether you have been rehabilitated. Those were the old standards. Now they have the new standards and it could be that you would serve maybe four years by the time the Parole Board made up its mind what to do. 25 As I've indicated further, I don't see eye to eye with this computerized, statistical, and generalized consideration of parole. My sentencing expectations have been frustrated by the Board's new guidelines and their procedures and their salient factors.",
"And for those reasons, as well as for the more important reason that I am not without compassion, I think you've paid your debt to society. I think your family has been under a considerable strain, and I'm going to vacate the prior sentence that was imposed upon you and a new sentence will be imposed of the time you have already served, and I would sign an order to that effect, which I have before me. (emphasis supplied.) 26 Transcript, August 6, 1976, pp. 12-13, 14, 18-19. 27 In the final but unreported opinion which followed the August 6, 1976 hearing, but which incorporated the oral observations made at that hearing as they depicted his motivating factors, the district court judge wrote: 28 .",
". . (T)he legislative history of § 4208(a)(2) is comprehensively discussed in the Salerno opinion, and there is no need to repeat that history here. Prior to the adoption of the new guidelines which are now in effect, and which became effective in late 1973, the Parole Board based its decision primarily upon institutional behavior and the probability of recidivism. See C.F.R. § 2.4 (1973). Those were the criteria which were in effect at the time this defendant was sentenced, and with which this court was familiar when sentence was imposed. It was also this court's understanding that a defendant sentenced under § 4208(a)(2) would become immediately eligible for parole after sentence had been imposed. This is in sharp contrast to the other sentencing options available to a federal judge. See 18 U.S.C. § 4202, and 18 U.S.C. § 4208(a) (1).",
"29 It was the expectation of this court when the defendant was sentenced that he would receive early meaningful consideration for parole. The adoption of the new parole guidelines subsequent to the time of sentencing has frustrated that expectation. In fact, prior to the adoption of the new parole guidelines, this court was regularly inundated with requests from defendants and their counsel for sentences under § 4208(a)(2). Such requests are no longer made, largely, we think, because of the new guidelines. Not only does the Salerno opinion provide a jurisdictional basis upon which this court may act, the judicial conscience requires corrective action. 30 Op. August 25, 1976, pp. 3-4, 7.",
"III. 31 As we read Silverman I and II, it is the intent and expectation of the district court judge who sentences under § 4208(a)(2) which are controlling and which must be searched out to determine if relief may be ordered under 28 U.S.C. § 2255.9 In our judgment, there can be no better evidence of a sentencing judge's expectations or intent than his own statement of those facts. 32 We are aware that here the sentencing judge not only attributed the thwarting of his sentencing intent and expectations to the operation of the Guidelines, but he also relied upon an additional list of reasons to support his order reducing Ponzio's sentence. Had the district court's action resulted solely from these latter considerations (i. e., good conduct; time served; sufficient punishment; rehabilitation; family hardship; loss of pension; deterrence, etc.) we would have been obliged to reverse its order, for it is only in the case of frustration of the district court's sentencing expectations that the Silverman doctrine affords grounds for relief (under the \"collateral attack\" provisions of § 2255 (see note 9, supra )). We recognize that sentencing courts are not vested with those functions belonging to the Parole Board, D'Allesandro v. United States, 517 F.2d 429 (2d Cir. 1975), or \"with (the) power(s) of a super parole board.\"",
"Silverman II, supra. Hence, we will not countenance Silverman relief where the district court's basis for reducing sentence is predicated wholly upon considerations other than frustration of its original sentencing intent. 33 Here, however, we are not faced with that situation. Although the district court's opinion speaks of such extraneous matters, we cannot ignore the factor which we find to be at the core of the district court opinion the frustration of its original sentencing expectations which were specifically so expressed by the original sentencing judge. We do no more here than apply the Silverman principle as it has previously been announced by this Court but with the assurance of greater certainty insofar as knowledge of the district court judge's intent is concerned.",
"34 While reaffirming the viability of Silverman, we nevertheless restate the admonition found in Silverman II that the Silverman doctrine is a most narrow and inelastic principle which will not be expanded beyond its strict confines. IV. 35 We conclude this opinion with an observation, collateral to the decision itself but nevertheless required to be made because of the effect which counsel's failure to supply necessary documents might have had upon our decision. As we have noted, the focal point for application of the Silverman doctrine is the district court judge's intent and expectations at the time of imposition of sentence.",
"We would have expected, therefore, that the documents and transcripts relevant, and indeed essential, to that issue would be furnished to us as part of the appendix on this appeal. Such was not the case. 36 Had it not been for our independent inquiry and had we not obtained these documents through our own efforts, we would not have had available for examination: 37 the relevant docket entries; 38 the original judgment of sentence; 39 the original sentencing transcript of May 21, 1973; 40 the memoranda, motion and submissions in connection with the Rule 35 hearing; 41 Ponzio's § 2255 letter of petition; 42 the absolutely essential August 6, 1976 transcript; 43 the August 6, 1976 orders (vacating sentence and denying stay pending appeal) from which the government's appeal was taken; 44 the government's Notice of Appeal; 45 the district court's August 25, 1976 written opinion.",
"46 Not one of these documents, each of which was vital to our determination and to this opinion, appears in the appendix on appeal. This Court was required to make separate and independent inquiries to assemble the necessary record materials. Ponzio, the appellee apparently submitted no papers for inclusion in the appendix and did not even recite in his brief those portions of the district court's comments and opinion which supported his contentions and which were instrumental to this Court's application of the Silverman doctrine. The government's appendix merely sets forth a number of legal opinions which taken together, constitute no more than a frontal assault on this Court's Silverman decision. 47 While we recognize the obligations imposed upon the appellant by the Federal Rules of Appellate Procedure (F.R.A.P. 30(a) and this Court's Local Rules, we cannot countenance the appellee's failure to comply with the applicable provisions of F.R.A.P. 30(b). Nor can we understand or justify his reliance upon this Court to discharge his functions in \"piecing out\" and supporting the essential elements of the position which he advocates. While we deplore counsels' disregard of the requirements of our Rules, (F.R.A.P.",
"30, Third Cir.R. 21) we are even more dismayed by the level of appellate advocacy which has been exhibited on this appeal.10 48 Heretofore we have hesitated to suppress appellate papers or to dismiss appeals for failure to comply with appellate rules. However, presentations such as the instant one go a long way toward dispelling that hesitation. We can no longer afford the effort and time to prepare counsels' case and to supply counsels' record deficiencies. Henceforth, our displeasure with counsels' refusal, failure or unwillingness to master our procedures will necessarily result in the imposition of appropriate sanctions. Third Cir.R. 21(3). V. 49 The August 6, 1976 order of the district court vacating Ponzio's original sentence and resentencing him to \"the time already spent in jail\" will be affirmed.",
"The August 6, 1976 order of the district court denying the United States a stay pending appeal will be dismissed as moot. (See note 5 supra ). 1 Section 4208(a)(2) reads, in pertinent part: (a) Upon entering a judgment of conviction . . . requir(ing) that the defendant be sentenced to imprisonment for a term exceeding one year, . . . (2) the court may fix the maximum sentence of imprisonment to be served in which event the court may specify that the prisoner may become eligible for parole at such time as the board of parole may determine. The 1973 Parole Guidelines were published for the first time in the Federal Register on November 19, 1973. 28 C.F.R.",
"§ 2.52, 38 F.R. 31942 (Nov. 19, 1973). 2 United States v. Salerno (Silverman II ) 542 F.2d 628 (3d Cir. 1976) (Sur Petition for Rehearing) 3 A more detailed history of the facts and trial leading to Ponzio's conviction may be found in United States v. Somers, 496 F.2d 723 (3d Cir. 1974) 4 United States v. Salerno (Silverman I ) 538 F.2d 1005 (3d Cir. 1976). Silverman I was filed on July 15, 1976 5 In light of our disposition we have no occasion to comment upon the district court's actions in denying a stay of its order and refusing to return Ponzio to custody pending action on the government's appeal 6 The order from which the government appealed was not entered in a criminal proceeding, but rather in a § 2255 proceeding. Such an action is not a proceeding in the original criminal prosecution, but is rather an independent civil suit. Heflin v. United States, 358 U.S. 415, 418 n.7, 79 S. Ct. 451, 3 L. Ed. 2d 407 (1959).",
"Accordingly, the action, being civil in nature, is governed by the rules, statutes and appellate practice, (United States v. Hayman, 342 U.S. 205, 209 n.4, 72 S. Ct. 263, 96 L. Ed. 232 (1951)) controlling civil actions. See Neely v. United States, 546 F.2d 1059 at 1064-1067 (3d Cir. 1976); Wright and Miller, Federal Practice and Procedure § 590 (1969). See also United States v. DiRusso, 548 F.2d 372, (1st Cir. 1976) (DiRusso II ) 7 538 F.2d at 1008 8 While we recognize that the Rule 35 hearing came well after the implementation of the new Parole Guidelines, and that Ponzio's moving papers referred to, and included a copy of the Guidelines, we nevertheless are not persuaded that these circumstances require that relief be denied to this § 2255 application.",
"While counsel undoubtedly had the \"tools\" (Guidelines) in his hands to fashion a remedy for Ponzio, he did not draw the district court judge's attention to the issue of the impact which the Parole Guidelines had upon Ponzio's initial sentence. Compare DiRusso II, note 6 supra Even the government does not contend that any reliance (if such there was) upon the Guidelines in a Rule 35 hearing would thereby \"exhaust\" § 2255 jurisdiction under Silverman I. The most that can be argued, granting that the district court had jurisdiction (see n.9 infra ), is that the court abused its discretion in affording § 2255 relief on the same grounds as had been urged in a Rule 35 hearing.",
"Sanders v. United States, 373 U.S. 1, 83 S. Ct. 1068, 10 L. Ed. 2d 148 (1963) precludes any mechanistic application of the doctrine of res judicata in successive § 2255 proceedings. Sanders establishes those circumstances under which the district court may give weight to a prior denial of § 2255 relief. 373 U.S. at 15, 83 S. Ct. 1068. In emphasizing that the Sanders test is \"the ends of justice\", Justice Brennan concluded, id. at 17, 83 S.Ct. at 1078, that No matter how many prior applications for federal collateral relief a prisoner has made, the principle elaborated in Subpart A, supra, (Successive Motions on Grounds Previously Heard and Determined) cannot apply if a different ground is presented by the new application.",
"So too, it cannot apply if the same ground was earlier presented but not adjudicated on the merits. In either case, full consideration of the merits of the new application can be avoided only if there has been an abuse of the writ or motion remedy; and this the Government has the burden of pleading. We believe that where the prior application for relief has been made under Rule 35, the Sanders res judicata criteria are the same. United States v. Jasper, 481 F.2d 976, 978-80 (3d Cir. 1973).",
"We are satisfied (1) that the same ground that formed the basis for the § 2255 decision (new Parole Guidelines) was not relied upon by the district court when it reduced Ponzio's sentence from six to five years; and that therefore (2) the district court did not abuse its discretion. We cannot help but observe that at no time during the Rule 35 proceedings, was any reference to the Guidelines made by the district court.",
"Moreover, a one year reduction in sentence, from six to five years, had no practical impact whatsoever on Ponzio's sentence, for the Parole Guidelines relative to Ponzio's offense, as cited to the court by Ponzio's attorney, indicated that, depending upon his parole prognosis, Ponzio would serve between 26 and 36 months. Supplemental Memorandum in Support of Motion for Reduction of Sentence, Cr. No. 323-72, at 3 (received at request of the Court). This latter circumstance, if no other, leads us to conclude that the Guidelines argument was never fairly presented to the district court at the Rule 35 hearing.",
"9 28 U.S.C. § 2255 provides in pertinent part: A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence. In Silverman I, 538 F.2d at 1008 n.4, this Court, on the jurisdictional aspect, held: The district judge also concluded and we agree that 28 U.S.C.",
"§ 2255, which provides in relevant part that a district court has jurisdiction of a motion \"to vacate, set aside, or correct\" a sentence imposed without jurisdiction, \"in excess of the maximum authorized by law, or . . . otherwise subject to collateral attack,\" is an appropriate vehicle for making this claim. See Kortness v. United States, supra, 514 F.2d (167,) 170 ((8th Cir. 1975)); United States v. Perchalla, 407 F.2d 821, 823 (4th Cir. 1969). Cf. United States v. Hayman, 342 U.S. 205, 216-19, 72 S. Ct. 263, 96 L. Ed. 232 (1952). See also Jacobson v. United States, 542 F.2d 725 (8th Cir. 1976); United States v. Clinkenbeard, 542 F.2d 59 (8th Cir. 1976). On the surface it would appear that the First Circuit would disagree with our Silverman jurisdictional holding. See DiRusso II note 6 supra ; United States v. DiRusso, 535 F.2d 673 (1st Cir. 1976).",
"However, a close reading of DiRusso II reveals that the question presented in Silverman and here has not yet been presented to that Court. See DiRusso II, at 375 n.2. A distinction is made in DiRusso II between those cases where \"the sentences that were collaterally attacked had been imposed either prior to or contemporaneously with the promulgation and general awareness\" of the new Guidelines.",
"Both Silverman and Ponzio had been sentenced prior to the Guidelines; DiRusso had not. Nor are we convinced that the Rule 35 proceeding, see note 7 supra, under the peculiar factual circumstances present here, should yield a different result. Other circuits have apparently assumed that relief of the type afforded in Silverman is available only under 28 U.S.C. § 2241, thereby requiring the proceeding to be brought before a district court with jurisdiction over the prisoner or his custodian. See, e. g., Grasso v. Norton, 520 F.2d 27 (2d Cir. 1975); Garafola v. Benson, 505 F.2d 1212 (7th Cir.",
"1974); see also the discussions in Jacobson and Clinkenbeard, supra. This jurisdictional issue need not detain us, for Silverman I resolved that issue for this Court, and its holding may not be modified except by this Court en banc. Third Circuit Internal Operating Procedures, M.2. As we have observed, the government's petition for rehearing in Silverman I was denied by Silverman II, supra. 10 We have not overlooked Ponzio's motion to dismiss the government's appeal. Ponzio had moved to dismiss the appeal and to strike certain correspondence which forwarded copies of two recent opinions. (Clinkenbeard and Jacobson, supra ) bearing on the Silverman principle, on the ground that the form of the government's submission did not comply with the rules of this Court concerning filing of reply briefs.",
"The cases submitted had been decided after all briefs were filed, and were furnished for the information of the Court and Ponzio. Apart from any other consideration requiring the denial of Ponzio's motion, we did not regard the government's submission as a \"reply brief\" within the purview of F.R.A.P. 28(c) Of more importance here, however, is that the views which we have expressed in text above reflect our concerns not with form but rather with substance; in particular, the omission of papers from the appendix which papers are crucial to the resolution of the issues before us."
] | https://www.courtlistener.com/api/rest/v3/opinions/344264/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 08/05/2022 09:06 AM CDT
- 136 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136
Jonathan B. Simons, appellant, v. Heather L. Simons, appellee. ___ N.W.2d ___
Filed August 5, 2022. No. S-21-599.
1. Pleadings: Appeal and Error. Permission to amend a pleading is addressed to the discretion of the trial court, and an appellate court will not disturb the trial court’s decision absent an abuse of discretion. 2. Constitutional Law: Due Process. The determination of whether the procedures afforded to an individual comport with constitutional require- ments for procedural due process presents a question of law. 3. Trusts: Equity: Appeal and Error. An action to impose a constructive trust sounds in equity, which an appellate court reviews de novo on the record, giving consideration, where the evidence is in conflict, to the fact that the trial court observed the witnesses and their manner of testi- fying and accepted one version of facts rather than the opposite. 4. Divorce: Child Custody: Property Division: Alimony: Attorney Fees: Appeal and Error. In a marital dissolution action, an appellate court reviews the case de novo on the record to determine whether there has been an abuse of discretion by the trial judge in his or her determi- nations regarding custody, child support, division of property, alimony, and attorney fees. 5. Judges: Words and Phrases. A judicial abuse of discretion exists if the reasons or rulings of a trial judge are clearly untenable, unfairly depriv- ing a litigant of a substantial right and denying just results in matters submitted for disposition. 6. Appeal and Error. Appellate courts do not generally consider argu- ments and theories raised for the first time on appeal. 7. Antenuptial Agreements. As a contract, an antenuptial agreement is governed by the same principles that are applicable to other contracts, but is subject to the particular statutory requirement that an antenuptial agreement must be based on fair disclosure. - 137 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136
8. Contracts: Intent. When the terms of a contract are clear, a court may not resort to rules of construction, and terms are accorded their plain and ordinary meaning as an ordinary or reasonable person would understand them. In such a case, a court shall seek to ascertain the intention of the parties from the plain language of the contract. 9. Due Process: Words and Phrases. While the concept of due process defies precise definition, it embodies and requires fundamental fairness. 10. Rules of the Supreme Court: Pleadings. The key inquiry for “express or implied consent” under Neb. Ct. R. Pldg. § 6-1115(b) is whether the parties recognized that an issue not presented by the pleadings entered the case at trial. 11. Divorce: Property Division. In an equitable property division governed by Neb. Rev. Stat. § 42-365 (Reissue 2016), all property accumulated and acquired by either spouse during the marriage is part of the marital estate, unless it falls within an exception to this general rule. 12. Antenuptial Agreements: Property Division. Spouses are able to con- tract around the general rules of equitable division by using a premarital agreement. 13. Trusts: Property: Title: Equity. Under a constructive trust, equity vests title to the subject property in the wronged party and the court may issue a decree that the title be so conveyed. 14. Trusts: Property: Title. A constructive trust is imposed when one has acquired legal title to property under such circumstances that he or she may not in good conscience retain the beneficial interest in the property. 15. Trusts: Property: Title: Equity. A constructive trust is a relationship, with respect to property, subjecting the person who holds title to the property to an equitable duty to convey it to another on the grounds that his or her acquisition or retention of the property would constitute unjust enrichment. 16. Trusts: Equity. In determining whether to impose a constructive trust, the court will consider not only the original situation but also all events which have occurred since the defendant began to hold inequitably. 17. Trusts: Proof. A party seeking the remedy of a constructive trust has the burden to establish the factual foundation, by evidence which is clear and convincing, required for a constructive trust. 18. Trusts: Equity. The constructive trust doctrine is equitable in nature and should not be rigidly limited, and the absence of any one factor will not itself defeat the imposition of a constructive trust when otherwise required by equity. 19. Equity. Where a situation exists which is contrary to the principles of equity and which can be redressed within the scope of judicial action, a court of equity will devise a remedy to meet the situation. - 138 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136
20. ____. Equity is not a rigid concept, and its principles are not applied in a vacuum. 21. ____. Equity is determined on a case-by-case basis when justice and fairness so require. 22. Trusts: Property: Title: Equity: Proof. Generally, a court, sitting in equity, will not impose a constructive trust and constitute an individual as a trustee of the legal title for property unless it be shown, by clear and convincing evidence, that the individual, as a potential constructive trustee, had obtained title to property by fraud, misrepresentation, or an abuse of an influential or confidential relationship and that, under the circumstances, such individual should not, according to the rules of equity and good conscience, hold and enjoy the property so obtained. 23. Trusts: Equity: Unjust Enrichment. A constructive trust is imposed to do equity and to prevent unjust enrichment. 24. Unjust Enrichment. Unjust enrichment is a flexible concept, occurring when a claim is based on the failure of consideration, fraud, or mistake and in other situations where it would be morally wrong for one party to enrich himself or herself at the expense of another. 25. Fraud. Fraud comprises all acts, omissions, and concealments involving a breach of legal or equitable duty, trust, or confidence justly reposed, and are injurious to another, or by which an undue and unconscientious advantage is taken of another. 26. Appeal and Error. An appellate court will not consider an issue on appeal that was not presented to or passed upon by the trial court. 27. ____. To be considered by an appellate court, an alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error. 28. Limitations of Actions: Waiver. A statute of limitations is nonjurisdic- tional and waivable. 29. Expert Witnessess. The determination of the weight that should be given expert testimony is uniquely the province of the fact finder. 30. Valuation. A trial court is not required to accept any one method of valuation as more accurate than another accounting procedure. 31. Trusts: Property: Title: Declaratory Judgments. The ownership rights of a constructive trust beneficiary, once recognized, are protected from the moment the trustee acquired legal title, the constructive trust decree being in the nature of a declaratory judgment about the state of title to the property. 32. Alimony. The purpose of alimony is to provide for the continued main- tenance or support of one party by the other when the relative economic circumstances make it appropriate. - 139 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136
33. Alimony: Appeal and Error. In reviewing an alimony award, an appel- late court does not determine whether it would have awarded the same amount of alimony as did the trial court, but whether the trial court’s award is untenable such as to deprive a party of a substantial right or a just result.
Appeal from the District Court for Douglas County: Gregory M. Schatz, Judge. Affirmed in part, and in part vacated. John A. Kinney, Jill M. Mason, and Samantha M. Robb, of Kinney Mason, P.C., L.L.O., for appellant. Benjamin M. Belmont and Wm. Oliver Jenkins, of Brodkey, Cuddigan, Peebles, Belmont & Line, L.L.P., for appellee. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Freudenberg, J. I. INTRODUCTION In a dissolution action governed by a premarital agreement, the court imposed a constructive trust over certain limited liability companies titled solely in the respondent’s name, such that they were considered additions to the marital estate under the agreement. The petitioner appeals the court’s judg- ment, arguing that the court abused its discretion in allowing the respondent to amend her pleadings to conform to the evi- dence at trial to include the issue of the constructive trust, that the trust was in conflict with the premarital agreement, that the evidence did not support a constructive trust, and that the amount of the trust was in error. The petitioner also challenges the court’s award of a $150,000 lump-sum payment under the terms of the premarital agreement, an order to maintain life insurance to fund a support order, the inclusion of a truck in the marital estate, and the amount of the alimony award. II. BACKGROUND Jonathan B. Simons brought a complaint for dissolution of his marriage to Heather L. Simons. Jonathan and Heather were - 140 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136
married in 2005. Two children, still minors at the time of fil- ing, were born to the marriage. The complaint alleged that a premarital agreement controlled the division of their assets and debts. In her operative answer, Heather asked, among other things, for an equitable division of the marital estate and for alimony. She denied the validity of the premarital agreement. However, the court ultimately found the agreement was valid, and that finding is not challenged on appeal.
1. Issues in Controversy The court issued a pretrial order directing the parties to sub- mit a letter stating the issues in controversy, the issues not in controversy, and a concrete statement of the relief sought. As relevant to this appeal, the letter submitted by Heather’s coun- sel set forth as issues in controversy the following: 4. Whether Jonathan holds one half of the membership interest in JBS Kids Play & Fitness, LLC; JBS Properties, LLC and Dogwatch, LLC in a constructive trust for the benefit of Heather. 5. Does Jonathan have an equitable duty to convey one half of the membership interest in JBS Kids Play & Fitness, LLC; JBS Properties, LLC and Dogwatch, LLC to Heather on the ground that his acquisition or reten- tion of the membership interests would constitute unjust enrichment. 6. If the Premarital Agreement is valid and enforceable, whether three limited liability companies [Jonathan] orga- nized to operate the parties’ businesses which were started during the marriage and in which Heather was an owner and held out to the public as being an owner are part of the marital estate; 7. Whether the provision of the Premarital Agreement stating, “Anything in this section 3.2 to the contrary not- withstanding, in no event shall [Jonathan’s] Property or Heather’s Property be made a part of or be considered in determining any alimony award as herein contemplated” - 141 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136
is valid, or contrary to law and if contrary to law, is it able to be severed from the Premarital Agreement. 8. Whether Jonathan has comingled any purported separate funds with marital funds to subject those funds to an equitable division; 9. The determination of what assets are part of the marital estate and the equitable division of the marital estate[.] A copy of the letter was sent to opposing counsel, who raised no objections. Before trial commenced, Jonathan’s counsel argued to the court that the premarital agreement was enforceable and that, under the agreement, title controls—assets jointly titled are marital while assets not jointly titled are not marital. Heather’s counsel responded that even with the premarital agreement, the court had equitable powers, there were issues as to what exactly the agreement means, and “[i]t’s not just a matter of title.” Heather’s counsel elaborated that at issue in the case was a business Heather and Jonathan started together, which they both worked for and which Jonathan represented to Heather and to others that he and Heather jointly owned. Heather’s counsel argued that the fact the business was titled solely in Jonathan’s name should not be controlling of the dis- tribution even under the premarital agreement. At the conclusion of the evidence presented at trial, Heather moved to amend her pleadings to conform to the evidence so as to allege constructive trust and unjust enrichment. A discus- sion ensued with Jonathan’s counsel arguing that Heather’s position relating to a constructive trust was simply a type of equitable distribution that would not be applicable if the pre- marital agreement, which distributed assets by title, was valid. Heather’s counsel responded that the claimed constructive trust was not mooted by a possible finding that the premarital agreement is enforceable; rather, a constructive trust created under equitable principles would simply make that asset mari- tal under the terms of the premarital agreement. The record - 142 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136
does not reflect that Jonathan’s counsel raised the waiver pro- vision of the agreement found in section 6. The court granted the motion to amend the pleadings over Jonathan’s objection, stating from the bench, “I don’t see how the amendment to the pleadings would change the evidence, nor would the Court’s equitable resolution of the issues pre- sented.” The court reasoned further in its written order that the issues were set forth in the pretrial letter and that Jonathan raised no objection to the litigation of those issues either before or during the trial in which those issues were actually litigated. The court noted that a constructive trust and unjust enrichment are equitable concepts and that Heather raised in her pleadings the issue of the equitable division of the marital estate and the court’s equitable jurisdiction. Finally, the court found that Jonathan was not prejudiced by the amendment. 2. Premarital Agreement The premarital agreement was entered into evidence at trial. Section 1.5 of the agreement describes the “Marital Estate”: Anything in this Agreement to the contrary notwithstand- ing, to the extent that [Jonathan] or Heather have acquired or in the future acquire and affirmatively transfer or convey any assets the title to which, as evidenced by some written instrument, is held by them after such acquisition, transfer or conveyance in any form of co- ownership, including but not limited to tenancy in com- mon, joint tenancy, tenancy by the entirety or community property, such property shall be deemed to constitute and be part of the “Marital Estate.” The Marital Estate shall include any appreciation or depreciation on the assets forming a part of the Marital Estate but shall not include any earnings thereon, proceeds therefrom or replacements thereof unless such earnings, proceeds or replacements, as the case may be, are also titled in some form of co-ownership. . . . The Marital Estate shall be subject to division, distribution and disposition as hereinafter pro- vided in this Agreement. - 143 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136
Section 3.4, in turn, addresses division of the marital estate, providing that “[i]n the event of a future legal separation, divorce, annulment or other dissolution of this proposed mar- riage, [Jonathan] and Heather agree that the Marital Estate shall be divided equally between them.” Section 3.3 sets forth the division of separate property in the event of divorce, providing: As further provided in Section 6 hereinafter, or in any other part of this Agreement: .... (b) Heather hereby waives any and all claims for divi- sion of property or property settlement from [Jonathan] with respect to [his] Property in the event of a future legal separation, divorce, annulment or other dissolution of this proposed marriage. Anything in this Agreement to the contrary notwithstanding including the foregoing sentence, in the event of a future legal separation, which ultimately results in a divorce or dissolution; divorce, annulment, or other dissolution of this proposed marriage (for purposes of this Section, an “Action”) and at the time of initiation of such Action, Heather and [Jonathan] have children born to them or legally adopted by them during the marriage or Heather is pregnant with a child of [Jonathan] and Heather, [Jonathan] shall be required to pay to Heather a lump sum of money based on the number of Full Year(s) of Marriage subsequent to the marriage date . . . . Under the schedule, if the marriage ends after between 10 and 15 years of marriage, then Jonathan would have to give Heather a lump sum of $150,000. Jonathan’s property is defined in section 1.1 of the agreement: [Jonathan’s] Property. A listing of the assets and liabili- ties of [Jonathan] has been prepared and a copy thereof has been given to Heather and is also attached to this Agreement as Exhibit “A,” and is, by this reference, - 144 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136
made a part of this Agreement. Such assets and liabilities of [Jonathan] as set forth on Exhibit “A,” together with proceeds and income therefrom, replacement(s) thereof and appreciation or depreciation in value thereon as more specifically described in Sections 1.4, 2.1, 2.2, 4.1, 4.2, and 4.3, shall hereinafter be referred to as “[Jonathan’s] Property.” Section 4 of the agreement governs the treatment of assets, liabilities, earnings, and expenses during the marriage. Section 4.1, “Assets as Separate Property,” states: Each of the parties agrees that, unless and until trans- ferred and conveyed to the Marital Estate as contemplated by Sections 1.5 and 4.6, the following described property shall remain the separate and solely owned property of its owner (i.e., Heather’s Property or [Jonathan’s] Property as the case may be): (a) All property, whether real or personal, owned by either party as of the effective date of this Agreement; (b) All property and property rights acquired by a party out of the proceeds or income from property at the effec- tive date of this Agreement, or attributable to appreciation in value of such property, whether the enhancement is due to market conditions or to the services, skills, or efforts of its owner or anyone else; and (c) All property acquired by either party by gift, devise, bequest or inheritance. Section 4.3 sets forth “Earnings as Separate Property” and states that earnings from the work of one of them is the sepa- rate property of the person to whom they are attributable. Section 4.6 describes “Additions to the Marital Estate”: Nothing in Section 4 shall prohibit the parties from mak- ing additions to the Marital Estate from [Jonathan’s] Property or from Heather’s Property or from their indi- vidual earnings but any such addition must be evidenced by some written agreement or acknowledgment of the same or some affirmative act resulting in the titling - 145 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136
of additional property as part of the Marital Estate as described in Section 1.5 above. Section 1.6 sets forth Jonathan’s obligation to carry life insurance during the marriage, stating in relevant part: [Jonathan] agrees to acquire, own and maintain, at his sole cost and expense, a policy of life insurance insuring his life, with a face amount of not less than $1,000,000.00. . . . In the event of the parties’ legal separation or disso- lution of the proposed marriage while said life insurance policy is in effect, the parties agree any cash value attrib- utable thereto shall be equally divided between them, and Heather at her election, shall be entitled to retain such policy at her sole cost and expense. Section 6 sets forth a waiver as follows: Except as otherwise specifically provided in this Agreement, each party waives all rights he or she may have in all or any part of the property of the other under any law now or hereinafter in effect in any jurisdic- tion, whether by way of dissolution of marriage, separa- tion, descent, courtesy, dower, distributive share, exempt property, homestead property, right to elect against a will, augmented estate, or any other right or interest, and each agrees he or she will not make any claim of any kind to the property of the other in the event of death, dissolution of marriage, or separation except as specifi- cally contemplated by the provisions of this Agreement, if at all. Without limitation, this Agreement shall be con- strued to be a waiver similar to and with the same force and effect as provided by Neb. Rev. Stat. § 30-2316 and § 42-1001, et seq. Stated otherwise, except as otherwise provided therein, this Agreement is intended as a waiver of all rights to alimony, support, property division, elec- tive share, homestead allowance, exempt property, and family allowance by each party in the property of the other and a renunciation by each of all benefits which would otherwise pass to him or her from the other by - 146 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136
intestate succession, or by virtue of the provisions of any will executed before this waiver or by virtue of any other law. Section 8.3 further specifies that to the extent necessary to implement its terms, the agreement shall be interpreted as a “renunciation pursuant to Neb. Rev. Stat. § 30-2352,” a “waiver pursuant to Neb. Rev. Stat. § 30-2316,” a “waiver as to the augmented estate pursuant to Neb. Rev. Stat. § 30-2314(c),” a “waiver as to homestead rights pursuant to Neb. Rev. Stat. § 40-104,” and a “waiver of spousal rights to qualified retire- ment plan benefits.”
3. Trial At trial it was undisputed that Backyard Adventures was purchased in the summer of 2009. Heather had quit working in 2008 after the birth of her and Jonathan’s first child. Jonathan was unhappy at his place of employment, and Jonathan and Heather looked for a business that could be a good fit for their family. Heather described that they were looking for “some- thing we could do together that I would still be able to raise our kids but that I would be able to be an active part in and do something.” They found Backyard Adventures. Jonathan worked with an attorney to form a limited liability company, JBS Kids Play & Fitness, LLC (JBS Kids Play), to pur- chase Backyard Adventures at a purchase price of $444,391.04. The name “Backyard Adventures” was retained by the seller, so Jonathan changed it to Backyard Adventures Playworld and, eventually, around 2011, to Backyard Playworld. Jonathan’s parents gifted $375,000 toward the purchase price, transferring the gift directly into a checking account of JBS Kids Play. Jonathan testified that the remaining $65,000 of the purchase price came from the marital joint account. At the time of the purchase, the marital joint account had a balance of approximately $188,000. Jonathan denied that he and Heather had been saving up to purchase a business, stat- ing that “[i]t takes more than $188,000 to buy a business and - 147 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136
operate a business.” Heather, in contrast, understood that they had been living frugally and saving the substantial income they both made before Heather had their first child in order to purchase a business. She testified she did not know that a gift from Jonathan’s parents was made and used toward the pur- chase price. Rather, she was led to believe the purchase money came from the joint account. The evidence was disputed concerning what representa- tions were made by Jonathan with respect to the ownership of the business. This line of questioning was not objected to by Jonathan’s counsel. Heather testified that she believed they were purchasing Backyard Adventures together and that she had no idea that Jonathan was going to be the sole owner under a limited liabil- ity company (LLC) established for that purpose. She did not learn of the LLC until after the divorce proceedings were com- menced. Heather testified that Jonathan indicated to her they were co-owners of Backyard Playworld. Heather testified that Jonathan introduced her to people as a co-owner. Jonathan testified that at some point before closing, he told Heather the business would be titled solely in his name. In his prior deposition testimony that was adduced at trial, however, Jonathan had stated that he did not recall ever discussing the ownership interest of the business. Later in his testimony at trial, Jonathan stated with respect to whether he told Heather “she was not a co-owner of the business,” that “I don’t have any recollection of saying one or the other.” Heather was present at closing but did not sign any of the paperwork. She described that she did not think this unusual given her prior work experience at a car dealership and her understanding that with cash transactions there can be two names on the title but only one person needs to sign it. The closing statement for the purchase described Jonathan as “Managing Partner, Buyer.” Heather was not present when Jonathan went to his attorney to establish JBS Kids Play. Jonathan admitted that he never had a conversation with - 148 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136
Heather explaining that he was forming an LLC in his own name for the purpose of being the sole owner of Backyard Playworld. In his deposition testimony adduced at trial, Jonathan had stated he did not know why Heather’s name was not on any of the paperwork for the purchase of the business. Jonathan testi- fied at trial he did not know if there was any reason Heather would have believed for the previous 14 years that she was not the co-owner of Backyard Playworld. Jonathan testified that when the purchase was made, he and Heather trusted each other. Heather was the only authorized signatory other than Jonathan for the bank account associated with JBS Kids Play. Without objection, the court accepted into evidence the picture of a sign displayed for the public at the entrance of Backyard Playworld with a message welcoming customers. It was signed by “Heather and Jon Simons - Owners.” Also entered into evidence without objection was a copy of the business cards provided by Jonathan to Heather, which described a “family company” and Heather as “[o]wner.” A former employee of Backyard Playworld, who had worked for Backyard Adventures before the purchase, testi- fied he was introduced to Jonathan and Heather as co-owners of the business. He testified that Jonathan specifically intro- duced Heather to him as an owner and that he had witnessed Jonathan introduce Heather to other people as an owner of the business. Heather described that after they purchased Backyard Adventures, she worked on site, bringing their 11-month-old child to work with her. She generally worked 7 days a week from opening at 10 a.m. until 3 p.m. when their child took a nap. She worked in the “front of the store” in sales while Jonathan worked in the “back.” She continued to work in that manner, later bringing their second child to work as well or asking the children’s grandparents to babysit, until the children’s activities required Heather to be away from work - 149 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136
more often, approximately 3 or 4 years before Jonathan filed for divorce. Heather continued to work on an “as-needed” basis. Heather also described contributing and implementing suc- cessful new ideas for the business, such as hosting birthday parties on a larger scale than the prior owner had and having “pay to play” hours. It was also Heather’s idea to host end-of- the-year school parties, to rent the facilities to organizations, to host parties for a charitable foundation, and to set up spon- sorship tents at various events. Jonathan testified that before purchasing Backyard Adventures, he and Heather had discussed that she was going to work in the business. Jonathan testified that Heather worked at Backyard Playworld on the sales floor and answered phone calls, explaining “there wasn’t a lot of money to go around as far as starting a new business, and . . . my spouse, was, you know, not only a reliable employee but obviously a way to have a staff without having an expense.” Jonathan testified that he paid Heather a yearly salary of around $10,000 to be able to fund her individual retirement account to the maximum allowable each year. Heather was paid at the end of the year, and Jonathan would sign the checks and deposit them into the marital joint account. The record contains copies of yearly checks made out to Heather from JBS Kids Play for approximately $7,000 each and signed by Jonathan. Heather described a division of marital responsibilities under which she was not privy to their finances. During the marriage, Heather did not maintain a separate bank account. Jonathan maintained a separate, personal checking account, which Heather testified at trial she was not aware of. Heather stated she believed all income and gifts were going into the joint marital account. However, Jonathan described that each year his parents gifted the maximum allowable tax-free amount to both him and to Heather and that he deposited the check made out to him into his personal account and - 150 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136
deposited the check made out to Heather into their marital joint account. Jonathan testified that he took care of all the “financials” in their relationship. The parties’ second child was born in 2010. According to Jonathan, he and Heather began experiencing marital difficul- ties in 2013 and sought legal advice concerning a possible divorce in 2017. But they continued to work on their mar- riage, and Jonathan did not move out until the spring of 2020. Heather confirmed the dates of these marital difficulties and testified that Jonathan asked her not to leave because he could not run Backyard Playworld without her. In 2017, Jonathan formed DogWatch, LLC, to separate a hidden fencing business from Backyard Playworld for pur- poses of selling it. The proceeds of the sale of DogWatch was held in an account under DogWatch’s name, which has a bal- ance of $333,497.24. Heather testified she worked in sales for the hidden fencing aspect of the business and handled those customers’ needs. According to Heather, it was a joint deci- sion to sell that aspect of the business. She knew a separate checking account had been established for DogWatch but did not know it had been separated into an LLC under Jonathan’s sole ownership. While Backyard Playworld originally operated out of a leased space, Jonathan and Heather decided to purchase a building in 2019 from which to operate. Jonathan formed JBS Properties, LLC, to make the purchase. Jonathan testified that Heather was not involved in the decision as to which building was ultimately purchased for Backyard Playworld in 2019—at least he did not recall that she was. Jonathan described that he took Heather to see the build- ing, but he testified she did not help him find it. Jonathan did not recall that Heather was involved in planning the layout of the new building. Jonathan testified that Heather had no involvement in the formation of JBS Properties. The money to purchase the new building came from cash out of JBS Kids Play with the - 151 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136
remainder from financing. Heather’s name is not on any of the documents associated with the purchase of the building. Heather testified it was always their long-term goal to pur- chase a different location for the business rather than lease space. She testified she was involved in discussions regarding the move and accompanied Jonathan in looking for possible buildings. Once the new building was purchased, according to Heather, she helped plan the layout for the new space. Heather had no knowledge of the existence of JBS Properties. At the time of trial, Jonathan’s personal net worth, not including the businesses, was approximately $5.3 million. Jonathan’s net worth had increased by approximately $4 mil- lion during the course of the marriage. Jonathan testified that the only asset jointly titled to both himself and Heather was their house. Their jointly held check- ing account had been dissolved. Jonathan denied making any representations to Heather that she jointly owned JBS Kids Play. Gregory Harr, an accredited business valuator, testified as an expert for Heather concerning the value of Backyard Playworld. Harr testified that there are three different approaches in assigning a value to a business: the asset approach, the income approach, and the market approach. Harr explained that the asset approach is typically used for companies that are going to be liquidated or that are heavy in real estate or securities. Harr explained that the market approach uses several different fac- tors to determine a probable sale price. The income approach attempts to value a future economic benefit. Harr valued JBS Kids Play as of 2019 using the “fair value” approach, valuing it as a “going concern” utilizing both the market approach and the income approach versus the asset approach. Harr testified, without objection, that it was his professional opinion that the “fair value” approach was the more accurate valuation approach for divorces. Harr explained there is a dif- ference between “fair value” and “fair market value”: - 152 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136
Fair market value is going to be the value that is deter- mined by a hypothetical buyer and a hypothetical seller, neither one of which is being forced to make a decision as to what the — what it’s going to be selling for. The value of fair market value, depending upon what you’re going to have is if it’s a controlling interest or a noncontrolling interest. Discounts come into play for that situation, and the size of the discount will depend upon whether it’s controlling or non-controlling. But then you also in all cases with fair market value you’re going to have a lack of marketability that comes into play. And the difference between fair market value and fair value is that there [are] no discounts in fair value versus fair market value because of the situation. In sum, Harr affirmed he was “just not including in some cases the discount for lack of control,” which he would not apply anyway in this case. Daniel Morris, who was accredited in business valuations, was the expert retained by Jonathan to assess the value of JBS Kids Play, doing business as Backyard Playworld. He testified that he chose fair market value as opposed to fair value as the standard to determine the valuation of Backyard Playworld because there’s a reasonable expectation that if this business were to be sold — not to a specific buyer but to a buyer, which is supposed to represent any potential buyer — that the price would need to be fair market value in order for that transaction to occur. Morris opined that fair value was not an appropriate method- ology in a divorce in Nebraska, explaining that while “both methods are used because they are commonly both accepted practices,” he did not believe Jonathan would be able to get a fair value in the real world if he were to actually sell the business. He explained that “therefore, a discount for lack of marketability must be applied.” - 153 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136
Morris elaborated that one of the big differences between fair value and fair market value is fair value does not allow discounting. In his valuation, Morris discounted 28 percent from the net book value of the going concern, for what Morris perceived to be its lack of marketability. Morris conceded in cross-examination that his valuation uti- lizing fair market value for JBS Kids Play as a going concern was significantly lower than its net book value that could be received if liquidated. Morris explained the discrepancy by stating that he did not use the asset approach. Morris conceded that “[p]otentially,” fair value, as opposed to fair market value, of a business in a divorce case means “we’re not going to use discount because a property isn’t up for sale, it isn’t going to be sold.” Morris testified that in his experience, he has seen both fair value and fair market value approaches utilized in divorce cases. Morris conceded that in his interviews with Jonathan there was no indication of an intention to sell Backyard Playworld, but he thought that the use of fair value favors one spouse by “using a specific buyer.” Both experts testified as to the unusual amount of cash equity being held by JBS Kids Play in comparison to its oper- ating expenses. Its bank account held over $700,000 in cash. Heather testified that she graduated from high school and does not have a college degree. When she and Jonathan were married, Heather was working in aftermarket sales in the parts department at a car dealership. It required her to work approxi- mately 50 hours a week and included working well into the evening and on weekends. She earned approximately $95,000 per year her final 2 years at that job. Prior years averaged around $70,000 annually. She had not worked outside the home anywhere other than at Backyard Playworld since the birth of the oldest child of the marriage approximately 12 years prior to the hearing. Heather did not think she could go back to sales work at a car dealership due to her obligations caring for the children and because of the use of newer technology that she has no experience with. - 154 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136
Heather submitted a list of monthly living expenses in the amount of $13,630. There was evidence that Jonathan’s monthly net income was $31,154 and that Heather’s monthly net income was $1,098. Other evidence showed Jonathan had a net cashflow of $590,990.37, derived from Backyard Playworld and various personally owned investment accounts. 4. Decree (a) Constructive Trust The court found the premarital agreement to be valid and enforceable. However, the court concluded that Heather had proved by clear and convincing evidence the existence of a constructive trust in Backyard Playworld such that Jonathan had an equitable duty to hold half of those businesses in trust for Heather; otherwise, Jonathan would be unjustly enriched. The court found that the entity the parties originally purchased, Backyard Adventures, was ultimately composed of JBS Kids Play, JBS Properties, and DogWatch. The court found that Jonathan and Heather jointly looked into business opportunities and decided on purchasing Backyard Adventures. Heather believed, based on the discussions with Jonathan, that they were purchasing the business together. Jonathan told Heather it was not necessary for her to sign any documents at closing because it would be a cash transaction. Of the $445,000 purchase price for the business, $375,000 came from a gift from Jonathan’s father. The court found that when Jonathan and Heather decided in 2019 to purchase a separate building for Backyard Playworld, Heather accompanied Jonathan to see the real estate agent, after which Jonathan and Heather jointly decided upon a building to purchase, and Heather assisted in planning the layout. Heather was led to believe from Jonathan that the building was an asset they owned together and was part of the business. The money to purchase the building came from Backyard Playworld. Heather was unaware until the com- mencement of the divorce proceedings that Jonathan had - 155 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136
placed the new building in a separate LLC controlled solely by Jonathan. The court found that Jonathan led Heather to believe they owned Backyard Playworld together and that Heather was unaware Jonathan had formed JBS Kids Play to hold their company. The court noted statements by Jonathan to Heather and employees working at Backyard Playworld that Heather was an owner. The sign at the entry of the building, as well as business cards, referred to Heather as an “[o]wner” of Backyard Playworld. The court found that Heather worked sig- nificant hours at the business up to approximately 3 to 4 years before Jonathan filed for divorce, when she reduced her hours in order to take their children to and from activities. The court found that Heather worked without getting a paycheck and was unaware that Jonathan was issuing paychecks in her name, which he would deposit into their joint account that held the earnings from the business. The court found that Heather con- tributed toward the growth of the business not only by working on the sales floor but also through marketing, the creation of paid playtime as a new vehicle for revenue, the expansion of the party room rental, and the use of the play areas for events. She was also actively involved in the most recent acquisition of the new location and its interior layout. The court observed that under section 4.6 of the premarital agreement, neither party was prevented from adding to the marital estate from their separate property and that, under sec- tion 3.4, the marital estate is to be divided equally. The court found that Jonathan contributed Backyard Playworld (which included JBS Kids Play, JBS Properties, and DogWatch) to the marital estate and that it should be divided equally between Jonathan and Heather. The court found that the value of JBS Kids Play was $1,444,722. It found the value of DogWatch to be $333,497.24, which reflected the cash balance of the DogWatch account that held the proceeds from its sale. The court found that JBS Properties had an “equity value” of $500,000. Thus, the court - 156 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136
found that the total value of Backyard Playworld and its associ- ated entities—to be divided equally between the parties—was $2,278,219.24. (b) Gift of $375,000 The court specifically found that the $375,000 gifted to Jonathan by his father and utilized in the purchase of Backyard Adventures was added to the marital estate pursuant to section 4.6 of the premarital agreement. Thus, it became a marital asset subject to division. (c) Truck The court found that Jonathan’s 2019 Ram pickup truck with a value of $57,141 should be made part of the marital estate. (d) $150,000 Pursuant to section 3.3(b) of the agreement, the court found that Jonathan was obligated to pay Heather $150,000 from Jonathan’s separate estate. This was above and beyond the division of the marital estate. (e) Alimony and Life Insurance The court awarded Heather monthly alimony of $5,500 for 72 months. The court also ordered child support, which is not at issue in this appeal. The court ordered Jonathan to maintain life insurance cov- erage in an amount sufficient to fund his child support and spousal support obligations in the event of his death. III. ASSIGNMENTS OF ERROR Jonathan assigns that the trial court erred (1) by allow- ing Heather to amend her pleadings to include claims of fraud, unjust enrichment, and constructive trust after the trial, unfairly surprising him with new claims and denying him due process; (2) in its finding that Heather proved by clear and convincing evidence that Jonathan engaged in fraud and would be unjustly enriched unless Backyard Playworld were added to the marital estate via constructive trust; (3) in dividing the - 157 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136
marital estate and ordering life insurance to fund support; (4) in using the opinion of Heather’s expert in valuing Backyard Playworld; (5) in its award of alimony; (6) in the specific find- ings related to documents signed at closing and the purchase of Backyard Adventures; and (7) in failing to impose the waiver in the Premarital Agreement.
IV. STANDARD OF REVIEW [1] Permission to amend a pleading is addressed to the dis- cretion of the trial court, and an appellate court will not disturb the trial court’s decision absent an abuse of discretion. 1 [2] The determination of whether the procedures afforded to an individual comport with constitutional requirements for procedural due process presents a question of law. 2 [3] An action to impose a constructive trust sounds in equity, which we review de novo on the record, giving consideration, where the evidence is in conflict, to the fact that the trial court observed the witnesses and their manner of testifying and accepted one version of facts rather than the opposite. 3 [4] In a marital dissolution action, an appellate court reviews the case de novo on the record to determine whether there has been an abuse of discretion by the trial judge in his or her determinations regarding custody, child support, division of property, alimony, and attorney fees. 4 [5] A judicial abuse of discretion exists if the reasons or rul- ings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters submitted for disposition. 5 1 United Gen. Title Ins. Co. v. Malone, 289 Neb. 1006, 858 N.W.2d 196 (2015). 2 Dycus v. Dycus, 307 Neb. 426, 949 N.W.2d 357 (2020). 3 See, ProData Computer Servs. v. Ponec, 256 Neb. 228, 590 N.W.2d 176 (1999); Ford v. Jordan, 220 Neb. 492, 370 N.W.2d 714 (1985). 4 See Vanderveer v. Vanderveer, 310 Neb. 196, 964 N.W.2d 694 (2021). 5 Devney v. Devney, 295 Neb. 15, 886 N.W.2d 61 (2016). - 158 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136
[6] Appellate courts do not generally consider arguments and theories raised for the first time on appeal. 6 [7] As a contract, an antenuptial agreement is governed by the same principles that are applicable to other contracts, but is subject to the particular statutory requirement that an antenup- tial agreement must be based on fair disclosure. 7 [8] When the terms of a contract are clear, a court may not resort to rules of construction, and terms are accorded their plain and ordinary meaning as an ordinary or reasonable person would understand them. In such a case, a court shall seek to ascertain the intention of the parties from the plain language of the contract. 8 V. ANALYSIS Several issues are presented in this appeal pertaining to the constructive trust, the first of which is whether the court erred in considering the question of a constructive trust at all, given that it was not specifically mentioned in Heather’s responsive pleading. Beyond that, Jonathan argues that the constructive trust was inconsistent with the premarital agreement and that the evidence was generally insufficient to establish a construc- tive trust. Lastly, Jonathan argues that the valuation of the trust, based on fair value, was an abuse of discretion. The remaining issues presented in this appeal concern (1) a $150,000 lump-sum payment under the terms of the premarital agreement, which Jonathan claims to be inconsistent with the constructive trust; (2) an order to maintain life insurance to fund the support order, which he argues is inconsistent with the premarital agreement; (3) the inclusion of a truck in the marital estate, which Jonathan argues was already part of the business valuation informing the constructive trust; and (4) the alimony award, which Jonathan argues was excessive. 6 Maria T. v. Jeremy S., 300 Neb. 563, 915 N.W.2d 441 (2018). 7 In re Estate of Jakopovic, 261 Neb. 248, 622 N.W.2d 651 (2001). 8 Id. - 159 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136
1. Amendment of Pleadings Before addressing the merits of the constructive trust, we first consider Jonathan’s argument that the court erred in allowing amendment of the pleadings to include the issue of a constructive trust, as well as his related argument that his procedural due process rights were violated by a lack of timely notice to defend against the alleged constructive trust. Permission to amend a pleading is addressed to the discretion of the trial court, and an appellate court will not disturb the trial court’s decision absent an abuse of discretion. 9 The deter- mination of whether the procedures afforded to an individual comport with constitutional requirements for procedural due process presents a question of law. 10 [9] While the concept of due process defies precise defini- tion, it embodies and requires fundamental fairness. 11 Generally, procedural due process requires parties whose rights are to be affected by a proceeding to be given timely notice, which is reasonably calculated to inform the person concerning the sub- ject and issues involved in the proceeding; a reasonable oppor- tunity to refute or defend against a charge or accusation; a reasonable opportunity to confront and cross-examine adverse witnesses and present evidence on the charge or accusation; representation by counsel, when such representation is required by constitution or statute; and a hearing before an impartial decisionmaker. 12 Nebraska’s pleading rules provide for amendments to con- form to the evidence, stating: When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may 9 United Gen. Title Ins. Co. v. Malone, supra note 1. 10 Dycus v. Dycus, supra note 2. 11 Eric H. v. Ashley H., 302 Neb. 786, 925 N.W.2d 81 (2019). 12 Id. - 160 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136
be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the plead- ings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice the party in maintaining the party’s action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence. 13 Even when a party does not move to amend pleadings, a court may constructively amend pleadings on unpleaded issues in order to render a decision consistent with the trial. 14 [10] A court’s determination of questions raised by the facts, but not presented in the pleadings, should not come at the expense of due process, 15 and thus, our standards governing whether a court has abused its discretion in ordering construc- tive amendment of the pleadings are generally consistent with the fundamental fairness standards of procedural due process. We have said that the key inquiry for “express or implied consent” under § 6-1115(b) is whether the parties recognized that an issue not presented by the pleadings entered the case at trial. 16 We have held that express consent may thus be found when a party has stipulated to an issue or the issue is set forth in 13 Neb. Ct. R. Pldg. § 6-1115(b). 14 Denali Real Estate v. Denali Custom Builders, 302 Neb. 984, 926 N.W.2d 610 (2019). 15 Eric H. v. Ashley H., supra note 11. 16 R & B Farms v. Cedar Valley Acres, 281 Neb. 706, 798 N.W.2d 121 (2011). - 161 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136
a pretrial order. 17 As the court below rightly emphasized, Jonathan had actual notice before trial that the issue of a con- structive trust was to be tried, and he did not object or move for a continuance. The letter by Heather’s counsel, which was ordered by the court to set forth the issues in controversy, explicitly set forth the question of a constructive trust, unjust enrichment, and whether, even if the premarital agreement were valid, Heather was entitled to an ownership interest due to Jonathan’s representations. Jonathan’s counsel was given a copy of this letter and did not raise any objections to the issues in controversy stated therein. Jonathan’s arguments that the letter was not a “pleading” and that it did not explicitly use the words “fraud” or “misrep- resentation” miss the point. Fraud and misrepresentation are concepts inherent to any constructive trust claim, and a filing need not be a pleading in order to give the other party a timely and clear indication of the issues to be tried. Under the facts presented, we hold that the court did not abuse its discretion in ordering amendment of the pleadings pursuant to § 6-1115(b). We relatedly hold that because Jonathan had timely notice of the issues to be tried, the litigation of the constructive trust claim did not violate Jonathan’s constitutional right to pro- cedural due process. We turn to the merits of the construc- tive trust. 2. Imposing Constructive Trust [11] In an equitable property division governed by Neb. Rev. Stat. § 42-365 (Reissue 2016), all property accumulated and acquired by either spouse during the marriage is part of the marital estate, unless it falls within an exception to this general rule. 18 Under equitable property division, even if an asset was acquired before the marriage, accrued invest- ment earnings or appreciation of nonmarital assets during 17 Blinn v. Beatrice Community Hosp. & Health Ctr., 270 Neb. 809, 708 N.W.2d 235 (2006). 18 See Stephens v. Stephens, 297 Neb. 188, 899 N.W.2d 582 (2017). - 162 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136
the marriage are presumed marital unless the party seeking the classification of the growth as nonmarital proves: (1) The growth is readily identifiable and traceable to the nonmarital portion of the account and (2) the growth is not due to the active efforts of either spouse. 19 [12] Spouses are able to contract around the general rules of equitable division by using a premarital agreement. 20 Neb. Rev. Stat. § 42-1004 (Reissue 2016) permits parties to a premarital agreement to contract with respect to, among other things, “The rights and obligations of each of the parties in any of the prop- erty of either or both of them whenever and wherever acquired or located” and “[t]he disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event.” In this appeal, there is no dispute that the premarital agreement between Heather and Jonathan was valid and enforceable. (a) Coexistence With Premarital Agreements The district court implemented the terms of the premarital agreement after imposing upon Jonathan a constructive trust with respect to one-half of the interest in the limited liabil- ity companies (LLCs) of Backyard Playworld, deeming them part of the marital estate under the agreement. It is true that this result happens to be similar to what would have occurred under equitable division under § 42-365, unless Jonathan had sustained his burden to prove the assets to be nonmarital. It is also true that “[t]he remedy of constructive trust may not be applied randomly to adjust general equities between spouses or as a punitive measure . . . .” 21 It does not follow, however, that the court conflated the remedy of constructive trust with simple equitable division. 19 See id. 20 See Cook v. Cook, 26 Neb. App. 137, 918 N.W.2d 1 (2018). 21 Saff v. Saff, 61 A.D.2d 452, 456, 402 N.Y.S.2d 690, 693 (1978). See, also, 9 Alan D. Scheinkman, West’s McKinney’s Forms Matrimonial and Family Law § 3:11 (Feb. 2022). - 163 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136
[13-15] A constructive trust can coexist with valid premari- tal agreements setting forth separate and marital property simi- larly to the one here presented, 22 and the principles governing a constructive trust are meaningfully different from those governing the general equitable division of marital property. Under a constructive trust, equity vests title to the subject property in the wronged party and the court may issue a decree that the title be so conveyed. 23 A constructive trust is imposed when one has acquired legal title to property under such cir- cumstances that he or she may not in good conscience retain the beneficial interest in the property. 24 In such a situation, equity converts the legal titleholder into a trustee holding the title for the benefit of those entitled to the ownership thereof. 25 A constructive trust is a relationship, with respect to property, subjecting the person who holds title to the property to an equitable duty to convey it to another on the grounds that his or her acquisition or retention of the property would constitute unjust enrichment. 26 We disagree with Jonathan’s general assertion that a con- structive trust cannot be utilized to establish ownership for purposes of implementing a valid premarital agreement. And we find nothing in the ownership provisions of the premarital agreement set forth above that precludes the remedy of a con- structive trust as the means of recognizing that certain assets, regardless of their original legal titling, are co-owned and therefore part of the marital estate to be divided equally under the premarital agreement. 22 See Martin v. Farber, 68 Md. App. 137, 510 A.2d 608 (1986). See, also, Peden v. Peden, 972 So. 2d 106 (Ala. Civ. App. 2007); Leathers and Leathers, 98 Or. App. 152, 779 P.2d 619 (1989). 23 See Caryl A. Yzenbaard et al., Bogert’s The Law of Trusts and Trustees § 471 (3d ed. 2009). 24 Dreesen Enters. v. Dreesen, 308 Neb. 433, 954 N.W.2d 874 (2021); Wait v. Cornette, 259 Neb. 850, 612 N.W.2d 905 (2000). 25 Wait v. Cornette, supra note 24. 26 Dreesen Enters. v. Dreesen, supra note 24. - 164 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136
(b) Evidence Supporting Constructive Trust Jonathan alternatively asserts that the court erred in finding the evidence presented at trial supported a constructive trust and that thus, it misused the vehicle of a constructive trust to adjust the general equities between the parties. We review a court’s determination of a constructive trust de novo on the record, giving consideration to the fact that the trial court observed the witnesses and accepted one version of facts rather than another. 27 [16-21] In determining whether to impose a constructive trust, the court will consider not only the original situation but also all events which have occurred since the defendant began to hold inequitably. 28 A party seeking the remedy of a construc- tive trust has the burden to establish the factual foundation, by evidence which is clear and convincing, required for a con- structive trust. 29 However, it has been said that the constructive trust doctrine is equitable in nature and should not be rigidly limited and that the absence of any one factor will not itself defeat the imposition of a constructive trust when otherwise required by equity. 30 We have explained that where a situation exists which is contrary to the principles of equity and which can be redressed within the scope of judicial action, a court of equity will devise a remedy to meet the situation. 31 Equity is not a rigid concept, and its principles are not applied in a vacuum. 32 Equity is determined on a case-by-case basis when justice and fairness so require. 33 [22,23] Generally, a court, sitting in equity, will not impose a constructive trust and constitute an individual as a trustee 27 See ProData Computer Servs. v. Ponec, supra note 3. 28 See Yzenbaard, supra note 23. 29 Dreesen Enters. v. Dreesen, supra note 24. 30 In re Koreag, Controle et Revision S.A., 961 F.2d 341 (2d Cir. 1992). 31 Anderson v. Bellino, 265 Neb. 577, 658 N.W.2d 645 (2003). 32 Manker v. Manker, 263 Neb. 944, 644 N.W.2d 522 (2002). 33 Id. - 165 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136
of the legal title for property unless it be shown, by clear and convincing evidence, that the individual, as a potential constructive trustee, had obtained title to property by fraud, misrepresentation, or an abuse of an influential or confidential relationship and that, under the circumstances, such individual should not, according to the rules of equity and good con- science, hold and enjoy the property so obtained. 34 A con- structive trust is imposed to do equity and to prevent unjust enrichment. 35 [24,25] We have explained that unjust enrichment is a flex- ible concept, 36 occurring when a claim is based on the failure of consideration, fraud, or mistake and in other situations where it would be morally wrong for one party to enrich him- self or herself at the expense of another. 37 We have explained in the context of a constructive trust that “fraud” comprises all acts, omissions, and concealments involving a breach of legal or equitable duty, trust, or confidence justly reposed, and are injurious to another, or by which an undue and unconscien- tious advantage is taken of another. 38 Similarly, with respect to “confidential relationship,” it has been said that “[e]quity has never bound itself by any hard and fast definition of the phrase ‘confidential relation’ and has not listed the neces- sary elements for such a relationship to exist but rather has reserved discretion to apply the doctrine whenever it believes that a suitable occasion has arisen,” 39 but “[o]ften the par- ties are related by blood or marriage and that relationship when coupled with the status of the parties as to health, age, 34 Dreesen Enters. v. Dreesen, supra note 24. 35 Vogt v. Town & Country Realty of Lincoln, Inc., 194 Neb. 308, 231 N.W.2d 496 (1975). 36 City of Scottsbluff v. Waste Connections of Neb., 282 Neb. 848, 809 N.W.2d 725 (2011). 37 In re Graphics Technology, Inc., 306 B.R. 630 (8th Cir. 2004). 38 See Fisher v. Keeler, 142 Neb. 728, 7 N.W.2d 659 (1943). 39 Yzenbaard, supra note 23, § 482 at 281. - 166 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136
education, and dominance may lead a court to find that a con- fidential relationship exists.” 40 Only a few cases in Nebraska have addressed construc- tive trusts in property accumulated during a marital or similar relationship. In Manker v. Manker, 41 we affirmed the imposition of a constructive trust upon one half of the personal property titled solely in the name of the ex-husband whom the plaintiff mis- takenly believed she was still married to. 42 The parties cohabi- tated for 19 years and held themselves out to be married. Less than a year after the parties were married, the defendant filed a petition for dissolution and then falsely told the plaintiff he had dismissed the action when, in reality, he received a default judgment. Believing them to be married, the plaintiff allowed the defendant to handle all the couple’s finances and control all the assets. While occupying a “superior position in the relation- ship,” the ex-husband placed nearly all of the property accumu- lated during their cohabitation in his sole name. 43 These facts, we said, supported the district court’s finding of a constructive trust. Moreover, while the plaintiff had learned more than 4 years before bringing the action that she was not married to the defendant, we affirmed the lower court’s conclusion that the defendant, who had acted inequitably and dishonestly and cajoled the plaintiff into delaying any action, could not rely on the statute of limitations as a defense. In contrast, in Dreesen Enters. v. Dreesen, 44 also involv- ing a cohabitating relationship that continued after the parties’ divorce, albeit only sporadically, we affirmed the court’s denial of a constructive trust against the ex-husband’s corporation for 40 Id. at 292-93. 41 Manker v. Manker, supra note 32. 42 See, also, Blome v. Blome, 201 Neb. 687, 271 N.W.2d 466 (1978); Workman v. Workman, 174 Neb. 471, 118 N.W.2d 764 (1962). 43 Manker v. Manker, supra note 32, 263 Neb. at 962, 644 N.W.2d at 537. 44 Dreesen Enters. v. Dreesen, supra note 24. - 167 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136
one-half of the value of a house the ex-wife was living in and where, for awhile, the ex-husband also lived. 45 The lower court ultimately found more credible the ex-husband’s testimony that he had fully disclosed to the ex-wife that the subject property would be titled solely in his company’s name, that the parties had explicitly agreed the ex-wife would pay rent to live there, and that $50,000 for the downpayment provided by the ex-wife was, under the parties’ express oral agreement, merely a bridge loan. We affirmed the lower court’s monetary judgment in favor of the ex-wife for the unpaid $50,000 loan. Similarly, in Peterson v. Massey, 46 we affirmed the court’s denial of a constructive trust, given the dearth of evidence presented by the decedent wife’s heirs from a prior marriage to support their claim to one half of the widower husband’s farm under the theory that the couple had orally agreed to enter into a partnership. There were no allegations of wrongdoing or of dominance or disparities in health, age, or education. The evi- dence consisted only of statements by the husband referring to the farm as “‘our’” property and saying “‘[i]t’s your’s as well as mine,’” 47 a one-time contribution by the wife of $750 in capital and goods, and the fact that the wife had occasionally worked in the field. Cases from other jurisdictions provide further illustration of when and how constructive trusts are imposed in favor of a spouse upon closely held business enterprises. In Janke v. Janke, 48 the appellate court affirmed the lower court’s imposition of a constructive trust in half of a tavern business titled solely in the husband’s name. 49 Both parties 45 See, also, Wells v. Wells, 3 Neb. App. 117, 523 N.W.2d 711 (1994). 46 Peterson v. Massey, 155 Neb. 829, 53 N.W.2d 912 (1952). 47 Id. at 833, 53 N.W.2d at 915. 48 Janke v. Janke, 47 A.D.2d 445, 366 N.Y.S.2d 910 (1975). 49 See, also, e.g., West v. Christensen, 576 B.R. 223 (D. Utah 2017); Brown v. Odom, 425 S.C. 420, 823 S.E.2d 183 (S.C. App. 2019); Keeney v. Keeney, 223 S.W.3d 843 (Ky. App. 2007); Levin v. Levin, 43 Md. App. 380, 405 A.2d 770 (1979); Genter v. Genter, 270 So. 2d 388 (Fla. App. 1972). - 168 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136
were signatories to the bank loan used for its purchase, it was the parties’ intention to operate the tavern as a husband and wife operation, the wife worked extensive hours at the tavern, the husband’s salary and a small inheritance by the wife were contributed to the business, and all family needs were paid for by business proceeds. The court explained that though a prom- ise in words might have been lacking, the promise underlying the constructive trust may be implied. “The understanding of the parties should be interpreted not literally and irrespective of its setting but sensibly and broadly with all its reasonable implications.” 50 Under the facts of the case, noted the court, “the entire relationship and the actions and contributions made by both parties were instinct with a mutual promise of a joint endeavor for the benefit of both.” 51 In other words, “[t]he absence of any express promise formalizing the venture grows out of the very confidence and trust implicit in the marriage relationship.” 52 The court concluded that it would constitute unjust enrichment to permit the husband to retain for himself all of the business assets to which each contributed and which each rightfully expected to share. In Leathers and Leathers, 53 the court likewise affirmed an award to the wife of an undivided one-half interest in properties purchased by the business titled solely in the hus- band’s name. 54 It did so despite a valid antenuptial agreement assigning to the husband all property owned by the husband or thereafter acquired “‘by any means whatsoever.’” 55 The court found that the evidence supported a partnership in the business and that the property purchased when the business was titled solely in the husband’s name was therefore held 50 Janke v. Janke, supra note 48, 47 A.D.2d at 448, 366 N.Y.S.2d at 914. 51 Id. 52 Id., 47 A.D.2d at 448-49, 366 N.Y.S.2d at 914. 53 Leathers and Leathers, supra note 22. 54 See, also, Scull v. Scull, 94 A.D.2d 29, 462 N.Y.S.2d 890 (1983). 55 Leathers and Leathers, supra note 22, 98 Or. App. at 155, 779 P.2d at 620. - 169 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136
in partnership by the parties. The evidence of the partner- ship was that the business was later changed to a jointly owned proprietorship that held 80 percent of the company assets, the wife worked for the business without compensation for 22 years, the wife was consulted before purchasing any property, the wife was registered with the commissioner as a “co-proprietor,” and the wife was held out to employees as a co-owner of the business. 56 In a somewhat similar case, Scull v. Scull, 57 the court imposed a constructive trust based on an implied agreement of a joint venture, noting that “an agreement for joint venture between spouses is rarely spelled out in writing” and can be implicit. Such promises within the confines of a marital asso- ciation combined with independent evidence “of a pattern or a lifestyle indicating that the parties were engaged in a joint ven- ture,” when combined with unjust enrichment, were sufficient to establish a constructive trust in that case. 58 In contrast, under the facts presented in Turner v. Turner, 59 the court found the evidence insufficient to impose a con- structive trust in 50 percent of a closely held corporation and affirmed the lower court’s determination also so finding. The business in question was a lighting business that had evolved from the husband’s childhood hobby. The husband was the president, owning 65 shares of its stock. His technical knowl- edge and skill, noted the court, were crucial to the business’ success. The wife held 10 shares of the stock. The wife per- formed many tasks for the business but was compensated at a significantly higher salary than the salary drawn by the hus- band. 60 During the marriage, the parties discussed the wife’s desire to hold more stock and, despite her explicit requests, 56 Id. at 158, 779 P.2d at 622. 57 Scull v. Scull, supra note 54, 94 A.D.2d at 34, 462 N.Y.S.2d at 893. 58 Id. 59 Turner v. Turner, 147 Md. App. 350, 809 A.2d 18 (2002). 60 Id. - 170 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136
there was no evidence her husband ever promised to give her an equal number of shares. 61 The district court observed Heather’s and Jonathan’s testi- monies and accepted one version of facts rather than another. Viewing the evidence in that light, we find the evidence more similar to those cases finding support for a constructive trust than to those that do not. Heather testified as to an implied promise or understanding between her and Jonathan that they were acquiring a business with their joint savings and that they were going to run the business together. She noted that they had worked together since the day they had met and have the same work ethic, so it was always their long-term goal to find their own business that both of them could have an active role in. The parties had in fact accumulated from their joint earning $188,000 in their joint bank account at the time of the initial purchase of Backyard Adventures, and Heather had no idea that there was a substantial gift utilized for the purchase such that only $65,000 from their joint account ultimately was used. Jonathan represented to Heather, employees, and the public at large that they were co-owners of the business. Heather was designated as “[o]wner” on business cards and signage, and she was a cosignatory on JBS Kids Play’s account. Heather contributed a substantial amount of labor over the years with minimal pay, which Jonathan described as a way of having staff without having expense. Additionally, Heather contributed toward the growth of the business by being the public face of the venture, working the “front of the store,” and through mar- keting events and her ideas that expanded the business’ offer- ings to the public and maximized the layout of their showroom and party rooms. She claimed that Jonathan had told her he could not run the business without her. Both parties testified that Jonathan handled the parties’ finances and sorted through their mail. All family needs were 61 See id. - 171 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136
paid by business proceeds. Heather described a “traditional” spousal relationship where Jonathan handled their accounting. Heather stated, “[H]e was very dominant and ‘I’m the man’ type person, and I allowed it, I guess.” Despite not signing the relevant paperwork, Heather testified she did not suspect at any point during the marriage that she was not in fact a co-owner of Backyard Playworld. Jonathan, with the help of attorneys and without Heather’s knowledge, crafted several LLCs in his own name. The family needs were paid for almost exclusively by business proceeds, although a significant amount of proceeds were left as cash assets in the business accounts titled solely in Jonathan’s name. The family was also supported in small part by cash gifts to Heather, which were deposited into the par- ties’ joint account. Only after the divorce action was filed did Heather learn that “this whole time he’d been lying to me, he’d been using me, he had been completely taking advantage of my trust in him, and it was all a lie.” Jonathan focuses on Heather’s prior experience at a car dealership as evidence that she should have known she was not a co-owner because she did not sign any paperwork. In cases where a constructive trust is imposed on a business venture titled in only one spouse’s name, some paperwork is usually involved that the plaintiff spouse is aware of. This is but one circumstance for a court to consider in determining whether equity requires the imposition of a consructive trust. There is little support for the premise that the plaintiff spouse should be foreclosed from a constructive trust claim simply because that spouse has some knowledge of paperwork involved in the formation of the subject business venture, which the plaintiff spouse did not sign. We defer to the trial court’s determina- tion that, despite knowing she did not sign certain paperwork, Heather did not have actual knowledge she was not a co-owner. The court did not err in determining that, under all the relevant circumstances, the equities lay with Heather. The evidence was sufficient to show a confidential rela- tionship under which Heather contributed to and rightfully - 172 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136
expected to share in the business as a partner or co-owner. There was an implied promise of a joint venture that Jonathan did not act in accordance with when he surreptitiously orches- trated several LLCs in his sole name. The evidence was suf- ficient to prove Jonathan would be unjustly enriched if he were allowed to keep for himself the benefit of Heather’s substantial contributions to the business made under that understanding between them. Viewing the evidence de novo, but with con- sideration for the fact that the district court observed the wit- nesses and accepted one version of facts rather than another, we conclude that Heather established the factual foundation, by evidence which is clear and convincing, required for a constructive trust. The district court did not err in finding the evidence sufficient to support the imposition of a constructive trust in one-half of Backyard Playworld. Jonathan asserts the court erroneously made a finding that he told Heather there was no need to sign paperwork because the purchase of Backyard Adventures was going to be a cash transaction. This finding appears to be derived from Heather’s cross-examination, wherein she was questioned as to why she did not suspect she was not a co-owner by virtue of the fact that she was not asked to sign anything during the closing of the purchase of Backyard Adventures. She explained that “we were paying cash, so [Jonathan] signed, and [I] trusted my husband’s word.” The court also refers in its order to closing arguments and “proposed findings,” which are not in the appel- late record. As we have already explained, the failure to sign the paperwork was at best marginally material to the overall question of whether Heather proved a constructive trust. The technical misstatement in the court’s order does not call into question its ultimate finding of a constructive trust. Jonathan similarly takes issue with the court’s statement in its order that “Backyard Playworld was originally purchased by [Jonathan] and [Heather] as Backyard Adventures, Inc.” He argues there is no support for this finding in any witness state- ment or document from the trial record. It appears from the - 173 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136
context that the court was well aware that Backyard Playworld was not legally purchased by both parties. We understand this statement as referring to the understandings and representa- tions that led to the imposition of the constructive trust. This also is not sufficient grounds to call into question the court’s judgment. (c) Consistency With Waiver Provision of Premarital Agreement [26] Jonathan raises for the first time in this appeal the argu- ment that establishing title under a constructive trust was pro- hibited by section 6 of the Premarital Agreement, wherein each party agreed “he or she will not make any claim of any kind to the property of the other in the event of death, dissolution of marriage, or separation except as specifically contemplated by the provisions of this Agreement.” The section also states, “[E]ach party waives all rights he or she may have in all or any part of the property of the other under any law . . . whether by way of dissolution of marriage . . . or any other right or inter- est.” This section was not specifically addressed by the court. An appellate court will not consider an issue on appeal that was not presented to or passed upon by the trial court. 62 In any case, we do not read this provision as prohibiting Heather from claiming title through a constructive trust. Unlike other rights to someone else’s property, which are established under laws such as the homestead allowance, 63 a constructive trust does not give rights to the property of another; it estab- lishes who actually owns the property. The constructive trust established that the Backyard Playworld LLCs were never the sole property of Jonathan; rather, title to the LLCs were equally Jonathan’s and Heather’s. Heather’s waiver of any rights to Jonathan’s property under section 6 and other provisions of the premarital agreement is therefore consistent with the district court’s order. 62 de Vries v. L & L Custom Builders, 310 Neb. 543, 968 N.W.2d 64 (2021). 63 See Neb. Rev. Stat. § 30-2322 (Reissue 2016). - 174 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136
(d) Mention of Statute of Limitations [27,28] Jonathan also raises for the first time on appeal the statute of limitations in relation to the constructive trust. He does so not in his assignments of error but only in passing in the argument section of his appellate brief concerning the alleged unfair surprise of the possibility of a constructive trust. To be considered by an appellate court, an alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error. 64 A statute of limitations is nonjurisdictional and waivable. 65 As the statute of limita- tions was not presented to or passed upon below and was not specifically assigned, or clearly argued, on appeal, we will not address in this appeal any question of the statute of limitations as pertains to the constructive trust. (e) Fair Value Versus Fair Market Value We turn to Jonathan’s challenge to the monetary value of the LLCs upon which the constructive trust was imposed. Jonathan argues the court erred in accepting the valuation by Heather’s expert, who utilized fair value rather than fair market value in making that valuation. Jonathan did not seek to exclude Harr’s testimony, and he did not object to Harr’s opinion that fair value was a more accurate valuation approach for divorces. Jonathan states on appeal that the “problem” with using fair value is its failure to contemplate minority discounts and discounts for lack of marketability, but he con- cedes that “[t]rial courts should have the discretion to reject or apply such discounts in the divorce context, to be sure.” 66 While Jonathan’s arguments respecting fair value versus fair market value are somewhat unclear, we view the issue pre- served below and presented to us on appeal as an attack on the weight the court accorded Harr’s opinions as opposed to their admissibility. 64 Diamond v. State, 302 Neb. 892, 926 N.W.2d 71 (2019). 65 State v. Wiemer, 3 Neb. App. 821, 533 N.W.2d 122 (1995). 66 Brief for appellant at 46. - 175 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136
[29,30] Even in equity actions, which are generally subject to de novo review, we have said that the determination of the weight that should be given expert testimony is uniquely the province of the fact finder. 67 And we have also said in this con- text that a trial court is not required to accept any one method of valuation as more accurate than another accounting proce- dure. 68 We have held that a trial court’s valuation of a closely held corporation is reasonable if it has an acceptable basis in fact and principle, 69 and there is no reason to hold the valuation of an LLC to a different standard. We hold that the district court did not abuse its discretion in the weight it accorded Harr’s expert opinion. Heather’s and Jonathan’s experts’ opinions as to the proper method of valua- tion under the circumstances of this case were in conflict, and the district court gave more weight to Harr’s testimony, which had an acceptable basis in fact and principle. The court’s valu- ation of Backyard Playworld was reasonable. It did not err in valuing Backyard Playworld in accordance with Harr’s fair value methodology. Jonathan argues somewhat abstractly that “experts should be required to articulate their opinions” about discounts and that “falsely claiming” fair value has been used in Nebraska divorce cases as “at best, a clever way to avoid cross-examination on your failure to intellectually address important valuation issues” and “[a]t worst,” the presentation of an “artificially inflated business value in the hopes that a court might ‘bite’ if not conversant with business valuations.” 70 But we observe that Jonathan’s own expert, Morris, testified that both fair value and fair market value were commonly accepted practices and that he had seen both types of valuation utilized in divorce cases. 67 See Anderson v. A & R Ag Spraying & Trucking, 306 Neb. 484, 946 N.W.2d 435 (2020). 68 See, id.; Bryan v. Bryan, 222 Neb. 180, 382 N.W.2d 603 (1986). 69 Id. 70 Brief for appellant at 46. - 176 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136
Further, Harr did in fact articulate his opinions about the use of discounts in a dissolution case, such as this one, where the sale of the business is not being contemplated. We find no support for Jonathan’s apparent argument that Harr’s testimony was impermissibly misleading. (f) $375,000 Gift Next, Jonathan argues the court should have, at a minimum, set off the $375,000 gift that his parents contributed toward the purchase of Backyard Playworld and considered it part of Jonathan’s personal property for purposes of the division of assets. Jonathan’s only support for this assertion is the general proposition that under equitable division, a marital estate does not include property that a spouse has acquired before the marriage or by gift or inheritance. 71 However, the $375,000 became part of Backyard Playworld, the division of which was governed by the premarital agreement and the constructive trust, not equitable division governed by § 42-365. [31] Jonathan fails to make any argument under the law of constructive trusts that the gift utilized toward the purchase price of Backyard Adventures should be set off as Jonathan’s personal property. The money was deposited directly into the account held by JBS Kids Play. Jonathan’s parents did not intervene in the action to claim any interest therein; rather, it was undisputed that it was a gift. The ownership rights of a constructive trust beneficiary, once recognized, are protected from the moment the trustee acquired legal title, the construc- tive trust decree being in the nature of a declaratory judgment about the state of title to the property. 72 Thus, the gift was to the jointly owned business. We have already held in our de novo review that the constructive trust was not in error, and we do not find reason to set off from that trust the amount of the $375,000 gift to the LLC. 71 See Doerr v. Doerr, 306 Neb. 350, 945 N.W.2d 137 (2020). 72 See Restatement (Third) of Restitution and Unjust Enrichment § 55, comment e. (2011). - 177 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136
(g) Truck Jonathan argues that the truck owned at the time of filing for divorce, and valued at $57,141, should not have been calcu- lated as part of the marital estate because it was owned by the corporation and therefore was already included in the construc- tive trust that was given a separate value. It was undisputed at trial that the truck was titled in the name of the business. The court found the truck became part of the marital estate pursu- ant to section 4.6 of the premarital agreement. And from the court’s calculations dividing the marital estate, it is clear the court awarded the value of the truck to be divided twice, once as part of the constructive trust and again as separately listed marital property. We agree with Jonathan that this was in error. That part of the order itemizing the truck as part of the marital estate is vacated. 3. Lump-Sum Payment Under Agreement The court explained that the sum of $981,180 to equal- ize the division of the marital estate did not include the $150,000 owed under section 3.3(b) of the premarital agree- ment. Jonathan takes issue with the court’s order awarding the agreed-upon property equalization lump-sum payment in addi- tion to the constructive trust. He presents no law to support this argument. Nor does he appeal to the terms of the premarital agreement in relation to the lump sum. Rather, in a brief argu- ment, Jonathan characterizes the court’s order of a lump sum in addition to the constructive trust on Backyard Playworld as turning “the divorce decree into a kind of Frankenstein of con- tract and equity.” 73 The premarital agreement in section 3.3 sets forth that Heather waived “any and all claims for division of prop- erty or property settlement from [Jonathan] with respect to [Jonathan’s] Property in the event of a future legal separa- tion, divorce, annulment or other dissolution of this pro posed marriage” in exchange for a lump sum of money 73 Brief for appellant at 45. - 178 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136
based on the number of “Full Years of Marriage Subsequent to Marriage Date,” which, in this case of the marriage end- ing after between 10 and 15 years of marriage, is $150,000. (Emphasis supplied.) As already discussed, the constructive trust means that title to the Backyard Playworld LLCs is held in co-ownership. The premarital agreement contemplated the lump-sum settlement to be made in addition to the equal division of the marital estate, which included assets held in co-ownership. What was waived was Heather’s right to an equitable share in property solely owned by Jonathan which, due to the constructive trust, the LLCs were not. We disagree with Jonathan’s assertion that the court’s enforcement of the lump-sum settlement was improper. 4. Alimony Award Jonathan argues on appeal that the award of alimony was an abuse of discretion because it was excessive. He makes no argument that Heather’s right to alimony was waived in the prenuptial agreement. In a marital dissolution action, an appel- late court reviews the case de novo on the record to determine whether there has been an abuse of discretion by the trial judge in his or her determinations regarding custody, child support, division of property, alimony, and attorney fees. 74 Under § 42-365, “The purpose of alimony is to provide for the continued maintenance or support of one party by the other when the relative economic circumstances and the other crite- ria enumerated in this section make it appropriate.” The court may order payment of such alimony by one party to the other as may be reasonable, having regard for the circumstances of the parties, duration of the marriage, a history of the contri- butions to the marriage by each party, including contribu- tions to the care and education of the children, and inter- ruption of personal careers or educational opportunities, and the ability of the supported party to engage in gainful 74 See Vanderveer v. Vanderveer, supra note 4. - 179 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136
employment without interfering with the interests of any minor children in the custody of such party. 75 [32] Accordingly, we have articulated four factors that are relevant to alimony: (1) the circumstances of the parties, (2) the duration of the marriage, (3) the history of contributions to the marriage, and (4) the ability of the supported party to engage in gainful employment without interfering with the interests of any minor children in the custody of each party. 76 In addition, a court should consider the income and earning capacity of each party and the general equities of the situ- ation. 77 Alimony is not a tool to equalize the parties’ income, but a disparity of income or potential income might partially justify an alimony award. 78 The purpose of alimony is to pro- vide for the continued maintenance or support of one party by the other when the relative economic circumstances make it appropriate. 79 [33] In reviewing an alimony award, an appellate court does not determine whether it would have awarded the same amount of alimony as did the trial court, but whether the trial court’s award is untenable such as to deprive a party of a substantial right or a just result. 80 The ultimate criterion is one of reason- ableness. 81 An appellate court is not inclined to disturb the trial court’s award of alimony unless it is patently unfair on the record. 82 Heather does not have a college degree. She has not worked outside the home anywhere other than at Backyard Playworld since the birth of the oldest child of the marriage 75 § 42-365. 76 See Seivert v. Alli, 309 Neb. 246, 959 N.W.2d 777 (2021). 77 Id. 78 Id. 79 Id. 80 Id. 81 Id. 82 Id. - 180 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136
approximately 12 years prior to the hearing. The child support calculator entered into evidence without objection showed Jonathan’s monthly net income as $31,154 and Heather’s monthly net income as $1,098. Other evidence showed that Jonathan had a net cashflow for 2019 of $590,990.37, derived from the Backyard Playworld LLCs, as well as various invest- ment accounts. Before having children, Heather worked at a car dealership where she earned approximately $95,000 per year her final 2 years at that job. In previous years, she had earned around $70,000 annually. Heather did not think she could go back to sales work at a car dealership due to her obligations caring for the children and because of the use of newer technology that she has no experience with. Heather submitted a list of her monthly living expenses total- ing $13,630. The district court found that based on this evidence and con- sidering the factors in § 42-365, Jonathan should pay alimony in the sum of $5,500 per month for 72 months. Jonathan’s argument challenging this alimony award is that the construc- tive trust based on Heather’s being a former “dynamic and energetic leader and owner” of Backyard Playworld is irrec- oncilable with an alimony award based on Heather’s being a “homemaker” and “housewife.” 83 According to Jonathan, Heather “cannot be both.” 84 If Heather is a business leader then, according to Jonathan, “she has the talent and acumen to earn a substantial income and the alimony claim cannot stand.” 85 We find no merit to this argument. Under the evi- dence presented and arguments made, we cannot conclude that the court’s award of alimony was patently unfair. 5. Life Insurance to Fund Support Lastly, Jonathan argues that the court’s order that he maintain life insurance covering his support obligations is inconsistent 83 Brief for appellant at 47. 84 Id. 85 Id. - 181 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136
with the premarital agreement. He asserts that because of the court’s order, he is being required to maintain an addi- tional life insurance policy beyond that required by the agree- ment. Heather responds that the premarital agreement does not require Jonathan to maintain this life insurance after the dis- solution of the marriage. Section 1.6 of the premarital agreement sets forth Jonathan’s obligation to carry life insurance during the marriage in the amount of at least $1 million; however, Heather is correct that it provides: In the event of the parties’ legal separation or dissolution of the proposed marriage while said life insurance policy is in effect, the parties agree any case value attribut- able thereto shall be equally divided between them, and Heather at her election, shall be entitled to retain such policy at her sole cost and expense. While Jonathan points out that he testified at trial that he was maintaining life insurance in accordance with the premarital agreement, this provision is plain that the agreement no longer obligates him to do so upon the dissolution of the marriage. Thus, the court’s decree does not impose upon Jonathan a life insurance obligation that is duplicative of an obligation imposed under the agreement. We find no merit to this assign- ment of error. VI. CONCLUSION We affirm the decree in all respects with the exception of the court’s itemization of the truck as part of the marital estate, which we vacate. The truck is part of the constructive trust. Affirmed in part, and in part vacated.
Cassel, J., concurring. Lest the bar and trial bench misunderstand the court’s deci- sion—believing that it sanctions the remedy of a constructive trust in run‑of‑the‑mill marital dissolution actions—I write separately. I address two aspects. - 182 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136
First, the application here was driven by the enforcement of a premarital agreement. The parties utilized a premarital agree- ment to circumvent (at least partially) the principles of equi- table division of property dictated by the dissolution statutes. 1 Had they not done so, I suggest that a constructive trust would have had no application. In other words, where parties bring individual property to a marriage and do not attempt to use a premarital agreement regarding division of property, the divi- sion of property would be controlled solely by §§ 42‑365 and 42‑366 and our decisions construing those statutes. Second, I have considerable doubt that the remedy of a constructive trust would apply to parties’ actions prior to mar- riage. In the absence of a premarital agreement, the status of property brought to a marriage is governed by the first step of a three‑step process. 2 The first step is to classify the par- ties’ property as either marital or nonmarital, setting aside the nonmarital property to the party who brought the property to the marriage. 3 Any given property can constitute a mixture of marital and nonmarital interests; a portion of an asset can be marital property while another portion can be separate prop- erty. 4 The burden of proof rests with the party claiming that property is nonmarital. 5 Here, the disputed property was not “property brought to a marriage.” 6 Today’s decision should not be misunderstood as precedent for applying a constructive trust in the first step of the three‑step process. It is not necessary to consider the issue here, and I do not understand the court’s opinion as doing so. With this understanding, I join the court’s opinion. 1 See Neb. Rev. Stat. §§ 42‑347 to 42‑381 (Reissue 2016 & Cum. Supp. 2020). 2 See Kauk v. Kauk, 310 Neb. 329, 966 N.W.2d 45 (2021). 3 Id. 4 Id. 5 Id. 6 See id. | 08-05-2022 | [
"Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 08/05/2022 09:06 AM CDT - 136 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136 Jonathan B. Simons, appellant, v. Heather L. Simons, appellee. ___ N.W.2d ___ Filed August 5, 2022. No. S-21-599. 1. Pleadings: Appeal and Error. Permission to amend a pleading is addressed to the discretion of the trial court, and an appellate court will not disturb the trial court’s decision absent an abuse of discretion.",
"2. Constitutional Law: Due Process. The determination of whether the procedures afforded to an individual comport with constitutional require- ments for procedural due process presents a question of law. 3. Trusts: Equity: Appeal and Error. An action to impose a constructive trust sounds in equity, which an appellate court reviews de novo on the record, giving consideration, where the evidence is in conflict, to the fact that the trial court observed the witnesses and their manner of testi- fying and accepted one version of facts rather than the opposite. 4. Divorce: Child Custody: Property Division: Alimony: Attorney Fees: Appeal and Error. In a marital dissolution action, an appellate court reviews the case de novo on the record to determine whether there has been an abuse of discretion by the trial judge in his or her determi- nations regarding custody, child support, division of property, alimony, and attorney fees. 5.",
"Judges: Words and Phrases. A judicial abuse of discretion exists if the reasons or rulings of a trial judge are clearly untenable, unfairly depriv- ing a litigant of a substantial right and denying just results in matters submitted for disposition. 6. Appeal and Error. Appellate courts do not generally consider argu- ments and theories raised for the first time on appeal. 7. Antenuptial Agreements. As a contract, an antenuptial agreement is governed by the same principles that are applicable to other contracts, but is subject to the particular statutory requirement that an antenuptial agreement must be based on fair disclosure. - 137 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb.",
"136 8. Contracts: Intent. When the terms of a contract are clear, a court may not resort to rules of construction, and terms are accorded their plain and ordinary meaning as an ordinary or reasonable person would understand them. In such a case, a court shall seek to ascertain the intention of the parties from the plain language of the contract. 9. Due Process: Words and Phrases. While the concept of due process defies precise definition, it embodies and requires fundamental fairness. 10.",
"Rules of the Supreme Court: Pleadings. The key inquiry for “express or implied consent” under Neb. Ct. R. Pldg. § 6-1115(b) is whether the parties recognized that an issue not presented by the pleadings entered the case at trial. 11. Divorce: Property Division. In an equitable property division governed by Neb. Rev. Stat. § 42-365 (Reissue 2016), all property accumulated and acquired by either spouse during the marriage is part of the marital estate, unless it falls within an exception to this general rule. 12. Antenuptial Agreements: Property Division. Spouses are able to con- tract around the general rules of equitable division by using a premarital agreement. 13. Trusts: Property: Title: Equity. Under a constructive trust, equity vests title to the subject property in the wronged party and the court may issue a decree that the title be so conveyed. 14. Trusts: Property: Title.",
"A constructive trust is imposed when one has acquired legal title to property under such circumstances that he or she may not in good conscience retain the beneficial interest in the property. 15. Trusts: Property: Title: Equity. A constructive trust is a relationship, with respect to property, subjecting the person who holds title to the property to an equitable duty to convey it to another on the grounds that his or her acquisition or retention of the property would constitute unjust enrichment. 16. Trusts: Equity. In determining whether to impose a constructive trust, the court will consider not only the original situation but also all events which have occurred since the defendant began to hold inequitably. 17. Trusts: Proof. A party seeking the remedy of a constructive trust has the burden to establish the factual foundation, by evidence which is clear and convincing, required for a constructive trust. 18. Trusts: Equity. The constructive trust doctrine is equitable in nature and should not be rigidly limited, and the absence of any one factor will not itself defeat the imposition of a constructive trust when otherwise required by equity.",
"19. Equity. Where a situation exists which is contrary to the principles of equity and which can be redressed within the scope of judicial action, a court of equity will devise a remedy to meet the situation. - 138 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136 20. ____. Equity is not a rigid concept, and its principles are not applied in a vacuum. 21. ____. Equity is determined on a case-by-case basis when justice and fairness so require. 22. Trusts: Property: Title: Equity: Proof. Generally, a court, sitting in equity, will not impose a constructive trust and constitute an individual as a trustee of the legal title for property unless it be shown, by clear and convincing evidence, that the individual, as a potential constructive trustee, had obtained title to property by fraud, misrepresentation, or an abuse of an influential or confidential relationship and that, under the circumstances, such individual should not, according to the rules of equity and good conscience, hold and enjoy the property so obtained.",
"23. Trusts: Equity: Unjust Enrichment. A constructive trust is imposed to do equity and to prevent unjust enrichment. 24. Unjust Enrichment. Unjust enrichment is a flexible concept, occurring when a claim is based on the failure of consideration, fraud, or mistake and in other situations where it would be morally wrong for one party to enrich himself or herself at the expense of another. 25.",
"Fraud. Fraud comprises all acts, omissions, and concealments involving a breach of legal or equitable duty, trust, or confidence justly reposed, and are injurious to another, or by which an undue and unconscientious advantage is taken of another. 26. Appeal and Error. An appellate court will not consider an issue on appeal that was not presented to or passed upon by the trial court. 27. ____. To be considered by an appellate court, an alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error.",
"28. Limitations of Actions: Waiver. A statute of limitations is nonjurisdic- tional and waivable. 29. Expert Witnessess. The determination of the weight that should be given expert testimony is uniquely the province of the fact finder. 30. Valuation. A trial court is not required to accept any one method of valuation as more accurate than another accounting procedure. 31. Trusts: Property: Title: Declaratory Judgments. The ownership rights of a constructive trust beneficiary, once recognized, are protected from the moment the trustee acquired legal title, the constructive trust decree being in the nature of a declaratory judgment about the state of title to the property. 32. Alimony. The purpose of alimony is to provide for the continued main- tenance or support of one party by the other when the relative economic circumstances make it appropriate.",
"- 139 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136 33. Alimony: Appeal and Error. In reviewing an alimony award, an appel- late court does not determine whether it would have awarded the same amount of alimony as did the trial court, but whether the trial court’s award is untenable such as to deprive a party of a substantial right or a just result. Appeal from the District Court for Douglas County: Gregory M. Schatz, Judge. Affirmed in part, and in part vacated.",
"John A. Kinney, Jill M. Mason, and Samantha M. Robb, of Kinney Mason, P.C., L.L.O., for appellant. Benjamin M. Belmont and Wm. Oliver Jenkins, of Brodkey, Cuddigan, Peebles, Belmont & Line, L.L.P., for appellee. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Freudenberg, J. I. INTRODUCTION In a dissolution action governed by a premarital agreement, the court imposed a constructive trust over certain limited liability companies titled solely in the respondent’s name, such that they were considered additions to the marital estate under the agreement.",
"The petitioner appeals the court’s judg- ment, arguing that the court abused its discretion in allowing the respondent to amend her pleadings to conform to the evi- dence at trial to include the issue of the constructive trust, that the trust was in conflict with the premarital agreement, that the evidence did not support a constructive trust, and that the amount of the trust was in error. The petitioner also challenges the court’s award of a $150,000 lump-sum payment under the terms of the premarital agreement, an order to maintain life insurance to fund a support order, the inclusion of a truck in the marital estate, and the amount of the alimony award. II. BACKGROUND Jonathan B. Simons brought a complaint for dissolution of his marriage to Heather L. Simons. Jonathan and Heather were - 140 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136 married in 2005. Two children, still minors at the time of fil- ing, were born to the marriage. The complaint alleged that a premarital agreement controlled the division of their assets and debts.",
"In her operative answer, Heather asked, among other things, for an equitable division of the marital estate and for alimony. She denied the validity of the premarital agreement. However, the court ultimately found the agreement was valid, and that finding is not challenged on appeal. 1. Issues in Controversy The court issued a pretrial order directing the parties to sub- mit a letter stating the issues in controversy, the issues not in controversy, and a concrete statement of the relief sought. As relevant to this appeal, the letter submitted by Heather’s coun- sel set forth as issues in controversy the following: 4. Whether Jonathan holds one half of the membership interest in JBS Kids Play & Fitness, LLC; JBS Properties, LLC and Dogwatch, LLC in a constructive trust for the benefit of Heather. 5. Does Jonathan have an equitable duty to convey one half of the membership interest in JBS Kids Play & Fitness, LLC; JBS Properties, LLC and Dogwatch, LLC to Heather on the ground that his acquisition or reten- tion of the membership interests would constitute unjust enrichment.",
"6. If the Premarital Agreement is valid and enforceable, whether three limited liability companies [Jonathan] orga- nized to operate the parties’ businesses which were started during the marriage and in which Heather was an owner and held out to the public as being an owner are part of the marital estate; 7. Whether the provision of the Premarital Agreement stating, “Anything in this section 3.2 to the contrary not- withstanding, in no event shall [Jonathan’s] Property or Heather’s Property be made a part of or be considered in determining any alimony award as herein contemplated” - 141 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136 is valid, or contrary to law and if contrary to law, is it able to be severed from the Premarital Agreement. 8. Whether Jonathan has comingled any purported separate funds with marital funds to subject those funds to an equitable division; 9. The determination of what assets are part of the marital estate and the equitable division of the marital estate[.] A copy of the letter was sent to opposing counsel, who raised no objections.",
"Before trial commenced, Jonathan’s counsel argued to the court that the premarital agreement was enforceable and that, under the agreement, title controls—assets jointly titled are marital while assets not jointly titled are not marital. Heather’s counsel responded that even with the premarital agreement, the court had equitable powers, there were issues as to what exactly the agreement means, and “[i]t’s not just a matter of title.” Heather’s counsel elaborated that at issue in the case was a business Heather and Jonathan started together, which they both worked for and which Jonathan represented to Heather and to others that he and Heather jointly owned. Heather’s counsel argued that the fact the business was titled solely in Jonathan’s name should not be controlling of the dis- tribution even under the premarital agreement. At the conclusion of the evidence presented at trial, Heather moved to amend her pleadings to conform to the evidence so as to allege constructive trust and unjust enrichment.",
"A discus- sion ensued with Jonathan’s counsel arguing that Heather’s position relating to a constructive trust was simply a type of equitable distribution that would not be applicable if the pre- marital agreement, which distributed assets by title, was valid. Heather’s counsel responded that the claimed constructive trust was not mooted by a possible finding that the premarital agreement is enforceable; rather, a constructive trust created under equitable principles would simply make that asset mari- tal under the terms of the premarital agreement. The record - 142 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136 does not reflect that Jonathan’s counsel raised the waiver pro- vision of the agreement found in section 6.",
"The court granted the motion to amend the pleadings over Jonathan’s objection, stating from the bench, “I don’t see how the amendment to the pleadings would change the evidence, nor would the Court’s equitable resolution of the issues pre- sented.” The court reasoned further in its written order that the issues were set forth in the pretrial letter and that Jonathan raised no objection to the litigation of those issues either before or during the trial in which those issues were actually litigated. The court noted that a constructive trust and unjust enrichment are equitable concepts and that Heather raised in her pleadings the issue of the equitable division of the marital estate and the court’s equitable jurisdiction. Finally, the court found that Jonathan was not prejudiced by the amendment.",
"2. Premarital Agreement The premarital agreement was entered into evidence at trial. Section 1.5 of the agreement describes the “Marital Estate”: Anything in this Agreement to the contrary notwithstand- ing, to the extent that [Jonathan] or Heather have acquired or in the future acquire and affirmatively transfer or convey any assets the title to which, as evidenced by some written instrument, is held by them after such acquisition, transfer or conveyance in any form of co- ownership, including but not limited to tenancy in com- mon, joint tenancy, tenancy by the entirety or community property, such property shall be deemed to constitute and be part of the “Marital Estate.” The Marital Estate shall include any appreciation or depreciation on the assets forming a part of the Marital Estate but shall not include any earnings thereon, proceeds therefrom or replacements thereof unless such earnings, proceeds or replacements, as the case may be, are also titled in some form of co-ownership. . . . The Marital Estate shall be subject to division, distribution and disposition as hereinafter pro- vided in this Agreement.",
"- 143 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136 Section 3.4, in turn, addresses division of the marital estate, providing that “[i]n the event of a future legal separation, divorce, annulment or other dissolution of this proposed mar- riage, [Jonathan] and Heather agree that the Marital Estate shall be divided equally between them.” Section 3.3 sets forth the division of separate property in the event of divorce, providing: As further provided in Section 6 hereinafter, or in any other part of this Agreement: .... (b) Heather hereby waives any and all claims for divi- sion of property or property settlement from [Jonathan] with respect to [his] Property in the event of a future legal separation, divorce, annulment or other dissolution of this proposed marriage. Anything in this Agreement to the contrary notwithstanding including the foregoing sentence, in the event of a future legal separation, which ultimately results in a divorce or dissolution; divorce, annulment, or other dissolution of this proposed marriage (for purposes of this Section, an “Action”) and at the time of initiation of such Action, Heather and [Jonathan] have children born to them or legally adopted by them during the marriage or Heather is pregnant with a child of [Jonathan] and Heather, [Jonathan] shall be required to pay to Heather a lump sum of money based on the number of Full Year(s) of Marriage subsequent to the marriage date . . .",
". Under the schedule, if the marriage ends after between 10 and 15 years of marriage, then Jonathan would have to give Heather a lump sum of $150,000. Jonathan’s property is defined in section 1.1 of the agreement: [Jonathan’s] Property. A listing of the assets and liabili- ties of [Jonathan] has been prepared and a copy thereof has been given to Heather and is also attached to this Agreement as Exhibit “A,” and is, by this reference, - 144 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb.",
"136 made a part of this Agreement. Such assets and liabilities of [Jonathan] as set forth on Exhibit “A,” together with proceeds and income therefrom, replacement(s) thereof and appreciation or depreciation in value thereon as more specifically described in Sections 1.4, 2.1, 2.2, 4.1, 4.2, and 4.3, shall hereinafter be referred to as “[Jonathan’s] Property.” Section 4 of the agreement governs the treatment of assets, liabilities, earnings, and expenses during the marriage. Section 4.1, “Assets as Separate Property,” states: Each of the parties agrees that, unless and until trans- ferred and conveyed to the Marital Estate as contemplated by Sections 1.5 and 4.6, the following described property shall remain the separate and solely owned property of its owner (i.e., Heather’s Property or [Jonathan’s] Property as the case may be): (a) All property, whether real or personal, owned by either party as of the effective date of this Agreement; (b) All property and property rights acquired by a party out of the proceeds or income from property at the effec- tive date of this Agreement, or attributable to appreciation in value of such property, whether the enhancement is due to market conditions or to the services, skills, or efforts of its owner or anyone else; and (c) All property acquired by either party by gift, devise, bequest or inheritance.",
"Section 4.3 sets forth “Earnings as Separate Property” and states that earnings from the work of one of them is the sepa- rate property of the person to whom they are attributable. Section 4.6 describes “Additions to the Marital Estate”: Nothing in Section 4 shall prohibit the parties from mak- ing additions to the Marital Estate from [Jonathan’s] Property or from Heather’s Property or from their indi- vidual earnings but any such addition must be evidenced by some written agreement or acknowledgment of the same or some affirmative act resulting in the titling - 145 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136 of additional property as part of the Marital Estate as described in Section 1.5 above. Section 1.6 sets forth Jonathan’s obligation to carry life insurance during the marriage, stating in relevant part: [Jonathan] agrees to acquire, own and maintain, at his sole cost and expense, a policy of life insurance insuring his life, with a face amount of not less than $1,000,000.00. .",
". . In the event of the parties’ legal separation or disso- lution of the proposed marriage while said life insurance policy is in effect, the parties agree any cash value attrib- utable thereto shall be equally divided between them, and Heather at her election, shall be entitled to retain such policy at her sole cost and expense. Section 6 sets forth a waiver as follows: Except as otherwise specifically provided in this Agreement, each party waives all rights he or she may have in all or any part of the property of the other under any law now or hereinafter in effect in any jurisdic- tion, whether by way of dissolution of marriage, separa- tion, descent, courtesy, dower, distributive share, exempt property, homestead property, right to elect against a will, augmented estate, or any other right or interest, and each agrees he or she will not make any claim of any kind to the property of the other in the event of death, dissolution of marriage, or separation except as specifi- cally contemplated by the provisions of this Agreement, if at all. Without limitation, this Agreement shall be con- strued to be a waiver similar to and with the same force and effect as provided by Neb.",
"Rev. Stat. § 30-2316 and § 42-1001, et seq. Stated otherwise, except as otherwise provided therein, this Agreement is intended as a waiver of all rights to alimony, support, property division, elec- tive share, homestead allowance, exempt property, and family allowance by each party in the property of the other and a renunciation by each of all benefits which would otherwise pass to him or her from the other by - 146 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136 intestate succession, or by virtue of the provisions of any will executed before this waiver or by virtue of any other law. Section 8.3 further specifies that to the extent necessary to implement its terms, the agreement shall be interpreted as a “renunciation pursuant to Neb. Rev.",
"Stat. § 30-2352,” a “waiver pursuant to Neb. Rev. Stat. § 30-2316,” a “waiver as to the augmented estate pursuant to Neb. Rev. Stat. § 30-2314(c),” a “waiver as to homestead rights pursuant to Neb. Rev. Stat. § 40-104,” and a “waiver of spousal rights to qualified retire- ment plan benefits.” 3. Trial At trial it was undisputed that Backyard Adventures was purchased in the summer of 2009. Heather had quit working in 2008 after the birth of her and Jonathan’s first child. Jonathan was unhappy at his place of employment, and Jonathan and Heather looked for a business that could be a good fit for their family. Heather described that they were looking for “some- thing we could do together that I would still be able to raise our kids but that I would be able to be an active part in and do something.” They found Backyard Adventures. Jonathan worked with an attorney to form a limited liability company, JBS Kids Play & Fitness, LLC (JBS Kids Play), to pur- chase Backyard Adventures at a purchase price of $444,391.04.",
"The name “Backyard Adventures” was retained by the seller, so Jonathan changed it to Backyard Adventures Playworld and, eventually, around 2011, to Backyard Playworld. Jonathan’s parents gifted $375,000 toward the purchase price, transferring the gift directly into a checking account of JBS Kids Play. Jonathan testified that the remaining $65,000 of the purchase price came from the marital joint account. At the time of the purchase, the marital joint account had a balance of approximately $188,000. Jonathan denied that he and Heather had been saving up to purchase a business, stat- ing that “[i]t takes more than $188,000 to buy a business and - 147 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136 operate a business.” Heather, in contrast, understood that they had been living frugally and saving the substantial income they both made before Heather had their first child in order to purchase a business.",
"She testified she did not know that a gift from Jonathan’s parents was made and used toward the pur- chase price. Rather, she was led to believe the purchase money came from the joint account. The evidence was disputed concerning what representa- tions were made by Jonathan with respect to the ownership of the business. This line of questioning was not objected to by Jonathan’s counsel. Heather testified that she believed they were purchasing Backyard Adventures together and that she had no idea that Jonathan was going to be the sole owner under a limited liabil- ity company (LLC) established for that purpose. She did not learn of the LLC until after the divorce proceedings were com- menced.",
"Heather testified that Jonathan indicated to her they were co-owners of Backyard Playworld. Heather testified that Jonathan introduced her to people as a co-owner. Jonathan testified that at some point before closing, he told Heather the business would be titled solely in his name. In his prior deposition testimony that was adduced at trial, however, Jonathan had stated that he did not recall ever discussing the ownership interest of the business. Later in his testimony at trial, Jonathan stated with respect to whether he told Heather “she was not a co-owner of the business,” that “I don’t have any recollection of saying one or the other.” Heather was present at closing but did not sign any of the paperwork.",
"She described that she did not think this unusual given her prior work experience at a car dealership and her understanding that with cash transactions there can be two names on the title but only one person needs to sign it. The closing statement for the purchase described Jonathan as “Managing Partner, Buyer.” Heather was not present when Jonathan went to his attorney to establish JBS Kids Play. Jonathan admitted that he never had a conversation with - 148 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136 Heather explaining that he was forming an LLC in his own name for the purpose of being the sole owner of Backyard Playworld.",
"In his deposition testimony adduced at trial, Jonathan had stated he did not know why Heather’s name was not on any of the paperwork for the purchase of the business. Jonathan testi- fied at trial he did not know if there was any reason Heather would have believed for the previous 14 years that she was not the co-owner of Backyard Playworld. Jonathan testified that when the purchase was made, he and Heather trusted each other. Heather was the only authorized signatory other than Jonathan for the bank account associated with JBS Kids Play.",
"Without objection, the court accepted into evidence the picture of a sign displayed for the public at the entrance of Backyard Playworld with a message welcoming customers. It was signed by “Heather and Jon Simons - Owners.” Also entered into evidence without objection was a copy of the business cards provided by Jonathan to Heather, which described a “family company” and Heather as “[o]wner.” A former employee of Backyard Playworld, who had worked for Backyard Adventures before the purchase, testi- fied he was introduced to Jonathan and Heather as co-owners of the business.",
"He testified that Jonathan specifically intro- duced Heather to him as an owner and that he had witnessed Jonathan introduce Heather to other people as an owner of the business. Heather described that after they purchased Backyard Adventures, she worked on site, bringing their 11-month-old child to work with her. She generally worked 7 days a week from opening at 10 a.m. until 3 p.m. when their child took a nap. She worked in the “front of the store” in sales while Jonathan worked in the “back.” She continued to work in that manner, later bringing their second child to work as well or asking the children’s grandparents to babysit, until the children’s activities required Heather to be away from work - 149 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136 more often, approximately 3 or 4 years before Jonathan filed for divorce.",
"Heather continued to work on an “as-needed” basis. Heather also described contributing and implementing suc- cessful new ideas for the business, such as hosting birthday parties on a larger scale than the prior owner had and having “pay to play” hours. It was also Heather’s idea to host end-of- the-year school parties, to rent the facilities to organizations, to host parties for a charitable foundation, and to set up spon- sorship tents at various events. Jonathan testified that before purchasing Backyard Adventures, he and Heather had discussed that she was going to work in the business. Jonathan testified that Heather worked at Backyard Playworld on the sales floor and answered phone calls, explaining “there wasn’t a lot of money to go around as far as starting a new business, and . . . my spouse, was, you know, not only a reliable employee but obviously a way to have a staff without having an expense.” Jonathan testified that he paid Heather a yearly salary of around $10,000 to be able to fund her individual retirement account to the maximum allowable each year. Heather was paid at the end of the year, and Jonathan would sign the checks and deposit them into the marital joint account. The record contains copies of yearly checks made out to Heather from JBS Kids Play for approximately $7,000 each and signed by Jonathan.",
"Heather described a division of marital responsibilities under which she was not privy to their finances. During the marriage, Heather did not maintain a separate bank account. Jonathan maintained a separate, personal checking account, which Heather testified at trial she was not aware of. Heather stated she believed all income and gifts were going into the joint marital account. However, Jonathan described that each year his parents gifted the maximum allowable tax-free amount to both him and to Heather and that he deposited the check made out to him into his personal account and - 150 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136 deposited the check made out to Heather into their marital joint account. Jonathan testified that he took care of all the “financials” in their relationship.",
"The parties’ second child was born in 2010. According to Jonathan, he and Heather began experiencing marital difficul- ties in 2013 and sought legal advice concerning a possible divorce in 2017. But they continued to work on their mar- riage, and Jonathan did not move out until the spring of 2020. Heather confirmed the dates of these marital difficulties and testified that Jonathan asked her not to leave because he could not run Backyard Playworld without her. In 2017, Jonathan formed DogWatch, LLC, to separate a hidden fencing business from Backyard Playworld for pur- poses of selling it. The proceeds of the sale of DogWatch was held in an account under DogWatch’s name, which has a bal- ance of $333,497.24. Heather testified she worked in sales for the hidden fencing aspect of the business and handled those customers’ needs.",
"According to Heather, it was a joint deci- sion to sell that aspect of the business. She knew a separate checking account had been established for DogWatch but did not know it had been separated into an LLC under Jonathan’s sole ownership. While Backyard Playworld originally operated out of a leased space, Jonathan and Heather decided to purchase a building in 2019 from which to operate. Jonathan formed JBS Properties, LLC, to make the purchase. Jonathan testified that Heather was not involved in the decision as to which building was ultimately purchased for Backyard Playworld in 2019—at least he did not recall that she was. Jonathan described that he took Heather to see the build- ing, but he testified she did not help him find it. Jonathan did not recall that Heather was involved in planning the layout of the new building. Jonathan testified that Heather had no involvement in the formation of JBS Properties. The money to purchase the new building came from cash out of JBS Kids Play with the - 151 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136 remainder from financing.",
"Heather’s name is not on any of the documents associated with the purchase of the building. Heather testified it was always their long-term goal to pur- chase a different location for the business rather than lease space. She testified she was involved in discussions regarding the move and accompanied Jonathan in looking for possible buildings. Once the new building was purchased, according to Heather, she helped plan the layout for the new space. Heather had no knowledge of the existence of JBS Properties. At the time of trial, Jonathan’s personal net worth, not including the businesses, was approximately $5.3 million. Jonathan’s net worth had increased by approximately $4 mil- lion during the course of the marriage. Jonathan testified that the only asset jointly titled to both himself and Heather was their house. Their jointly held check- ing account had been dissolved.",
"Jonathan denied making any representations to Heather that she jointly owned JBS Kids Play. Gregory Harr, an accredited business valuator, testified as an expert for Heather concerning the value of Backyard Playworld. Harr testified that there are three different approaches in assigning a value to a business: the asset approach, the income approach, and the market approach. Harr explained that the asset approach is typically used for companies that are going to be liquidated or that are heavy in real estate or securities. Harr explained that the market approach uses several different fac- tors to determine a probable sale price. The income approach attempts to value a future economic benefit. Harr valued JBS Kids Play as of 2019 using the “fair value” approach, valuing it as a “going concern” utilizing both the market approach and the income approach versus the asset approach.",
"Harr testified, without objection, that it was his professional opinion that the “fair value” approach was the more accurate valuation approach for divorces. Harr explained there is a dif- ference between “fair value” and “fair market value”: - 152 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136 Fair market value is going to be the value that is deter- mined by a hypothetical buyer and a hypothetical seller, neither one of which is being forced to make a decision as to what the — what it’s going to be selling for. The value of fair market value, depending upon what you’re going to have is if it’s a controlling interest or a noncontrolling interest. Discounts come into play for that situation, and the size of the discount will depend upon whether it’s controlling or non-controlling. But then you also in all cases with fair market value you’re going to have a lack of marketability that comes into play.",
"And the difference between fair market value and fair value is that there [are] no discounts in fair value versus fair market value because of the situation. In sum, Harr affirmed he was “just not including in some cases the discount for lack of control,” which he would not apply anyway in this case. Daniel Morris, who was accredited in business valuations, was the expert retained by Jonathan to assess the value of JBS Kids Play, doing business as Backyard Playworld. He testified that he chose fair market value as opposed to fair value as the standard to determine the valuation of Backyard Playworld because there’s a reasonable expectation that if this business were to be sold — not to a specific buyer but to a buyer, which is supposed to represent any potential buyer — that the price would need to be fair market value in order for that transaction to occur.",
"Morris opined that fair value was not an appropriate method- ology in a divorce in Nebraska, explaining that while “both methods are used because they are commonly both accepted practices,” he did not believe Jonathan would be able to get a fair value in the real world if he were to actually sell the business. He explained that “therefore, a discount for lack of marketability must be applied.” - 153 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136 Morris elaborated that one of the big differences between fair value and fair market value is fair value does not allow discounting. In his valuation, Morris discounted 28 percent from the net book value of the going concern, for what Morris perceived to be its lack of marketability. Morris conceded in cross-examination that his valuation uti- lizing fair market value for JBS Kids Play as a going concern was significantly lower than its net book value that could be received if liquidated. Morris explained the discrepancy by stating that he did not use the asset approach. Morris conceded that “[p]otentially,” fair value, as opposed to fair market value, of a business in a divorce case means “we’re not going to use discount because a property isn’t up for sale, it isn’t going to be sold.” Morris testified that in his experience, he has seen both fair value and fair market value approaches utilized in divorce cases.",
"Morris conceded that in his interviews with Jonathan there was no indication of an intention to sell Backyard Playworld, but he thought that the use of fair value favors one spouse by “using a specific buyer.” Both experts testified as to the unusual amount of cash equity being held by JBS Kids Play in comparison to its oper- ating expenses. Its bank account held over $700,000 in cash. Heather testified that she graduated from high school and does not have a college degree.",
"When she and Jonathan were married, Heather was working in aftermarket sales in the parts department at a car dealership. It required her to work approxi- mately 50 hours a week and included working well into the evening and on weekends. She earned approximately $95,000 per year her final 2 years at that job. Prior years averaged around $70,000 annually. She had not worked outside the home anywhere other than at Backyard Playworld since the birth of the oldest child of the marriage approximately 12 years prior to the hearing.",
"Heather did not think she could go back to sales work at a car dealership due to her obligations caring for the children and because of the use of newer technology that she has no experience with. - 154 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136 Heather submitted a list of monthly living expenses in the amount of $13,630. There was evidence that Jonathan’s monthly net income was $31,154 and that Heather’s monthly net income was $1,098. Other evidence showed Jonathan had a net cashflow of $590,990.37, derived from Backyard Playworld and various personally owned investment accounts. 4. Decree (a) Constructive Trust The court found the premarital agreement to be valid and enforceable. However, the court concluded that Heather had proved by clear and convincing evidence the existence of a constructive trust in Backyard Playworld such that Jonathan had an equitable duty to hold half of those businesses in trust for Heather; otherwise, Jonathan would be unjustly enriched. The court found that the entity the parties originally purchased, Backyard Adventures, was ultimately composed of JBS Kids Play, JBS Properties, and DogWatch. The court found that Jonathan and Heather jointly looked into business opportunities and decided on purchasing Backyard Adventures.",
"Heather believed, based on the discussions with Jonathan, that they were purchasing the business together. Jonathan told Heather it was not necessary for her to sign any documents at closing because it would be a cash transaction. Of the $445,000 purchase price for the business, $375,000 came from a gift from Jonathan’s father. The court found that when Jonathan and Heather decided in 2019 to purchase a separate building for Backyard Playworld, Heather accompanied Jonathan to see the real estate agent, after which Jonathan and Heather jointly decided upon a building to purchase, and Heather assisted in planning the layout. Heather was led to believe from Jonathan that the building was an asset they owned together and was part of the business. The money to purchase the building came from Backyard Playworld. Heather was unaware until the com- mencement of the divorce proceedings that Jonathan had - 155 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136 placed the new building in a separate LLC controlled solely by Jonathan. The court found that Jonathan led Heather to believe they owned Backyard Playworld together and that Heather was unaware Jonathan had formed JBS Kids Play to hold their company.",
"The court noted statements by Jonathan to Heather and employees working at Backyard Playworld that Heather was an owner. The sign at the entry of the building, as well as business cards, referred to Heather as an “[o]wner” of Backyard Playworld. The court found that Heather worked sig- nificant hours at the business up to approximately 3 to 4 years before Jonathan filed for divorce, when she reduced her hours in order to take their children to and from activities. The court found that Heather worked without getting a paycheck and was unaware that Jonathan was issuing paychecks in her name, which he would deposit into their joint account that held the earnings from the business. The court found that Heather con- tributed toward the growth of the business not only by working on the sales floor but also through marketing, the creation of paid playtime as a new vehicle for revenue, the expansion of the party room rental, and the use of the play areas for events. She was also actively involved in the most recent acquisition of the new location and its interior layout.",
"The court observed that under section 4.6 of the premarital agreement, neither party was prevented from adding to the marital estate from their separate property and that, under sec- tion 3.4, the marital estate is to be divided equally. The court found that Jonathan contributed Backyard Playworld (which included JBS Kids Play, JBS Properties, and DogWatch) to the marital estate and that it should be divided equally between Jonathan and Heather. The court found that the value of JBS Kids Play was $1,444,722. It found the value of DogWatch to be $333,497.24, which reflected the cash balance of the DogWatch account that held the proceeds from its sale. The court found that JBS Properties had an “equity value” of $500,000. Thus, the court - 156 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136 found that the total value of Backyard Playworld and its associ- ated entities—to be divided equally between the parties—was $2,278,219.24. (b) Gift of $375,000 The court specifically found that the $375,000 gifted to Jonathan by his father and utilized in the purchase of Backyard Adventures was added to the marital estate pursuant to section 4.6 of the premarital agreement. Thus, it became a marital asset subject to division.",
"(c) Truck The court found that Jonathan’s 2019 Ram pickup truck with a value of $57,141 should be made part of the marital estate. (d) $150,000 Pursuant to section 3.3(b) of the agreement, the court found that Jonathan was obligated to pay Heather $150,000 from Jonathan’s separate estate. This was above and beyond the division of the marital estate. (e) Alimony and Life Insurance The court awarded Heather monthly alimony of $5,500 for 72 months. The court also ordered child support, which is not at issue in this appeal. The court ordered Jonathan to maintain life insurance cov- erage in an amount sufficient to fund his child support and spousal support obligations in the event of his death.",
"III. ASSIGNMENTS OF ERROR Jonathan assigns that the trial court erred (1) by allow- ing Heather to amend her pleadings to include claims of fraud, unjust enrichment, and constructive trust after the trial, unfairly surprising him with new claims and denying him due process; (2) in its finding that Heather proved by clear and convincing evidence that Jonathan engaged in fraud and would be unjustly enriched unless Backyard Playworld were added to the marital estate via constructive trust; (3) in dividing the - 157 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136 marital estate and ordering life insurance to fund support; (4) in using the opinion of Heather’s expert in valuing Backyard Playworld; (5) in its award of alimony; (6) in the specific find- ings related to documents signed at closing and the purchase of Backyard Adventures; and (7) in failing to impose the waiver in the Premarital Agreement. IV. STANDARD OF REVIEW [1] Permission to amend a pleading is addressed to the dis- cretion of the trial court, and an appellate court will not disturb the trial court’s decision absent an abuse of discretion. 1 [2] The determination of whether the procedures afforded to an individual comport with constitutional requirements for procedural due process presents a question of law.",
"2 [3] An action to impose a constructive trust sounds in equity, which we review de novo on the record, giving consideration, where the evidence is in conflict, to the fact that the trial court observed the witnesses and their manner of testifying and accepted one version of facts rather than the opposite. 3 [4] In a marital dissolution action, an appellate court reviews the case de novo on the record to determine whether there has been an abuse of discretion by the trial judge in his or her determinations regarding custody, child support, division of property, alimony, and attorney fees. 4 [5] A judicial abuse of discretion exists if the reasons or rul- ings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters submitted for disposition.",
"5 1 United Gen. Title Ins. Co. v. Malone, 289 Neb. 1006, 858 N.W.2d 196 (2015). 2 Dycus v. Dycus, 307 Neb. 426, 949 N.W.2d 357 (2020). 3 See, ProData Computer Servs. v. Ponec, 256 Neb. 228, 590 N.W.2d 176 (1999); Ford v. Jordan, 220 Neb. 492, 370 N.W.2d 714 (1985). 4 See Vanderveer v. Vanderveer, 310 Neb. 196, 964 N.W.2d 694 (2021). 5 Devney v. Devney, 295 Neb. 15, 886 N.W.2d 61 (2016). - 158 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136 [6] Appellate courts do not generally consider arguments and theories raised for the first time on appeal. 6 [7] As a contract, an antenuptial agreement is governed by the same principles that are applicable to other contracts, but is subject to the particular statutory requirement that an antenup- tial agreement must be based on fair disclosure. 7 [8] When the terms of a contract are clear, a court may not resort to rules of construction, and terms are accorded their plain and ordinary meaning as an ordinary or reasonable person would understand them.",
"In such a case, a court shall seek to ascertain the intention of the parties from the plain language of the contract. 8 V. ANALYSIS Several issues are presented in this appeal pertaining to the constructive trust, the first of which is whether the court erred in considering the question of a constructive trust at all, given that it was not specifically mentioned in Heather’s responsive pleading. Beyond that, Jonathan argues that the constructive trust was inconsistent with the premarital agreement and that the evidence was generally insufficient to establish a construc- tive trust. Lastly, Jonathan argues that the valuation of the trust, based on fair value, was an abuse of discretion. The remaining issues presented in this appeal concern (1) a $150,000 lump-sum payment under the terms of the premarital agreement, which Jonathan claims to be inconsistent with the constructive trust; (2) an order to maintain life insurance to fund the support order, which he argues is inconsistent with the premarital agreement; (3) the inclusion of a truck in the marital estate, which Jonathan argues was already part of the business valuation informing the constructive trust; and (4) the alimony award, which Jonathan argues was excessive.",
"6 Maria T. v. Jeremy S., 300 Neb. 563, 915 N.W.2d 441 (2018). 7 In re Estate of Jakopovic, 261 Neb. 248, 622 N.W.2d 651 (2001). 8 Id. - 159 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136 1. Amendment of Pleadings Before addressing the merits of the constructive trust, we first consider Jonathan’s argument that the court erred in allowing amendment of the pleadings to include the issue of a constructive trust, as well as his related argument that his procedural due process rights were violated by a lack of timely notice to defend against the alleged constructive trust. Permission to amend a pleading is addressed to the discretion of the trial court, and an appellate court will not disturb the trial court’s decision absent an abuse of discretion. 9 The deter- mination of whether the procedures afforded to an individual comport with constitutional requirements for procedural due process presents a question of law. 10 [9] While the concept of due process defies precise defini- tion, it embodies and requires fundamental fairness.",
"11 Generally, procedural due process requires parties whose rights are to be affected by a proceeding to be given timely notice, which is reasonably calculated to inform the person concerning the sub- ject and issues involved in the proceeding; a reasonable oppor- tunity to refute or defend against a charge or accusation; a reasonable opportunity to confront and cross-examine adverse witnesses and present evidence on the charge or accusation; representation by counsel, when such representation is required by constitution or statute; and a hearing before an impartial decisionmaker. 12 Nebraska’s pleading rules provide for amendments to con- form to the evidence, stating: When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may 9 United Gen. Title Ins. Co. v. Malone, supra note 1. 10 Dycus v. Dycus, supra note 2.",
"11 Eric H. v. Ashley H., 302 Neb. 786, 925 N.W.2d 81 (2019). 12 Id. - 160 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136 be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the plead- ings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice the party in maintaining the party’s action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence. 13 Even when a party does not move to amend pleadings, a court may constructively amend pleadings on unpleaded issues in order to render a decision consistent with the trial.",
"14 [10] A court’s determination of questions raised by the facts, but not presented in the pleadings, should not come at the expense of due process, 15 and thus, our standards governing whether a court has abused its discretion in ordering construc- tive amendment of the pleadings are generally consistent with the fundamental fairness standards of procedural due process. We have said that the key inquiry for “express or implied consent” under § 6-1115(b) is whether the parties recognized that an issue not presented by the pleadings entered the case at trial. 16 We have held that express consent may thus be found when a party has stipulated to an issue or the issue is set forth in 13 Neb. Ct. R. Pldg.",
"§ 6-1115(b). 14 Denali Real Estate v. Denali Custom Builders, 302 Neb. 984, 926 N.W.2d 610 (2019). 15 Eric H. v. Ashley H., supra note 11. 16 R & B Farms v. Cedar Valley Acres, 281 Neb. 706, 798 N.W.2d 121 (2011). - 161 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136 a pretrial order. 17 As the court below rightly emphasized, Jonathan had actual notice before trial that the issue of a con- structive trust was to be tried, and he did not object or move for a continuance. The letter by Heather’s counsel, which was ordered by the court to set forth the issues in controversy, explicitly set forth the question of a constructive trust, unjust enrichment, and whether, even if the premarital agreement were valid, Heather was entitled to an ownership interest due to Jonathan’s representations. Jonathan’s counsel was given a copy of this letter and did not raise any objections to the issues in controversy stated therein.",
"Jonathan’s arguments that the letter was not a “pleading” and that it did not explicitly use the words “fraud” or “misrep- resentation” miss the point. Fraud and misrepresentation are concepts inherent to any constructive trust claim, and a filing need not be a pleading in order to give the other party a timely and clear indication of the issues to be tried. Under the facts presented, we hold that the court did not abuse its discretion in ordering amendment of the pleadings pursuant to § 6-1115(b). We relatedly hold that because Jonathan had timely notice of the issues to be tried, the litigation of the constructive trust claim did not violate Jonathan’s constitutional right to pro- cedural due process.",
"We turn to the merits of the construc- tive trust. 2. Imposing Constructive Trust [11] In an equitable property division governed by Neb. Rev. Stat. § 42-365 (Reissue 2016), all property accumulated and acquired by either spouse during the marriage is part of the marital estate, unless it falls within an exception to this general rule. 18 Under equitable property division, even if an asset was acquired before the marriage, accrued invest- ment earnings or appreciation of nonmarital assets during 17 Blinn v. Beatrice Community Hosp. & Health Ctr., 270 Neb. 809, 708 N.W.2d 235 (2006). 18 See Stephens v. Stephens, 297 Neb. 188, 899 N.W.2d 582 (2017). - 162 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136 the marriage are presumed marital unless the party seeking the classification of the growth as nonmarital proves: (1) The growth is readily identifiable and traceable to the nonmarital portion of the account and (2) the growth is not due to the active efforts of either spouse.",
"19 [12] Spouses are able to contract around the general rules of equitable division by using a premarital agreement. 20 Neb. Rev. Stat. § 42-1004 (Reissue 2016) permits parties to a premarital agreement to contract with respect to, among other things, “The rights and obligations of each of the parties in any of the prop- erty of either or both of them whenever and wherever acquired or located” and “[t]he disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event.” In this appeal, there is no dispute that the premarital agreement between Heather and Jonathan was valid and enforceable. (a) Coexistence With Premarital Agreements The district court implemented the terms of the premarital agreement after imposing upon Jonathan a constructive trust with respect to one-half of the interest in the limited liabil- ity companies (LLCs) of Backyard Playworld, deeming them part of the marital estate under the agreement. It is true that this result happens to be similar to what would have occurred under equitable division under § 42-365, unless Jonathan had sustained his burden to prove the assets to be nonmarital. It is also true that “[t]he remedy of constructive trust may not be applied randomly to adjust general equities between spouses or as a punitive measure . .",
". .” 21 It does not follow, however, that the court conflated the remedy of constructive trust with simple equitable division. 19 See id. 20 See Cook v. Cook, 26 Neb. App. 137, 918 N.W.2d 1 (2018). 21 Saff v. Saff, 61 A.D.2d 452, 456, 402 N.Y.S.2d 690, 693 (1978). See, also, 9 Alan D. Scheinkman, West’s McKinney’s Forms Matrimonial and Family Law § 3:11 (Feb. 2022). - 163 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136 [13-15] A constructive trust can coexist with valid premari- tal agreements setting forth separate and marital property simi- larly to the one here presented, 22 and the principles governing a constructive trust are meaningfully different from those governing the general equitable division of marital property. Under a constructive trust, equity vests title to the subject property in the wronged party and the court may issue a decree that the title be so conveyed.",
"23 A constructive trust is imposed when one has acquired legal title to property under such cir- cumstances that he or she may not in good conscience retain the beneficial interest in the property. 24 In such a situation, equity converts the legal titleholder into a trustee holding the title for the benefit of those entitled to the ownership thereof. 25 A constructive trust is a relationship, with respect to property, subjecting the person who holds title to the property to an equitable duty to convey it to another on the grounds that his or her acquisition or retention of the property would constitute unjust enrichment. 26 We disagree with Jonathan’s general assertion that a con- structive trust cannot be utilized to establish ownership for purposes of implementing a valid premarital agreement. And we find nothing in the ownership provisions of the premarital agreement set forth above that precludes the remedy of a con- structive trust as the means of recognizing that certain assets, regardless of their original legal titling, are co-owned and therefore part of the marital estate to be divided equally under the premarital agreement. 22 See Martin v. Farber, 68 Md. App.",
"137, 510 A.2d 608 (1986). See, also, Peden v. Peden, 972 So. 2d 106 (Ala. Civ. App. 2007); Leathers and Leathers, 98 Or. App. 152, 779 P.2d 619 (1989). 23 See Caryl A. Yzenbaard et al., Bogert’s The Law of Trusts and Trustees § 471 (3d ed. 2009). 24 Dreesen Enters. v. Dreesen, 308 Neb. 433, 954 N.W.2d 874 (2021); Wait v. Cornette, 259 Neb. 850, 612 N.W.2d 905 (2000). 25 Wait v. Cornette, supra note 24. 26 Dreesen Enters. v. Dreesen, supra note 24. - 164 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136 (b) Evidence Supporting Constructive Trust Jonathan alternatively asserts that the court erred in finding the evidence presented at trial supported a constructive trust and that thus, it misused the vehicle of a constructive trust to adjust the general equities between the parties. We review a court’s determination of a constructive trust de novo on the record, giving consideration to the fact that the trial court observed the witnesses and accepted one version of facts rather than another. 27 [16-21] In determining whether to impose a constructive trust, the court will consider not only the original situation but also all events which have occurred since the defendant began to hold inequitably.",
"28 A party seeking the remedy of a construc- tive trust has the burden to establish the factual foundation, by evidence which is clear and convincing, required for a con- structive trust. 29 However, it has been said that the constructive trust doctrine is equitable in nature and should not be rigidly limited and that the absence of any one factor will not itself defeat the imposition of a constructive trust when otherwise required by equity. 30 We have explained that where a situation exists which is contrary to the principles of equity and which can be redressed within the scope of judicial action, a court of equity will devise a remedy to meet the situation. 31 Equity is not a rigid concept, and its principles are not applied in a vacuum.",
"32 Equity is determined on a case-by-case basis when justice and fairness so require. 33 [22,23] Generally, a court, sitting in equity, will not impose a constructive trust and constitute an individual as a trustee 27 See ProData Computer Servs. v. Ponec, supra note 3. 28 See Yzenbaard, supra note 23. 29 Dreesen Enters. v. Dreesen, supra note 24. 30 In re Koreag, Controle et Revision S.A., 961 F.2d 341 (2d Cir. 1992). 31 Anderson v. Bellino, 265 Neb. 577, 658 N.W.2d 645 (2003). 32 Manker v. Manker, 263 Neb. 944, 644 N.W.2d 522 (2002). 33 Id.",
"- 165 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136 of the legal title for property unless it be shown, by clear and convincing evidence, that the individual, as a potential constructive trustee, had obtained title to property by fraud, misrepresentation, or an abuse of an influential or confidential relationship and that, under the circumstances, such individual should not, according to the rules of equity and good con- science, hold and enjoy the property so obtained. 34 A con- structive trust is imposed to do equity and to prevent unjust enrichment.",
"35 [24,25] We have explained that unjust enrichment is a flex- ible concept, 36 occurring when a claim is based on the failure of consideration, fraud, or mistake and in other situations where it would be morally wrong for one party to enrich him- self or herself at the expense of another. 37 We have explained in the context of a constructive trust that “fraud” comprises all acts, omissions, and concealments involving a breach of legal or equitable duty, trust, or confidence justly reposed, and are injurious to another, or by which an undue and unconscien- tious advantage is taken of another. 38 Similarly, with respect to “confidential relationship,” it has been said that “[e]quity has never bound itself by any hard and fast definition of the phrase ‘confidential relation’ and has not listed the neces- sary elements for such a relationship to exist but rather has reserved discretion to apply the doctrine whenever it believes that a suitable occasion has arisen,” 39 but “[o]ften the par- ties are related by blood or marriage and that relationship when coupled with the status of the parties as to health, age, 34 Dreesen Enters.",
"v. Dreesen, supra note 24. 35 Vogt v. Town & Country Realty of Lincoln, Inc., 194 Neb. 308, 231 N.W.2d 496 (1975). 36 City of Scottsbluff v. Waste Connections of Neb., 282 Neb. 848, 809 N.W.2d 725 (2011). 37 In re Graphics Technology, Inc., 306 B.R. 630 (8th Cir. 2004). 38 See Fisher v. Keeler, 142 Neb. 728, 7 N.W.2d 659 (1943). 39 Yzenbaard, supra note 23, § 482 at 281. - 166 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb.",
"136 education, and dominance may lead a court to find that a con- fidential relationship exists.” 40 Only a few cases in Nebraska have addressed construc- tive trusts in property accumulated during a marital or similar relationship. In Manker v. Manker, 41 we affirmed the imposition of a constructive trust upon one half of the personal property titled solely in the name of the ex-husband whom the plaintiff mis- takenly believed she was still married to. 42 The parties cohabi- tated for 19 years and held themselves out to be married. Less than a year after the parties were married, the defendant filed a petition for dissolution and then falsely told the plaintiff he had dismissed the action when, in reality, he received a default judgment. Believing them to be married, the plaintiff allowed the defendant to handle all the couple’s finances and control all the assets.",
"While occupying a “superior position in the relation- ship,” the ex-husband placed nearly all of the property accumu- lated during their cohabitation in his sole name. 43 These facts, we said, supported the district court’s finding of a constructive trust. Moreover, while the plaintiff had learned more than 4 years before bringing the action that she was not married to the defendant, we affirmed the lower court’s conclusion that the defendant, who had acted inequitably and dishonestly and cajoled the plaintiff into delaying any action, could not rely on the statute of limitations as a defense. In contrast, in Dreesen Enters.",
"v. Dreesen, 44 also involv- ing a cohabitating relationship that continued after the parties’ divorce, albeit only sporadically, we affirmed the court’s denial of a constructive trust against the ex-husband’s corporation for 40 Id. at 292-93. 41 Manker v. Manker, supra note 32. 42 See, also, Blome v. Blome, 201 Neb. 687, 271 N.W.2d 466 (1978); Workman v. Workman, 174 Neb. 471, 118 N.W.2d 764 (1962). 43 Manker v. Manker, supra note 32, 263 Neb. at 962, 644 N.W.2d at 537. 44 Dreesen Enters. v. Dreesen, supra note 24. - 167 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136 one-half of the value of a house the ex-wife was living in and where, for awhile, the ex-husband also lived.",
"45 The lower court ultimately found more credible the ex-husband’s testimony that he had fully disclosed to the ex-wife that the subject property would be titled solely in his company’s name, that the parties had explicitly agreed the ex-wife would pay rent to live there, and that $50,000 for the downpayment provided by the ex-wife was, under the parties’ express oral agreement, merely a bridge loan. We affirmed the lower court’s monetary judgment in favor of the ex-wife for the unpaid $50,000 loan. Similarly, in Peterson v. Massey, 46 we affirmed the court’s denial of a constructive trust, given the dearth of evidence presented by the decedent wife’s heirs from a prior marriage to support their claim to one half of the widower husband’s farm under the theory that the couple had orally agreed to enter into a partnership. There were no allegations of wrongdoing or of dominance or disparities in health, age, or education. The evi- dence consisted only of statements by the husband referring to the farm as “‘our’” property and saying “‘[i]t’s your’s as well as mine,’” 47 a one-time contribution by the wife of $750 in capital and goods, and the fact that the wife had occasionally worked in the field. Cases from other jurisdictions provide further illustration of when and how constructive trusts are imposed in favor of a spouse upon closely held business enterprises.",
"In Janke v. Janke, 48 the appellate court affirmed the lower court’s imposition of a constructive trust in half of a tavern business titled solely in the husband’s name. 49 Both parties 45 See, also, Wells v. Wells, 3 Neb. App. 117, 523 N.W.2d 711 (1994). 46 Peterson v. Massey, 155 Neb. 829, 53 N.W.2d 912 (1952). 47 Id. at 833, 53 N.W.2d at 915. 48 Janke v. Janke, 47 A.D.2d 445, 366 N.Y.S.2d 910 (1975). 49 See, also, e.g., West v. Christensen, 576 B.R.",
"223 (D. Utah 2017); Brown v. Odom, 425 S.C. 420, 823 S.E.2d 183 (S.C. App. 2019); Keeney v. Keeney, 223 S.W.3d 843 (Ky. App. 2007); Levin v. Levin, 43 Md. App. 380, 405 A.2d 770 (1979); Genter v. Genter, 270 So. 2d 388 (Fla. App. 1972). - 168 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136 were signatories to the bank loan used for its purchase, it was the parties’ intention to operate the tavern as a husband and wife operation, the wife worked extensive hours at the tavern, the husband’s salary and a small inheritance by the wife were contributed to the business, and all family needs were paid for by business proceeds. The court explained that though a prom- ise in words might have been lacking, the promise underlying the constructive trust may be implied. “The understanding of the parties should be interpreted not literally and irrespective of its setting but sensibly and broadly with all its reasonable implications.” 50 Under the facts of the case, noted the court, “the entire relationship and the actions and contributions made by both parties were instinct with a mutual promise of a joint endeavor for the benefit of both.” 51 In other words, “[t]he absence of any express promise formalizing the venture grows out of the very confidence and trust implicit in the marriage relationship.” 52 The court concluded that it would constitute unjust enrichment to permit the husband to retain for himself all of the business assets to which each contributed and which each rightfully expected to share. In Leathers and Leathers, 53 the court likewise affirmed an award to the wife of an undivided one-half interest in properties purchased by the business titled solely in the hus- band’s name.",
"54 It did so despite a valid antenuptial agreement assigning to the husband all property owned by the husband or thereafter acquired “‘by any means whatsoever.’” 55 The court found that the evidence supported a partnership in the business and that the property purchased when the business was titled solely in the husband’s name was therefore held 50 Janke v. Janke, supra note 48, 47 A.D.2d at 448, 366 N.Y.S.2d at 914. 51 Id. 52 Id., 47 A.D.2d at 448-49, 366 N.Y.S.2d at 914. 53 Leathers and Leathers, supra note 22. 54 See, also, Scull v. Scull, 94 A.D.2d 29, 462 N.Y.S.2d 890 (1983). 55 Leathers and Leathers, supra note 22, 98 Or. App. at 155, 779 P.2d at 620. - 169 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136 in partnership by the parties. The evidence of the partner- ship was that the business was later changed to a jointly owned proprietorship that held 80 percent of the company assets, the wife worked for the business without compensation for 22 years, the wife was consulted before purchasing any property, the wife was registered with the commissioner as a “co-proprietor,” and the wife was held out to employees as a co-owner of the business. 56 In a somewhat similar case, Scull v. Scull, 57 the court imposed a constructive trust based on an implied agreement of a joint venture, noting that “an agreement for joint venture between spouses is rarely spelled out in writing” and can be implicit.",
"Such promises within the confines of a marital asso- ciation combined with independent evidence “of a pattern or a lifestyle indicating that the parties were engaged in a joint ven- ture,” when combined with unjust enrichment, were sufficient to establish a constructive trust in that case. 58 In contrast, under the facts presented in Turner v. Turner, 59 the court found the evidence insufficient to impose a con- structive trust in 50 percent of a closely held corporation and affirmed the lower court’s determination also so finding. The business in question was a lighting business that had evolved from the husband’s childhood hobby.",
"The husband was the president, owning 65 shares of its stock. His technical knowl- edge and skill, noted the court, were crucial to the business’ success. The wife held 10 shares of the stock. The wife per- formed many tasks for the business but was compensated at a significantly higher salary than the salary drawn by the hus- band. 60 During the marriage, the parties discussed the wife’s desire to hold more stock and, despite her explicit requests, 56 Id.",
"at 158, 779 P.2d at 622. 57 Scull v. Scull, supra note 54, 94 A.D.2d at 34, 462 N.Y.S.2d at 893. 58 Id. 59 Turner v. Turner, 147 Md. App. 350, 809 A.2d 18 (2002). 60 Id. - 170 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136 there was no evidence her husband ever promised to give her an equal number of shares. 61 The district court observed Heather’s and Jonathan’s testi- monies and accepted one version of facts rather than another. Viewing the evidence in that light, we find the evidence more similar to those cases finding support for a constructive trust than to those that do not. Heather testified as to an implied promise or understanding between her and Jonathan that they were acquiring a business with their joint savings and that they were going to run the business together. She noted that they had worked together since the day they had met and have the same work ethic, so it was always their long-term goal to find their own business that both of them could have an active role in.",
"The parties had in fact accumulated from their joint earning $188,000 in their joint bank account at the time of the initial purchase of Backyard Adventures, and Heather had no idea that there was a substantial gift utilized for the purchase such that only $65,000 from their joint account ultimately was used. Jonathan represented to Heather, employees, and the public at large that they were co-owners of the business. Heather was designated as “[o]wner” on business cards and signage, and she was a cosignatory on JBS Kids Play’s account. Heather contributed a substantial amount of labor over the years with minimal pay, which Jonathan described as a way of having staff without having expense. Additionally, Heather contributed toward the growth of the business by being the public face of the venture, working the “front of the store,” and through mar- keting events and her ideas that expanded the business’ offer- ings to the public and maximized the layout of their showroom and party rooms.",
"She claimed that Jonathan had told her he could not run the business without her. Both parties testified that Jonathan handled the parties’ finances and sorted through their mail. All family needs were 61 See id. - 171 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136 paid by business proceeds. Heather described a “traditional” spousal relationship where Jonathan handled their accounting. Heather stated, “[H]e was very dominant and ‘I’m the man’ type person, and I allowed it, I guess.” Despite not signing the relevant paperwork, Heather testified she did not suspect at any point during the marriage that she was not in fact a co-owner of Backyard Playworld. Jonathan, with the help of attorneys and without Heather’s knowledge, crafted several LLCs in his own name. The family needs were paid for almost exclusively by business proceeds, although a significant amount of proceeds were left as cash assets in the business accounts titled solely in Jonathan’s name.",
"The family was also supported in small part by cash gifts to Heather, which were deposited into the par- ties’ joint account. Only after the divorce action was filed did Heather learn that “this whole time he’d been lying to me, he’d been using me, he had been completely taking advantage of my trust in him, and it was all a lie.” Jonathan focuses on Heather’s prior experience at a car dealership as evidence that she should have known she was not a co-owner because she did not sign any paperwork. In cases where a constructive trust is imposed on a business venture titled in only one spouse’s name, some paperwork is usually involved that the plaintiff spouse is aware of. This is but one circumstance for a court to consider in determining whether equity requires the imposition of a consructive trust.",
"There is little support for the premise that the plaintiff spouse should be foreclosed from a constructive trust claim simply because that spouse has some knowledge of paperwork involved in the formation of the subject business venture, which the plaintiff spouse did not sign. We defer to the trial court’s determina- tion that, despite knowing she did not sign certain paperwork, Heather did not have actual knowledge she was not a co-owner. The court did not err in determining that, under all the relevant circumstances, the equities lay with Heather.",
"The evidence was sufficient to show a confidential rela- tionship under which Heather contributed to and rightfully - 172 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136 expected to share in the business as a partner or co-owner. There was an implied promise of a joint venture that Jonathan did not act in accordance with when he surreptitiously orches- trated several LLCs in his sole name.",
"The evidence was suf- ficient to prove Jonathan would be unjustly enriched if he were allowed to keep for himself the benefit of Heather’s substantial contributions to the business made under that understanding between them. Viewing the evidence de novo, but with con- sideration for the fact that the district court observed the wit- nesses and accepted one version of facts rather than another, we conclude that Heather established the factual foundation, by evidence which is clear and convincing, required for a constructive trust. The district court did not err in finding the evidence sufficient to support the imposition of a constructive trust in one-half of Backyard Playworld. Jonathan asserts the court erroneously made a finding that he told Heather there was no need to sign paperwork because the purchase of Backyard Adventures was going to be a cash transaction. This finding appears to be derived from Heather’s cross-examination, wherein she was questioned as to why she did not suspect she was not a co-owner by virtue of the fact that she was not asked to sign anything during the closing of the purchase of Backyard Adventures. She explained that “we were paying cash, so [Jonathan] signed, and [I] trusted my husband’s word.” The court also refers in its order to closing arguments and “proposed findings,” which are not in the appel- late record.",
"As we have already explained, the failure to sign the paperwork was at best marginally material to the overall question of whether Heather proved a constructive trust. The technical misstatement in the court’s order does not call into question its ultimate finding of a constructive trust. Jonathan similarly takes issue with the court’s statement in its order that “Backyard Playworld was originally purchased by [Jonathan] and [Heather] as Backyard Adventures, Inc.” He argues there is no support for this finding in any witness state- ment or document from the trial record. It appears from the - 173 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136 context that the court was well aware that Backyard Playworld was not legally purchased by both parties.",
"We understand this statement as referring to the understandings and representa- tions that led to the imposition of the constructive trust. This also is not sufficient grounds to call into question the court’s judgment. (c) Consistency With Waiver Provision of Premarital Agreement [26] Jonathan raises for the first time in this appeal the argu- ment that establishing title under a constructive trust was pro- hibited by section 6 of the Premarital Agreement, wherein each party agreed “he or she will not make any claim of any kind to the property of the other in the event of death, dissolution of marriage, or separation except as specifically contemplated by the provisions of this Agreement.” The section also states, “[E]ach party waives all rights he or she may have in all or any part of the property of the other under any law . . .",
"whether by way of dissolution of marriage . . . or any other right or inter- est.” This section was not specifically addressed by the court. An appellate court will not consider an issue on appeal that was not presented to or passed upon by the trial court. 62 In any case, we do not read this provision as prohibiting Heather from claiming title through a constructive trust. Unlike other rights to someone else’s property, which are established under laws such as the homestead allowance, 63 a constructive trust does not give rights to the property of another; it estab- lishes who actually owns the property. The constructive trust established that the Backyard Playworld LLCs were never the sole property of Jonathan; rather, title to the LLCs were equally Jonathan’s and Heather’s.",
"Heather’s waiver of any rights to Jonathan’s property under section 6 and other provisions of the premarital agreement is therefore consistent with the district court’s order. 62 de Vries v. L & L Custom Builders, 310 Neb. 543, 968 N.W.2d 64 (2021). 63 See Neb. Rev. Stat. § 30-2322 (Reissue 2016). - 174 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136 (d) Mention of Statute of Limitations [27,28] Jonathan also raises for the first time on appeal the statute of limitations in relation to the constructive trust.",
"He does so not in his assignments of error but only in passing in the argument section of his appellate brief concerning the alleged unfair surprise of the possibility of a constructive trust. To be considered by an appellate court, an alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error. 64 A statute of limitations is nonjurisdictional and waivable. 65 As the statute of limita- tions was not presented to or passed upon below and was not specifically assigned, or clearly argued, on appeal, we will not address in this appeal any question of the statute of limitations as pertains to the constructive trust. (e) Fair Value Versus Fair Market Value We turn to Jonathan’s challenge to the monetary value of the LLCs upon which the constructive trust was imposed.",
"Jonathan argues the court erred in accepting the valuation by Heather’s expert, who utilized fair value rather than fair market value in making that valuation. Jonathan did not seek to exclude Harr’s testimony, and he did not object to Harr’s opinion that fair value was a more accurate valuation approach for divorces. Jonathan states on appeal that the “problem” with using fair value is its failure to contemplate minority discounts and discounts for lack of marketability, but he con- cedes that “[t]rial courts should have the discretion to reject or apply such discounts in the divorce context, to be sure.” 66 While Jonathan’s arguments respecting fair value versus fair market value are somewhat unclear, we view the issue pre- served below and presented to us on appeal as an attack on the weight the court accorded Harr’s opinions as opposed to their admissibility.",
"64 Diamond v. State, 302 Neb. 892, 926 N.W.2d 71 (2019). 65 State v. Wiemer, 3 Neb. App. 821, 533 N.W.2d 122 (1995). 66 Brief for appellant at 46. - 175 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136 [29,30] Even in equity actions, which are generally subject to de novo review, we have said that the determination of the weight that should be given expert testimony is uniquely the province of the fact finder. 67 And we have also said in this con- text that a trial court is not required to accept any one method of valuation as more accurate than another accounting proce- dure. 68 We have held that a trial court’s valuation of a closely held corporation is reasonable if it has an acceptable basis in fact and principle, 69 and there is no reason to hold the valuation of an LLC to a different standard. We hold that the district court did not abuse its discretion in the weight it accorded Harr’s expert opinion.",
"Heather’s and Jonathan’s experts’ opinions as to the proper method of valua- tion under the circumstances of this case were in conflict, and the district court gave more weight to Harr’s testimony, which had an acceptable basis in fact and principle. The court’s valu- ation of Backyard Playworld was reasonable. It did not err in valuing Backyard Playworld in accordance with Harr’s fair value methodology. Jonathan argues somewhat abstractly that “experts should be required to articulate their opinions” about discounts and that “falsely claiming” fair value has been used in Nebraska divorce cases as “at best, a clever way to avoid cross-examination on your failure to intellectually address important valuation issues” and “[a]t worst,” the presentation of an “artificially inflated business value in the hopes that a court might ‘bite’ if not conversant with business valuations.” 70 But we observe that Jonathan’s own expert, Morris, testified that both fair value and fair market value were commonly accepted practices and that he had seen both types of valuation utilized in divorce cases. 67 See Anderson v. A & R Ag Spraying & Trucking, 306 Neb. 484, 946 N.W.2d 435 (2020).",
"68 See, id. ; Bryan v. Bryan, 222 Neb. 180, 382 N.W.2d 603 (1986). 69 Id. 70 Brief for appellant at 46. - 176 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136 Further, Harr did in fact articulate his opinions about the use of discounts in a dissolution case, such as this one, where the sale of the business is not being contemplated. We find no support for Jonathan’s apparent argument that Harr’s testimony was impermissibly misleading. (f) $375,000 Gift Next, Jonathan argues the court should have, at a minimum, set off the $375,000 gift that his parents contributed toward the purchase of Backyard Playworld and considered it part of Jonathan’s personal property for purposes of the division of assets.",
"Jonathan’s only support for this assertion is the general proposition that under equitable division, a marital estate does not include property that a spouse has acquired before the marriage or by gift or inheritance. 71 However, the $375,000 became part of Backyard Playworld, the division of which was governed by the premarital agreement and the constructive trust, not equitable division governed by § 42-365. [31] Jonathan fails to make any argument under the law of constructive trusts that the gift utilized toward the purchase price of Backyard Adventures should be set off as Jonathan’s personal property. The money was deposited directly into the account held by JBS Kids Play.",
"Jonathan’s parents did not intervene in the action to claim any interest therein; rather, it was undisputed that it was a gift. The ownership rights of a constructive trust beneficiary, once recognized, are protected from the moment the trustee acquired legal title, the construc- tive trust decree being in the nature of a declaratory judgment about the state of title to the property. 72 Thus, the gift was to the jointly owned business. We have already held in our de novo review that the constructive trust was not in error, and we do not find reason to set off from that trust the amount of the $375,000 gift to the LLC.",
"71 See Doerr v. Doerr, 306 Neb. 350, 945 N.W.2d 137 (2020). 72 See Restatement (Third) of Restitution and Unjust Enrichment § 55, comment e. (2011). - 177 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136 (g) Truck Jonathan argues that the truck owned at the time of filing for divorce, and valued at $57,141, should not have been calcu- lated as part of the marital estate because it was owned by the corporation and therefore was already included in the construc- tive trust that was given a separate value. It was undisputed at trial that the truck was titled in the name of the business. The court found the truck became part of the marital estate pursu- ant to section 4.6 of the premarital agreement. And from the court’s calculations dividing the marital estate, it is clear the court awarded the value of the truck to be divided twice, once as part of the constructive trust and again as separately listed marital property. We agree with Jonathan that this was in error.",
"That part of the order itemizing the truck as part of the marital estate is vacated. 3. Lump-Sum Payment Under Agreement The court explained that the sum of $981,180 to equal- ize the division of the marital estate did not include the $150,000 owed under section 3.3(b) of the premarital agree- ment. Jonathan takes issue with the court’s order awarding the agreed-upon property equalization lump-sum payment in addi- tion to the constructive trust. He presents no law to support this argument. Nor does he appeal to the terms of the premarital agreement in relation to the lump sum. Rather, in a brief argu- ment, Jonathan characterizes the court’s order of a lump sum in addition to the constructive trust on Backyard Playworld as turning “the divorce decree into a kind of Frankenstein of con- tract and equity.” 73 The premarital agreement in section 3.3 sets forth that Heather waived “any and all claims for division of prop- erty or property settlement from [Jonathan] with respect to [Jonathan’s] Property in the event of a future legal separa- tion, divorce, annulment or other dissolution of this pro posed marriage” in exchange for a lump sum of money 73 Brief for appellant at 45.",
"- 178 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136 based on the number of “Full Years of Marriage Subsequent to Marriage Date,” which, in this case of the marriage end- ing after between 10 and 15 years of marriage, is $150,000. (Emphasis supplied.) As already discussed, the constructive trust means that title to the Backyard Playworld LLCs is held in co-ownership. The premarital agreement contemplated the lump-sum settlement to be made in addition to the equal division of the marital estate, which included assets held in co-ownership.",
"What was waived was Heather’s right to an equitable share in property solely owned by Jonathan which, due to the constructive trust, the LLCs were not. We disagree with Jonathan’s assertion that the court’s enforcement of the lump-sum settlement was improper. 4. Alimony Award Jonathan argues on appeal that the award of alimony was an abuse of discretion because it was excessive. He makes no argument that Heather’s right to alimony was waived in the prenuptial agreement. In a marital dissolution action, an appel- late court reviews the case de novo on the record to determine whether there has been an abuse of discretion by the trial judge in his or her determinations regarding custody, child support, division of property, alimony, and attorney fees. 74 Under § 42-365, “The purpose of alimony is to provide for the continued maintenance or support of one party by the other when the relative economic circumstances and the other crite- ria enumerated in this section make it appropriate.” The court may order payment of such alimony by one party to the other as may be reasonable, having regard for the circumstances of the parties, duration of the marriage, a history of the contri- butions to the marriage by each party, including contribu- tions to the care and education of the children, and inter- ruption of personal careers or educational opportunities, and the ability of the supported party to engage in gainful 74 See Vanderveer v. Vanderveer, supra note 4.",
"- 179 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136 employment without interfering with the interests of any minor children in the custody of such party. 75 [32] Accordingly, we have articulated four factors that are relevant to alimony: (1) the circumstances of the parties, (2) the duration of the marriage, (3) the history of contributions to the marriage, and (4) the ability of the supported party to engage in gainful employment without interfering with the interests of any minor children in the custody of each party. 76 In addition, a court should consider the income and earning capacity of each party and the general equities of the situ- ation. 77 Alimony is not a tool to equalize the parties’ income, but a disparity of income or potential income might partially justify an alimony award. 78 The purpose of alimony is to pro- vide for the continued maintenance or support of one party by the other when the relative economic circumstances make it appropriate.",
"79 [33] In reviewing an alimony award, an appellate court does not determine whether it would have awarded the same amount of alimony as did the trial court, but whether the trial court’s award is untenable such as to deprive a party of a substantial right or a just result. 80 The ultimate criterion is one of reason- ableness. 81 An appellate court is not inclined to disturb the trial court’s award of alimony unless it is patently unfair on the record. 82 Heather does not have a college degree. She has not worked outside the home anywhere other than at Backyard Playworld since the birth of the oldest child of the marriage 75 § 42-365. 76 See Seivert v. Alli, 309 Neb.",
"246, 959 N.W.2d 777 (2021). 77 Id. 78 Id. 79 Id. 80 Id. 81 Id. 82 Id. - 180 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136 approximately 12 years prior to the hearing. The child support calculator entered into evidence without objection showed Jonathan’s monthly net income as $31,154 and Heather’s monthly net income as $1,098. Other evidence showed that Jonathan had a net cashflow for 2019 of $590,990.37, derived from the Backyard Playworld LLCs, as well as various invest- ment accounts. Before having children, Heather worked at a car dealership where she earned approximately $95,000 per year her final 2 years at that job. In previous years, she had earned around $70,000 annually. Heather did not think she could go back to sales work at a car dealership due to her obligations caring for the children and because of the use of newer technology that she has no experience with.",
"Heather submitted a list of her monthly living expenses total- ing $13,630. The district court found that based on this evidence and con- sidering the factors in § 42-365, Jonathan should pay alimony in the sum of $5,500 per month for 72 months. Jonathan’s argument challenging this alimony award is that the construc- tive trust based on Heather’s being a former “dynamic and energetic leader and owner” of Backyard Playworld is irrec- oncilable with an alimony award based on Heather’s being a “homemaker” and “housewife.” 83 According to Jonathan, Heather “cannot be both.” 84 If Heather is a business leader then, according to Jonathan, “she has the talent and acumen to earn a substantial income and the alimony claim cannot stand.” 85 We find no merit to this argument.",
"Under the evi- dence presented and arguments made, we cannot conclude that the court’s award of alimony was patently unfair. 5. Life Insurance to Fund Support Lastly, Jonathan argues that the court’s order that he maintain life insurance covering his support obligations is inconsistent 83 Brief for appellant at 47. 84 Id. 85 Id. - 181 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136 with the premarital agreement. He asserts that because of the court’s order, he is being required to maintain an addi- tional life insurance policy beyond that required by the agree- ment. Heather responds that the premarital agreement does not require Jonathan to maintain this life insurance after the dis- solution of the marriage. Section 1.6 of the premarital agreement sets forth Jonathan’s obligation to carry life insurance during the marriage in the amount of at least $1 million; however, Heather is correct that it provides: In the event of the parties’ legal separation or dissolution of the proposed marriage while said life insurance policy is in effect, the parties agree any case value attribut- able thereto shall be equally divided between them, and Heather at her election, shall be entitled to retain such policy at her sole cost and expense.",
"While Jonathan points out that he testified at trial that he was maintaining life insurance in accordance with the premarital agreement, this provision is plain that the agreement no longer obligates him to do so upon the dissolution of the marriage. Thus, the court’s decree does not impose upon Jonathan a life insurance obligation that is duplicative of an obligation imposed under the agreement. We find no merit to this assign- ment of error. VI. CONCLUSION We affirm the decree in all respects with the exception of the court’s itemization of the truck as part of the marital estate, which we vacate. The truck is part of the constructive trust. Affirmed in part, and in part vacated. Cassel, J., concurring.",
"Lest the bar and trial bench misunderstand the court’s deci- sion—believing that it sanctions the remedy of a constructive trust in run‑of‑the‑mill marital dissolution actions—I write separately. I address two aspects. - 182 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SIMONS V. SIMONS Cite as 312 Neb. 136 First, the application here was driven by the enforcement of a premarital agreement. The parties utilized a premarital agree- ment to circumvent (at least partially) the principles of equi- table division of property dictated by the dissolution statutes. 1 Had they not done so, I suggest that a constructive trust would have had no application. In other words, where parties bring individual property to a marriage and do not attempt to use a premarital agreement regarding division of property, the divi- sion of property would be controlled solely by §§ 42‑365 and 42‑366 and our decisions construing those statutes.",
"Second, I have considerable doubt that the remedy of a constructive trust would apply to parties’ actions prior to mar- riage. In the absence of a premarital agreement, the status of property brought to a marriage is governed by the first step of a three‑step process. 2 The first step is to classify the par- ties’ property as either marital or nonmarital, setting aside the nonmarital property to the party who brought the property to the marriage. 3 Any given property can constitute a mixture of marital and nonmarital interests; a portion of an asset can be marital property while another portion can be separate prop- erty. 4 The burden of proof rests with the party claiming that property is nonmarital. 5 Here, the disputed property was not “property brought to a marriage.” 6 Today’s decision should not be misunderstood as precedent for applying a constructive trust in the first step of the three‑step process. It is not necessary to consider the issue here, and I do not understand the court’s opinion as doing so. With this understanding, I join the court’s opinion.",
"1 See Neb. Rev. Stat. §§ 42‑347 to 42‑381 (Reissue 2016 & Cum. Supp. 2020). 2 See Kauk v. Kauk, 310 Neb. 329, 966 N.W.2d 45 (2021). 3 Id. 4 Id. 5 Id. 6 See id."
] | https://www.courtlistener.com/api/rest/v3/opinions/7798108/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Motion for reargument or for leave to appeal to the Court of Appeals denied. Present — Hinman, Acting P. J., Davis, Whitmyer, Hill and Hasbrouek, JJ. | 01-08-2022 | [
"Motion for reargument or for leave to appeal to the Court of Appeals denied. Present — Hinman, Acting P. J., Davis, Whitmyer, Hill and Hasbrouek, JJ."
] | https://www.courtlistener.com/api/rest/v3/opinions/5314277/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
DETAILED ACTION Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Allowable Subject Matter Claims 1-6 are allowed. The following is an examiner’s statement of reasons for allowance: Regarding Claim 1, the closest prior art fails to disclose “determining a first field strength in a first direction and determining a second field strength in a second direction by the magnetic angle sensor; and determining a third field strength in the first direction and determining a fourth field strength in the second direction by the second magnetic angle sensor, wherein the first magnetic angle sensor and the second magnetic angle sensor are combined into the travel-sensing arrangement, and wherein the first magnetic angle sensor and the second magnetic angle sensor detect a magnetic field caused by a permanent magnet connected to a brake activation rod” in combination with all other limitations of the claim renders the claim allowable over the prior art. All subsequent claims are also allowable due to dependency. Regarding Claim 4, the closest prior art fails to disclose “a first magnetic angle sensor comprising a first sensing element for sensing a first field strength in a first direction and a second sensing element for sensing a second field strength in a second direction; and a second magnetic angle sensor comprising a third sensing element for sensing a third field strength in the first direction and a fourth sensing element for sensing a fourth field strength in the second direction, wherein the first magnetic angle sensor and the second magnetic angle sensor are combined into the travel-sensing arrangement, and wherein the first magnetic angle sensor and the second magnetic angle sensor detect a magnetic field caused by a permanent magnet connected to a brake activation rod” in combination with all other limitations of the claim renders the claim allowable over the prior art. All subsequent claims are also allowable due to dependency. Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.” Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to ALESA ALLGOOD whose telephone number is (571)270-5811. The examiner can normally be reached M-F 7:00 AM-3:00 PM. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Judy Nguyen can be reached on 571-272-2258. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/ALESA ALLGOOD/Primary Examiner, Art Unit 2868 | 2022-04-01T11:53:23 | [
"DETAILED ACTION Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . Allowable Subject Matter Claims 1-6 are allowed. The following is an examiner’s statement of reasons for allowance: Regarding Claim 1, the closest prior art fails to disclose “determining a first field strength in a first direction and determining a second field strength in a second direction by the magnetic angle sensor; and determining a third field strength in the first direction and determining a fourth field strength in the second direction by the second magnetic angle sensor, wherein the first magnetic angle sensor and the second magnetic angle sensor are combined into the travel-sensing arrangement, and wherein the first magnetic angle sensor and the second magnetic angle sensor detect a magnetic field caused by a permanent magnet connected to a brake activation rod” in combination with all other limitations of the claim renders the claim allowable over the prior art.",
"All subsequent claims are also allowable due to dependency. Regarding Claim 4, the closest prior art fails to disclose “a first magnetic angle sensor comprising a first sensing element for sensing a first field strength in a first direction and a second sensing element for sensing a second field strength in a second direction; and a second magnetic angle sensor comprising a third sensing element for sensing a third field strength in the first direction and a fourth sensing element for sensing a fourth field strength in the second direction, wherein the first magnetic angle sensor and the second magnetic angle sensor are combined into the travel-sensing arrangement, and wherein the first magnetic angle sensor and the second magnetic angle sensor detect a magnetic field caused by a permanent magnet connected to a brake activation rod” in combination with all other limitations of the claim renders the claim allowable over the prior art. All subsequent claims are also allowable due to dependency.",
"Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.” Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to ALESA ALLGOOD whose telephone number is (571)270-5811. The examiner can normally be reached M-F 7:00 AM-3:00 PM. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Judy Nguyen can be reached on 571-272-2258. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users.",
"To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000. /ALESA ALLGOOD/Primary Examiner, Art Unit 2868"
] | https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-04-03.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
402 F.2d 576 Jerome BENSON, Appellant,v.UNITED STATES of America, Appellee. No. 22098. United States Court of Appeals Ninth Circuit. Oct. 21, 1968.
Peter L. Sanford, San Jose, Cal., for appellant. Joseph L. Ward, U.S. Atty., Robert S. Linnell, Asst. U.S. Atty., Las Vegas, Nev., for appellee. Before BARNES, JERTBERG and DUNIWAY, Circuit Judges. DUNIWAY, Circuit Judge:
1 Benson appeals from a judgment of conviction of violation of 21 U.S.C. 174. The trial was to a jury. On this appeal, he makes two claims: 1) that delay from the day the offense was committed to the day of his arrest deprived him of due process, contrary to the Fifth Amendment, and of his right to speedy trial, contrary to the Sixth Amendment, and 2) that the receipt in evidence of a prior statement of a witness, and the failure of the court to give a limiting instruction, was fatal error. We reject the first claim and sustain the second.
2 Benson was accused of selling heroin to a federal narcotics agent, one William Turnbou, on October 5, 1965. No complaint was filed, however, until March 3, 1966, some five months later. On March 7, 1966, a warrant for arrest was issued. Benson was not arrested until January 13, 1967, some 15 months after the offense. He was indicted on January 20, 1967, and tried on April 27, 1967. He had retained counsel. No motion to dismiss was made under Rule 48(b), F.R.Crim.P. Indeed, no such claim relating to delay as is now made was asserted before the trial court at any time or in any manner.
3 The record contains almost no information as to the reasons for the delays. Sergeant McCarthy of the Las Vegas police, who was doing surveillance but did not see or participate in the transaction, gave the following evidence on cross-examination:
4 'Q. When was the defendant arrested? A. I don't recall. He was a fugitive for some time. Q. Why didn't you go back in the hotel that night (October 5, 1965) and arrest him? A. Mainly because we were arresting on a series of buys, and this would have jeopardized any value that Agent Turnbou might have gained through this one transaction. Q. You made no attempt at all to place him under arrest at that time? A. No sir.'
5 There is nothing else.
6 Benson's conviction rests almost wholly on the testimony of Turnbou. This is his story: He and one Booker, an informer, went in Booker's car to Benson's hotel. They proceeded to Benson's room, where they found a 'female'.1 Booker left and returned in a few minutes with Benson. Booker introduced Turnbou to Benson as 'Bill,' who wanted heroin. Turnbou said he wanted a 'bag' (20 capsules). Benson said it would cost $60 and that he would have to go to his source of supply. benson told Turnbou to wait, and then left with Booker; they returned in about half an hour. Benson asked for the money, Turnbou handed $60 to Booker, and Booker handed it to Benson. Benson produced from his pocket a balloon containing 20 capsules of heroin and handed it to Booker, who handed it to Turnbou.
7 The government called two other witnesses. Sergeant McCarthy testified that he, Turnbou, and Booker made plans to buy narcotics. He and another detective tailed the Booker car to the hotel. He saw Booker and Turnbou go in, then Booker came out and a short time later came back with Benson. In a few minutes Turnbou, Benson, Booker, and a 'female,' left. In 45 minutes they all returned and re-entered the hotel. (He thus, in one respect, contradicted Turnbou.) Later, at Turnbou's hotel, Turnbou produced a red balloon containing capsules of heroin.
8 Booker was called but declined to testify, saying: 'I stand behind the Fifth Amendment.'
9 Benson took the stand; this is his story: On the evening in question, he and his girl friend were in his hotel room; Booker, who had a room across the hall, came to Benson's door with Turnbou. Booker asked if Benson had any 'stuff' and Benson said 'No.' Booker, but not Turnbou, was admitted and the door was closed. Booker asked if 'Cotton' had something, and Benson said he did not know. Booker said 'Well, come go with me.' They went to Booker's car, in which another man was sitting, got in, and went to Monroe and H Streets, where Booker got out. Booker went into a dwelling while Benson waited. Booker returned after 15 or 20 minutes and they went back to Benson's room, where they found the girl friend and McGee. They stayed a few minutes and then Booker left. Benson did not sell Turnbou narcotics nor receive any money from Turnbou. Benson did not claim loss of memory; he was quite positive as to what happened.
10 Benson then called Booker, who had had a change of heart. He did indicate some loss of memory: 'It's been quite a while.' He corroborated Benson's story. On cross-examination he identified a written statement, prepared by Turnbou on the night of October 5, 1965, and initialled and signed by Booker after the return to Turnbou's hotel. When government counsel undertook to cross-examine as to the contents of the statement, Benson's counsel objected, on the ground of hearsay. The objection was overruled because the statement was being used for impeachment. As to most matters, Booker said he did not remember. As to some, he said the statement was correct.2 He remained positive that he, not Benson, received the money, bought the heroin, and delivered it to Turnbou.
11 Not content with the foregoing, the prosecutor went further and recalled Turnbou, who identified the statement and described how he wrote it, read it to Booker and gave it to Booker to make corrections and sign it. Government counsel then offered it in evidence. Benson's counsel objected:
12 'Object, your Honor, on the basis that it's not the writing of the defendant, that it was not freely and voluntarily given nor signed.'
13 The objection was overruled. On cross-examination, Turnbou stated that he had been in Booker's hotel room on the night in question.
14 The statement, Exhibit 6, consists of two handwritten pages. The record shows that, as it was presented to Booker and received in evidence, the second page was on top of and stapled to the first. The first page corroborates Turnbou in almost every particular, and all of it relates to this case. The second page, which is what the reader first sees, is quite different. We quote:
15 'When we went to 717 Madison Street all of us went into the house. I recognized the man in the house as Elmer Cotton. Cotton bagged up between ten & fifteen balloons filled with caps of heroin. Black Cat (Benson) put the balloons inside his shirt pocket before we left.
Personal Descriptions:
16 JEROME BENSON. He lives in Jackson Hotel in Room #23. I have known him for 5 years and have had 15 narcotic transactions with him. ELMER COTTON. I have known him 8 years and have had about 4 heroin transactions with him. LUCILLE WASHINGTON. I have known her 6 years and she is addicted to heroin. I have bought marihuana from her about 20 times. She lives in Apt. #23 with Benson.'
17 The court gave no limiting instruction regarding the Booker statement; it was not asked to do so. Apparently the jury had the statement with them in the jury room. Government counsel referred to it in his arguments.3
18 1. The delay in charging and arresting Benson.
19 Until recently, there has been little discussion in the cases regarding delay in filing a charge and making an arrest after the government knows of the offense and the identity of the offender. See: Note, The Right to a Speedy Trial, 20 Stan.L.Rev. 476 (1968); Note, 'Justice Overdue-- Speedy Trial for the Potential Defendant,' 5 Stan.L.Rev. 95 (1952); Note, 'The Right to a Speedy Criminal Trial,' 57 Colum.L.Rev. 846, 848 (1957).
20 We have held that the right to a speedy trial guaranteed by the Sixth Amendment does not arise until a formal complaint is lodged against the defendant.4 Thus, Benson's reliance on the Sixth Amendment is misplaced.5 Similarly, Rule 48(b) F.R.Crim.P. does not apply to Benson's claim.6 The rule applies to a defendant who has been held to answer in the district court. If he has a valid claim, it must rest upon an assertion that he has been denied due process of law in violation of the Fifth Amendment.
21 Benson relies on a line of cases in the District of Columbia Circuit which hold that such delay may be a deprivation of due process.7 We need not and therefore do not decide whether, and if so to what extent, we would follow the District of Columbia cases. Here, there was never any assertion by Benson in the trial court that there was any improper delay, either in filing the complaint or in arresting him. This is fatal to the claim now made.
22 We start with the proposition, recently stated by the Supreme Court, that '* * * the applicable statute of limitations * * * is usually considered the primary guarantee against bringing overly stale criminal charges.' United States v. Ewell, 1966, 383 U.S. 116, 122, 86 S.Ct. 773, 777, 15 L.Ed.2d 627. We have said that an indictment may be returned at any time within the period prescribed by the statute of limitations; that there is no merit in the contention that the defendant should have been arrested sooner. Venus v. United States, 9 Cir., 1961, 287 F.2d 304, 307, vacated per curiam on other grounds, 368 U.S. 345, 82 S.Ct. 384, 7 L.Ed.2d 341. There are many decisions in accord.8 It seems to us to follow that, if there are special circumstances amounting to a denial of due process, that make a particular case an exception to this rule, the defendant should promptly bring the claim to the trial court's attention. If he fails to do so, the claim is no longer open to him, and cannot be raised for the first time on appeal.
23 A similar rule has often been applied to a claim that the defendant has been denied a speedy trial. The claim cannot be asserted unless he has asked for a speedy trial.9 This court has held, and so have others, that failure to assert the claim is an acquiescence in the delay and a waiver of the right.10 If this be the rule in Sixth Amendment cases, involving a specifically defined constitutional right, we think that it should a fortiori be the rule in cases such as this, where proceedings are begun within the period of the statute of limitations and the claim must be based upon facts that might make the usual rule in such cases inapplicable. Several cases have applied the rule to cases like this.11 We agree with them.
24 2. The use of Booker's statement.
25 It is well settled that a prior inconsistent statement of a witness can be used to inpeach him.12 Therefore, counsel's first objection, on the ground of hearsay, was insufficient, and the court's ruling that the statement could be used for impeachment was correct. It is equally well settled that such a statement, so used, should not become substantive evidence in the case.13 Therefore it would have been proper for counsel to ask for an instruction explaining to the jury the limitation of the use of the statement to purposes of impeachment.14 However, counsel did not then, or at any time, request such an instruction. It the usual case, the court is not required to give such an instruction sua sponte and Rule 30, F.R.Crim.P., is a barrier to counsel's claiming error here.15 Failure to give such an instruction is usually not plain error.16 If the prosecutor had done no more than cross-examine Booker on those matters in the statement that related to Booker's testimony, or to such matters as his bias, corruption, etc.,17 we would find no error.
26 The prosecutor did much more; he called Turnbou to identify the statement and describe the circumstances of its execution, and then offered it in evidence. Defense counsel's objection was on two grounds. The first was that the writing was not that of the defendant. This may have been an attempt to state a claim of hearsay, but if so it was inadequately articulated.18 The other objection, that the statement was not voluntary, is directly contrary to the record. /19/ Thus the objection was insufficient.
27 But here the statement contained much more than Booker's description of the offense for which Benson was being tried. We can think of few statements that would be more prejudicial to one on trial in a narcotics case than those appearing on the second (top) page, from which we have quoted. It would have been highly improper for the prosecutor to ask Booker about them, and he did not do so. It was equally improper for him to get them in the back door by offering the statement in evidence, objection or no objection. We are constrained to hold that the admission of the statement was plain error within the meaning of Rule 52(b), F.R.Crim.P.20 Benson is entitled to a new trial.
28 Reversed and remanded for a new trial.
1 Why does a policeman say 'female' instead of 'woman' or 'girl'?
2 'You stated to Turnbou, did you not, on that date, Mr. Booker, that you found 'Black Cat (Benson) at room 23.' of the Jackson Hotel? A. That's correct. Q. And is it not also true that you introduced Agent Turnbou to him? A. I can't recall. Q. I see. Is it not also a fact Mr. Booker, that Mr. Turnbou and yourself ordered a bag of heroin from Mr. Benson? Do you remember that? A. We requested a bag of heroin from Mr. Benson. Q. Let me ask you this, Mr. Booker. Is any of it (the statement) correct? A. Yes, sir. Q. What part is not correct? A. Here's one part that's not correct about he handed me the money, the $60 * * *. This part about Agent Turnbou handed me the $60, which I in return immediately handed over to Mr. Benson. Q. (Robert S. Linnell) You say that is not correct? A. No, sir, that isn't. Q. Although as I understand your testimony, you read this before you signed it? A. Yes, I read through it.'
3 'Now, you will have before you when you're deliberating the merits of this case Exhibit 6. Exhibit 6 as you will see is a statement signed and adopted by Mr. Booker, witnessed by Agent Turnbo and others. And if you will read that, you will see that Mr. Booker at that time at least corroborated what Agent Turnbou testified to here in Court right down the line I'm not going to say that Mr. Booker was lying then. I'm not going to say he was lying when he was on the stand. He had to be lying at one time, assuming that he read and understood, and I believe Agent Turnbou testified that he read 6, read the statement to him before he handed it to him to read himself, but his testimony and the statement are different as you'll be able to see. It's going to be up to you to say where truth lies. It's going to be up to you to judge his credibility as a witness.' Defense counsel also discussed the exhibit and Booker's motive for signing it, as did government counsel in rebuttal.
4 Venus v. United States, 9 Cir., 1960, 287 F.2d 304, 307, rev'd per curiam on other grounds, 368 U.S. 345, 82 S.Ct. 384, 7 L.Ed.2d 341 (1961); D'Aquino v. United States, 9 Cir., 1951, 192 F.2d 338, 350; Lucas v. United States, 9 Cir., 1966, 363 F.2d 500, is not to the contrary. There we said that the earliest date upon which the right to a speedy trial could attach was the date of arrest, which in that case preceded the indictment. The arrest, however, was upon a warrant previously issued. See also Sanchez v. United States, 9 Cir., 1965, 341 F.2d 225, 228, n. 3; cf. United States v. Feinberg, 2 Cir., 1967, 383 F.2d 60, 64-65 and cases there cited
5 Powell v. United States, 1965, 122 U.S.App.D.C. 229, 352 F.2d 705; Ross v. United States, 1965, 121 U.S.App.D.C. 233, 349 F.2d 210; Nickens v. United States, 1963, 116 U.S.App.D.C. 338, 323 F.2d 808, 809, cert. denied, 379 U.S. 905, 85 S.Ct. 198, 13 L.Ed.2d 178 (1964); Hoopengarner v. United States, 6 Cir., 1959, 270 F.2d 465, 469; Terlikowski v. United States, 8 Cir., 1967, 379 F.2d 501, 504
6 Rule 48(b) reads: '(b) BY COURT: If there is unnecessary delay in presenting the charge to a grand jury or in filing an information against a defendant who has been held to answer to the district court, or if there is unnecessary delay in bringing a defendant to trial, the court may dismiss the indictment, information or complaint.' See Nickens v. United States, supra n. 5, 323 F.2d at 809.
7 E.g., Nickens v. United States, supra n. 5; Ross v. United States, 1965, 121 U.S.App.D.c. 233, 349 F.2d 210; Woody v. United States, 1966, 125 U.S.App.D.C. 192, 370 F.2d 214
8 Carlo v. United States, 2 Cir., 1961, 286 F.2d 841, 846; United States v. Holliday, 2 Cir., 1963, 319 F.2d 775; United States v. Simmons, 2 Cir., 1964, 338 F.2d 804, 806; United States v. Wilson, 2 Cir., 1965, 342 F.2d 782, cert. denied, 382 U.S. 860, 86 S.Ct. 119, 15 L.Ed.2d 98; United States v. Hammond, 2 Cir., 1966, 360 F.2d 688, 689
9 Collins v. United States, 9 Cir., 1946, 157 F.2d 409, 410; United States v. Bennett, 2 Cir., 1966, 364 F.2d 499; United States v. Lustman, 2 Cir., 1958, 258 F.2d 475, 478; United States v. Kaye, 2 Cir., 1958, 251 F.2d 87, 90-91; Pietch v. United States, 10 Cir., 1940, 110 F.2d 817, 819, 129 A.L.R. 563; Worthington v. United States, 7 Cir., 1924, 1 F.2d 154
10 D'Aquino v. United States, supra n. 4, 192 F.2d at 349-50; Collins v. United States, supra n. 9; United States ex rel. Von Cseh v. Fay, 2 Cir., 1963, 313 F.2d 620, 623; United States v. Lustman, supra n. 9; Pietch v. United States, supra n. 9
11 Chapman v. United States, 2 Cir., 1967, 376 F.2d 705, 707; United States v. Beigel, 2 Cir., 1967, 370 F.2d 751, 757; United States v. Bennett, supra n. 9; United States v. Booker, 2 Cir., 1966, 363 F.2d 856; United States v. Smalls, 2 Cir., 1966, 363 F.2d 417, 419; United States v. Sanchez, 2 Cir., 1966, 361 F.2d 824; D'Ercole v. United States, 2 Cir., 1966, 361 F.2d 211; United States ex rel. Cseh v. Fay, supra n. 10. The rationale for the rule is well stated in Chapman v. United States, supra
12 Bieber v. United States, 9 Cir., 1960, 276 F.2d 709, 713; Stevens v. United States, 9 Cir., 1958, 256 F.2d 619, 623; United States v. Barnes, 6 Cir., 1963, 319 F.2d 290; Walker v. West Coast Fast Freight, Inc., 9 Cir., 1956, 233 F.2d 939-42, III Wigmore, Evidence 1017-18 (3d ed. 1940)
13 Bridges v. Wixon , 1945, 326 U.S. 135, 153, 65 S.Ct. 1443, 89 L.Ed. 2103; Southern Railway Co. v. Gray, 1916, 241 U.S. 333, 337, 36 S.Ct. 558, 60 L.Ed. 1030; Stevens v. United States, supra n. 12; United States v. Barnes, supra n. 12; III Wigmore, supra n. 12, 1018. While the writer of this opinion agrees with Wigmore's view that because it is the witness' own statement upon which he is being cross-examined the purposes of the hearsay rule are satisfied and the statement should be generally admissible, the federal authorities are all to the contrary. If Wigmore's view is ever to be adopted, it will have to be by the Supreme Court, whose decisions we must follow. Cf. the comments of Judge Barnes in Stevens v. United States, supra n. 12, 256 F.2d at 623, n. 9
14 United States v. Barnes, supra n. 12
15 Seeber v. United States, 9 Cir., 1964, 329 F.2d 572, 577; Stevens v. United States, supra n. 12; cf. Sica v. United States, 9 Cir., 1964, 325 F.2d 831-836. But see Jones v. United States, 1967, 128 U.S.App.D.C. 36, 37, 40, 385 F.2d 296, 297-300
16 Stevens v. United States, supra n. 12. Indeed, in a particular case, far from being 'plain,' the error may be 'harmless.' under Rule 52(a), F.R.Crim.P. Cf. Bushaw v. United States, 9 Cir., 1965, 353 F.2d 477, 481
17 III Wigmore, supra n. 12, 1020-1022; Gung You v. Nagle, 9 Cir., 1929, 34 F.2d 848, 852
18 Even if the objection had been on hearsay grounds, it would not have been good. Stevens v. United States, supra n. 12
19 Booker testified: 'Q. All right. Were any threats or anything like that used against you to make you sign this piece of paper? A. No, sir.' Turnbou testified: 'Q. And would you state whether or not any threats or promises or coersions of any kind were exercised against Mr. Booker in order to obtain his signature? A. No, they were not.'
20 Cf. Bowie v. United States, 9 Cir., 1965, 345 F.2d 605, 609-610; Upham v. United States, 5 Cir., 1964, 328 F.2d 661 | 08-23-2011 | [
"402 F.2d 576 Jerome BENSON, Appellant,v.UNITED STATES of America, Appellee. No. 22098. United States Court of Appeals Ninth Circuit. Oct. 21, 1968. Peter L. Sanford, San Jose, Cal., for appellant. Joseph L. Ward, U.S. Atty., Robert S. Linnell, Asst. U.S. Atty., Las Vegas, Nev., for appellee. Before BARNES, JERTBERG and DUNIWAY, Circuit Judges. DUNIWAY, Circuit Judge: 1 Benson appeals from a judgment of conviction of violation of 21 U.S.C. 174. The trial was to a jury. On this appeal, he makes two claims: 1) that delay from the day the offense was committed to the day of his arrest deprived him of due process, contrary to the Fifth Amendment, and of his right to speedy trial, contrary to the Sixth Amendment, and 2) that the receipt in evidence of a prior statement of a witness, and the failure of the court to give a limiting instruction, was fatal error. We reject the first claim and sustain the second.",
"2 Benson was accused of selling heroin to a federal narcotics agent, one William Turnbou, on October 5, 1965. No complaint was filed, however, until March 3, 1966, some five months later. On March 7, 1966, a warrant for arrest was issued. Benson was not arrested until January 13, 1967, some 15 months after the offense. He was indicted on January 20, 1967, and tried on April 27, 1967. He had retained counsel. No motion to dismiss was made under Rule 48(b), F.R.Crim.P.",
"Indeed, no such claim relating to delay as is now made was asserted before the trial court at any time or in any manner. 3 The record contains almost no information as to the reasons for the delays. Sergeant McCarthy of the Las Vegas police, who was doing surveillance but did not see or participate in the transaction, gave the following evidence on cross-examination: 4 'Q. When was the defendant arrested? A. I don't recall. He was a fugitive for some time. Q. Why didn't you go back in the hotel that night (October 5, 1965) and arrest him? A. Mainly because we were arresting on a series of buys, and this would have jeopardized any value that Agent Turnbou might have gained through this one transaction.",
"Q. You made no attempt at all to place him under arrest at that time? A. No sir.' 5 There is nothing else. 6 Benson's conviction rests almost wholly on the testimony of Turnbou. This is his story: He and one Booker, an informer, went in Booker's car to Benson's hotel. They proceeded to Benson's room, where they found a 'female'.1 Booker left and returned in a few minutes with Benson. Booker introduced Turnbou to Benson as 'Bill,' who wanted heroin.",
"Turnbou said he wanted a 'bag' (20 capsules). Benson said it would cost $60 and that he would have to go to his source of supply. benson told Turnbou to wait, and then left with Booker; they returned in about half an hour. Benson asked for the money, Turnbou handed $60 to Booker, and Booker handed it to Benson. Benson produced from his pocket a balloon containing 20 capsules of heroin and handed it to Booker, who handed it to Turnbou.",
"7 The government called two other witnesses. Sergeant McCarthy testified that he, Turnbou, and Booker made plans to buy narcotics. He and another detective tailed the Booker car to the hotel. He saw Booker and Turnbou go in, then Booker came out and a short time later came back with Benson. In a few minutes Turnbou, Benson, Booker, and a 'female,' left. In 45 minutes they all returned and re-entered the hotel. (He thus, in one respect, contradicted Turnbou.) Later, at Turnbou's hotel, Turnbou produced a red balloon containing capsules of heroin. 8 Booker was called but declined to testify, saying: 'I stand behind the Fifth Amendment.'",
"9 Benson took the stand; this is his story: On the evening in question, he and his girl friend were in his hotel room; Booker, who had a room across the hall, came to Benson's door with Turnbou. Booker asked if Benson had any 'stuff' and Benson said 'No.' Booker, but not Turnbou, was admitted and the door was closed. Booker asked if 'Cotton' had something, and Benson said he did not know. Booker said 'Well, come go with me.' They went to Booker's car, in which another man was sitting, got in, and went to Monroe and H Streets, where Booker got out. Booker went into a dwelling while Benson waited.",
"Booker returned after 15 or 20 minutes and they went back to Benson's room, where they found the girl friend and McGee. They stayed a few minutes and then Booker left. Benson did not sell Turnbou narcotics nor receive any money from Turnbou. Benson did not claim loss of memory; he was quite positive as to what happened. 10 Benson then called Booker, who had had a change of heart. He did indicate some loss of memory: 'It's been quite a while.' He corroborated Benson's story. On cross-examination he identified a written statement, prepared by Turnbou on the night of October 5, 1965, and initialled and signed by Booker after the return to Turnbou's hotel.",
"When government counsel undertook to cross-examine as to the contents of the statement, Benson's counsel objected, on the ground of hearsay. The objection was overruled because the statement was being used for impeachment. As to most matters, Booker said he did not remember. As to some, he said the statement was correct.2 He remained positive that he, not Benson, received the money, bought the heroin, and delivered it to Turnbou. 11 Not content with the foregoing, the prosecutor went further and recalled Turnbou, who identified the statement and described how he wrote it, read it to Booker and gave it to Booker to make corrections and sign it. Government counsel then offered it in evidence. Benson's counsel objected: 12 'Object, your Honor, on the basis that it's not the writing of the defendant, that it was not freely and voluntarily given nor signed.' 13 The objection was overruled. On cross-examination, Turnbou stated that he had been in Booker's hotel room on the night in question.",
"14 The statement, Exhibit 6, consists of two handwritten pages. The record shows that, as it was presented to Booker and received in evidence, the second page was on top of and stapled to the first. The first page corroborates Turnbou in almost every particular, and all of it relates to this case. The second page, which is what the reader first sees, is quite different. We quote: 15 'When we went to 717 Madison Street all of us went into the house. I recognized the man in the house as Elmer Cotton. Cotton bagged up between ten & fifteen balloons filled with caps of heroin. Black Cat (Benson) put the balloons inside his shirt pocket before we left.",
"Personal Descriptions: 16 JEROME BENSON. He lives in Jackson Hotel in Room #23. I have known him for 5 years and have had 15 narcotic transactions with him. ELMER COTTON. I have known him 8 years and have had about 4 heroin transactions with him. LUCILLE WASHINGTON. I have known her 6 years and she is addicted to heroin. I have bought marihuana from her about 20 times. She lives in Apt. #23 with Benson.' 17 The court gave no limiting instruction regarding the Booker statement; it was not asked to do so. Apparently the jury had the statement with them in the jury room. Government counsel referred to it in his arguments.3 18 1. The delay in charging and arresting Benson. 19 Until recently, there has been little discussion in the cases regarding delay in filing a charge and making an arrest after the government knows of the offense and the identity of the offender. See: Note, The Right to a Speedy Trial, 20 Stan.L.Rev.",
"476 (1968); Note, 'Justice Overdue-- Speedy Trial for the Potential Defendant,' 5 Stan.L.Rev. 95 (1952); Note, 'The Right to a Speedy Criminal Trial,' 57 Colum.L.Rev. 846, 848 (1957). 20 We have held that the right to a speedy trial guaranteed by the Sixth Amendment does not arise until a formal complaint is lodged against the defendant.4 Thus, Benson's reliance on the Sixth Amendment is misplaced.5 Similarly, Rule 48(b) F.R.Crim.P. does not apply to Benson's claim.6 The rule applies to a defendant who has been held to answer in the district court. If he has a valid claim, it must rest upon an assertion that he has been denied due process of law in violation of the Fifth Amendment.",
"21 Benson relies on a line of cases in the District of Columbia Circuit which hold that such delay may be a deprivation of due process.7 We need not and therefore do not decide whether, and if so to what extent, we would follow the District of Columbia cases. Here, there was never any assertion by Benson in the trial court that there was any improper delay, either in filing the complaint or in arresting him. This is fatal to the claim now made. 22 We start with the proposition, recently stated by the Supreme Court, that '* * * the applicable statute of limitations * * * is usually considered the primary guarantee against bringing overly stale criminal charges.' United States v. Ewell, 1966, 383 U.S. 116, 122, 86 S.Ct. 773, 777, 15 L.Ed.2d 627.",
"We have said that an indictment may be returned at any time within the period prescribed by the statute of limitations; that there is no merit in the contention that the defendant should have been arrested sooner. Venus v. United States, 9 Cir., 1961, 287 F.2d 304, 307, vacated per curiam on other grounds, 368 U.S. 345, 82 S.Ct. 384, 7 L.Ed.2d 341. There are many decisions in accord.8 It seems to us to follow that, if there are special circumstances amounting to a denial of due process, that make a particular case an exception to this rule, the defendant should promptly bring the claim to the trial court's attention. If he fails to do so, the claim is no longer open to him, and cannot be raised for the first time on appeal. 23 A similar rule has often been applied to a claim that the defendant has been denied a speedy trial. The claim cannot be asserted unless he has asked for a speedy trial.9 This court has held, and so have others, that failure to assert the claim is an acquiescence in the delay and a waiver of the right.10 If this be the rule in Sixth Amendment cases, involving a specifically defined constitutional right, we think that it should a fortiori be the rule in cases such as this, where proceedings are begun within the period of the statute of limitations and the claim must be based upon facts that might make the usual rule in such cases inapplicable.",
"Several cases have applied the rule to cases like this.11 We agree with them. 24 2. The use of Booker's statement. 25 It is well settled that a prior inconsistent statement of a witness can be used to inpeach him.12 Therefore, counsel's first objection, on the ground of hearsay, was insufficient, and the court's ruling that the statement could be used for impeachment was correct. It is equally well settled that such a statement, so used, should not become substantive evidence in the case.13 Therefore it would have been proper for counsel to ask for an instruction explaining to the jury the limitation of the use of the statement to purposes of impeachment.14 However, counsel did not then, or at any time, request such an instruction.",
"It the usual case, the court is not required to give such an instruction sua sponte and Rule 30, F.R.Crim.P., is a barrier to counsel's claiming error here.15 Failure to give such an instruction is usually not plain error.16 If the prosecutor had done no more than cross-examine Booker on those matters in the statement that related to Booker's testimony, or to such matters as his bias, corruption, etc.,17 we would find no error. 26 The prosecutor did much more; he called Turnbou to identify the statement and describe the circumstances of its execution, and then offered it in evidence. Defense counsel's objection was on two grounds. The first was that the writing was not that of the defendant. This may have been an attempt to state a claim of hearsay, but if so it was inadequately articulated.18 The other objection, that the statement was not voluntary, is directly contrary to the record. /19/ Thus the objection was insufficient. 27 But here the statement contained much more than Booker's description of the offense for which Benson was being tried.",
"We can think of few statements that would be more prejudicial to one on trial in a narcotics case than those appearing on the second (top) page, from which we have quoted. It would have been highly improper for the prosecutor to ask Booker about them, and he did not do so. It was equally improper for him to get them in the back door by offering the statement in evidence, objection or no objection. We are constrained to hold that the admission of the statement was plain error within the meaning of Rule 52(b), F.R.Crim.P.20 Benson is entitled to a new trial. 28 Reversed and remanded for a new trial. 1 Why does a policeman say 'female' instead of 'woman' or 'girl'? 2 'You stated to Turnbou, did you not, on that date, Mr. Booker, that you found 'Black Cat (Benson) at room 23.' of the Jackson Hotel? A.",
"That's correct. Q. And is it not also true that you introduced Agent Turnbou to him? A. I can't recall. Q. I see. Is it not also a fact Mr. Booker, that Mr. Turnbou and yourself ordered a bag of heroin from Mr. Benson? Do you remember that? A. We requested a bag of heroin from Mr. Benson. Q. Let me ask you this, Mr. Booker.",
"Is any of it (the statement) correct? A. Yes, sir. Q. What part is not correct? A. Here's one part that's not correct about he handed me the money, the $60 * * *. This part about Agent Turnbou handed me the $60, which I in return immediately handed over to Mr. Benson. Q. (Robert S. Linnell) You say that is not correct? A. No, sir, that isn't. Q. Although as I understand your testimony, you read this before you signed it? A. Yes, I read through it.' 3 'Now, you will have before you when you're deliberating the merits of this case Exhibit 6. Exhibit 6 as you will see is a statement signed and adopted by Mr. Booker, witnessed by Agent Turnbo and others.",
"And if you will read that, you will see that Mr. Booker at that time at least corroborated what Agent Turnbou testified to here in Court right down the line I'm not going to say that Mr. Booker was lying then. I'm not going to say he was lying when he was on the stand. He had to be lying at one time, assuming that he read and understood, and I believe Agent Turnbou testified that he read 6, read the statement to him before he handed it to him to read himself, but his testimony and the statement are different as you'll be able to see.",
"It's going to be up to you to say where truth lies. It's going to be up to you to judge his credibility as a witness.' Defense counsel also discussed the exhibit and Booker's motive for signing it, as did government counsel in rebuttal. 4 Venus v. United States, 9 Cir., 1960, 287 F.2d 304, 307, rev'd per curiam on other grounds, 368 U.S. 345, 82 S.Ct. 384, 7 L.Ed.2d 341 (1961); D'Aquino v. United States, 9 Cir., 1951, 192 F.2d 338, 350; Lucas v. United States, 9 Cir., 1966, 363 F.2d 500, is not to the contrary. There we said that the earliest date upon which the right to a speedy trial could attach was the date of arrest, which in that case preceded the indictment. The arrest, however, was upon a warrant previously issued. See also Sanchez v. United States, 9 Cir., 1965, 341 F.2d 225, 228, n. 3; cf.",
"United States v. Feinberg, 2 Cir., 1967, 383 F.2d 60, 64-65 and cases there cited 5 Powell v. United States, 1965, 122 U.S.App.D.C. 229, 352 F.2d 705; Ross v. United States, 1965, 121 U.S.App.D.C. 233, 349 F.2d 210; Nickens v. United States, 1963, 116 U.S.App.D.C. 338, 323 F.2d 808, 809, cert. denied, 379 U.S. 905, 85 S.Ct. 198, 13 L.Ed.2d 178 (1964); Hoopengarner v. United States, 6 Cir., 1959, 270 F.2d 465, 469; Terlikowski v. United States, 8 Cir., 1967, 379 F.2d 501, 504 6 Rule 48(b) reads: '(b) BY COURT: If there is unnecessary delay in presenting the charge to a grand jury or in filing an information against a defendant who has been held to answer to the district court, or if there is unnecessary delay in bringing a defendant to trial, the court may dismiss the indictment, information or complaint.'",
"See Nickens v. United States, supra n. 5, 323 F.2d at 809. 7 E.g., Nickens v. United States, supra n. 5; Ross v. United States, 1965, 121 U.S.App.D.c. 233, 349 F.2d 210; Woody v. United States, 1966, 125 U.S.App.D.C. 192, 370 F.2d 214 8 Carlo v. United States, 2 Cir., 1961, 286 F.2d 841, 846; United States v. Holliday, 2 Cir., 1963, 319 F.2d 775; United States v. Simmons, 2 Cir., 1964, 338 F.2d 804, 806; United States v. Wilson, 2 Cir., 1965, 342 F.2d 782, cert. denied, 382 U.S. 860, 86 S.Ct. 119, 15 L.Ed.2d 98; United States v. Hammond, 2 Cir., 1966, 360 F.2d 688, 689 9 Collins v. United States, 9 Cir., 1946, 157 F.2d 409, 410; United States v. Bennett, 2 Cir., 1966, 364 F.2d 499; United States v. Lustman, 2 Cir., 1958, 258 F.2d 475, 478; United States v. Kaye, 2 Cir., 1958, 251 F.2d 87, 90-91; Pietch v. United States, 10 Cir., 1940, 110 F.2d 817, 819, 129 A.L.R.",
"563; Worthington v. United States, 7 Cir., 1924, 1 F.2d 154 10 D'Aquino v. United States, supra n. 4, 192 F.2d at 349-50; Collins v. United States, supra n. 9; United States ex rel. Von Cseh v. Fay, 2 Cir., 1963, 313 F.2d 620, 623; United States v. Lustman, supra n. 9; Pietch v. United States, supra n. 9 11 Chapman v. United States, 2 Cir., 1967, 376 F.2d 705, 707; United States v. Beigel, 2 Cir., 1967, 370 F.2d 751, 757; United States v. Bennett, supra n. 9; United States v. Booker, 2 Cir., 1966, 363 F.2d 856; United States v. Smalls, 2 Cir., 1966, 363 F.2d 417, 419; United States v. Sanchez, 2 Cir., 1966, 361 F.2d 824; D'Ercole v. United States, 2 Cir., 1966, 361 F.2d 211; United States ex rel.",
"Cseh v. Fay, supra n. 10. The rationale for the rule is well stated in Chapman v. United States, supra 12 Bieber v. United States, 9 Cir., 1960, 276 F.2d 709, 713; Stevens v. United States, 9 Cir., 1958, 256 F.2d 619, 623; United States v. Barnes, 6 Cir., 1963, 319 F.2d 290; Walker v. West Coast Fast Freight, Inc., 9 Cir., 1956, 233 F.2d 939-42, III Wigmore, Evidence 1017-18 (3d ed. 1940) 13 Bridges v. Wixon , 1945, 326 U.S. 135, 153, 65 S.Ct. 1443, 89 L.Ed. 2103; Southern Railway Co. v. Gray, 1916, 241 U.S. 333, 337, 36 S.Ct. 558, 60 L.Ed. 1030; Stevens v. United States, supra n. 12; United States v. Barnes, supra n. 12; III Wigmore, supra n. 12, 1018. While the writer of this opinion agrees with Wigmore's view that because it is the witness' own statement upon which he is being cross-examined the purposes of the hearsay rule are satisfied and the statement should be generally admissible, the federal authorities are all to the contrary. If Wigmore's view is ever to be adopted, it will have to be by the Supreme Court, whose decisions we must follow. Cf. the comments of Judge Barnes in Stevens v. United States, supra n. 12, 256 F.2d at 623, n. 9 14 United States v. Barnes, supra n. 12 15 Seeber v. United States, 9 Cir., 1964, 329 F.2d 572, 577; Stevens v. United States, supra n. 12; cf.",
"Sica v. United States, 9 Cir., 1964, 325 F.2d 831-836. But see Jones v. United States, 1967, 128 U.S.App.D.C. 36, 37, 40, 385 F.2d 296, 297-300 16 Stevens v. United States, supra n. 12. Indeed, in a particular case, far from being 'plain,' the error may be 'harmless.' under Rule 52(a), F.R.Crim.P. Cf. Bushaw v. United States, 9 Cir., 1965, 353 F.2d 477, 481 17 III Wigmore, supra n. 12, 1020-1022; Gung You v. Nagle, 9 Cir., 1929, 34 F.2d 848, 852 18 Even if the objection had been on hearsay grounds, it would not have been good.",
"Stevens v. United States, supra n. 12 19 Booker testified: 'Q. All right. Were any threats or anything like that used against you to make you sign this piece of paper? A. No, sir.' Turnbou testified: 'Q. And would you state whether or not any threats or promises or coersions of any kind were exercised against Mr. Booker in order to obtain his signature? A. No, they were not.' 20 Cf. Bowie v. United States, 9 Cir., 1965, 345 F.2d 605, 609-610; Upham v. United States, 5 Cir., 1964, 328 F.2d 661"
] | https://www.courtlistener.com/api/rest/v3/opinions/282081/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Deyo, J. A tort judgment was secured against the defendants herein, one of whom, Mr. Wayman, was insured with the General Accident Fire and Life Assurance Corporation, Ltd., which company ultimately paid the entire judgment. By this motion, joined in by both the insurance carrier and by Mr. Wayman, an order is sought directing the Clerk of the County of Broome to enter a judgment in favor of the insurance carrier for the amount of the excess paid over and above Wayman’s prorata share. The sole issue presented is whether or not under section 211-a of the Civil Practice Act an insurance carrier which has paid the judgment rendered against two tort-feasors, may by motion in the original action, compel a judgment to be entered in its favor rather than in favor of its assured. It seems clear that the carrier would be entitled to this relief if it had brought a separate action for that purpose. (Travelers Insurance Co. v. McLane, 240 App. Div. 939.) That being so, there does not seem to be any compelling reason for denying the relief when sought by means of a motion. (Armstrong v. Springer, 43 N. Y. S. 2d 836; McColl v. Smith, 174 Misc. 1050. But see contra, Hadcock v. Wiggins, 147 Misc. 252.) The carrier, having paid the judgment secured against its insured, became subrogated to his rights and entitled to any remedy that the assured might have pursued if he had paid the judgment himself. (Ocean A. & G. Corp. v. Hooker, 240 N. Y. 37; Korman v. Sosknick, 21 N. Y. S. 2d 857.) The fact that the insured himself joins in the application and denies any personal interest in the judgment over, will amply safeguard the codefendant from any possibility of double liability. Motion granted, with $10 costs. Submit order accordingly. | 01-08-2022 | [
"Deyo, J. A tort judgment was secured against the defendants herein, one of whom, Mr. Wayman, was insured with the General Accident Fire and Life Assurance Corporation, Ltd., which company ultimately paid the entire judgment. By this motion, joined in by both the insurance carrier and by Mr. Wayman, an order is sought directing the Clerk of the County of Broome to enter a judgment in favor of the insurance carrier for the amount of the excess paid over and above Wayman’s prorata share. The sole issue presented is whether or not under section 211-a of the Civil Practice Act an insurance carrier which has paid the judgment rendered against two tort-feasors, may by motion in the original action, compel a judgment to be entered in its favor rather than in favor of its assured.",
"It seems clear that the carrier would be entitled to this relief if it had brought a separate action for that purpose. (Travelers Insurance Co. v. McLane, 240 App. Div. 939.) That being so, there does not seem to be any compelling reason for denying the relief when sought by means of a motion. (Armstrong v. Springer, 43 N. Y. S. 2d 836; McColl v. Smith, 174 Misc. 1050. But see contra, Hadcock v. Wiggins, 147 Misc. 252.) The carrier, having paid the judgment secured against its insured, became subrogated to his rights and entitled to any remedy that the assured might have pursued if he had paid the judgment himself. (Ocean A. & G. Corp. v. Hooker, 240 N. Y. 37; Korman v. Sosknick, 21 N. Y. S. 2d 857.) The fact that the insured himself joins in the application and denies any personal interest in the judgment over, will amply safeguard the codefendant from any possibility of double liability. Motion granted, with $10 costs. Submit order accordingly."
] | https://www.courtlistener.com/api/rest/v3/opinions/5428891/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
52 N.J. Super. 460 (1958) 145 A.2d 801 LORRAINE JOHNSON AND DICKIE HARRIS, PLAINTIFFS-RESPONDENTS, v. ARTHUR STOVEKEN, DEFENDANT-APPELLANT. EUGENE MILES, PLAINTIFF-RESPONDENT, v. ARTHUR STOVEKEN, DEFENDANT-APPELLANT. ARTHUR STOVEKEN AND SIGMUND WISNIEWSKI, PLAINTIFFS-APPELLANTS, v. EUGENE MILES, DEFENDANT-RESPONDENT. Superior Court of New Jersey, Appellate Division. Argued October 14, 1958. Decided November 10, 1958. *462 Before Judges CONFORD, FREUND and HANEMAN. Mr. Bernard Shurkin argued the cause for appellants Stoveken and Wisniewski (Messrs. Oppenheim and Oppenheim, attorneys). Mr. Roland Vreeland argued the cause for respondents (Messrs. Dowd and Lombardino, attorneys for respondent Miles, and Messrs. Connolly, Vreeland and Connolly, attorneys for plaintiffs-respondents Johnson and Harris). CONFORD, J.A.D. These were cross-actions for damages arising out of an automobile accident, consolidated for trial. *463 Lorraine Johnson and Dickie Harris were passengers in an automobile being driven by Miles. Wisniewski was a passenger in a car being operated by Stoveken in the opposite direction on Route 206 between Princeton and Somerville. The cars collided at 1:45 A.M. on September 23, 1956. Johnson, Harris and Miles sued Stoveken, while Stoveken and Wisniewski sued Miles. The jury returned verdicts in favor of Miss Johnson for $35,000, for Harris of $40,000, and for Miles of $300. No cause of action was found in the action of Stoveken and Wisniewski against Miles. A motion for new trial by Stoveken and Wisniewski, assigning as grounds that the verdict was against the weight of the evidence, and the result of partiality, prejudice or passion, and that the verdicts in favor of Harris and Johnson were excessive and contrary to the weight of the evidence, was denied. On this appeal, in addition to those grounds, there are also raised as points of appeal the references by trial counsel and court to the ad damnum clause in the complaints and alleged errors in rulings on evidence. Concerning the weight of the evidence on the matter of fault, or liability for negligence, and the related question of freedom from contributory negligence of the respective drivers, we deem it unnecessary to detail the sharply conflicting proofs. While the jury might well have laid negligence at the doorstep of Miles, as either partially or solely contributive to the accident, rather than exclusively to Stoveken (as it is evident it did by the verdict for Miles against Stoveken), we cannot say that its right to determine the credibility and preponderance of the proofs could not rationally have led it to the assessments of negligence and innocence thereof which the verdicts reflect. The refusal of the trial judge to interfere with the verdict further conduces to our conclusion, Hartpence v. Grouleff, 15 N.J. 545 (1954), as we cannot find a "manifest denial of justice." In relation to the matter of evidence concerning liability, defendant complains of the refusal of the trial court to allow him to ask, on cross-examination, for plaintiff *464 Johnson's explanation of a discrepancy between her testimony at a prior hearing and that given at the trial. It is not altogether clear that there actually was a discrepancy. In any case, however, the right to explain is that of the witness sought to be impeached. The cross-examiner's rights are fully served by showing the contradiction in the testimony and asking the witness concerning the truth of one or the other version. Defendant was not impeded in any such effort. In any event, there was no prejudice material to the outcome in the trial ruling. Concerning the amount of the verdicts for Harris and Johnson, we do not deem them excessive, certainly not in the sense of requiring a conclusion of mistake, passion, prejudice or partiality. Miss Johnson, a young woman of 21, sustained almost a complete amputation of her nose. She had extensive surgery and will require considerably more. She will never be restored to any approximation of her former normal appearance. Her other painful and extensive lacerations and injuries and the treatment had therefor are accurately detailed in the trial judge's opinion denying a new trial. Harris, who was 29, suffered a dislocation of the sixth cervical vertebra on the seventh cervical vertebra and probably an associated fracture. He was in the hospital a total of nine weeks on two occasions. He was first treated by traction and plaster cast. After removal of the cast it was found that the dislocation had recurred. Further traction was not helpful. Consequently, to avoid the great hazard, in the patient's then condition, of further dislocation which might impinge on the spinal cord and produce paralysis, an operation was performed consisting of a fusion of four vertebrae, including the two directly involved in the dislocation, using two pieces of bone from one of the legs, reinforced by wire. The effect was to rigidify the neck and minimize the possibility of further dislocation. However, the patient's neck motion was substantially reduced. The necessary effect, moreover, was to eliminate function in one-third of the vertebral joints in the cervical spine, so *465 that the other joints and vertebrae must bear more stress and strain than normal. The probabilities, therefore, are for earlier degenerative arthritis than generally occurs in the neck and spine. His ability to obtain gainful employment in his occupation as a laborer has been considerably impaired, because he tires rapidly. There continues to be considerable pain and discomfort when sitting, standing or lying down. The uncontradicted expert testimony was that plaintiff's physical changes due to the accident and operation are permanent. Defendant finally urges reversal on the basis of the reference by trial counsel to the amounts of $100,000 requested in the ad damnum clauses of the complaint. There was no objection to the reference at the trial. In charging the jury the trial judge adverted to the reference, informed it of the nature of the complaint and of the ad damnum clause, and said, without any objection by any party: "Now, the measure of a person's recovery in an action of this sort is not what the plaintiff's attorney has seen fit to demand in his complaint, but rather his measure of recovery is predicated on certain rules of law that are well established and these rules guide the Jury in their determination of the amount of the verdict. Not what the attorney for the respective plaintiffs demand. I shall give you those rules in the course of my charge. They are the facts that are to be used by you when you reach the element of damages and your determination, of course, is to be made entirely upon the application of those rules." In Botta v. Brunner, 26 N.J. 82 (1958), decided after the trial of the instant case, the Supreme Court by dictum overruled a settled line of authority permitting reference by counsel to the amount sought in the complaint. The court determined that this practice should be prohibited because the figure mentioned might operate "as a conscious or unconscious factor" in the verdict reached by the jury, contrary to the rule that the determination from the evidence of the money equivalent of the pain, suffering and permanence of personal injuries was the exclusive domain of the jury (26 N.J. at pages 104, 105). *466 Defendant argues that the Botta ruling must be given retrospective effect. He conceded at the argument, however, that the error is not an automatic basis for reversal, but, as in cases of trial error generally, will justify reversal only if found materially prejudicial in the particular case. He contends prejudice is shown here, reflected by the jury's assessment of liability against the weight of the evidence and of damages in excessive amounts. We have, however, indicated our disagreement with the contentions that the verdicts indicate passion, prejudice, partiality or mistake in either of the respects mentioned. Indeed, we do not regard them as excessive at all. Further, mention of the amount sued for would have little, if any, relevancy to the verdict as to liability. Thus, even if the Botta rule were applied here, we would not be led to the conclusion that counsel's mention of the amount of the recovery or the court's charge concerning the matter operated prejudicially in the particular circumstances reflected by the entire record. A fortiori we would not deem these occurrences plain error, warranting reversal in spite of the fact that no objection was taken to them at the trial. In any event, however, considerations of basic fairness and justice (see Arrow Builders Supply Corp. v. Hudson Terrace Apts., 16 N.J. 47, 49, 50 (1954)) seem to us to weigh against the application of the Botta rule to nullify a trial conducted in accord with the practice then and long previously enjoying express judicial sanction. See also Carlucci v. Stichman, 50 N.J. Super. 96 (App. Div. 1958). It will be noted that in expressly overruling prior decisions approving mention of amounts sought to be recovered Mr. Justice Francis states, in Botta, that the court is doing so "In order that the rule announced in the present case may be invested with its full and intended scope * * *" (emphasis supplied) (26 N.J. at page 104). This language strongly implies that the court is announcing a rule to control cases tried after the decision, not one intended to be retrospective in effect. Affirmed. *467 HANEMAN, J.A.D. (dissenting). I concur with my colleagues in their conclusions except insofar as they concern the reference by plaintiffs' counsel to the ad damnum clause. My dissent is as to their conclusion that such reference did not constitute reversible error. As noted in the majority opinion, plaintiffs' counsel adverted in his summation to the fact that each plaintiff had demanded $100,000 as damages in the complaint. The entire portion of the court's charge concerning the ad damnum clause reads: "The Court: Members of the Jury, yesterday afternoon towards the close of summation of counsel, probably the opening of summation of counsel for the plaintiffs, Miss Johnson and Mr. Harris, he told you that the ad damnum clause, as it is called in these complaints seeks damages on each count in the amount of $100,000 respectively for Miss Johnson and Mr. Harris. Now, the complaint is the paper that lawyers file when they begin a suit of this sort. In form it was recited in more or less legal technical language the nature of the case alleged against the defendant and always concludes with what we call the ad damnum clause and it runs something like this, `Wherefore, the plaintiff claims damages in the amount of so much money.' The figure that is put in that ad damnum clause and in this case $100,000 in each count rests entirely with the attorney who brings the action. Now, the measure of a person's recovery in an action of this sort is not what the plaintiff's attorney has seen fit to demand in his complaint, but rather his measure of recovery is predicated on certain rules of law that are well established and these rules guide the jury in their determination of the amount of the verdict. Not what the attorney for the respective plaintiffs demand. I shall give you those rules in the course of my charge. They are the facts that are to be used by you when you reach the element of damages and your determination of course, is to be made entirely upon the application of those rules." The trial in this matter antedated the opinion in Botta v. Brunner, 26 N.J. 82 (1958), which is undoubtedly the reason that no objection was taken to either the summation or charge. Defendants seek reversal under R.R. 1:5-3(c), which reads: "The court may notice plain errors affecting substantial rights of a party, although they were not brought to the attention of the trial court." *468 In Botta v. Brunner, supra, 26 N.J. at pages 103, 104, the court said: "It may be said, and not without justification, that our conclusion conflicts to some degree with Rhodehouse v. Director General, 95 N.J.L. 355 (Sup. Ct. 1920); Balog v. F.M. Mitchell Motor Co., 3 N.J. Misc. 1000 (Sup. Ct. 1925), and Lukasiewicz v. Haddad, 24 N.J. Super. 399 (App. Div. 1953), which hold that it is not improper for counsel to advise the jury as to the amount of the ad damnum clause of the complaint; also with Kulodzej v. Lehigh Valley Railroad Co., 39 N.J. Super. 268 (App. Div. 1956), sanctioning a statement to the jury in summation of counsel's opinion as to the sum which should be awarded to the plaintiff; and with Budden v. Goldstein, supra, 43 N.J. Super. at page 344, approving reference to suggested amounts as reasonable compensation. In order that the rule announced in the present case may be invested with its full and intended scope, those decisions are expressly overruled. * * * Informing the jury of the ad damnum clause serves no useful or sound function. If it be said that the amount claimed constitutes the maximum limit of permissible recovery, the legal effect of that limitation is better left in the control of an experienced trial court. In the hands of the jury, untrained in the trial of cases, it may very well raise confusing and difficult complications. It is a matter of common knowledge that ordinarily the amount of damages laid in the complaint is much in excess of any sum which the plaintiff hopes to receive. Witness the large number of actions which are being transferred regularly from our Superior Courts to the District Courts. We know that as a matter of practice when the ad damnum clause is brought to the attention of the jury, the court admonishes them that it only represents the claim of the plaintiff and that their award must be based on reasonable compensation. But it is extremely doubtful whether such admonitions are sufficient to eliminate the figure from their minds as a conscious or unconscious factor in reaching their verdict. Hollinger v. York Rys. Co., supra [225 Pa. 419, 74 A. 344]. And as the Supreme Court of Missouri declared in Bales v. Kansas City Public Service Co., 328 Mo. 171, 40 S.W.2d 665, 670 (1931), `However, we are unable to see wherein it serves any good or useful purpose to inform the jury, in instructing them upon the measure of damages, that they cannot allow or assess the damages in excess of the amount sued for, and named in the instruction. We believe that the practice of giving such forms of instruction should be discontinued by the trial courts.' 40 S.W.2d at page 670. And see Otto v. Milwaukee Northern Ry. Co., 148 Wis. 54, 134 N.W. 157, 160 (Sup. Ct. 1912)." Two questions are inferentially raised by this appeal, (1) whether the rule formulated in Botta is retrospective, *469 and (2) whether a reference to the amount of the ad damnum clause in the summation of plaintiffs' counsel automatically constitutes reversible error which cannot be cured by a directory charge. It must be conceded that Botta inveighed against any reference to the amount demanded in the ad damnum clause. It must also be conceded that the rule concerning the disclosure of the amount demanded is dictum. However, the language in which that rule was announced is so strong as to lead to only one rational conclusion, i.e., sound public policy prohibits the practice and invests the defendant with an inviolable right to be protected against such disclosure.
I. I shall treat of whether Botta is retrospectively effective. Generally, a change in the law in a civil case by a decision of the highest court of the State is retrospective and makes the law at the time of the first decision as it is declared in the last decision, as to all transactions that can be reached by it. Stockton v. Dundee Manufacturing Co., 22 N.J. Eq. 56 (Ch. 1871). See also Ross v. Freeholders of Hudson, 90 N.J.L. 522 (1917); Fox v. Snow, 6 N.J. 12 (1950); Johnson v. State, 18 N.J. 422 (1955). The retroactive operation and effect of such an overruling decision, however, does not reach transactions where contract or property rights have vested or where extreme hardship would result. Johnson v. State, supra. This rule was subject to some implied criticism by dictum appearing in Arrow Builders Supply Corp. v. Hudson Terrace Apts., 16 N.J. 47 (1954). The Supreme Court, however, subsequently reaffirmed and restated that rule. Johnson v. State, supra. In the matter sub judice the plaintiff has no vested property right which would be affected, since the holder of a judgment can have no vested right therein until the time for appeal has run. Shade v. Colgate, 3 N.J. 91 (1949); In re Pfizer's Estate, 6 N.J. 233 (1951); R.R. 1:2-1; 2:2-1. *470 Nor does there appear to be extreme hardship in the sense in which that term is used. The question of the negligent causation of the accident was properly entrusted to the jury for solution. The sole issue on remand would be the quantum of damages, which would necessitate a retrial of that issue alone. That hardship is not such as should move the court to conclude that plaintiffs should be exempt from the general rule. Thus plaintiffs' case does not fall within any of the exceptions to the general rule. My colleagues have determined that the intent of the court in Botta was to interdict in futuro the practice of disclosing the amount demanded in the ad damnum clause. Such result, it is said, results from an implication contained in that decision. The portion of the opinion relied upon, when taken in context, demonstrates that the interdiction was against both the use of a chronometric formula and any reference to the amount demanded in the ad damnum clause. The court did not distinguish between the stated prohibitory acts either as to their effect upon the jury or as to the time when the rule should become effective. In neither instance did the court prospectively restrict the operative effect of the rule by apt and specific words, as was done in Great Northern R. Co. v. Sunburst Oil & Ref. Co., 287 U.S. 358, 53 S.Ct. 145, 77 L.Ed. 360 (1932); Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956), and Hanks v. McDanell, 307 Ky. 243, 210 S.W.2d 784, 17 A.L.R.2d 1 (Ct. App. 1948). In overruling prior decisions permitting reference to the ad damnum clause, the court in Botta used the present tense. The court, in that connection, said, 26 N.J. at p. 104: "In order that the rule announced in the present case may be invested with its full and intended scope, those decisions are expressly overruled." (Emphasis supplied) The language of the opinion can lead only to the conclusion that the old doctrine was immediately overruled and the new doctrine simultaneously adopted. *471 There can be no doubt that in Botta the court could have exercised the power reposed in it in a manner which would have given prospective effect only to the rules announced therein. In Griffin v. Illinois, supra (351 U.S. 26, 76 S.Ct. 594, 100 L.Ed. at page 903), the court said: "It is much more conducive to law's self-respect to recognize candidly the considerations that give prospective content to a new pronouncement of law. That this is consonant with the spirit of our law and justified by those considerations of reason which should dominate the law, has been luminously expounded by Mr. Justice Cardozo, shortly before he came here and in an opinion which he wrote for the Court. See Address of Chief Judge Cardozo, 55 Report of New York State Bar Asso. 263, 294 et seq., and Great Northern R. Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 363-366, 53 S.Ct. 145, 148-149, 77 L.Ed. 360, 365-367, 85 A.L.R. 254. Such a molding of law, by way of adjudication, is peculiarly applicable to the problem at hand. The rule of law announced this day should be delimited as indicated." See also Great Northern R. Co. v. Sunburst Oil & Ref. Co., supra. Absent express provision limiting the effect of an overruling decision to the future, the general rule governs, i.e., the decision has a retroactive effect. I conceive, therefore, that the decision in Botta has a retroactive effect and is binding on these litigants.
II. It is necessary, next, to determine whether it is reversible error per se for plaintiffs' counsel in his summation to disclose to the jury the amount demanded in the ad damnum clause. The expression of the reasoning in Botta which led the court to conclude that the employment of mathematical formulae to admeasure the compensation for pain and suffering, or any reference to the ad damnum clause, or the transmittal of the complaint, including the ad damnum clause, to the jury, "will constitute an unwarranted intrusion into the domain of the jury" (26 N.J. at page 103), is *472 couched in strong and indisputable terms. The vice in the prohibited conduct lies in its incalculable effect upon the jury and the well-nigh impossible task of purging such figures from the minds of the jury. The court said, concerning reference to the ad damnum clause (26 N.J. at p. 104): "But it is extremely doubtful whether such admonitions are sufficient to eliminate the figure from their minds as a conscious or unconscious factor in reaching their verdicts." (Emphasis supplied) The stated inability to eliminate from the minds of the jurors the amount of the ad damnum clause can give rise only to the conclusion that any such reference is deemed prejudicial per se. The final conclusion in Botta is supported by numerous references to judicial decisions emanating from courts in Pennsylvania, by both citing and quoting from those decisions. In that state a reference to the ad damnum clause in the summation of plaintiff's counsel is considered automatically prejudicial and the granting of a motion for a mistrial based on that ground is mandatory. One of the cases cited in Botta is Carothers v. Pittsburgh Rys. Co., 229 Pa. 558, 79 A. 134 (Sup. Ct. 1911). In that case the plaintiff's counsel made reference to the ad damnum clause in his summation. The trial court denied a motion for a mistrial but attempted to eradicate the comment from the jury's mind by its charge. The appellate court said (79 A. at page 135): "In this case it is just to counsel, who was from another state, to say that the remark complained of was made in good faith, and without knowledge of our decisions on the subject, and to the learned trial judge that he did all in his power, by proper instructions, to correct the error complained of. It is better, however, that the rule should be fixed and that cases of this kind should be put in line with Holden v. Pennsylvania R.R. Co., 169 Pa. 1, 32 A. 103, Wagner v. Hazel Twp., 215 Pa. 219, 64 A. 405, Saxton v. Pittsburg Railways Co., 219 Pa. 492, 68 A. 1022, Hollis v. Glass Co., 220 Pa. 49, 69 A. 55, and kindred cases in which this court has taken a stand against every attempt to obtain an unfair advantage in the trial of a cause. The first assignment of error is sustained." *473 Another case cited in Botta is Vaughan v. Magee, 218 F. 630 (3 Cir. 1914). In that case the court said, at page 631: "Whatever may be the practice in other jurisdictions, the courts of Pennsylvania have been stern and unyielding in that regard. Wherever a court, in its charge, or counsel, in addressing a jury, have brought to a jury's notice that a plaintiff claimed a fixed sum for damages, it has been adjudged a mistrial. Carothers v. Pittsburgh Railways Co. 229 Pa. 560, 79 A. 134; Reese v. Hershey, 163 Pa. 253, 30 A. 907, 43 Am. St. Rep. 795; Quinn v. Philadelphia Rapid Transit Co., 224 Pa. 162, 73 A. 319; Dougherty v. Pittsburgh Railways Co., 213 Pa. 346, 62 A. 926; Hollinger v. York Railway Co., 225 Pa. 419, 74 A. 344, 17 Ann. Cas. 571. The bar of the state has loyally supported this view, and this seems a fitting case for this court to emphasize and restate, as applicable to the federal courts of this circuit, the ruling of those cases." See also Stein v. Meyer, 150 F. Supp. 365 (D.C.E.D. Pa. 1957). The gist of the holding in the two above cited cases is that defendant has a fundamental right against reference by plaintiff's counsel to the ad damnum clause. Any reference by plaintiff, in his summation, to the amount demanded in the ad damnum clause is therefore prejudicial per se and hence reversible error. Such error affects a substantial and fundamental right and cannot be cured by a charge of the trial court. Cf. Wright v. Bernstein, 23 N.J. 284, 296 (1957). I am appreciative of the fact that my conclusions may conflict with Carlucci v. Stichman, 50 N.J. Super. 96 (App. Div. 1958), in which decision I participated. In the matter sub judice it was conceded by counsel that the error was not an automatic ground for reversal. In Carlucci the question of whether a breach of the summation rule in Botta was an automatic ground for reversal was neither urged nor argued by counsel in their respective briefs, nor considered by the court. My further deliberations, however, convince me that there is so much merit to the above reasoning that it requires expression, because of its import upon cases not only ante Botta but post Botta as well. *474 The adversion of plaintiffs' counsel to the amount demanded in the ad damnum clause therefore constitutes plain error and affects the substantial rights of defendant. It becomes not only unnecessary but improper as well to examine the amount of the verdict to ascertain whether substantial rights were violated as evidenced by an excessive award. I would therefore reverse and remand for a new trial as to damages only. | 10-30-2013 | [
"52 N.J. Super. 460 (1958) 145 A.2d 801 LORRAINE JOHNSON AND DICKIE HARRIS, PLAINTIFFS-RESPONDENTS, v. ARTHUR STOVEKEN, DEFENDANT-APPELLANT. EUGENE MILES, PLAINTIFF-RESPONDENT, v. ARTHUR STOVEKEN, DEFENDANT-APPELLANT. ARTHUR STOVEKEN AND SIGMUND WISNIEWSKI, PLAINTIFFS-APPELLANTS, v. EUGENE MILES, DEFENDANT-RESPONDENT. Superior Court of New Jersey, Appellate Division. Argued October 14, 1958. Decided November 10, 1958. *462 Before Judges CONFORD, FREUND and HANEMAN. Mr. Bernard Shurkin argued the cause for appellants Stoveken and Wisniewski (Messrs. Oppenheim and Oppenheim, attorneys). Mr. Roland Vreeland argued the cause for respondents (Messrs. Dowd and Lombardino, attorneys for respondent Miles, and Messrs. Connolly, Vreeland and Connolly, attorneys for plaintiffs-respondents Johnson and Harris). CONFORD, J.A.D. These were cross-actions for damages arising out of an automobile accident, consolidated for trial.",
"*463 Lorraine Johnson and Dickie Harris were passengers in an automobile being driven by Miles. Wisniewski was a passenger in a car being operated by Stoveken in the opposite direction on Route 206 between Princeton and Somerville. The cars collided at 1:45 A.M. on September 23, 1956. Johnson, Harris and Miles sued Stoveken, while Stoveken and Wisniewski sued Miles. The jury returned verdicts in favor of Miss Johnson for $35,000, for Harris of $40,000, and for Miles of $300. No cause of action was found in the action of Stoveken and Wisniewski against Miles. A motion for new trial by Stoveken and Wisniewski, assigning as grounds that the verdict was against the weight of the evidence, and the result of partiality, prejudice or passion, and that the verdicts in favor of Harris and Johnson were excessive and contrary to the weight of the evidence, was denied.",
"On this appeal, in addition to those grounds, there are also raised as points of appeal the references by trial counsel and court to the ad damnum clause in the complaints and alleged errors in rulings on evidence. Concerning the weight of the evidence on the matter of fault, or liability for negligence, and the related question of freedom from contributory negligence of the respective drivers, we deem it unnecessary to detail the sharply conflicting proofs. While the jury might well have laid negligence at the doorstep of Miles, as either partially or solely contributive to the accident, rather than exclusively to Stoveken (as it is evident it did by the verdict for Miles against Stoveken), we cannot say that its right to determine the credibility and preponderance of the proofs could not rationally have led it to the assessments of negligence and innocence thereof which the verdicts reflect.",
"The refusal of the trial judge to interfere with the verdict further conduces to our conclusion, Hartpence v. Grouleff, 15 N.J. 545 (1954), as we cannot find a \"manifest denial of justice.\" In relation to the matter of evidence concerning liability, defendant complains of the refusal of the trial court to allow him to ask, on cross-examination, for plaintiff *464 Johnson's explanation of a discrepancy between her testimony at a prior hearing and that given at the trial. It is not altogether clear that there actually was a discrepancy. In any case, however, the right to explain is that of the witness sought to be impeached. The cross-examiner's rights are fully served by showing the contradiction in the testimony and asking the witness concerning the truth of one or the other version. Defendant was not impeded in any such effort. In any event, there was no prejudice material to the outcome in the trial ruling.",
"Concerning the amount of the verdicts for Harris and Johnson, we do not deem them excessive, certainly not in the sense of requiring a conclusion of mistake, passion, prejudice or partiality. Miss Johnson, a young woman of 21, sustained almost a complete amputation of her nose. She had extensive surgery and will require considerably more. She will never be restored to any approximation of her former normal appearance. Her other painful and extensive lacerations and injuries and the treatment had therefor are accurately detailed in the trial judge's opinion denying a new trial.",
"Harris, who was 29, suffered a dislocation of the sixth cervical vertebra on the seventh cervical vertebra and probably an associated fracture. He was in the hospital a total of nine weeks on two occasions. He was first treated by traction and plaster cast. After removal of the cast it was found that the dislocation had recurred. Further traction was not helpful. Consequently, to avoid the great hazard, in the patient's then condition, of further dislocation which might impinge on the spinal cord and produce paralysis, an operation was performed consisting of a fusion of four vertebrae, including the two directly involved in the dislocation, using two pieces of bone from one of the legs, reinforced by wire. The effect was to rigidify the neck and minimize the possibility of further dislocation. However, the patient's neck motion was substantially reduced. The necessary effect, moreover, was to eliminate function in one-third of the vertebral joints in the cervical spine, so *465 that the other joints and vertebrae must bear more stress and strain than normal.",
"The probabilities, therefore, are for earlier degenerative arthritis than generally occurs in the neck and spine. His ability to obtain gainful employment in his occupation as a laborer has been considerably impaired, because he tires rapidly. There continues to be considerable pain and discomfort when sitting, standing or lying down. The uncontradicted expert testimony was that plaintiff's physical changes due to the accident and operation are permanent. Defendant finally urges reversal on the basis of the reference by trial counsel to the amounts of $100,000 requested in the ad damnum clauses of the complaint. There was no objection to the reference at the trial. In charging the jury the trial judge adverted to the reference, informed it of the nature of the complaint and of the ad damnum clause, and said, without any objection by any party: \"Now, the measure of a person's recovery in an action of this sort is not what the plaintiff's attorney has seen fit to demand in his complaint, but rather his measure of recovery is predicated on certain rules of law that are well established and these rules guide the Jury in their determination of the amount of the verdict.",
"Not what the attorney for the respective plaintiffs demand. I shall give you those rules in the course of my charge. They are the facts that are to be used by you when you reach the element of damages and your determination, of course, is to be made entirely upon the application of those rules.\" In Botta v. Brunner, 26 N.J. 82 (1958), decided after the trial of the instant case, the Supreme Court by dictum overruled a settled line of authority permitting reference by counsel to the amount sought in the complaint. The court determined that this practice should be prohibited because the figure mentioned might operate \"as a conscious or unconscious factor\" in the verdict reached by the jury, contrary to the rule that the determination from the evidence of the money equivalent of the pain, suffering and permanence of personal injuries was the exclusive domain of the jury (26 N.J. at pages 104, 105). *466 Defendant argues that the Botta ruling must be given retrospective effect.",
"He conceded at the argument, however, that the error is not an automatic basis for reversal, but, as in cases of trial error generally, will justify reversal only if found materially prejudicial in the particular case. He contends prejudice is shown here, reflected by the jury's assessment of liability against the weight of the evidence and of damages in excessive amounts. We have, however, indicated our disagreement with the contentions that the verdicts indicate passion, prejudice, partiality or mistake in either of the respects mentioned. Indeed, we do not regard them as excessive at all. Further, mention of the amount sued for would have little, if any, relevancy to the verdict as to liability. Thus, even if the Botta rule were applied here, we would not be led to the conclusion that counsel's mention of the amount of the recovery or the court's charge concerning the matter operated prejudicially in the particular circumstances reflected by the entire record.",
"A fortiori we would not deem these occurrences plain error, warranting reversal in spite of the fact that no objection was taken to them at the trial. In any event, however, considerations of basic fairness and justice (see Arrow Builders Supply Corp. v. Hudson Terrace Apts., 16 N.J. 47, 49, 50 (1954)) seem to us to weigh against the application of the Botta rule to nullify a trial conducted in accord with the practice then and long previously enjoying express judicial sanction. See also Carlucci v. Stichman, 50 N.J. Super. 96 (App. Div.",
"1958). It will be noted that in expressly overruling prior decisions approving mention of amounts sought to be recovered Mr. Justice Francis states, in Botta, that the court is doing so \"In order that the rule announced in the present case may be invested with its full and intended scope * * *\" (emphasis supplied) (26 N.J. at page 104). This language strongly implies that the court is announcing a rule to control cases tried after the decision, not one intended to be retrospective in effect. Affirmed. *467 HANEMAN, J.A.D. (dissenting). I concur with my colleagues in their conclusions except insofar as they concern the reference by plaintiffs' counsel to the ad damnum clause. My dissent is as to their conclusion that such reference did not constitute reversible error. As noted in the majority opinion, plaintiffs' counsel adverted in his summation to the fact that each plaintiff had demanded $100,000 as damages in the complaint.",
"The entire portion of the court's charge concerning the ad damnum clause reads: \"The Court: Members of the Jury, yesterday afternoon towards the close of summation of counsel, probably the opening of summation of counsel for the plaintiffs, Miss Johnson and Mr. Harris, he told you that the ad damnum clause, as it is called in these complaints seeks damages on each count in the amount of $100,000 respectively for Miss Johnson and Mr. Harris. Now, the complaint is the paper that lawyers file when they begin a suit of this sort. In form it was recited in more or less legal technical language the nature of the case alleged against the defendant and always concludes with what we call the ad damnum clause and it runs something like this, `Wherefore, the plaintiff claims damages in the amount of so much money.' The figure that is put in that ad damnum clause and in this case $100,000 in each count rests entirely with the attorney who brings the action.",
"Now, the measure of a person's recovery in an action of this sort is not what the plaintiff's attorney has seen fit to demand in his complaint, but rather his measure of recovery is predicated on certain rules of law that are well established and these rules guide the jury in their determination of the amount of the verdict. Not what the attorney for the respective plaintiffs demand. I shall give you those rules in the course of my charge. They are the facts that are to be used by you when you reach the element of damages and your determination of course, is to be made entirely upon the application of those rules.\" The trial in this matter antedated the opinion in Botta v. Brunner, 26 N.J. 82 (1958), which is undoubtedly the reason that no objection was taken to either the summation or charge. Defendants seek reversal under R.R.",
"1:5-3(c), which reads: \"The court may notice plain errors affecting substantial rights of a party, although they were not brought to the attention of the trial court.\" *468 In Botta v. Brunner, supra, 26 N.J. at pages 103, 104, the court said: \"It may be said, and not without justification, that our conclusion conflicts to some degree with Rhodehouse v. Director General, 95 N.J.L. 355 (Sup.",
"Ct. 1920); Balog v. F.M. Mitchell Motor Co., 3 N.J. Misc. 1000 (Sup. Ct. 1925), and Lukasiewicz v. Haddad, 24 N.J. Super. 399 (App. Div. 1953), which hold that it is not improper for counsel to advise the jury as to the amount of the ad damnum clause of the complaint; also with Kulodzej v. Lehigh Valley Railroad Co., 39 N.J. Super. 268 (App. Div. 1956), sanctioning a statement to the jury in summation of counsel's opinion as to the sum which should be awarded to the plaintiff; and with Budden v. Goldstein, supra, 43 N.J. Super. at page 344, approving reference to suggested amounts as reasonable compensation.",
"In order that the rule announced in the present case may be invested with its full and intended scope, those decisions are expressly overruled. * * * Informing the jury of the ad damnum clause serves no useful or sound function. If it be said that the amount claimed constitutes the maximum limit of permissible recovery, the legal effect of that limitation is better left in the control of an experienced trial court. In the hands of the jury, untrained in the trial of cases, it may very well raise confusing and difficult complications. It is a matter of common knowledge that ordinarily the amount of damages laid in the complaint is much in excess of any sum which the plaintiff hopes to receive. Witness the large number of actions which are being transferred regularly from our Superior Courts to the District Courts. We know that as a matter of practice when the ad damnum clause is brought to the attention of the jury, the court admonishes them that it only represents the claim of the plaintiff and that their award must be based on reasonable compensation. But it is extremely doubtful whether such admonitions are sufficient to eliminate the figure from their minds as a conscious or unconscious factor in reaching their verdict.",
"Hollinger v. York Rys. Co., supra [225 Pa. 419, 74 A. 344]. And as the Supreme Court of Missouri declared in Bales v. Kansas City Public Service Co., 328 Mo. 171, 40 S.W.2d 665, 670 (1931), `However, we are unable to see wherein it serves any good or useful purpose to inform the jury, in instructing them upon the measure of damages, that they cannot allow or assess the damages in excess of the amount sued for, and named in the instruction. We believe that the practice of giving such forms of instruction should be discontinued by the trial courts.' 40 S.W.2d at page 670. And see Otto v. Milwaukee Northern Ry.",
"Co., 148 Wis. 54, 134 N.W. 157, 160 (Sup. Ct. 1912).\" Two questions are inferentially raised by this appeal, (1) whether the rule formulated in Botta is retrospective, *469 and (2) whether a reference to the amount of the ad damnum clause in the summation of plaintiffs' counsel automatically constitutes reversible error which cannot be cured by a directory charge. It must be conceded that Botta inveighed against any reference to the amount demanded in the ad damnum clause. It must also be conceded that the rule concerning the disclosure of the amount demanded is dictum.",
"However, the language in which that rule was announced is so strong as to lead to only one rational conclusion, i.e., sound public policy prohibits the practice and invests the defendant with an inviolable right to be protected against such disclosure. I. I shall treat of whether Botta is retrospectively effective. Generally, a change in the law in a civil case by a decision of the highest court of the State is retrospective and makes the law at the time of the first decision as it is declared in the last decision, as to all transactions that can be reached by it. Stockton v. Dundee Manufacturing Co., 22 N.J. Eq.",
"56 (Ch. 1871). See also Ross v. Freeholders of Hudson, 90 N.J.L. 522 (1917); Fox v. Snow, 6 N.J. 12 (1950); Johnson v. State, 18 N.J. 422 (1955). The retroactive operation and effect of such an overruling decision, however, does not reach transactions where contract or property rights have vested or where extreme hardship would result. Johnson v. State, supra. This rule was subject to some implied criticism by dictum appearing in Arrow Builders Supply Corp. v. Hudson Terrace Apts., 16 N.J. 47 (1954). The Supreme Court, however, subsequently reaffirmed and restated that rule. Johnson v. State, supra. In the matter sub judice the plaintiff has no vested property right which would be affected, since the holder of a judgment can have no vested right therein until the time for appeal has run. Shade v. Colgate, 3 N.J. 91 (1949); In re Pfizer's Estate, 6 N.J. 233 (1951); R.R. 1:2-1; 2:2-1. *470 Nor does there appear to be extreme hardship in the sense in which that term is used. The question of the negligent causation of the accident was properly entrusted to the jury for solution.",
"The sole issue on remand would be the quantum of damages, which would necessitate a retrial of that issue alone. That hardship is not such as should move the court to conclude that plaintiffs should be exempt from the general rule. Thus plaintiffs' case does not fall within any of the exceptions to the general rule. My colleagues have determined that the intent of the court in Botta was to interdict in futuro the practice of disclosing the amount demanded in the ad damnum clause. Such result, it is said, results from an implication contained in that decision. The portion of the opinion relied upon, when taken in context, demonstrates that the interdiction was against both the use of a chronometric formula and any reference to the amount demanded in the ad damnum clause.",
"The court did not distinguish between the stated prohibitory acts either as to their effect upon the jury or as to the time when the rule should become effective. In neither instance did the court prospectively restrict the operative effect of the rule by apt and specific words, as was done in Great Northern R. Co. v. Sunburst Oil & Ref. Co., 287 U.S. 358, 53 S.Ct. 145, 77 L.Ed. 360 (1932); Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956), and Hanks v. McDanell, 307 Ky. 243, 210 S.W.2d 784, 17 A.L.R.2d 1 (Ct. App. 1948). In overruling prior decisions permitting reference to the ad damnum clause, the court in Botta used the present tense. The court, in that connection, said, 26 N.J. at p. 104: \"In order that the rule announced in the present case may be invested with its full and intended scope, those decisions are expressly overruled.\" (Emphasis supplied) The language of the opinion can lead only to the conclusion that the old doctrine was immediately overruled and the new doctrine simultaneously adopted.",
"*471 There can be no doubt that in Botta the court could have exercised the power reposed in it in a manner which would have given prospective effect only to the rules announced therein. In Griffin v. Illinois, supra (351 U.S. 26, 76 S.Ct. 594, 100 L.Ed. at page 903), the court said: \"It is much more conducive to law's self-respect to recognize candidly the considerations that give prospective content to a new pronouncement of law. That this is consonant with the spirit of our law and justified by those considerations of reason which should dominate the law, has been luminously expounded by Mr. Justice Cardozo, shortly before he came here and in an opinion which he wrote for the Court.",
"See Address of Chief Judge Cardozo, 55 Report of New York State Bar Asso. 263, 294 et seq., and Great Northern R. Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 363-366, 53 S.Ct. 145, 148-149, 77 L.Ed. 360, 365-367, 85 A.L.R. 254. Such a molding of law, by way of adjudication, is peculiarly applicable to the problem at hand. The rule of law announced this day should be delimited as indicated.\" See also Great Northern R. Co. v. Sunburst Oil & Ref. Co., supra. Absent express provision limiting the effect of an overruling decision to the future, the general rule governs, i.e., the decision has a retroactive effect. I conceive, therefore, that the decision in Botta has a retroactive effect and is binding on these litigants. II. It is necessary, next, to determine whether it is reversible error per se for plaintiffs' counsel in his summation to disclose to the jury the amount demanded in the ad damnum clause. The expression of the reasoning in Botta which led the court to conclude that the employment of mathematical formulae to admeasure the compensation for pain and suffering, or any reference to the ad damnum clause, or the transmittal of the complaint, including the ad damnum clause, to the jury, \"will constitute an unwarranted intrusion into the domain of the jury\" (26 N.J. at page 103), is *472 couched in strong and indisputable terms.",
"The vice in the prohibited conduct lies in its incalculable effect upon the jury and the well-nigh impossible task of purging such figures from the minds of the jury. The court said, concerning reference to the ad damnum clause (26 N.J. at p. 104): \"But it is extremely doubtful whether such admonitions are sufficient to eliminate the figure from their minds as a conscious or unconscious factor in reaching their verdicts.\" (Emphasis supplied) The stated inability to eliminate from the minds of the jurors the amount of the ad damnum clause can give rise only to the conclusion that any such reference is deemed prejudicial per se. The final conclusion in Botta is supported by numerous references to judicial decisions emanating from courts in Pennsylvania, by both citing and quoting from those decisions.",
"In that state a reference to the ad damnum clause in the summation of plaintiff's counsel is considered automatically prejudicial and the granting of a motion for a mistrial based on that ground is mandatory. One of the cases cited in Botta is Carothers v. Pittsburgh Rys. Co., 229 Pa. 558, 79 A. 134 (Sup. Ct. 1911). In that case the plaintiff's counsel made reference to the ad damnum clause in his summation. The trial court denied a motion for a mistrial but attempted to eradicate the comment from the jury's mind by its charge. The appellate court said (79 A. at page 135): \"In this case it is just to counsel, who was from another state, to say that the remark complained of was made in good faith, and without knowledge of our decisions on the subject, and to the learned trial judge that he did all in his power, by proper instructions, to correct the error complained of. It is better, however, that the rule should be fixed and that cases of this kind should be put in line with Holden v. Pennsylvania R.R. Co., 169 Pa. 1, 32 A. 103, Wagner v. Hazel Twp., 215 Pa. 219, 64 A.",
"405, Saxton v. Pittsburg Railways Co., 219 Pa. 492, 68 A. 1022, Hollis v. Glass Co., 220 Pa. 49, 69 A. 55, and kindred cases in which this court has taken a stand against every attempt to obtain an unfair advantage in the trial of a cause. The first assignment of error is sustained.\" *473 Another case cited in Botta is Vaughan v. Magee, 218 F. 630 (3 Cir. 1914). In that case the court said, at page 631: \"Whatever may be the practice in other jurisdictions, the courts of Pennsylvania have been stern and unyielding in that regard. Wherever a court, in its charge, or counsel, in addressing a jury, have brought to a jury's notice that a plaintiff claimed a fixed sum for damages, it has been adjudged a mistrial.",
"Carothers v. Pittsburgh Railways Co. 229 Pa. 560, 79 A. 134; Reese v. Hershey, 163 Pa. 253, 30 A. 907, 43 Am. St. Rep. 795; Quinn v. Philadelphia Rapid Transit Co., 224 Pa. 162, 73 A. 319; Dougherty v. Pittsburgh Railways Co., 213 Pa. 346, 62 A. 926; Hollinger v. York Railway Co., 225 Pa. 419, 74 A. 344, 17 Ann. Cas. 571. The bar of the state has loyally supported this view, and this seems a fitting case for this court to emphasize and restate, as applicable to the federal courts of this circuit, the ruling of those cases.\" See also Stein v. Meyer, 150 F. Supp. 365 (D.C.E.D. Pa. 1957). The gist of the holding in the two above cited cases is that defendant has a fundamental right against reference by plaintiff's counsel to the ad damnum clause.",
"Any reference by plaintiff, in his summation, to the amount demanded in the ad damnum clause is therefore prejudicial per se and hence reversible error. Such error affects a substantial and fundamental right and cannot be cured by a charge of the trial court. Cf. Wright v. Bernstein, 23 N.J. 284, 296 (1957). I am appreciative of the fact that my conclusions may conflict with Carlucci v. Stichman, 50 N.J. Super. 96 (App. Div. 1958), in which decision I participated. In the matter sub judice it was conceded by counsel that the error was not an automatic ground for reversal. In Carlucci the question of whether a breach of the summation rule in Botta was an automatic ground for reversal was neither urged nor argued by counsel in their respective briefs, nor considered by the court. My further deliberations, however, convince me that there is so much merit to the above reasoning that it requires expression, because of its import upon cases not only ante Botta but post Botta as well.",
"*474 The adversion of plaintiffs' counsel to the amount demanded in the ad damnum clause therefore constitutes plain error and affects the substantial rights of defendant. It becomes not only unnecessary but improper as well to examine the amount of the verdict to ascertain whether substantial rights were violated as evidenced by an excessive award. I would therefore reverse and remand for a new trial as to damages only."
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MANDATE
The Fourteenth Court of Appeals NO. 14-13-00585-CV
Dennis D. Shaver, Appellant Appealed from the County Court at Law of Waller County. (Tr. Ct. No. C12- v. 102). Memorandum opinion delivered by Justice Christopher. Justices Wells Fargo Bank, NA as Trustee for NCMT 2008-1, Appellee Jamison and McCally also participating.
TO THE COUNTY COURT OF WALLER COUNTY, GREETINGS:
Before our Court of Appeals on July 1, 2014, the cause upon appeal to revise or reverse your judgment was determined. Our Court of Appeals made its order in these words:
This cause, an appeal from the judgment signed March 21, 2013 in favor of appellee Wells Fargo Bank, NA as Trustee for NCMT 2008-1, was heard on the transcript of the record. We have inspected the record and find no error in the judgment. We order the judgment of the court below AFFIRMED. We order appellant Dennis D. Shaver to pay all costs incurred in this appeal. We further order this decision certified below for observance. WHEREFORE, WE COMMAND YOU to observe the order of our said Court in this behalf and in all things have it duly recognized, obeyed, and executed. WITNESS, the Hon. Kem Thompson Frost, Chief Justice of our Fourteenth Court of Appeals, with the Seal thereof affixed, at the City of Houston, May 26, 2015. | 09-29-2016 | [
"MANDATE The Fourteenth Court of Appeals NO. 14-13-00585-CV Dennis D. Shaver, Appellant Appealed from the County Court at Law of Waller County. (Tr. Ct. No. C12- v. 102). Memorandum opinion delivered by Justice Christopher. Justices Wells Fargo Bank, NA as Trustee for NCMT 2008-1, Appellee Jamison and McCally also participating. TO THE COUNTY COURT OF WALLER COUNTY, GREETINGS: Before our Court of Appeals on July 1, 2014, the cause upon appeal to revise or reverse your judgment was determined. Our Court of Appeals made its order in these words: This cause, an appeal from the judgment signed March 21, 2013 in favor of appellee Wells Fargo Bank, NA as Trustee for NCMT 2008-1, was heard on the transcript of the record. We have inspected the record and find no error in the judgment. We order the judgment of the court below AFFIRMED.",
"We order appellant Dennis D. Shaver to pay all costs incurred in this appeal. We further order this decision certified below for observance. WHEREFORE, WE COMMAND YOU to observe the order of our said Court in this behalf and in all things have it duly recognized, obeyed, and executed. WITNESS, the Hon. Kem Thompson Frost, Chief Justice of our Fourteenth Court of Appeals, with the Seal thereof affixed, at the City of Houston, May 26, 2015."
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902 F.2d 29Unpublished Disposition NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Paul Henry JORDAN, Plaintiff-Appellant,v.US PAROLE COMMISSION; DC Parole Commission; Ed Baker,Coordinator; Dan Beasley, Unit Manager; WilliamPalmer, Case Manager, Defendants-Appellees. No. 90-6272. United States Court of Appeals, Fourth Circuit. Submitted April 2, 1990.Decided April 18, 1990.
Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. James C. Cacheris, District Judge. (C/A No. 89-953-A) Paul Henry Jordan, appellant pro se. E.D.Va. AFFIRMED. Before ERVIN, Chief Judge, and PHILLIPS and CHAPMAN, Circuit Judges. PER CURIAM:
1 Paul Henry Jordan appeals the district court's dismissal of his combination Bivens* action and 28 U.S.C. Sec. 2255 motion for failure to pay the assessed filing fee. Finding that the district court complied with the procedures approved in Evans v. Croom, 650 F.2d 521 (4th Cir.1981), cert. denied, 454 U.S. 1153 (1982), and did not abuse its discretion in dismissing the action without prejudice, we affirm the district court's order. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.
AFFIRMED
* Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) | 08-23-2011 | [
"902 F.2d 29Unpublished Disposition NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Paul Henry JORDAN, Plaintiff-Appellant,v.US PAROLE COMMISSION; DC Parole Commission; Ed Baker,Coordinator; Dan Beasley, Unit Manager; WilliamPalmer, Case Manager, Defendants-Appellees. No. 90-6272. United States Court of Appeals, Fourth Circuit. Submitted April 2, 1990.Decided April 18, 1990. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. James C. Cacheris, District Judge. (C/A No. 89-953-A) Paul Henry Jordan, appellant pro se. E.D.Va. AFFIRMED. Before ERVIN, Chief Judge, and PHILLIPS and CHAPMAN, Circuit Judges. PER CURIAM: 1 Paul Henry Jordan appeals the district court's dismissal of his combination Bivens* action and 28 U.S.C.",
"Sec. 2255 motion for failure to pay the assessed filing fee. Finding that the district court complied with the procedures approved in Evans v. Croom, 650 F.2d 521 (4th Cir.1981), cert. denied, 454 U.S. 1153 (1982), and did not abuse its discretion in dismissing the action without prejudice, we affirm the district court's order. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process. AFFIRMED * Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971)"
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128 N.W.2d 111 (1964) ROYAL INDEMNITY COMPANY, a Corporation, Plaintiff and Appellant, v. METROPOLITAN CASUALTY INSURANCE COMPANY OF NEW YORK, a Corporation, Continental Casualty Company, a Corporation, Avis Rent a Car System, a Corporation, and Viola M. Miller, Defendants and Respondents. No. 10069. Supreme Court of South Dakota. May 6, 1964. Davenport, Evans, Hurwitz & Smith, Sioux Falls, for plaintiff and appellant. Woods, Fuller, Shultz & Smith, Sioux Falls, Hanley, Costello & Porter, Rapid City, Agor, Bantz, Siegel & Barnett, Aberdeen, for defendants and respondents. RENTTO, Judge. This litigation seeks a declaration as to which of three insurance companies shall bear the burden of a loss suffered by the defendant Viola M. Miller. *112 Kathleen Sloy of Seattle, Washington, was employed by Rival Manufacturing Company of Kansas City, Missouri, to demonstrate a steam iron which it was arranging to place in Singer Sewing Machine Company shops and stores on an exclusive basis. For a time after her employment she called on Singer stores and shops in New England doing her traveling by public conveyance. Shortly before the incident of loss here involved she was assigned to Minneapolis, Minnesota, from where she was expected to cover areas in the states of Minnesota, Wisconsin, North and South Dakota. She was directed to rent a car in Minneapolis with which to travel the territory. For this purpose she rented a car from the Avis Rent a Car System. When Mrs. Sloy started her travels in the area, the defendant Miss Miller, an employee of the Singer shop in Minneapolis, went along to work with her. On February 22, 1960, near Groton, South Dakota, the rented car driven by Mrs. Sloy and in which Miss Miller was a passenger, but not a guest, was involved in an accident resulting in injury to Miss Miller. Claiming that Mrs. Sloy was negligent in the operation of the rented car she sued her and Rival in the U. S. District Court for the district of South Dakota and recovered a judgment against both of them in the sum of $19,000 from which no appeal was taken and which is unsatisfied. Royal Indemnity Company, plaintiff herein, provided liability coverage for Rival while the defendant Metropolitan Casualty Insurance Company of New York had issued a policy of liability insurance to Sam Sloy, husband of Mrs. Sloy, and the defendant Continental Casualty Company provided liability coverage for Avis. The trial court concluded that by reason of an exclusion provision in its policy Continental was not liable and dismissed the action as to it. This ruling is not here in question. It also determined that Royal's policy insured the liability of Rival and its employee Mrs. Sloy and further concluded that the policy issued by Metropolitan to Sam Sloy also insured Mrs. Sloy. The limits of liability in the policy issued to Rival by Royal was the sum of $1,000,000 to any person injured in any one accident and in the Metropolitan policy carried by Mr. Sloy it was the sum of $25,000. The trial court held that the liability of Royal for the Miller judgment should be in the proportion of 1,000,000/1,025,000 thereof and that of Metropolitan in the proportion of 25,000/1,025,000 thereof. Judgment was entered accordingly from which only Royal appeals. Concerning the renting of the car in question the court found that: "* * * shortly before February 22, 1960, she went to Minneapolis, Minnesota, where, at the direction and on the credit of her employer, she rented a car from the Defendant Avis Rent a Car System in Minneapolis; that this was the first and only car rented by Mrs. Sloy; that on the written rental agreement her name is listed as the renter of the car; her employer had arranged for her to be furnished with an American Express credit card in her name, with the name of her employer immediately under her name upon said card, and her employer was to pay the rental bill or charge on the rented car and was to reimburse Mrs. Sloy for such items as gas, oil, and storage incurred by her in the operation of said car; that the rental for said car was charged to her employer, Rival Manufacturing Company, and a statement therefor was rendered to her said employer which said statement was paid by the said employer." From this basis it concluded that Mrs. Sloy "was the agent of Rival Manufacturing Company in the rental of the car from Avis Rent a Car System, and therefore Rival Manufacturing Company was the renter or lessee." Both of these determinations we think are justified and proper. *113 Royal's basic contention in the trial court and here is that its policy affords no protection to Mrs. Sloy with respect to the claim of Miss Miller. This position is stated in the brief as follows: "It is manifest that Mrs. Sloy was operating a hired automobile and it makes no difference whether she was the lessee of such automobile or whether Rival Manufacturing Co. was the lessee, because, if Mrs. Sloy was the lessee, then she is excluded from coverage because she is not the named insured and, on the other hand, if Rival Manufacturing Co. was the Lessee, then she, of course, was an agent or employee of Rival Manufacturing Co., and the exclusion provided under the Insuring Agreement * * * excludes Mrs. Sloy from coverage." The exclusion provision mentioned is III(d) set out in the following paragraph. The provisions of its policy germane to and relied on in this regard are as follows: "III. Definition of Insured "The unqualified word `insured' includes the named insured and also includes * * * (2) under coverages A and B, any person while using an owned automobile or a hired automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or with his permission, and any executive officer of the named insured with respect to the use of a non-owned automobile in the business of the named insured. The insurance with respect to any person or organization other than the named insured does not apply under division (2) of this insuring agreement * * "(d) with respect to any hired automobile, to the owner, or a lessee thereof other than the named insured, or to any agent or employee of such owner or lessee". Rival Manufacturing Company is the named insured and coverages A and B concern liability for bodily injury and property damage. The omnibus clause includes as an additional insured any person while using a hired automobile with the permission of the named insured. Surely this affords coverage to Mrs. Sloy. However, Royal argues that the last clause in exclusion (d) deprives her of coverage because she was an agent or employee of Rivalthe lessee of the rented automobile. We think this a too literal reading of the provision in that it does not give full effect to the word "such" in that phrase. The exclusion can also be read as meaning that the word "such" qualifies not only the term owner, but the term lessee as well. The owner or lessee referred to in the last phrase are obviously "such" as are mentioned in the preceding clause. When so read the reference to a lessee is to a lessee other than the named insured. In choosing between these two versions we are required to construe the provision against the insurer. That is what the trial court did. It adopted the latter interpretation. This is also the holding in Maryland Casualty Co. v. Continental Casualty Co., D.C., 189 F. Supp. 764, wherein the court had before it identical provisions in somewhat similar circumstances. That opinion points out that auto rental agencies are not necessarily owners of the cars they let out. In this day it is a rather common practice for them to lease such fleets. In other words, the rental agency could be either an owner or a lessee of the fleet of cars which it has for rent. It is with such lessees that the provision is concerned. By its terms they are excluded from coverage. It is obviously the purpose of the provision to exclude such agencies from coverage whether they own or lease the vehicles which they furnish to their customers. The agents or employees mentioned in the exclusion are those of such agencies. Thus we have two policies providing coverage for the loss here involved. *114 Consequently, the respective liabilities of Royal and Metropolitan must be determined by the "other insurance" provisions of their policies. The trial court found that in both policies these provisions provided excess insurance over any other valid and collectible insurance. This is supported by the record. In 7 Am.Jur.2d, Automobile Insurance, § 202, the applicable rule is stated thus: "* * * it is generally held that such clauses are mutually repugnant and must be disregarded, rendering each company liable for a pro rata share of the judgment or settlement, since, if literal effect were given to both `excess insurance' clauses of the applicable policies, neither policy would cover the loss and such a result would produce an unintended absurdity. In most of these cases, proration has been ordered in accordance with the proportionate policy limits afforded by the respective insurers, but this is not the universal holding." See also 45 C.J.S. Insurance § 925; 69 A.L.R. 2d 1124; Insurance Counsel Journal, (Oct. 1962) Vol. XXIX, p. 620; Continental Casualty Co. v. Buckeye Union Casualty Co., Ohio Com.Pl., 143 N.E.2d 169. The trial court properly gave effect to the majority view. Proceeding from the premise that the contract of employment between Rival and Mrs. Sloy was entered into in Missouri and that the law of that jurisdiction makes Mrs. Sloy liable to Rival for any loss suffered by it because of her negligence, Royal contends that its right to be subrogated to such claim of the employer should have been declared in this action. Complaint is made of the trial court's unwillingness to do so. In this regard the trial court is vested with a discretion. It may refuse to make a declaration if to do so would not terminate the controversy. SDC 1960 Supp. 37.0106. Since neither Rival nor Mrs. Sloy are parties to this action there existed substantial grounds for the view that any determination of that matter in this action would not terminate the controversy. SDC 1960 Supp. 37.0111. Accordingly, we feel that the trial court did not abuse its discretion in declining to declare the liability of Mrs. Sloy to Rival and any right of Royal to be subrogated thereto. Affirmed. All the Judges concur. | 10-30-2013 | [
"128 N.W.2d 111 (1964) ROYAL INDEMNITY COMPANY, a Corporation, Plaintiff and Appellant, v. METROPOLITAN CASUALTY INSURANCE COMPANY OF NEW YORK, a Corporation, Continental Casualty Company, a Corporation, Avis Rent a Car System, a Corporation, and Viola M. Miller, Defendants and Respondents. No. 10069. Supreme Court of South Dakota. May 6, 1964. Davenport, Evans, Hurwitz & Smith, Sioux Falls, for plaintiff and appellant. Woods, Fuller, Shultz & Smith, Sioux Falls, Hanley, Costello & Porter, Rapid City, Agor, Bantz, Siegel & Barnett, Aberdeen, for defendants and respondents. RENTTO, Judge. This litigation seeks a declaration as to which of three insurance companies shall bear the burden of a loss suffered by the defendant Viola M. Miller. *112 Kathleen Sloy of Seattle, Washington, was employed by Rival Manufacturing Company of Kansas City, Missouri, to demonstrate a steam iron which it was arranging to place in Singer Sewing Machine Company shops and stores on an exclusive basis. For a time after her employment she called on Singer stores and shops in New England doing her traveling by public conveyance.",
"Shortly before the incident of loss here involved she was assigned to Minneapolis, Minnesota, from where she was expected to cover areas in the states of Minnesota, Wisconsin, North and South Dakota. She was directed to rent a car in Minneapolis with which to travel the territory. For this purpose she rented a car from the Avis Rent a Car System. When Mrs. Sloy started her travels in the area, the defendant Miss Miller, an employee of the Singer shop in Minneapolis, went along to work with her. On February 22, 1960, near Groton, South Dakota, the rented car driven by Mrs. Sloy and in which Miss Miller was a passenger, but not a guest, was involved in an accident resulting in injury to Miss Miller. Claiming that Mrs. Sloy was negligent in the operation of the rented car she sued her and Rival in the U. S. District Court for the district of South Dakota and recovered a judgment against both of them in the sum of $19,000 from which no appeal was taken and which is unsatisfied. Royal Indemnity Company, plaintiff herein, provided liability coverage for Rival while the defendant Metropolitan Casualty Insurance Company of New York had issued a policy of liability insurance to Sam Sloy, husband of Mrs. Sloy, and the defendant Continental Casualty Company provided liability coverage for Avis. The trial court concluded that by reason of an exclusion provision in its policy Continental was not liable and dismissed the action as to it.",
"This ruling is not here in question. It also determined that Royal's policy insured the liability of Rival and its employee Mrs. Sloy and further concluded that the policy issued by Metropolitan to Sam Sloy also insured Mrs. Sloy. The limits of liability in the policy issued to Rival by Royal was the sum of $1,000,000 to any person injured in any one accident and in the Metropolitan policy carried by Mr. Sloy it was the sum of $25,000. The trial court held that the liability of Royal for the Miller judgment should be in the proportion of 1,000,000/1,025,000 thereof and that of Metropolitan in the proportion of 25,000/1,025,000 thereof. Judgment was entered accordingly from which only Royal appeals. Concerning the renting of the car in question the court found that: \"* * * shortly before February 22, 1960, she went to Minneapolis, Minnesota, where, at the direction and on the credit of her employer, she rented a car from the Defendant Avis Rent a Car System in Minneapolis; that this was the first and only car rented by Mrs. Sloy; that on the written rental agreement her name is listed as the renter of the car; her employer had arranged for her to be furnished with an American Express credit card in her name, with the name of her employer immediately under her name upon said card, and her employer was to pay the rental bill or charge on the rented car and was to reimburse Mrs. Sloy for such items as gas, oil, and storage incurred by her in the operation of said car; that the rental for said car was charged to her employer, Rival Manufacturing Company, and a statement therefor was rendered to her said employer which said statement was paid by the said employer.\"",
"From this basis it concluded that Mrs. Sloy \"was the agent of Rival Manufacturing Company in the rental of the car from Avis Rent a Car System, and therefore Rival Manufacturing Company was the renter or lessee.\" Both of these determinations we think are justified and proper. *113 Royal's basic contention in the trial court and here is that its policy affords no protection to Mrs. Sloy with respect to the claim of Miss Miller. This position is stated in the brief as follows: \"It is manifest that Mrs. Sloy was operating a hired automobile and it makes no difference whether she was the lessee of such automobile or whether Rival Manufacturing Co. was the lessee, because, if Mrs. Sloy was the lessee, then she is excluded from coverage because she is not the named insured and, on the other hand, if Rival Manufacturing Co. was the Lessee, then she, of course, was an agent or employee of Rival Manufacturing Co., and the exclusion provided under the Insuring Agreement * * * excludes Mrs. Sloy from coverage.\"",
"The exclusion provision mentioned is III(d) set out in the following paragraph. The provisions of its policy germane to and relied on in this regard are as follows: \"III. Definition of Insured \"The unqualified word `insured' includes the named insured and also includes * * * (2) under coverages A and B, any person while using an owned automobile or a hired automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or with his permission, and any executive officer of the named insured with respect to the use of a non-owned automobile in the business of the named insured. The insurance with respect to any person or organization other than the named insured does not apply under division (2) of this insuring agreement * * \"(d) with respect to any hired automobile, to the owner, or a lessee thereof other than the named insured, or to any agent or employee of such owner or lessee\".",
"Rival Manufacturing Company is the named insured and coverages A and B concern liability for bodily injury and property damage. The omnibus clause includes as an additional insured any person while using a hired automobile with the permission of the named insured. Surely this affords coverage to Mrs. Sloy. However, Royal argues that the last clause in exclusion (d) deprives her of coverage because she was an agent or employee of Rivalthe lessee of the rented automobile. We think this a too literal reading of the provision in that it does not give full effect to the word \"such\" in that phrase. The exclusion can also be read as meaning that the word \"such\" qualifies not only the term owner, but the term lessee as well.",
"The owner or lessee referred to in the last phrase are obviously \"such\" as are mentioned in the preceding clause. When so read the reference to a lessee is to a lessee other than the named insured. In choosing between these two versions we are required to construe the provision against the insurer. That is what the trial court did. It adopted the latter interpretation. This is also the holding in Maryland Casualty Co. v. Continental Casualty Co., D.C., 189 F. Supp. 764, wherein the court had before it identical provisions in somewhat similar circumstances. That opinion points out that auto rental agencies are not necessarily owners of the cars they let out. In this day it is a rather common practice for them to lease such fleets. In other words, the rental agency could be either an owner or a lessee of the fleet of cars which it has for rent.",
"It is with such lessees that the provision is concerned. By its terms they are excluded from coverage. It is obviously the purpose of the provision to exclude such agencies from coverage whether they own or lease the vehicles which they furnish to their customers. The agents or employees mentioned in the exclusion are those of such agencies. Thus we have two policies providing coverage for the loss here involved. *114 Consequently, the respective liabilities of Royal and Metropolitan must be determined by the \"other insurance\" provisions of their policies. The trial court found that in both policies these provisions provided excess insurance over any other valid and collectible insurance.",
"This is supported by the record. In 7 Am.Jur.2d, Automobile Insurance, § 202, the applicable rule is stated thus: \"* * * it is generally held that such clauses are mutually repugnant and must be disregarded, rendering each company liable for a pro rata share of the judgment or settlement, since, if literal effect were given to both `excess insurance' clauses of the applicable policies, neither policy would cover the loss and such a result would produce an unintended absurdity. In most of these cases, proration has been ordered in accordance with the proportionate policy limits afforded by the respective insurers, but this is not the universal holding.\" See also 45 C.J.S. Insurance § 925; 69 A.L.R.",
"2d 1124; Insurance Counsel Journal, (Oct. 1962) Vol. XXIX, p. 620; Continental Casualty Co. v. Buckeye Union Casualty Co., Ohio Com.Pl., 143 N.E.2d 169. The trial court properly gave effect to the majority view. Proceeding from the premise that the contract of employment between Rival and Mrs. Sloy was entered into in Missouri and that the law of that jurisdiction makes Mrs. Sloy liable to Rival for any loss suffered by it because of her negligence, Royal contends that its right to be subrogated to such claim of the employer should have been declared in this action. Complaint is made of the trial court's unwillingness to do so. In this regard the trial court is vested with a discretion. It may refuse to make a declaration if to do so would not terminate the controversy.",
"SDC 1960 Supp. 37.0106. Since neither Rival nor Mrs. Sloy are parties to this action there existed substantial grounds for the view that any determination of that matter in this action would not terminate the controversy. SDC 1960 Supp. 37.0111. Accordingly, we feel that the trial court did not abuse its discretion in declining to declare the liability of Mrs. Sloy to Rival and any right of Royal to be subrogated thereto. Affirmed. All the Judges concur."
] | https://www.courtlistener.com/api/rest/v3/opinions/2168231/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
The fourth method of gaining a settlement prescribed by the statutes is, that "Any person of the age of twenty-one years, having real estate of the value of one hundred and fifty dollars, or personal estate of the value of two hundred and fifty dollars, in the town where he dwells and has his home, and paying all taxes duly assessed on him and his estate for four years in succession, shall thereby gain a settlement in said town." Gen. St., c. 73, s. 1, clause IV; Gen. Laws, c. 81, s. 1, clause IV. For four successive years David Corning dwelt and had his home in Derry, was the owner of real estate therein of more than four times the prescribed value, and paid all taxes assessed on him and his estate. He thus acquired a settlement in that town, to which his children became entitled under clause II. The appraisal of David's real estate at $100 only by the plaintiff's assessors is not of controlling importance, and, at most, is but an evidentiary fact on the question of the true value of the property. If admissible at all in this suit as evidence on the question, the appraisal is nothing more than a record of the assessor's opinions, and is prima facie evidence only. The value intended by the statute is the actual market money value, to be ascertained in the ordinary way by an impartial tribunal. Neither in terms nor by implication does the statute make the valuation of town officials conclusive; but its literal as well as its fair reading is to the contrary. And so is the established rule of practice in cases of this kind which has uniformly obtained in this state from the earliest period of its judicial history. The question of the value of the pauper's estate in cases arising under the fourth mode has always been determined by the jury or by some other impartial tribunal; and to such a tribunal the parties are entitled in an action between municipalities in which value is a litigated question. Selectmen being directly interested in pauper settlements are not such a tribunal. In our view, this consideration of itself affords a sufficient reason why the construction heretofore given to the statute should not be changed. But, however this may be, such a reason is afforded by the fact that, with full knowledge of this construction, the legislature have permitted the statute to stand unchanged since its original adoption in 1796, and thereby have unmistakably signified their approval of the interpretation which it has ever since received. But other reasons suggest themselves, and especially if the consequences of the plaintiff's construction are considered. It would not only enable them to take advantage of the selectmen's wrong in assessing the real estate in question at less than one sixth of its value, and thereby unjustly shift upon the defendants the burden of these paupers' support, without notice and with no opportunity to be heard, but it would greatly facilitate and make more common the illegal and prevalent practice of undervaluing real estate for purposes of taxation (Cocheco Co. v. Strafford, *Page 488 51 N.H. 482), and still further increase the inequality now existing in the valuation of the several towns (report of the Board of Equalization for 1882). It would punish honest towns for their honesty, and reward dishonest ones for their dishonesty; it would remove from town officials the salutary safeguard of a probable reviewal of their wrongful acts by another tribunal, and make them judges, although disqualified by interest as jurors, it would introduce an exceptional rule operating in pauper cases alone (which are now quite rare and likely to become more so in consequence of recent legislation), and thus tend to increase the inconsistent and incoherent character of the law, which ought to be, so far as it reasonably may be, a system of general and harmonious principles; — in a word, it would be an anomaly in the law, and one fraught with evil consequences only. And, moreover, whatever occasion there formerly may have been for the construction, on grounds of convenience and expediency resulting from the nature and difficulties of the proof, when the period of limitation in pauper settlements was half a century and upwards (Rev. St., c. 65, mode 10, s. 3, Laws 1861, c. 2482), has now largely ceased to exist by reason of the legislative action to which allusion has been made, and by which the liability of towns for the support of paupers has become limited to those who have acquired a settlement therein since the first day of January, 1870 This legislation deprives the decision in Berlin v. Bolton, 10 Met. 115, of much of the weight to which it would otherwise be entitled, and removes the only tenable ground for adopting the proposed rule and shutting out the truth; for, although the power exercised by selectmen in fixing the value of taxable property is in its nature judicial, it is only by a liberal construction that their appraisal in a case affecting their personal interests in a pauper settlement can be regarded as a judicial proceeding affecting the interest of another municipal corporation having no notice or opportunity to be heard; and if so regarded, it does not have the binding force of a judgment against the other corporation. If it is competent evidence against the county in this case (Seavey v. Seavey, 37 N.H. 125), it does not exclude the evidence offered by the defendants. Case discharged. SMITH, J., did not sit: the others concurred. | 07-05-2016 | [
"The fourth method of gaining a settlement prescribed by the statutes is, that \"Any person of the age of twenty-one years, having real estate of the value of one hundred and fifty dollars, or personal estate of the value of two hundred and fifty dollars, in the town where he dwells and has his home, and paying all taxes duly assessed on him and his estate for four years in succession, shall thereby gain a settlement in said town.\" Gen. St., c. 73, s. 1, clause IV; Gen. Laws, c. 81, s. 1, clause IV. For four successive years David Corning dwelt and had his home in Derry, was the owner of real estate therein of more than four times the prescribed value, and paid all taxes assessed on him and his estate. He thus acquired a settlement in that town, to which his children became entitled under clause II.",
"The appraisal of David's real estate at $100 only by the plaintiff's assessors is not of controlling importance, and, at most, is but an evidentiary fact on the question of the true value of the property. If admissible at all in this suit as evidence on the question, the appraisal is nothing more than a record of the assessor's opinions, and is prima facie evidence only. The value intended by the statute is the actual market money value, to be ascertained in the ordinary way by an impartial tribunal. Neither in terms nor by implication does the statute make the valuation of town officials conclusive; but its literal as well as its fair reading is to the contrary.",
"And so is the established rule of practice in cases of this kind which has uniformly obtained in this state from the earliest period of its judicial history. The question of the value of the pauper's estate in cases arising under the fourth mode has always been determined by the jury or by some other impartial tribunal; and to such a tribunal the parties are entitled in an action between municipalities in which value is a litigated question. Selectmen being directly interested in pauper settlements are not such a tribunal. In our view, this consideration of itself affords a sufficient reason why the construction heretofore given to the statute should not be changed. But, however this may be, such a reason is afforded by the fact that, with full knowledge of this construction, the legislature have permitted the statute to stand unchanged since its original adoption in 1796, and thereby have unmistakably signified their approval of the interpretation which it has ever since received.",
"But other reasons suggest themselves, and especially if the consequences of the plaintiff's construction are considered. It would not only enable them to take advantage of the selectmen's wrong in assessing the real estate in question at less than one sixth of its value, and thereby unjustly shift upon the defendants the burden of these paupers' support, without notice and with no opportunity to be heard, but it would greatly facilitate and make more common the illegal and prevalent practice of undervaluing real estate for purposes of taxation (Cocheco Co. v. Strafford, *Page 488 51 N.H. 482), and still further increase the inequality now existing in the valuation of the several towns (report of the Board of Equalization for 1882).",
"It would punish honest towns for their honesty, and reward dishonest ones for their dishonesty; it would remove from town officials the salutary safeguard of a probable reviewal of their wrongful acts by another tribunal, and make them judges, although disqualified by interest as jurors, it would introduce an exceptional rule operating in pauper cases alone (which are now quite rare and likely to become more so in consequence of recent legislation), and thus tend to increase the inconsistent and incoherent character of the law, which ought to be, so far as it reasonably may be, a system of general and harmonious principles; — in a word, it would be an anomaly in the law, and one fraught with evil consequences only.",
"And, moreover, whatever occasion there formerly may have been for the construction, on grounds of convenience and expediency resulting from the nature and difficulties of the proof, when the period of limitation in pauper settlements was half a century and upwards (Rev. St., c. 65, mode 10, s. 3, Laws 1861, c. 2482), has now largely ceased to exist by reason of the legislative action to which allusion has been made, and by which the liability of towns for the support of paupers has become limited to those who have acquired a settlement therein since the first day of January, 1870 This legislation deprives the decision in Berlin v. Bolton, 10 Met. 115, of much of the weight to which it would otherwise be entitled, and removes the only tenable ground for adopting the proposed rule and shutting out the truth; for, although the power exercised by selectmen in fixing the value of taxable property is in its nature judicial, it is only by a liberal construction that their appraisal in a case affecting their personal interests in a pauper settlement can be regarded as a judicial proceeding affecting the interest of another municipal corporation having no notice or opportunity to be heard; and if so regarded, it does not have the binding force of a judgment against the other corporation.",
"If it is competent evidence against the county in this case (Seavey v. Seavey, 37 N.H. 125), it does not exclude the evidence offered by the defendants. Case discharged. SMITH, J., did not sit: the others concurred."
] | https://www.courtlistener.com/api/rest/v3/opinions/3552656/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
AO 245B (WDNC Rev. 02/11) Judgment in a Criminal Case
UNITED STATES DISTRICT COURT Western District of North Carolina UNITED STATES OF AMERICA ) JUDGMENT IN A CRIMINAL CASE ) (For Offenses Committed On or After November 1, 1987) V. ) ) QUANDELLA WALKER ) Case Number: DNCW317CR000343-001 ) USM Number: 34024-058 ) ) Miranda J. Mills ) Defendant’s Attorney
THE DEFENDANT: ☒ Pleaded guilty to count(s) 1s. ☐ Pleaded nolo contendere to count(s) which was accepted by the court. ☐ Was found guilty on count(s) after a plea of not guilty.
ACCORDINGLY, the court has adjudicated that the defendant is guilty of the following offense(s): Date Offense Title and Section Nature of Offense Concluded Counts 26:7206(2) Aiding and Assisting in the Filing of False Tax Returns 2012 1s
The Defendant is sentenced as provided in pages 2 through 8 of this judgment. The sentence is imposed pursuant to the Sentencing Reform Act of 1984, United States v. Booker, 125 S.Ct. 738 (2005), and 18 U.S.C. § 3553(a).
☐ The defendant has been found not guilty on count(s). ☒ Count(s) 1-19, 2s-19s (is)(are) dismissed on the motion of the United States.
IT IS ORDERED that the Defendant shall notify the United States Attorney for this district within 30 days of any change of name, residence, or mailing address until all fines, restitution, costs, and special assessments imposed by this judgment are fully paid. If ordered to pay monetary penalties, the defendant shall notify the court and United States attorney of any material change in the defendant's economic circumstances.
Date of Imposition of Sentence: 3/21/2019 Signed: April 24, 2019
Date: April 24, 2019 AO 245B (WDNC Rev. 02/11) Judgment in a Criminal Case
Defendant: Quandella Walker Judgment- Page 2 of 8 Case Number: DNCW317CR000343-001
IMPRISONMENT
The defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a term of EIGHTEEN (18) MONTHS TO RUN CONCURRENTLY WITH TERM IMPOSED IN 3:18CR194.
☒ The Court makes the following recommendations to the Bureau of Prisons: 1. Participation in any available educational and vocational opportunities. 2. Participation in the Federal Inmate Financial Responsibility Program. 3. Participation in any available mental health treatment programs as may be recommended by a Mental Health Professional. 4. Defendant shall support all dependents from prison earnings.
☐ The Defendant is remanded to the custody of the United States Marshal.
☐ The Defendant shall surrender to the United States Marshal for this District:
☐ As notified by the United States Marshal. ☐ At on .
☒ The Defendant shall surrender for service of sentence at the institution designated by the Bureau of Prisons:
☒ As notified by the United States Marshal. ☐ Before 2 p.m. on . ☐ As notified by the Probation Office.
RETURN
I have executed this Judgment as follows:
Defendant delivered on __________ to _______________________________________ at
________________________________________, with a certified copy of this Judgment.
United States Marshal By: Deputy Marshal AO 245B (WDNC Rev. 02/11) Judgment in a Criminal Case
Defendant: Quandella Walker Judgment- Page 3 of 8 Case Number: DNCW317CR000343-001
SUPERVISED RELEASE
Upon release from imprisonment, the defendant shall be on supervised release for a term of ONE (1) YEAR TO RUN CONCURRENTLY WITH TERM IMPOSED IN 3:18CR194.
☐ The condition for mandatory drug testing is suspended based on the court's determination that the defendant poses a low risk of future substance abuse.
CONDITIONS OF SUPERVISION
The defendant shall comply with the mandatory conditions that have been adopted by this court. 1. The defendant shall not commit another federal, state, or local crime. 2. The defendant shall not unlawfully possess a controlled substance. 3. The defendant shall refrain from any unlawful use of a controlled substance. The defendant shall submit to one drug test within 15 days of release from imprisonment and at least two periodic drug tests thereafter, as determined by the court (unless omitted by the Court). 4. ☒ The defendant shall make restitution in accordance with 18 U.S.C. §§ 3663 and 3663A or any other statute authorizing a sentence of restitution. (check if applicable) 5. The defendant shall cooperate in the collection of DNA as directed by the probation officer (unless omitted by the Court).
The defendant shall comply with the standard conditions that have been adopted by this court and any additional conditions ordered. 1. The defendant shall report to the probation office in the federal judicial district where he/she is authorized to reside within 72 hours of release from imprisonment, unless the probation officer instructs the defendant to report to a different probation office or within a different time frame. 2. The defendant shall report to the probation officer in a manner and frequency directed by the court or probation officer. 3. The defendant shall not leave the federal judicial district where he/she is authorized to reside without first getting permission from the Court or probation officer. 4. The defendant shall answer truthfully the questions asked by the probation officer. 5. The defendant shall live at a place approved by the probation officer. The probation officer shall be notified in advance of any change in living arrangements (such as location and the people with whom the defendant lives). 6. The defendant shall allow the probation officer to visit him/her at any time at his/her home or elsewhere, and shall permit the probation officer to take any items prohibited by the conditions of his/her supervision that the probation officer observes. 7. The defendant shall work full time (at least 30 hours per week) at lawful employment, unless excused by the probation officer. The defendant shall notify the probation officer within 72 hours of any change regarding employment. 8. The defendant shall not communicate or interact with any persons engaged in criminal activity, and shall not communicate or interact with any person convicted of a felony unless granted permission to do so by the probation officer. 9. The defendant shall notify the probation officer within 72 hours of being arrested or questioned by a law enforcement officer. 10. The defendant shall not own, possess, or have access to a firearm, ammunition, destructive device, or dangerous weapon (i.e., anything that was designed, or was modified for, the specific purpose of causing bodily injury or death to another person such as nunchakus or tasers). 11. The defendant shall not act or make any agreement with a law enforcement agency to act as a confidential informant without the permission of the Court. 12. If the probation officer determines that the defendant poses a risk to another person (including an organization), the probation officer may require the defendant to notify the person about the risk. The probation officer may contact the person and make such notifications or confirm that the defendant has notified the person about the risk. 13. The defendant shall refrain from excessive use of alcohol and shall not unlawfully purchase, possess, use, distribute or administer any narcotic or controlled substance or any psychoactive substances (including, but not limited to, synthetic marijuana, bath salts) that impair a person’s physical or mental functioning, whether or not intended for human consumption, or any paraphernalia related to such substances, except as duly prescribed by a licensed medical practitioner. 14. The defendant shall participate in a program of testing for substance abuse if directed to do so by the probation officer. The defendant shall refrain from obstructing or attempting to obstruct or tamper, in any fashion, with the efficiency and accuracy of the testing. If warranted, the defendant shall participate in a substance abuse treatment program and follow the rules and regulations of that program. The probation officer will supervise the defendant’s participation in the program (including, but not limited to, provider, location, modality, duration, intensity) (unless omitted by the Court). 15. The defendant shall not go to, or remain at any place where he/she knows controlled substances are illegally sold, used, distributed, or administered without first obtaining the permission of the probation officer. 16. The defendant shall submit his/her person, property, house, residence, vehicle, papers, computers (as defined in 18 U.S.C. § 1030(e)(1)), or other electronic communications or data storage devices or media, or office, to a search conducted by a United States Probation Officer and such other law enforcement personnel as the probation officer may deem advisable, without a warrant. The defendant shall warn any other occupants that such premises may be subject to searches pursuant to this condition. 17. The defendant shall pay any financial obligation imposed by this judgment remaining unpaid as of the commencement of the sentence of probation or the term of supervised release in accordance with the schedule of payments of this judgment. The defendant shall notify the court of any changes in economic circumstances that might affect the ability to pay this financial obligation. 18. The defendant shall provide access to any financial information as requested by the probation officer and shall authorize the release of any financial information. The probation office may share financial information with the U.S. Attorney’s Office. 19. The defendant shall not seek any extension of credit (including, but not limited to, credit card account, bank loan, personal loan) unless authorized to do so in advance by the probation officer. 20. The defendant shall support all dependents including any dependent child, or any person the defendant has been court ordered to support. 21. The defendant shall participate in transitional support services (including cognitive behavioral treatment programs) and follow the rules and regulations of such program. The probation officer will supervise the defendant’s participation in the program (including, but not limited to, provider, location, modality, duration, intensity). Such programs may include group sessions led by a counselor or participation in a program administered by the probation officer. AO 245 B (WDNC Rev. 02/11) Judgment in a Criminal Case revTitle 22. The defendant shall follow the instructions of the probation officer related to the conditions of supervision.
ADDITIONAL CONDITIONS: 23. The defendant shall participate in a mental health evaluation and treatment program and follow the rules and regulations of that program. The probation officer, in consultation with the treatment provider, will supervise the defendant’s participation in the program (including, but not limited to provider, location, modality, duration, and intensity). The defendant shall take all mental health medications as prescribed by a licensed health care practitioner. 24. The defendant shall participate in a gambling addiction treatment program and follow the rules and regulation of that program. The probation officer will supervise the defendant’s participation in the program (including, but not limited to provider, location, modality, duration, and intensity). AO 245B (WDNC Rev. 02/11) Judgment in a Criminal Case
Defendant: Quandella Walker Judgment- Page 5 of 8 Case Number: DNCW317CR000343-001
CRIMINAL MONETARY PENALTIES
The defendant shall pay the following total criminal monetary penalties in accordance with the Schedule of Payments.
ASSESSMENT FINE RESTITUTION $100.00 $0.00 $126,201.08
☐ The determination of restitution is deferred until. An Amended Judgment in a Criminal Case (AO 245C) will be entered after such determination.
FINE
The defendant shall pay interest on any fine or restitution of more than $2,500.00, unless the fine or restitution is paid in full before the fifteenth day after the date of judgment, pursuant to 18 U.S.C. § 3612(f). All of the payment options on the Schedule of Payments may be subject to penalties for default and delinquency pursuant to 18 U.S.C. § 3612(g).
☒ The court has determined that the defendant does not have the ability to pay interest and it is ordered that:
☒ The interest requirement is waived.
☐ The interest requirement is modified as follows:
COURT APPOINTED COUNSEL FEES
☐ The defendant shall pay court appointed counsel fees.
☐ The defendant shall pay $0.00 towards court appointed fees. AO 245B (WDNC Rev. 02/11) Judgment in a Criminal Case
Defendant: Quandella Walker Judgment- Page 6 of 8 Case Number: DNCW317CR000343-001
RESTITUTION PAYEES
The defendant shall make restitution to the following payees in the amounts listed below concurrently with the restitution imposed in 3:18cr194:
NAME OF PAYEE AMOUNT OF RESTITUTION ORDERED
NAME OF PAYEE AMOUNT OF RESTITUTION ORDERED IRS-RACS $119,474.00 Lowes Home Centers $6,727.08
☐ Joint and Several
☐ Defendant and Co-Defendant Names and Case Numbers (including defendant number) if appropriate:
☐ Court gives notice that this case may involve other defendants who may be held jointly and severally liable for payment of all or part of the restitution ordered herein and may order such payment in the future.
☒ The victims’ recovery is limited to the amount of their loss and the defendant’s liability for restitution ceases if and when the victim(s) receive full restitution.
☒ Any payment not in full shall be divided proportionately among victims. AO 245B (WDNC Rev. 02/11) Judgment in a Criminal Case
Defendant: Quandella Walker Judgment- Page 7 of 8 Case Number: DNCW317CR000343-001
SCHEDULE OF PAYMENTS
Having assessed the defendant’s ability to pay, payment of the total criminal monetary penalties shall be due as follows:
A ☐ Lump sum payment of $0.00 due immediately, balance due ☐ Not later than ☐ In accordance ☐ (C), ☐ (D) below; or B ☒ Payment to begin immediately (may be combined with ☐ (C), ☒ (D) below); or
C ☐ Payment in equal Monthly (E.g. weekly, monthly, quarterly) installments of $50.00 to commence 60 (E.g. 30 or 60) days after the date of this judgment; or
D ☒ Payment in equal Monthly (E.g. weekly, monthly, quarterly) installments of $ 50.00 to commence 60 (E.g. 30 or 60) days after release from imprisonment to a term of supervision. In the event the entire amount of criminal monetary penalties imposed is not paid prior to the commencement of supervision, the U.S. Probation Officer shall pursue collection of the amount due, and may request the court to establish or modify a payment schedule if appropriate 18 U.S.C. § 3572.
Special instructions regarding the payment of criminal monetary penalties:
☐ The defendant shall pay the cost of prosecution. ☐ The defendant shall pay the following court costs: ☐ The defendant shall forfeit the defendant’s interest in the following property to the United States
Unless the court has expressly ordered otherwise in the special instructions above, if this judgment imposes a period of imprisonment payment of criminal monetary penalties shall be due during the period of imprisonment. All criminal monetary penalty payments are to be made to the United States District Court Clerk, 401 West Trade Street, Room 210, Charlotte, NC 28202, except those payments made through the Bureau of Prisons’ Inmate Financial Responsibility Program. All criminal monetary penalty payments are to be made as directed by the court.
Payments shall be applied in the following order: (1) assessment, (2) restitution principal, (3) restitution interest, (4) fine principal, (5) fine interest, (6) community restitution, (7) penalties, and (8) costs, including cost of prosecution and court costs. AO 245B (WDNC Rev. 02/11) Judgment in a Criminal Case
Defendant: Quandella Walker Judgment- Page 8 of 8 Case Number: DNCW317CR000343-001
STATEMENT OF ACKNOWLEDGMENT
I understand that my term of supervision is for a period of _______months, commencing on ____________________.
Upon a finding of a violation of probation or supervised release, I understand that the court may (1) revoke supervision, (2) extend the term of supervision, and/or (3) modify the conditions of supervision.
I understand that revocation of probation and supervised release is mandatory for possession of a controlled substance, possession of a firearm and/or refusal to comply with drug testing.
These conditions have been read to me. I fully understand the conditions and have been provided a copy of them.
(Signed) ____________________________________ Date: _________________ Defendant
(Signed) ____________________________________ Date: _________________ U.S. Probation Office/Designated Witness | 2019-04-24 | [
"AO 245B (WDNC Rev. 02/11) Judgment in a Criminal Case UNITED STATES DISTRICT COURT Western District of North Carolina UNITED STATES OF AMERICA ) JUDGMENT IN A CRIMINAL CASE ) (For Offenses Committed On or After November 1, 1987) V. ) ) QUANDELLA WALKER ) Case Number: DNCW317CR000343-001 ) USM Number: 34024-058 ) ) Miranda J. Mills ) Defendant’s Attorney THE DEFENDANT: ☒ Pleaded guilty to count(s) 1s. ☐ Pleaded nolo contendere to count(s) which was accepted by the court. ☐ Was found guilty on count(s) after a plea of not guilty. ACCORDINGLY, the court has adjudicated that the defendant is guilty of the following offense(s): Date Offense Title and Section Nature of Offense Concluded Counts 26:7206(2) Aiding and Assisting in the Filing of False Tax Returns 2012 1s The Defendant is sentenced as provided in pages 2 through 8 of this judgment. The sentence is imposed pursuant to the Sentencing Reform Act of 1984, United States v. Booker, 125 S.Ct. 738 (2005), and 18 U.S.C. § 3553(a).",
"☐ The defendant has been found not guilty on count(s). ☒ Count(s) 1-19, 2s-19s (is)(are) dismissed on the motion of the United States. IT IS ORDERED that the Defendant shall notify the United States Attorney for this district within 30 days of any change of name, residence, or mailing address until all fines, restitution, costs, and special assessments imposed by this judgment are fully paid. If ordered to pay monetary penalties, the defendant shall notify the court and United States attorney of any material change in the defendant's economic circumstances. Date of Imposition of Sentence: 3/21/2019 Signed: April 24, 2019 Date: April 24, 2019 AO 245B (WDNC Rev. 02/11) Judgment in a Criminal Case Defendant: Quandella Walker Judgment- Page 2 of 8 Case Number: DNCW317CR000343-001 IMPRISONMENT The defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a term of EIGHTEEN (18) MONTHS TO RUN CONCURRENTLY WITH TERM IMPOSED IN 3:18CR194. ☒ The Court makes the following recommendations to the Bureau of Prisons: 1.",
"Participation in any available educational and vocational opportunities. 2. Participation in the Federal Inmate Financial Responsibility Program. 3. Participation in any available mental health treatment programs as may be recommended by a Mental Health Professional. 4. Defendant shall support all dependents from prison earnings. ☐ The Defendant is remanded to the custody of the United States Marshal. ☐ The Defendant shall surrender to the United States Marshal for this District: ☐ As notified by the United States Marshal. ☐ At on . ☒ The Defendant shall surrender for service of sentence at the institution designated by the Bureau of Prisons: ☒ As notified by the United States Marshal. ☐ Before 2 p.m. on .",
"☐ As notified by the Probation Office. RETURN I have executed this Judgment as follows: Defendant delivered on __________ to _______________________________________ at ________________________________________, with a certified copy of this Judgment. United States Marshal By: Deputy Marshal AO 245B (WDNC Rev. 02/11) Judgment in a Criminal Case Defendant: Quandella Walker Judgment- Page 3 of 8 Case Number: DNCW317CR000343-001 SUPERVISED RELEASE Upon release from imprisonment, the defendant shall be on supervised release for a term of ONE (1) YEAR TO RUN CONCURRENTLY WITH TERM IMPOSED IN 3:18CR194.",
"☐ The condition for mandatory drug testing is suspended based on the court's determination that the defendant poses a low risk of future substance abuse. CONDITIONS OF SUPERVISION The defendant shall comply with the mandatory conditions that have been adopted by this court. 1. The defendant shall not commit another federal, state, or local crime. 2. The defendant shall not unlawfully possess a controlled substance. 3. The defendant shall refrain from any unlawful use of a controlled substance. The defendant shall submit to one drug test within 15 days of release from imprisonment and at least two periodic drug tests thereafter, as determined by the court (unless omitted by the Court). 4.",
"☒ The defendant shall make restitution in accordance with 18 U.S.C. §§ 3663 and 3663A or any other statute authorizing a sentence of restitution. (check if applicable) 5. The defendant shall cooperate in the collection of DNA as directed by the probation officer (unless omitted by the Court). The defendant shall comply with the standard conditions that have been adopted by this court and any additional conditions ordered. 1. The defendant shall report to the probation office in the federal judicial district where he/she is authorized to reside within 72 hours of release from imprisonment, unless the probation officer instructs the defendant to report to a different probation office or within a different time frame. 2. The defendant shall report to the probation officer in a manner and frequency directed by the court or probation officer. 3.",
"The defendant shall not leave the federal judicial district where he/she is authorized to reside without first getting permission from the Court or probation officer. 4. The defendant shall answer truthfully the questions asked by the probation officer. 5. The defendant shall live at a place approved by the probation officer. The probation officer shall be notified in advance of any change in living arrangements (such as location and the people with whom the defendant lives). 6.",
"The defendant shall allow the probation officer to visit him/her at any time at his/her home or elsewhere, and shall permit the probation officer to take any items prohibited by the conditions of his/her supervision that the probation officer observes. 7. The defendant shall work full time (at least 30 hours per week) at lawful employment, unless excused by the probation officer. The defendant shall notify the probation officer within 72 hours of any change regarding employment. 8. The defendant shall not communicate or interact with any persons engaged in criminal activity, and shall not communicate or interact with any person convicted of a felony unless granted permission to do so by the probation officer. 9. The defendant shall notify the probation officer within 72 hours of being arrested or questioned by a law enforcement officer.",
"10. The defendant shall not own, possess, or have access to a firearm, ammunition, destructive device, or dangerous weapon (i.e., anything that was designed, or was modified for, the specific purpose of causing bodily injury or death to another person such as nunchakus or tasers). 11. The defendant shall not act or make any agreement with a law enforcement agency to act as a confidential informant without the permission of the Court. 12. If the probation officer determines that the defendant poses a risk to another person (including an organization), the probation officer may require the defendant to notify the person about the risk. The probation officer may contact the person and make such notifications or confirm that the defendant has notified the person about the risk. 13. The defendant shall refrain from excessive use of alcohol and shall not unlawfully purchase, possess, use, distribute or administer any narcotic or controlled substance or any psychoactive substances (including, but not limited to, synthetic marijuana, bath salts) that impair a person’s physical or mental functioning, whether or not intended for human consumption, or any paraphernalia related to such substances, except as duly prescribed by a licensed medical practitioner.",
"14. The defendant shall participate in a program of testing for substance abuse if directed to do so by the probation officer. The defendant shall refrain from obstructing or attempting to obstruct or tamper, in any fashion, with the efficiency and accuracy of the testing. If warranted, the defendant shall participate in a substance abuse treatment program and follow the rules and regulations of that program. The probation officer will supervise the defendant’s participation in the program (including, but not limited to, provider, location, modality, duration, intensity) (unless omitted by the Court). 15. The defendant shall not go to, or remain at any place where he/she knows controlled substances are illegally sold, used, distributed, or administered without first obtaining the permission of the probation officer. 16. The defendant shall submit his/her person, property, house, residence, vehicle, papers, computers (as defined in 18 U.S.C. § 1030(e)(1)), or other electronic communications or data storage devices or media, or office, to a search conducted by a United States Probation Officer and such other law enforcement personnel as the probation officer may deem advisable, without a warrant. The defendant shall warn any other occupants that such premises may be subject to searches pursuant to this condition.",
"17. The defendant shall pay any financial obligation imposed by this judgment remaining unpaid as of the commencement of the sentence of probation or the term of supervised release in accordance with the schedule of payments of this judgment. The defendant shall notify the court of any changes in economic circumstances that might affect the ability to pay this financial obligation. 18. The defendant shall provide access to any financial information as requested by the probation officer and shall authorize the release of any financial information. The probation office may share financial information with the U.S. Attorney’s Office. 19. The defendant shall not seek any extension of credit (including, but not limited to, credit card account, bank loan, personal loan) unless authorized to do so in advance by the probation officer.",
"20. The defendant shall support all dependents including any dependent child, or any person the defendant has been court ordered to support. 21. The defendant shall participate in transitional support services (including cognitive behavioral treatment programs) and follow the rules and regulations of such program. The probation officer will supervise the defendant’s participation in the program (including, but not limited to, provider, location, modality, duration, intensity). Such programs may include group sessions led by a counselor or participation in a program administered by the probation officer.",
"AO 245 B (WDNC Rev. 02/11) Judgment in a Criminal Case revTitle 22. The defendant shall follow the instructions of the probation officer related to the conditions of supervision. ADDITIONAL CONDITIONS: 23. The defendant shall participate in a mental health evaluation and treatment program and follow the rules and regulations of that program. The probation officer, in consultation with the treatment provider, will supervise the defendant’s participation in the program (including, but not limited to provider, location, modality, duration, and intensity). The defendant shall take all mental health medications as prescribed by a licensed health care practitioner. 24. The defendant shall participate in a gambling addiction treatment program and follow the rules and regulation of that program. The probation officer will supervise the defendant’s participation in the program (including, but not limited to provider, location, modality, duration, and intensity).",
"AO 245B (WDNC Rev. 02/11) Judgment in a Criminal Case Defendant: Quandella Walker Judgment- Page 5 of 8 Case Number: DNCW317CR000343-001 CRIMINAL MONETARY PENALTIES The defendant shall pay the following total criminal monetary penalties in accordance with the Schedule of Payments. ASSESSMENT FINE RESTITUTION $100.00 $0.00 $126,201.08 ☐ The determination of restitution is deferred until. An Amended Judgment in a Criminal Case (AO 245C) will be entered after such determination. FINE The defendant shall pay interest on any fine or restitution of more than $2,500.00, unless the fine or restitution is paid in full before the fifteenth day after the date of judgment, pursuant to 18 U.S.C. § 3612(f).",
"All of the payment options on the Schedule of Payments may be subject to penalties for default and delinquency pursuant to 18 U.S.C. § 3612(g). ☒ The court has determined that the defendant does not have the ability to pay interest and it is ordered that: ☒ The interest requirement is waived. ☐ The interest requirement is modified as follows: COURT APPOINTED COUNSEL FEES ☐ The defendant shall pay court appointed counsel fees. ☐ The defendant shall pay $0.00 towards court appointed fees. AO 245B (WDNC Rev. 02/11) Judgment in a Criminal Case Defendant: Quandella Walker Judgment- Page 6 of 8 Case Number: DNCW317CR000343-001 RESTITUTION PAYEES The defendant shall make restitution to the following payees in the amounts listed below concurrently with the restitution imposed in 3:18cr194: NAME OF PAYEE AMOUNT OF RESTITUTION ORDERED NAME OF PAYEE AMOUNT OF RESTITUTION ORDERED IRS-RACS $119,474.00 Lowes Home Centers $6,727.08 ☐ Joint and Several ☐ Defendant and Co-Defendant Names and Case Numbers (including defendant number) if appropriate: ☐ Court gives notice that this case may involve other defendants who may be held jointly and severally liable for payment of all or part of the restitution ordered herein and may order such payment in the future.",
"☒ The victims’ recovery is limited to the amount of their loss and the defendant’s liability for restitution ceases if and when the victim(s) receive full restitution. ☒ Any payment not in full shall be divided proportionately among victims. AO 245B (WDNC Rev. 02/11) Judgment in a Criminal Case Defendant: Quandella Walker Judgment- Page 7 of 8 Case Number: DNCW317CR000343-001 SCHEDULE OF PAYMENTS Having assessed the defendant’s ability to pay, payment of the total criminal monetary penalties shall be due as follows: A ☐ Lump sum payment of $0.00 due immediately, balance due ☐ Not later than ☐ In accordance ☐ (C), ☐ (D) below; or B ☒ Payment to begin immediately (may be combined with ☐ (C), ☒ (D) below); or C ☐ Payment in equal Monthly (E.g.",
"weekly, monthly, quarterly) installments of $50.00 to commence 60 (E.g. 30 or 60) days after the date of this judgment; or D ☒ Payment in equal Monthly (E.g. weekly, monthly, quarterly) installments of $ 50.00 to commence 60 (E.g. 30 or 60) days after release from imprisonment to a term of supervision. In the event the entire amount of criminal monetary penalties imposed is not paid prior to the commencement of supervision, the U.S. Probation Officer shall pursue collection of the amount due, and may request the court to establish or modify a payment schedule if appropriate 18 U.S.C. § 3572. Special instructions regarding the payment of criminal monetary penalties: ☐ The defendant shall pay the cost of prosecution. ☐ The defendant shall pay the following court costs: ☐ The defendant shall forfeit the defendant’s interest in the following property to the United States Unless the court has expressly ordered otherwise in the special instructions above, if this judgment imposes a period of imprisonment payment of criminal monetary penalties shall be due during the period of imprisonment.",
"All criminal monetary penalty payments are to be made to the United States District Court Clerk, 401 West Trade Street, Room 210, Charlotte, NC 28202, except those payments made through the Bureau of Prisons’ Inmate Financial Responsibility Program. All criminal monetary penalty payments are to be made as directed by the court. Payments shall be applied in the following order: (1) assessment, (2) restitution principal, (3) restitution interest, (4) fine principal, (5) fine interest, (6) community restitution, (7) penalties, and (8) costs, including cost of prosecution and court costs. AO 245B (WDNC Rev. 02/11) Judgment in a Criminal Case Defendant: Quandella Walker Judgment- Page 8 of 8 Case Number: DNCW317CR000343-001 STATEMENT OF ACKNOWLEDGMENT I understand that my term of supervision is for a period of _______months, commencing on ____________________. Upon a finding of a violation of probation or supervised release, I understand that the court may (1) revoke supervision, (2) extend the term of supervision, and/or (3) modify the conditions of supervision.",
"I understand that revocation of probation and supervised release is mandatory for possession of a controlled substance, possession of a firearm and/or refusal to comply with drug testing. These conditions have been read to me. I fully understand the conditions and have been provided a copy of them. (Signed) ____________________________________ Date: _________________ Defendant (Signed) ____________________________________ Date: _________________ U.S. Probation Office/Designated Witness"
] | https://www.courtlistener.com/api/rest/v3/recap-documents/67440881/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
DETAILED ACTION Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . Double Patenting The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969). A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b). The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/process/file/efs/guidance/eTD-info-I.jsp. Claim 1-6, 8-13 and 15 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-12 of co-pending Application No. 17268201 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because the claims of the present application are anticipated by the claims of the co-pending application: Claim 1 of the present application is anticipated by claims 1 and 2 of the co-pending application. Claim 2 of the present application is anticipated by claim 2 of the co-pending application. Claim 3 of the present application is anticipated by claim 3 of the co-pending application.
Claim 5 of the present application is anticipated by claim 5 of the co-pending application. Claim 6 of the present application is anticipated by claim 6 of the co-pending application. Claim 8 of the present application is anticipated by claims 7 and 8 of the co-pending application. Claim 9 of the present application is anticipated by claim 8 of the co-pending application. Claim 10 of the present application is anticipated by claim 9 of the co-pending application. Claim 11 of the present application is anticipated by claims 8, 9 and 10 of the co-pending application. Claim 12 of the present application is anticipated by claim 11 of the co-pending application. Claim 13 of the present application is anticipated by claim 12 of the co-pending application. Claim 15 of the present application is anticipated by claims 1-2 and 7-8 respectively of the co-pending application. This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claim Rejections - 35 USC § 102 The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action: A person shall be entitled to a patent unless –
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 1-15 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Park et al. (US Publication 2021/0320830 A1). The applied reference has a common assignee with the instant application. Based upon the earlier effectively filed date of the reference, it constitutes prior art under 35 U.S.C. 102(a)(2). This rejection under 35 U.S.C. 102(a)(2) might be overcome by: (1) a showing under 37 CFR 1.130(a) that the subject matter disclosed in the reference was obtained directly or indirectly from the inventor or a joint inventor of this application and is thus not prior art in accordance with 35 U.S.C. 102(b)(2)(A); (2) a showing under 37 CFR 1.130(b) of a prior public disclosure under 35 U.S.C. 102(b)(2)(B) if the same invention is not being claimed; or (3) a statement pursuant to 35 U.S.C. 102(b)(2)(C) establishing that, not later than the effective filing date of the claimed invention, the subject matter disclosed in the reference and the claimed invention were either owned by the same person or subject to an obligation of assignment to the same person or subject to a joint research agreement. In regards to claims 1, 8 and 15 Park et al. (US Publication 2021/0320830 A1) teaches, A method for transmitting an Extreme High Throughput (EHT) Physical (see figure 22 steps s2210, generating and transmitting EHT PPDU that includes legacy preamble and EHT field); and transmitting, by the transmitting device, the EHT PPDU to a receiving device through a 320MHz band having 80MHz bands punctured (see paragraph 28; /320 MHz bands having 80 MHz-based preamble puncturing performed therein; see figure 22 step s2220; transmitting EHT PPDU to receiving device through 320 MHz band having 80 MHz punctured), wherein the EHT PPDU is transmitted based on a radio frequency (RF), wherein the legacy preamble includes a Legacy-Short Training Field (L-STF) and a Legacy-Long Training Field (L-LTF) (see paragraph 13; The legacy preamble includes a Legacy-Short Training Field (L-STF) and a Legacy-Long Training Field (L-LTF)), wherein the legacy preamble is generated by applying a first phase rotation value (see paragraph 1439; The legacy preamble is generated by applying a first phase rotation value), wherein the first phase rotation value is determined based on a first method and a second method, wherein the first method is a method of obtaining optimal PAPRs of the L-STF and the L-LTF (see paragraph 1439; The first phase rotation value is a phase rotation value that is defined for optimal PAPRs of L-STF and L-LTF), wherein the second method is a method of obtaining an optimal PAPR based on a maximum transmission bandwidth supported by the RF (see paragraph 1453; By applying the first phase rotation value to the legacy preamble, optimal PAPR may be ensured for the transmission of 240 MHz/320 MHz bands having 80 MHz-based preamble puncturing), wherein the first phase rotation value is obtained (see paragraph 28; The first phase rotation value may be obtained based on a multiplication of the second phase rotation value and the third phase rotation value), wherein the second phase rotation value is a phase rotation value obtained by repeating a phase rotation value that is defined for an 80MHz band in an 802. llax system (see paragraph 1441; The second phase rotation value is a phase rotation value obtained by repeating a phase rotation value that is defined for an 80 MHz band in an 802.11ax system), and wherein the third phase rotation value is a phase rotation value being defined in 80MHz band units in the 320MHz band (see paragraph 1442; The third phase rotation value is a phase rotation value being defined in 80 MHz band units in the 320 MHz band). In regards to claims 2 and 9, Park teaches, wherein the 320MHz band is configured of subcarriers having subcarrier indexes from -512 to 511, wherein the second rotation phase value is [1 -1 -1 -1 1 -1 -1 -1 1 -1 -1 -1 1 -1 -1 -1] (see paragraphs 20-21; The 320 MHz is configured of subcarriers having subcarrier indexes from −512 to 511. The second rotation phase value is [1 −1 −1 −1 1 −1 −1 −1 1 −1 −1 −1 1 −1 −1 −1]), wherein, among the second rotation phase value, a first value 1 is applied to a subcarrier having subcarrier indexes from -512 to -449 (see paragraph 22; Among the second rotation phase value, a first value 1 may be applied to a subcarrier having subcarrier indexes from −512 to −449, among the second rotation phase value), wherein, among the second rotation phase value, a second value -1 is applied to a subcarrier having subcarrier indexes from -448 to -385 (see paragraph 22; a second value −1 may be applied to a subcarrier having subcarrier indexes from −448 to −385), wherein, among the second rotation phase value, a third value -1 is applied to a subcarrier having subcarrier indexes from -384 to -321 (see paragraph 22; among the second rotation phase value, a third value −1 may be applied to a subcarrier having subcarrier indexes from −384 to −321), wherein, among the second rotation phase value, a fourth value -1 is applied to a subcarrier having subcarrier indexes from -320 to -257 (see paragraph 22; among the second rotation phase value, a fourth value −1 may be applied to a subcarrier having subcarrier indexes from −320 to −257), wherein, among the second rotation phase value, a fifth value 1 is applied to a subcarrier having subcarrier indexes from -256 to -193 (see paragraph 23; Among the second rotation phase value, a fifth value 1 may be applied to a subcarrier having subcarrier indexes from −256 to −193), wherein, among the second rotation phase value, a sixth value -1 is applied to a subcarrier having subcarrier indexes from -192 to -129 (see paragraph 23; among the second rotation phase value, a sixth value −1 may be applied to a subcarrier having subcarrier indexes from −192 to −129), wherein, among the second rotation phase value, a seventh value -1 is applied to a subcarrier having subcarrier indexes from -128 to -65 (see paragraph 23; among the second rotation phase value, a seventh value −1 may be applied to a subcarrier having subcarrier indexes from −128 to −65), wherein, among the second rotation phase value, an eighth value -1 is applied to a subcarrier having subcarrier indexes from -64 to -1 (see paragraph 23; among the second rotation phase value, an eighth value −1 may be applied to a subcarrier having subcarrier indexes from −64 to −1), wherein, among the second rotation phase value, a ninth value 1 is applied to a subcarrier having subcarrier indexes (see paragraph 24; Among the second rotation phase value, a ninth value 1 may be applied to a subcarrier having subcarrier indexes from 0 to 63), wherein, among the second rotation phase value, a tenth value -1 is applied to a subcarrier having subcarrier indexes from 64 to 127 (see paragraph 24; among the second rotation phase value, a tenth value −1 may be applied to a subcarrier having subcarrier indexes from 64 to 127), wherein, among the second rotation phase value, an eleventh value -1 is applied to a subcarrier having subcarrier indexes from 128 to 191 (see paragraph 24; among the second rotation phase value, an eleventh value −1 may be applied to a subcarrier having subcarrier indexes from 128 to 191), wherein, among the second rotation phase value, a twelfth value -1 is applied to a subcarrier having subcarrier indexes from 192 to 255 (see paragraph 24; among the second rotation phase value, a twelfth value −1 may be applied to a subcarrier having subcarrier indexes from 192 to 255), wherein, among the second rotation phase value, a thirteenth value 1 is applied to a subcarrier having subcarrier indexes from 256 to 319 (see paragraph 25; Among the second rotation phase value, a thirteenth value 1 may be applied to a subcarrier having subcarrier indexes from 256 to 319), wherein, among the second rotation phase value, a fourteenth value -1 is applied to a subcarrier having subcarrier indexes from 320 to 383 (see paragraph 25; among the second rotation phase value, a fourteenth value −1 may be applied to a subcarrier having subcarrier indexes from 320 to 383), wherein, among the second rotation phase value, a fifteenth value -1 is applied to a subcarrier having subcarrier indexes from 384 to 447 (see paragraph 25; among the second rotation phase value, a fifteenth value −1 may be applied to a subcarrier having subcarrier indexes from 384 to 447), and wherein, among the second rotation phase value, a sixteenth value -1 is applied to a subcarrier having subcarrier indexes from 448 to 511 (see paragraph 25; among the second rotation phase value, a sixteenth value −1 may be applied to a subcarrier having subcarrier indexes from 448 to 511). In regards to claims 3 and 10, Park teaches, wherein the third phase rotation value is [1 1 -1 -1] (see paragraph 26; the third phase rotation value may be [1 1 −1 −1]), wherein, among the third rotation phase value, a first value 1 is applied to a first 80MHz band within the 320MHz band, wherein, among the third rotation phase value, a second value 1 is applied to a second 80MHz band within the 320MHz band, wherein, among the third rotation phase value, a third value -1 is applied to a third 80MHz band within the 320MHz band, and wherein, among the third rotation phase value, a fourth value -1 is applied to a fourth 80MHz band within the 320MHz band (see paragraph 27; Among the third rotation phase value, a first value 1 may be applied to a first 80 MHz band within the 320 MHz band, among the third rotation phase value, a second value 1 may be applied to a second 80 MHz band within the 320 MHz band, among the third rotation phase value, a third value −1 may be applied to a third 80 MHz band within the 320 MHz band, and, among the third rotation phase value, a fourth value −1 may be applied to a fourth 80 MHz band within the 320 MHz band). In regards to claims 4 and 11, Park teaches, wherein the first phase rotation value is obtained based on a multiplication of the second phase rotation value and the third phase rotation value, and wherein the first phase rotation value is [1 -1 -1 -1 1 -1 -1 (see paragraph 28; the first phase rotation value may be obtained by multiplying the second phase rotation value and the third phase rotation value to align with the frequency band (or subcarrier index). At this point, the first phase rotation value is [1 −1 −1 −1 1 −1 −1 −1 −1 1 1 1 −1 1 1 1]). In regards to claims 5 and 12, Park teaches, wherein the 80MHz band includes all 80MHz bands excluding a primary 80MHz band, and wherein the first phase rotation value is obtained based on a preamble puncturing pattern (see paragraph 29; the 80 MHz band may include all 80 MHz bands excluding a primary 80 MHz band. That is, although the primary 80 MHz band may always be used for the PPDU transmission, not all of the remaining 80 MHz bands may be used for the PPDU transmission. The first and second phase rotation values may be obtained based on a preamble puncturing pattern). In regards to claims 6 and 13, Park teaches, wherein the preamble puncturing pattern is a band pattern having punctured at least one 80MHz band, among all 80MHz bands excluding the primary 80MHz band within the 320MHz band (see paragraph 29; The preamble puncturing pattern may be a band pattern having punctured at least one 80 MHz band, among all 80 MHz bands excluding the primary 80 MHz band within the 320 MHz band). In regards to claims 7 and 14, Park teaches, wherein the maximum transmission bandwidth supported by the RF is 80MHz, 160MHz, 240MHz or 320MHz, wherein the first PAPR is an optimal PAPR being obtained when the maximum transmission bandwidth supported by the RF is 80MHz, wherein the second PAPR is an optimal PAPR being obtained when the maximum transmission bandwidth supported by the RF (see paragraph 1474; The third phase rotation value is a phase rotation value being defined in 80 MHz band units in the 320 MHz band based on optimal PAPRs of the L-STF and the L-LTF. Since the 320 MHz band may be divided into 4 units of 80 MHz band, a third phase rotation value may be defined for each of the four 80 MHz bands. If the EHT PPDU is said to be transmitted through a 160 MHz band, a third phase rotation value may be defined for each of two 80 MHz bands, based on the optimal PAPRs of the L-STF and the L-LTF. If the EHT PPDU is said to be transmitted through a 240 MHz band; see paragraph 1517; The third phase rotation value is a phase rotation value being defined in 80 MHz band units in the 320 MHz band based on optimal PAPRs of the L-STF and the L-LTF. Since the 320 MHz band may be divided into 4 units of 80 MHz band, a third phase rotation value may be defined for each of the four 80 MHz bands. If the EHT PPDU is said to be transmitted through a 160 MHz band, a third phase rotation value may be defined for each of two 80 MHz bands, based on the optimal PAPRs of the L-STF and the L-LTF. If the EHT PPDU is said to be transmitted through a 240 MHz band, a third phase rotation value may be defined for each of three 80 MHz bands, based on the optimal PAPRs of the L-STF and the L-LTF). In regards to claim 15 Park teaches, a method for receiving an Extreme High Throughput (EHT) Physical Protocol Data Unit (PPDU) in a wireless LAN system, the (see paragraph 28; /320 MHz bands having 80 MHz-based preamble puncturing performed therein; see figure 22 step s2220; transmitting EHT PPDU to receiving device through 320 MHz band having 80 MHz punctured), wherein the EHT PPDU includes a legacy preamble and an EHT field (see figure 22 steps s2210, generating and transmitting EHT PPDU that includes legacy preamble and EHT field); and decoding, by the receiving device, the EHT PPDU, wherein the EHT PPDU is transmitted based on a radio frequency (RF), wherein the legacy preamble includes a Legacy-Short Training Field (L-STF) and a Legacy-Long Training Field (L-LTF) (see paragraph 13; The legacy preamble includes a Legacy-Short Training Field (L-STF) and a Legacy-Long Training Field (L-LTF)), wherein the legacy preamble is generated by applying a first phase rotation value (see paragraph 1439; The legacy preamble is generated by applying a first phase rotation value), wherein the first phase rotation value is determined based on a first method and a second method, wherein the first method is a method of obtaining optimal PAPRs of the L-STF and the L-LTF (see paragraph 1439; The first phase rotation value is a phase rotation value that is defined for optimal PAPRs of L-STF and L-LTF), wherein the second method is a method of obtaining an optimal PAPR based on a maximum transmission bandwidth supported by the RF (see paragraph 1453; By applying the first phase rotation value to the legacy preamble, optimal PAPR may be ensured for the transmission of 240 MHz/320 MHz bands having 80 MHz-based preamble puncturing), wherein the first phase rotation value is obtained based on a second phase rotation value and a third phase (see paragraph 28; The first phase rotation value may be obtained based on a multiplication of the second phase rotation value and the third phase rotation value), wherein the second phase rotation value is a phase rotation value obtained by repeating a phase rotation value that is defined for an 80MHz band in an 802. llax system (see paragraph 1441; The second phase rotation value is a phase rotation value obtained by repeating a phase rotation value that is defined for an 80 MHz band in an 802.11ax system), and wherein the third phase rotation value is a phase rotation value being defined in 80MHz band units in the 320MHz band (see paragraph 1442; The third phase rotation value is a phase rotation value being defined in 80 MHz band units in the 320 MHz band). Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to JAY P PATEL whose telephone number is (571)272-3086. The examiner can normally be reached M-F 9:30-6. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Faruk Hamza can be reached on 571-272-7969. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is
/JAY P PATEL/Primary Examiner, Art Unit 2466 | 2022-03-13T11:38:44 | [
"DETAILED ACTION Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . Double Patenting The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed.",
"Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969). A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).",
"The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/process/file/efs/guidance/eTD-info-I.jsp. Claim 1-6, 8-13 and 15 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-12 of co-pending Application No. 17268201 (reference application).",
"Although the claims at issue are not identical, they are not patentably distinct from each other because the claims of the present application are anticipated by the claims of the co-pending application: Claim 1 of the present application is anticipated by claims 1 and 2 of the co-pending application. Claim 2 of the present application is anticipated by claim 2 of the co-pending application. Claim 3 of the present application is anticipated by claim 3 of the co-pending application. Claim 5 of the present application is anticipated by claim 5 of the co-pending application. Claim 6 of the present application is anticipated by claim 6 of the co-pending application.",
"Claim 8 of the present application is anticipated by claims 7 and 8 of the co-pending application. Claim 9 of the present application is anticipated by claim 8 of the co-pending application. Claim 10 of the present application is anticipated by claim 9 of the co-pending application. Claim 11 of the present application is anticipated by claims 8, 9 and 10 of the co-pending application. Claim 12 of the present application is anticipated by claim 11 of the co-pending application. Claim 13 of the present application is anticipated by claim 12 of the co-pending application. Claim 15 of the present application is anticipated by claims 1-2 and 7-8 respectively of the co-pending application. This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented. Claim Rejections - 35 USC § 102 The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action: A person shall be entitled to a patent unless – (a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention. Claim(s) 1-15 are rejected under 35 U.S.C.",
"102(a)(2) as being anticipated by Park et al. (US Publication 2021/0320830 A1). The applied reference has a common assignee with the instant application. Based upon the earlier effectively filed date of the reference, it constitutes prior art under 35 U.S.C. 102(a)(2). This rejection under 35 U.S.C. 102(a)(2) might be overcome by: (1) a showing under 37 CFR 1.130(a) that the subject matter disclosed in the reference was obtained directly or indirectly from the inventor or a joint inventor of this application and is thus not prior art in accordance with 35 U.S.C. 102(b)(2)(A); (2) a showing under 37 CFR 1.130(b) of a prior public disclosure under 35 U.S.C. 102(b)(2)(B) if the same invention is not being claimed; or (3) a statement pursuant to 35 U.S.C.",
"102(b)(2)(C) establishing that, not later than the effective filing date of the claimed invention, the subject matter disclosed in the reference and the claimed invention were either owned by the same person or subject to an obligation of assignment to the same person or subject to a joint research agreement. In regards to claims 1, 8 and 15 Park et al.",
"(US Publication 2021/0320830 A1) teaches, A method for transmitting an Extreme High Throughput (EHT) Physical (see figure 22 steps s2210, generating and transmitting EHT PPDU that includes legacy preamble and EHT field); and transmitting, by the transmitting device, the EHT PPDU to a receiving device through a 320MHz band having 80MHz bands punctured (see paragraph 28; /320 MHz bands having 80 MHz-based preamble puncturing performed therein; see figure 22 step s2220; transmitting EHT PPDU to receiving device through 320 MHz band having 80 MHz punctured), wherein the EHT PPDU is transmitted based on a radio frequency (RF), wherein the legacy preamble includes a Legacy-Short Training Field (L-STF) and a Legacy-Long Training Field (L-LTF) (see paragraph 13; The legacy preamble includes a Legacy-Short Training Field (L-STF) and a Legacy-Long Training Field (L-LTF)), wherein the legacy preamble is generated by applying a first phase rotation value (see paragraph 1439; The legacy preamble is generated by applying a first phase rotation value), wherein the first phase rotation value is determined based on a first method and a second method, wherein the first method is a method of obtaining optimal PAPRs of the L-STF and the L-LTF (see paragraph 1439; The first phase rotation value is a phase rotation value that is defined for optimal PAPRs of L-STF and L-LTF), wherein the second method is a method of obtaining an optimal PAPR based on a maximum transmission bandwidth supported by the RF (see paragraph 1453; By applying the first phase rotation value to the legacy preamble, optimal PAPR may be ensured for the transmission of 240 MHz/320 MHz bands having 80 MHz-based preamble puncturing), wherein the first phase rotation value is obtained (see paragraph 28; The first phase rotation value may be obtained based on a multiplication of the second phase rotation value and the third phase rotation value), wherein the second phase rotation value is a phase rotation value obtained by repeating a phase rotation value that is defined for an 80MHz band in an 802. llax system (see paragraph 1441; The second phase rotation value is a phase rotation value obtained by repeating a phase rotation value that is defined for an 80 MHz band in an 802.11ax system), and wherein the third phase rotation value is a phase rotation value being defined in 80MHz band units in the 320MHz band (see paragraph 1442; The third phase rotation value is a phase rotation value being defined in 80 MHz band units in the 320 MHz band).",
"In regards to claims 2 and 9, Park teaches, wherein the 320MHz band is configured of subcarriers having subcarrier indexes from -512 to 511, wherein the second rotation phase value is [1 -1 -1 -1 1 -1 -1 -1 1 -1 -1 -1 1 -1 -1 -1] (see paragraphs 20-21; The 320 MHz is configured of subcarriers having subcarrier indexes from −512 to 511.",
"The second rotation phase value is [1 −1 −1 −1 1 −1 −1 −1 1 −1 −1 −1 1 −1 −1 −1]), wherein, among the second rotation phase value, a first value 1 is applied to a subcarrier having subcarrier indexes from -512 to -449 (see paragraph 22; Among the second rotation phase value, a first value 1 may be applied to a subcarrier having subcarrier indexes from −512 to −449, among the second rotation phase value), wherein, among the second rotation phase value, a second value -1 is applied to a subcarrier having subcarrier indexes from -448 to -385 (see paragraph 22; a second value −1 may be applied to a subcarrier having subcarrier indexes from −448 to −385), wherein, among the second rotation phase value, a third value -1 is applied to a subcarrier having subcarrier indexes from -384 to -321 (see paragraph 22; among the second rotation phase value, a third value −1 may be applied to a subcarrier having subcarrier indexes from −384 to −321), wherein, among the second rotation phase value, a fourth value -1 is applied to a subcarrier having subcarrier indexes from -320 to -257 (see paragraph 22; among the second rotation phase value, a fourth value −1 may be applied to a subcarrier having subcarrier indexes from −320 to −257), wherein, among the second rotation phase value, a fifth value 1 is applied to a subcarrier having subcarrier indexes from -256 to -193 (see paragraph 23; Among the second rotation phase value, a fifth value 1 may be applied to a subcarrier having subcarrier indexes from −256 to −193), wherein, among the second rotation phase value, a sixth value -1 is applied to a subcarrier having subcarrier indexes from -192 to -129 (see paragraph 23; among the second rotation phase value, a sixth value −1 may be applied to a subcarrier having subcarrier indexes from −192 to −129), wherein, among the second rotation phase value, a seventh value -1 is applied to a subcarrier having subcarrier indexes from -128 to -65 (see paragraph 23; among the second rotation phase value, a seventh value −1 may be applied to a subcarrier having subcarrier indexes from −128 to −65), wherein, among the second rotation phase value, an eighth value -1 is applied to a subcarrier having subcarrier indexes from -64 to -1 (see paragraph 23; among the second rotation phase value, an eighth value −1 may be applied to a subcarrier having subcarrier indexes from −64 to −1), wherein, among the second rotation phase value, a ninth value 1 is applied to a subcarrier having subcarrier indexes (see paragraph 24; Among the second rotation phase value, a ninth value 1 may be applied to a subcarrier having subcarrier indexes from 0 to 63), wherein, among the second rotation phase value, a tenth value -1 is applied to a subcarrier having subcarrier indexes from 64 to 127 (see paragraph 24; among the second rotation phase value, a tenth value −1 may be applied to a subcarrier having subcarrier indexes from 64 to 127), wherein, among the second rotation phase value, an eleventh value -1 is applied to a subcarrier having subcarrier indexes from 128 to 191 (see paragraph 24; among the second rotation phase value, an eleventh value −1 may be applied to a subcarrier having subcarrier indexes from 128 to 191), wherein, among the second rotation phase value, a twelfth value -1 is applied to a subcarrier having subcarrier indexes from 192 to 255 (see paragraph 24; among the second rotation phase value, a twelfth value −1 may be applied to a subcarrier having subcarrier indexes from 192 to 255), wherein, among the second rotation phase value, a thirteenth value 1 is applied to a subcarrier having subcarrier indexes from 256 to 319 (see paragraph 25; Among the second rotation phase value, a thirteenth value 1 may be applied to a subcarrier having subcarrier indexes from 256 to 319), wherein, among the second rotation phase value, a fourteenth value -1 is applied to a subcarrier having subcarrier indexes from 320 to 383 (see paragraph 25; among the second rotation phase value, a fourteenth value −1 may be applied to a subcarrier having subcarrier indexes from 320 to 383), wherein, among the second rotation phase value, a fifteenth value -1 is applied to a subcarrier having subcarrier indexes from 384 to 447 (see paragraph 25; among the second rotation phase value, a fifteenth value −1 may be applied to a subcarrier having subcarrier indexes from 384 to 447), and wherein, among the second rotation phase value, a sixteenth value -1 is applied to a subcarrier having subcarrier indexes from 448 to 511 (see paragraph 25; among the second rotation phase value, a sixteenth value −1 may be applied to a subcarrier having subcarrier indexes from 448 to 511).",
"In regards to claims 3 and 10, Park teaches, wherein the third phase rotation value is [1 1 -1 -1] (see paragraph 26; the third phase rotation value may be [1 1 −1 −1]), wherein, among the third rotation phase value, a first value 1 is applied to a first 80MHz band within the 320MHz band, wherein, among the third rotation phase value, a second value 1 is applied to a second 80MHz band within the 320MHz band, wherein, among the third rotation phase value, a third value -1 is applied to a third 80MHz band within the 320MHz band, and wherein, among the third rotation phase value, a fourth value -1 is applied to a fourth 80MHz band within the 320MHz band (see paragraph 27; Among the third rotation phase value, a first value 1 may be applied to a first 80 MHz band within the 320 MHz band, among the third rotation phase value, a second value 1 may be applied to a second 80 MHz band within the 320 MHz band, among the third rotation phase value, a third value −1 may be applied to a third 80 MHz band within the 320 MHz band, and, among the third rotation phase value, a fourth value −1 may be applied to a fourth 80 MHz band within the 320 MHz band). In regards to claims 4 and 11, Park teaches, wherein the first phase rotation value is obtained based on a multiplication of the second phase rotation value and the third phase rotation value, and wherein the first phase rotation value is [1 -1 -1 -1 1 -1 -1 (see paragraph 28; the first phase rotation value may be obtained by multiplying the second phase rotation value and the third phase rotation value to align with the frequency band (or subcarrier index).",
"At this point, the first phase rotation value is [1 −1 −1 −1 1 −1 −1 −1 −1 1 1 1 −1 1 1 1]). In regards to claims 5 and 12, Park teaches, wherein the 80MHz band includes all 80MHz bands excluding a primary 80MHz band, and wherein the first phase rotation value is obtained based on a preamble puncturing pattern (see paragraph 29; the 80 MHz band may include all 80 MHz bands excluding a primary 80 MHz band. That is, although the primary 80 MHz band may always be used for the PPDU transmission, not all of the remaining 80 MHz bands may be used for the PPDU transmission. The first and second phase rotation values may be obtained based on a preamble puncturing pattern). In regards to claims 6 and 13, Park teaches, wherein the preamble puncturing pattern is a band pattern having punctured at least one 80MHz band, among all 80MHz bands excluding the primary 80MHz band within the 320MHz band (see paragraph 29; The preamble puncturing pattern may be a band pattern having punctured at least one 80 MHz band, among all 80 MHz bands excluding the primary 80 MHz band within the 320 MHz band). In regards to claims 7 and 14, Park teaches, wherein the maximum transmission bandwidth supported by the RF is 80MHz, 160MHz, 240MHz or 320MHz, wherein the first PAPR is an optimal PAPR being obtained when the maximum transmission bandwidth supported by the RF is 80MHz, wherein the second PAPR is an optimal PAPR being obtained when the maximum transmission bandwidth supported by the RF (see paragraph 1474; The third phase rotation value is a phase rotation value being defined in 80 MHz band units in the 320 MHz band based on optimal PAPRs of the L-STF and the L-LTF.",
"Since the 320 MHz band may be divided into 4 units of 80 MHz band, a third phase rotation value may be defined for each of the four 80 MHz bands. If the EHT PPDU is said to be transmitted through a 160 MHz band, a third phase rotation value may be defined for each of two 80 MHz bands, based on the optimal PAPRs of the L-STF and the L-LTF. If the EHT PPDU is said to be transmitted through a 240 MHz band; see paragraph 1517; The third phase rotation value is a phase rotation value being defined in 80 MHz band units in the 320 MHz band based on optimal PAPRs of the L-STF and the L-LTF. Since the 320 MHz band may be divided into 4 units of 80 MHz band, a third phase rotation value may be defined for each of the four 80 MHz bands.",
"If the EHT PPDU is said to be transmitted through a 160 MHz band, a third phase rotation value may be defined for each of two 80 MHz bands, based on the optimal PAPRs of the L-STF and the L-LTF. If the EHT PPDU is said to be transmitted through a 240 MHz band, a third phase rotation value may be defined for each of three 80 MHz bands, based on the optimal PAPRs of the L-STF and the L-LTF).",
"In regards to claim 15 Park teaches, a method for receiving an Extreme High Throughput (EHT) Physical Protocol Data Unit (PPDU) in a wireless LAN system, the (see paragraph 28; /320 MHz bands having 80 MHz-based preamble puncturing performed therein; see figure 22 step s2220; transmitting EHT PPDU to receiving device through 320 MHz band having 80 MHz punctured), wherein the EHT PPDU includes a legacy preamble and an EHT field (see figure 22 steps s2210, generating and transmitting EHT PPDU that includes legacy preamble and EHT field); and decoding, by the receiving device, the EHT PPDU, wherein the EHT PPDU is transmitted based on a radio frequency (RF), wherein the legacy preamble includes a Legacy-Short Training Field (L-STF) and a Legacy-Long Training Field (L-LTF) (see paragraph 13; The legacy preamble includes a Legacy-Short Training Field (L-STF) and a Legacy-Long Training Field (L-LTF)), wherein the legacy preamble is generated by applying a first phase rotation value (see paragraph 1439; The legacy preamble is generated by applying a first phase rotation value), wherein the first phase rotation value is determined based on a first method and a second method, wherein the first method is a method of obtaining optimal PAPRs of the L-STF and the L-LTF (see paragraph 1439; The first phase rotation value is a phase rotation value that is defined for optimal PAPRs of L-STF and L-LTF), wherein the second method is a method of obtaining an optimal PAPR based on a maximum transmission bandwidth supported by the RF (see paragraph 1453; By applying the first phase rotation value to the legacy preamble, optimal PAPR may be ensured for the transmission of 240 MHz/320 MHz bands having 80 MHz-based preamble puncturing), wherein the first phase rotation value is obtained based on a second phase rotation value and a third phase (see paragraph 28; The first phase rotation value may be obtained based on a multiplication of the second phase rotation value and the third phase rotation value), wherein the second phase rotation value is a phase rotation value obtained by repeating a phase rotation value that is defined for an 80MHz band in an 802. llax system (see paragraph 1441; The second phase rotation value is a phase rotation value obtained by repeating a phase rotation value that is defined for an 80 MHz band in an 802.11ax system), and wherein the third phase rotation value is a phase rotation value being defined in 80MHz band units in the 320MHz band (see paragraph 1442; The third phase rotation value is a phase rotation value being defined in 80 MHz band units in the 320 MHz band).",
"Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to JAY P PATEL whose telephone number is (571)272-3086. The examiner can normally be reached M-F 9:30-6. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Faruk Hamza can be reached on 571-272-7969.",
"The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is /JAY P PATEL/Primary Examiner, Art Unit 2466"
] | https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-03-20.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
751 N.E.2d 679 (2001) John P. WRAY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. No. 54A01-0012-CR-432. Court of Appeals of Indiana. May 14, 2001. Publication Ordered June 14, 2001. *680 John L. Tompkins, Indianapolis, IN, Attorney for Appellant. Steve Carter, Attorney General of Indiana, Monika Prekopa Talbot, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
OPINION BARNES, Judge.
Case Summary John P. Wray appeals his conviction for operating a vehicle with a blood alcohol *681 content of at least ten-hundredths percent (0.10%), a Class C misdemeanor. We reverse.
Issue The dispositive issue before us is whether the trial court erred in admitting into evidence State's exhibit number three, a "Breath Test for Intoxication Recertification" letter indicating Wray's arresting officer was certified by the department of toxicology to operate breath test instruments.
Facts On November 10, 1999, Officer Dan Edwards of the Crawfordsville Police Department stopped Wray's vehicle. After observing possible signs of intoxication, Edwards administered a portable breath test that indicated Wray's blood alcohol content was .142 percent. Edwards then transported Wray to the Montgomery County jail where he administered another breath test, which indicated a blood alcohol content of .16 percent. At a bench trial, when the State sought to introduce Edwards' breath test operator recertification into evidence, the following colloquy between defense counsel and Edwards took place: Q: Officer, do you receive training in pharmacology of alcohol? A: No, I do not. Q: Do you receive training in the theory of operation of breath test equipment? A: No, sir. Q: How about in the care and maintenance of breath test equipment? A: No, sir. In fact, we were instructed during the class that if that comes up in court that it would be recommended that a certified instrument maintenance officer or person be subpoenaed to court. We are only trained on how to give to [sic] test. Q: Have you received training in the legal aspects of breath testing? A: No. Q: How about in the interpretation of breath test results? A: No. Q: In any part of your training, do you use a human being that had consumed a known dose of alcohol and then was later tested on a certified machine? A: Yes. Record pp. 75-76. The trial court overruled defense counsel's subsequent hearsay objection to the introduction of the department of toxicology's recertification letter for Officer Edwards. Wray was found not guilty of operating while intoxicated, but guilty of operating with 0.10% of alcohol in his breath or blood. This appeal ensued.
Analysis A trial court has broad discretion in ruling on the admissibility of evidence, and on review, we will only disturb a trial court's ruling upon a showing of abuse of discretion. Sparkman v. State, 722 N.E.2d 1259, 1262 (Ind.Ct.App.2000). When reviewing a trial court's decision under an abuse of discretion standard, we will affirm if there is any evidence supporting the trial court's decision. Id. At trial, Wray objected to admission of the recertification letter on the basis that it was hearsay and did not fall within the public records hearsay exception because the letter lacked trustworthiness. The State responded that the letter was admissible under the specific statute governing breath test operator certificates, Indiana Code Section 9-30-6-5, and the trial court agreed. We conclude, however, that the certificate was inadmissible and that the trial court abused its discretion in ruling otherwise. *682 Indiana Evidence Rule 803(8) provides in part that the following is not excluded by the hearsay rule: Unless the sources of information or other circumstances indicate lack of trustworthiness, records, reports, statements, or data compilations in any form, of a public office or agency, setting forth its regularly conducted and regularly recorded activities.... Indiana Code Section 9-30-6-5 provides in part: (a) The director of the department of toxicology of the Indiana University school of medicine shall adopt rules under IC 4-22-2 concerning the following: (1) Standards and regulations for the: (A) selection; (B) training; and (C) certification; of breath test operators. * * * * * (c) Certified copies of certificates issued in accordance with rules adopted under subsection (a):
(1) are admissible in a proceeding under this chapter, IC 9-30-5, or IC 9-30-9;... and * * * * * (4) constitute prima facie evidence that the breath test operator was certified by the department of toxicology on the date specified on the certificate. (d) Results of chemical tests that involve an analysis of a person's breath are not admissible in a proceeding under this chapter, IC 9-30-5, or IC 9-30-9 if: (1) the test operator ... [has] not been approved in accordance with the rules adopted under subsection (a).
(Emphases added.) Finally, the rules promulgated by the department of toxicology pursuant to the above statute provide in part: (a) Any person to be certified as a breath test operator analyzing breath for ethanol must attend a course in the theory and operation of test devices approved by the director of the state department of toxicology. (b) Such a course shall include a minimum of twenty (20) hours of instruction. (c) Such instruction shall be devoted to lectures, laboratory training, and demonstrations in accordance with the following:
(1) The pharmacology of alcohol. (2) The theory, operation, and care of the breath test equipment. (3) The legal aspects of breath testing for ethanol. (4) The interpretation of breath test results. (5) Laboratory training using an approved device to analyze breath for alcohol: (A) using known ethanolwater or ethanolgas solutions; (B) on a human who has consumed a test dose of ethanol. 260 Ind.Admin.Code § 1.1-1-2 (emphases added). At trial, Wray claimed the department of toxicology's letter was untrustworthy, and therefore did not fall under the public records hearsay exception, because it states that Officer Edwards was a certified breath test operator "[p]ursuant to the authority granted by IC 9-30-6-5 (1991), and the regulations promulgated thereto, 260 IAC 1.1....," record p. 154 (emphasis added), yet Officer Edwards unequivocally testified that he had not received training in four of the five areas that the regulations require breath test operators to receive: the pharmacology of alcohol, the theory and care of breath test equipment, *683 the legal aspects of breath testing, and the interpretation of test results.[1] Without addressing the trustworthiness of the recertification letter and whether it fell under the public records hearsay exception, the trial court ruled it was admissible pursuant to Indiana Code Section 9-30-6-5(c). After reviewing the statute, we do not agree. When construing a statute, our primary task is to give effect to the intent of the legislature. State v. Rumple, 723 N.E.2d 941, 943 (Ind. Ct.App.2000). We consider the plain, ordinary meaning of words and phrases used in a statute to discern the legislature's intent, and we presume that the legislature intended its language to be applied in a logical manner consistent with the statute's underlying policies and goals. Id. at 943-44. In construing a provision, we will assume that the legislature did not enact a useless provision. Id. at 944. Therefore, when possible, every word is to be given effect and no part of the statute is to be construed so as to be meaningless, if it can be reconciled with the rest of the statute. Id. We have held that "[t]he statute and regulations governing the administration of breathalyzer tests clearly contemplate strict compliance...." State v. Johanson, 695 N.E.2d 965, 967 (Ind.Ct.App.1998). Our legislature delegated responsibility for setting standards for the training of breath test operators to the department of toxicology, which possesses expertise in this area. We assume that in promulgating Section 1.1-1-2 of Title 260 of the Indiana Administrative Code, the department set forth the training that it believes breath test operators should receive before they can be considered certified and, therefore, before the results of tests that they administer may be admitted into evidence in a criminal drunk driving proceeding. We will not second-guess these training rules and whether training in all five of the specified areas are truly required in order for a breath test operator to reliably administer a test, for to do so would require us to effectively engage in impermissible judicial rule promulgation. Additionally, Indiana Code Section 9-30-6-5(c) states that only those certificates issued "in accordance with the rules adopted under subsection (a)" may be admitted into evidence. In order to give effect to this highlighted statutory language and to not render it meaningless, we must hold that where, as here, there is uncontradicted evidence that a "certified" breath test operator was in fact not trained in accordance with the department of toxicology's regulations regarding training, a breath test operator certificate that indicates otherwise is not admissible under Indiana Code Section 9-30-6-5(c). The State cites several cases where this court and our supreme court have affirmed the admission of breath test operator certificates: Platt v. State, 589 N.E.2d 222 (Ind.1992); Nasser v. State, 646 N.E.2d 673 (Ind.Ct.App.1995); Regan v. State, 590 N.E.2d 640 (Ind.Ct.App.1992); English v. State, 603 N.E.2d 161 (Ind.Ct.App.1992). None of those cases are on point, as they do not address a situation where the uncontradicted evidence indicates that a breath test operator was not trained in accordance with the applicable regulations. In fact, we noted in Regan that the record revealed the operator was "properly certified." *684 Regan, 590 N.E.2d at 645 (emphasis added). We also concluded in English that the operator was "[c]leary ... properly certified." English, 603 N.E.2d at 163 (emphasis added). Such was not the case here. Having concluded Officer Edwards' breath test operator certificate was inadmissible given the available facts, we consider whether the erroneous introduction of the certificate constitutes reversible error. Where evidentiary error has occurred, reversal is not required if it is apparent that the fact finder did not rely upon the improper evidence in reaching the judgment. O'Neal v. State, 716 N.E.2d 82, 86 (Ind.Ct.App.1999). In determining whether improper evidence was relied upon in reaching a judgment, we should consider the probable impact of the evidence upon the fact finder. Id. This court may conclude that the trial court did not rely upon improper evidence where there was other overwhelming evidence of guilt. Id. We conclude the error here was reversible and not harmless. Without introduction of the recertification letter, and with Officer Edward's testimony that he did not receive training in four of the five areas required by the department of toxicology for breath test operator certification, there was no evidence that Edwards a "test operator... approved in accordance with the [department of toxicology's] rules," in which case the results of the chemical tests involving an analysis of Wray's breath were also inadmissible pursuant to Indiana Code Section 9-30-6-5(d). We are aware that in this particular case there was other evidence suggesting Wray may have been operating while intoxicated on the night in question, including slurred speech, lack of balance and coordination, several failed field sobriety tests, and an admission by Wray that he had drunk two or three beers. However, the trial court found Wray not guilty of operating while intoxicated and only convicted him of operating with 0.10% of alcohol in his blood or breath. Without evidence of Wray's blood or breath alcohol content pursuant to a chemical analysis, we are unable to affirm his conviction. See Melton v. State, 597 N.E.2d 359, 361 (Ind.Ct.App.1992), trans. denied.
Conclusion The trial court abused its discretion in admitting Officer Edwards' breath test operator certificate into evidence in light of his uncontradicted testimony indicating he did not receive training required by the rules promulgated by the department of toxicology. This error was not harmless. Reversed. DARDEN, J., and NAJAM, J., concur.
ORDER This court having heretofore handed down its opinion in this cause on May 14, 2001, marked Memorandum Decision, not for Publication; and, Comes not the Appellant, by counsel, and files herein Motion to Publish Decision, alleging therein that this Court's decision dealt with 260 Ind. Admin. Code § 1.1-1-2, which section is cited in all certification/recertification certificates issued by the Indiana Department of Toxicology purporting to evidence a police officer's training and certification to administer chemical breath tests in the State of Indiana; that the issue, which was decided in this appeal is an issue that is present in every operating a motor vehicle with a blood alcohol level of .10 or greater case filed by the State of Indiana; that counsel is not aware of any reported decision in the State of Indiana addressing the issues that were addressed in this case and prays that this Court publish the decision, which *685 said Motion is in the following words and figures, to-wit: And the Court, having examined said Motion and being duly advised, now finds that said Motion should be granted, and this Court's opinion heretofore handed down as a Memorandum Decision should now be ordered published. IT IS THEREFORE ORDERED as follows: The Appellant's Motion to Publish Decision is granted and this Court's opinion heretofore handed down in this appeal on May 14, 2001, marked Memorandum Decision, Not for Publication, is now ordered published. NOTES [1] We take issue with the State's characterization of Officer Edwards' testimony as merely indicating that he did "not remember certain parts of his training," and that such forgetfulness was "of no moment." Appellee's Brief p. 6. Edwards did not testify that he forgot part of his training, but clearly and directly stated he did not receive training in four of the five areas. Similarly, we also strongly disagree that Edwards was "not equipped to answer questions regarding the training he. . . received." Appellee's Brief p. 7. | 10-30-2013 | [
"751 N.E.2d 679 (2001) John P. WRAY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. No. 54A01-0012-CR-432. Court of Appeals of Indiana. May 14, 2001. Publication Ordered June 14, 2001. *680 John L. Tompkins, Indianapolis, IN, Attorney for Appellant. Steve Carter, Attorney General of Indiana, Monika Prekopa Talbot, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee. OPINION BARNES, Judge. Case Summary John P. Wray appeals his conviction for operating a vehicle with a blood alcohol *681 content of at least ten-hundredths percent (0.10%), a Class C misdemeanor. We reverse. Issue The dispositive issue before us is whether the trial court erred in admitting into evidence State's exhibit number three, a \"Breath Test for Intoxication Recertification\" letter indicating Wray's arresting officer was certified by the department of toxicology to operate breath test instruments. Facts On November 10, 1999, Officer Dan Edwards of the Crawfordsville Police Department stopped Wray's vehicle. After observing possible signs of intoxication, Edwards administered a portable breath test that indicated Wray's blood alcohol content was .142 percent.",
"Edwards then transported Wray to the Montgomery County jail where he administered another breath test, which indicated a blood alcohol content of .16 percent. At a bench trial, when the State sought to introduce Edwards' breath test operator recertification into evidence, the following colloquy between defense counsel and Edwards took place: Q: Officer, do you receive training in pharmacology of alcohol? A: No, I do not. Q: Do you receive training in the theory of operation of breath test equipment? A: No, sir. Q: How about in the care and maintenance of breath test equipment? A: No, sir. In fact, we were instructed during the class that if that comes up in court that it would be recommended that a certified instrument maintenance officer or person be subpoenaed to court. We are only trained on how to give to [sic] test. Q: Have you received training in the legal aspects of breath testing? A: No. Q: How about in the interpretation of breath test results? A: No. Q: In any part of your training, do you use a human being that had consumed a known dose of alcohol and then was later tested on a certified machine?",
"A: Yes. Record pp. 75-76. The trial court overruled defense counsel's subsequent hearsay objection to the introduction of the department of toxicology's recertification letter for Officer Edwards. Wray was found not guilty of operating while intoxicated, but guilty of operating with 0.10% of alcohol in his breath or blood. This appeal ensued. Analysis A trial court has broad discretion in ruling on the admissibility of evidence, and on review, we will only disturb a trial court's ruling upon a showing of abuse of discretion.",
"Sparkman v. State, 722 N.E.2d 1259, 1262 (Ind.Ct.App.2000). When reviewing a trial court's decision under an abuse of discretion standard, we will affirm if there is any evidence supporting the trial court's decision. Id. At trial, Wray objected to admission of the recertification letter on the basis that it was hearsay and did not fall within the public records hearsay exception because the letter lacked trustworthiness. The State responded that the letter was admissible under the specific statute governing breath test operator certificates, Indiana Code Section 9-30-6-5, and the trial court agreed. We conclude, however, that the certificate was inadmissible and that the trial court abused its discretion in ruling otherwise. *682 Indiana Evidence Rule 803(8) provides in part that the following is not excluded by the hearsay rule: Unless the sources of information or other circumstances indicate lack of trustworthiness, records, reports, statements, or data compilations in any form, of a public office or agency, setting forth its regularly conducted and regularly recorded activities.... Indiana Code Section 9-30-6-5 provides in part: (a) The director of the department of toxicology of the Indiana University school of medicine shall adopt rules under IC 4-22-2 concerning the following: (1) Standards and regulations for the: (A) selection; (B) training; and (C) certification; of breath test operators.",
"* * * * * (c) Certified copies of certificates issued in accordance with rules adopted under subsection (a): (1) are admissible in a proceeding under this chapter, IC 9-30-5, or IC 9-30-9;... and * * * * * (4) constitute prima facie evidence that the breath test operator was certified by the department of toxicology on the date specified on the certificate. (d) Results of chemical tests that involve an analysis of a person's breath are not admissible in a proceeding under this chapter, IC 9-30-5, or IC 9-30-9 if: (1) the test operator ... [has] not been approved in accordance with the rules adopted under subsection (a).",
"(Emphases added.) Finally, the rules promulgated by the department of toxicology pursuant to the above statute provide in part: (a) Any person to be certified as a breath test operator analyzing breath for ethanol must attend a course in the theory and operation of test devices approved by the director of the state department of toxicology. (b) Such a course shall include a minimum of twenty (20) hours of instruction. (c) Such instruction shall be devoted to lectures, laboratory training, and demonstrations in accordance with the following: (1) The pharmacology of alcohol. (2) The theory, operation, and care of the breath test equipment. (3) The legal aspects of breath testing for ethanol. (4) The interpretation of breath test results.",
"(5) Laboratory training using an approved device to analyze breath for alcohol: (A) using known ethanolwater or ethanolgas solutions; (B) on a human who has consumed a test dose of ethanol. 260 Ind.Admin.Code § 1.1-1-2 (emphases added). At trial, Wray claimed the department of toxicology's letter was untrustworthy, and therefore did not fall under the public records hearsay exception, because it states that Officer Edwards was a certified breath test operator \"[p]ursuant to the authority granted by IC 9-30-6-5 (1991), and the regulations promulgated thereto, 260 IAC 1.1....,\" record p. 154 (emphasis added), yet Officer Edwards unequivocally testified that he had not received training in four of the five areas that the regulations require breath test operators to receive: the pharmacology of alcohol, the theory and care of breath test equipment, *683 the legal aspects of breath testing, and the interpretation of test results. [1] Without addressing the trustworthiness of the recertification letter and whether it fell under the public records hearsay exception, the trial court ruled it was admissible pursuant to Indiana Code Section 9-30-6-5(c). After reviewing the statute, we do not agree. When construing a statute, our primary task is to give effect to the intent of the legislature.",
"State v. Rumple, 723 N.E.2d 941, 943 (Ind. Ct.App.2000). We consider the plain, ordinary meaning of words and phrases used in a statute to discern the legislature's intent, and we presume that the legislature intended its language to be applied in a logical manner consistent with the statute's underlying policies and goals. Id. at 943-44. In construing a provision, we will assume that the legislature did not enact a useless provision. Id. at 944. Therefore, when possible, every word is to be given effect and no part of the statute is to be construed so as to be meaningless, if it can be reconciled with the rest of the statute.",
"Id. We have held that \"[t]he statute and regulations governing the administration of breathalyzer tests clearly contemplate strict compliance....\" State v. Johanson, 695 N.E.2d 965, 967 (Ind.Ct.App.1998). Our legislature delegated responsibility for setting standards for the training of breath test operators to the department of toxicology, which possesses expertise in this area. We assume that in promulgating Section 1.1-1-2 of Title 260 of the Indiana Administrative Code, the department set forth the training that it believes breath test operators should receive before they can be considered certified and, therefore, before the results of tests that they administer may be admitted into evidence in a criminal drunk driving proceeding. We will not second-guess these training rules and whether training in all five of the specified areas are truly required in order for a breath test operator to reliably administer a test, for to do so would require us to effectively engage in impermissible judicial rule promulgation.",
"Additionally, Indiana Code Section 9-30-6-5(c) states that only those certificates issued \"in accordance with the rules adopted under subsection (a)\" may be admitted into evidence. In order to give effect to this highlighted statutory language and to not render it meaningless, we must hold that where, as here, there is uncontradicted evidence that a \"certified\" breath test operator was in fact not trained in accordance with the department of toxicology's regulations regarding training, a breath test operator certificate that indicates otherwise is not admissible under Indiana Code Section 9-30-6-5(c). The State cites several cases where this court and our supreme court have affirmed the admission of breath test operator certificates: Platt v. State, 589 N.E.2d 222 (Ind.1992); Nasser v. State, 646 N.E.2d 673 (Ind.Ct.App.1995); Regan v. State, 590 N.E.2d 640 (Ind.Ct.App.1992); English v. State, 603 N.E.2d 161 (Ind.Ct.App.1992). None of those cases are on point, as they do not address a situation where the uncontradicted evidence indicates that a breath test operator was not trained in accordance with the applicable regulations.",
"In fact, we noted in Regan that the record revealed the operator was \"properly certified.\" *684 Regan, 590 N.E.2d at 645 (emphasis added). We also concluded in English that the operator was \"[c]leary ... properly certified.\" English, 603 N.E.2d at 163 (emphasis added). Such was not the case here. Having concluded Officer Edwards' breath test operator certificate was inadmissible given the available facts, we consider whether the erroneous introduction of the certificate constitutes reversible error.",
"Where evidentiary error has occurred, reversal is not required if it is apparent that the fact finder did not rely upon the improper evidence in reaching the judgment. O'Neal v. State, 716 N.E.2d 82, 86 (Ind.Ct.App.1999). In determining whether improper evidence was relied upon in reaching a judgment, we should consider the probable impact of the evidence upon the fact finder. Id. This court may conclude that the trial court did not rely upon improper evidence where there was other overwhelming evidence of guilt. Id. We conclude the error here was reversible and not harmless.",
"Without introduction of the recertification letter, and with Officer Edward's testimony that he did not receive training in four of the five areas required by the department of toxicology for breath test operator certification, there was no evidence that Edwards a \"test operator... approved in accordance with the [department of toxicology's] rules,\" in which case the results of the chemical tests involving an analysis of Wray's breath were also inadmissible pursuant to Indiana Code Section 9-30-6-5(d). We are aware that in this particular case there was other evidence suggesting Wray may have been operating while intoxicated on the night in question, including slurred speech, lack of balance and coordination, several failed field sobriety tests, and an admission by Wray that he had drunk two or three beers.",
"However, the trial court found Wray not guilty of operating while intoxicated and only convicted him of operating with 0.10% of alcohol in his blood or breath. Without evidence of Wray's blood or breath alcohol content pursuant to a chemical analysis, we are unable to affirm his conviction. See Melton v. State, 597 N.E.2d 359, 361 (Ind.Ct.App.1992), trans. denied. Conclusion The trial court abused its discretion in admitting Officer Edwards' breath test operator certificate into evidence in light of his uncontradicted testimony indicating he did not receive training required by the rules promulgated by the department of toxicology. This error was not harmless.",
"Reversed. DARDEN, J., and NAJAM, J., concur. ORDER This court having heretofore handed down its opinion in this cause on May 14, 2001, marked Memorandum Decision, not for Publication; and, Comes not the Appellant, by counsel, and files herein Motion to Publish Decision, alleging therein that this Court's decision dealt with 260 Ind. Admin. Code § 1.1-1-2, which section is cited in all certification/recertification certificates issued by the Indiana Department of Toxicology purporting to evidence a police officer's training and certification to administer chemical breath tests in the State of Indiana; that the issue, which was decided in this appeal is an issue that is present in every operating a motor vehicle with a blood alcohol level of .10 or greater case filed by the State of Indiana; that counsel is not aware of any reported decision in the State of Indiana addressing the issues that were addressed in this case and prays that this Court publish the decision, which *685 said Motion is in the following words and figures, to-wit: And the Court, having examined said Motion and being duly advised, now finds that said Motion should be granted, and this Court's opinion heretofore handed down as a Memorandum Decision should now be ordered published. IT IS THEREFORE ORDERED as follows: The Appellant's Motion to Publish Decision is granted and this Court's opinion heretofore handed down in this appeal on May 14, 2001, marked Memorandum Decision, Not for Publication, is now ordered published.",
"NOTES [1] We take issue with the State's characterization of Officer Edwards' testimony as merely indicating that he did \"not remember certain parts of his training,\" and that such forgetfulness was \"of no moment.\" Appellee's Brief p. 6. Edwards did not testify that he forgot part of his training, but clearly and directly stated he did not receive training in four of the five areas. Similarly, we also strongly disagree that Edwards was \"not equipped to answer questions regarding the training he.",
". . received.\" Appellee's Brief p. 7."
] | https://www.courtlistener.com/api/rest/v3/opinions/2224334/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
DETAILED ACTION Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Response to Amendment Withdrawn Objection The objection to claim 6 is withdrawn due to Applicant’s amendment filed on July 15, 2021.
Response to Request for Reconsideration Repeated Rejections
The 35 U.S.C. 103 rejections of claims 1-6 over Kunimi in view of Lai, as the primary combination of references, are repeated below for the same reasons previously of record in the Office action mailed on April 15, 2021.
Claim Rejections - 35 USC § 103 The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action. Claims 1-3, 6 are rejected under 35 U.S.C. 103 as being unpatentable over Kunimi (US 2016/0244673) in view of Lai (US 2009/0194737). Regarding claim 1, Kunimi teaches a liquid crystal alignment composition (abstract) comprising: (i) a copolymer for a liquid crystal aligning agent including an ([0129] = DA-1 [0184], structure [0137]), such that the amic acid repeating unit is represented by Chemical Formula 3 of Applicant, in which X3 of Applicant is a tetravalent organic group derived from C6 hydrocarbon (1,3-dimethyl-1,2,3,4-cyclobutanetetracarboxylic dianhydride [0184]) represented by the cyclobutane derivative of Chemical Formula 6 of Applicant where R3 of Applicant = R6 of Applicant = methyl = C1 hydrocarbon, and R4 of Applicant = R5 of Applicant = hydrogen (1,3-dimethyl-1,2,3,4-cyclobutanetetracarboxylic dianhydride [0184]), and Y3 of Applicant = a divalent organic group represented by Chemical Formula 5 of Applicant in which p of Applicant = q of Applicant = 0; k of Applicant = m of Applicant = n of Applicant = 1; and L1 of Applicant = -O(CH2)2O- where z of Applicant =2 (DA-1 [0184] = 1,2-bis(4-aminophenoxy)ethane [0129], structure [0137]); wherein the starting polyamic acid is partially imidized (degree was 67% [0186]), such that at least one of the starting amic acid repeating units forms a cyclized imide repeating unit represented by Chemical Formula 1 of Applicant, in which X1 of Applicant is a tetravalent organic group derived from C6 hydrocarbon (1,3-dimethyl-1,2,3,4-cyclobutanetetracarboxylic dianhydride [0184]) represented by Chemical Formula 4 of Applicant where R3 of Applicant = R6 of Applicant = methyl = C1 hydrocarbon, and R4 of Applicant = R5 of Applicant = hydrogen (1,3-dimethyl-1,2,3,4-cyclobutanetetracarboxylic dianhydride [0184]), and Y1 of Applicant is a divalent organic group represented by Chemical Formula 5 of Applicant in which p of Applicant = q of Applicant = 0; k of Applicant = m of Applicant = n of Applicant = 1; and L1 of Applicant = -O(CH2)2O- where z of Applicant =2 (DA-1 [0184] = 2 = a C1-C5 alkyl group ([0047]), X2 = a tetravalent organic group represented by (X-1) (X2 is the same as X1 [0049], structure [0028], 1,3-dimethyl-1,2,3,4-cyclobutanetetracarboxylic dianhydride ([0184]) in which R7 = R10 = methyl = C1 hydrocarbon (C1 alkyl group [0049, 0029]), R8 = R9 = hydrogen ([0029]); and Y2 is a divalent organic group represented by chemical formula (Y-2-3) where n= 2 ([0052], DA-1 [0184] = 1,2-bis(4-aminophenoxy)ethane [0129, 0137, 0184]), the formula (3) is the same as the Chemical Formula 2 of Applicant in which X2 of Applicant is a tetravalent organic group represented by Chemical Formula 6 of Applicant where R3 of Applicant = R6 of Applicant = methyl = C1 hydrocarbon, and R4 of Applicant = R5 of Applicant = hydrogen (1,3-dimethyl-1,2,3,4-cyclobutanetetracarboxylic dianhydride ([0184]), and Y2 of Applicant is a divalent organic group represented by Chemical Formula 5 of Applicant in which p of Applicant = q of Applicant = 0; k of Applicant = m of Applicant = n of Applicant = 1; and L1 of Applicant = -O(CH2)2O- where z of Applicant =2 (DA-1 [0184] = 1,2-bis(4-aminophenoxy)ethane [0129, 0137]). Kunimi teaches that the starting polyamic acid is partially imidized to a degree of 67% ([0186]) such that the imide In addition, since Kunimi teaches that the imide repeating unit represented by the Chemical Formula 1 of Applicant, is formed from imidization of the starting amic acid repeating unit ([0185]) which is inherently formed from an intermediate diamine formed from the condensation reaction of 1,3-dimethyl-1,2,3,4-cyclobutanetetracarboxylic dianhydride ([0184]) which is a compound comprising X1 of Applicant that is represented by Chemical Formula 4 of Applicant (1,3-dimethyl-1,2,3,4-cyclobutanetetracarboxylic dianhydride [0184]) and 1,2-bis(4-aminophenoxy)ethane ([0129] = DA-1 [0184]) which is a compound comprising Y1 of Applicant that is represented by Chemical Formula 5 of Applicant (DA-1 [0184], structure [0137]), it follows that said imide repeating unit represented by the Chemical Formula 1 of Applicant is inherently formed from the same intermediate diamine that is a condensation reaction product of the compound comprising X1 of Applicant that is represented by Chemical Formula 4 of Applicant (1,3-dimethyl-1,2,3,4-cyclobutanetetracarboxylic dianhydride [0184]) and the compound comprising Y1 of Applicant that is represented by Chemical Formula 5 of Applicant (1,2-bis(4-aminophenoxy)ethane([0129] = DA-1 [0184], structure [0137]). In the alternative, even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985). See MPEP 2113. In the instant case, Kunimi teaches the imide repeating unit represented by the Chemical Formula 1 of Applicant, as described above. Kunimi fails to teach that liquid crystal alignment composition includes (ii) a compound having two or more epoxy groups. However, Lai teaches that in a liquid crystal alignment composition (liquid crystal alignment solution [0025]) comprising: (i) a copolymer for liquid crystal alignment agent including an imide repeating unit and an amic acid repeating unit (polyimide-polyamide acid [0025]), the imide repeating unit being contained in an amount of 20 mol% relative to the total of the imide repeating unit and the amic acid repeating unit (20% imidization rate (%), 1-2 (80) tetracarboxylic acid dianhydride (mmole), Polymer A1, synthesis example 42, Table 5, page 43, mmoles, imidization rate [0068]), which is within the claimed range of 5 to 74 mol%, the liquid crystal alignment composition further comprises (ii) a compound having two epoxy groups (1,6-hexanediol diglycidyl ether [0049]), for the purpose of providing the desired adhesion to an applied substrate ([0050]). Therefore, it would have been obvious to one of ordinary skill in the art at the time, to have included (ii) a compound having two epoxy groups, in the liquid crystal alignment composition of Kunimi, in order to obtain the desired adhesion to an applied substrate, as taught by Lai. 2 and X3 of Applicant are each a tetravalent organic group represented by the Chemical Formula 4 of Applicant which is the same as the tetravalent cyclobutane derivative of Chemical Formula 6 of Applicant, where R3 of Applicant = R6 of Applicant = methyl = C1 hydrocarbon, and R4 of Applicant = R5 of Applicant = hydrogen (1,3-dimethyl-1,2,3,4-cyclobutanetetracarboxylic dianhydride ([0184]). Regarding claim 3, Lai teaches that the compound having two epoxy groups, is 1,6-hexanediol diglycidyl ether ([0049]) which has a molecular weight of 230 which is within the claimed range of from 100 to 10,000, for the purpose of purpose of providing the desired adhesion to a substrate, as described above. Regarding claim 6, Lai teaches that the compound having two epoxy groups, is contained in an amount of 0.1 to 3% by weight based on the weight of the liquid crystal alignment solution ([0050]) of the which the total solids is in an amount of 10% by weight ([0043]), such that when the copolymer is contained in an amount that is close to 10% by weight of the liquid crystal alignment solution, the compound having two epoxy groups, is contained in an amount of about 10 to 30% by weight based on the weight of the copolymer for liquid crystal alignment agent, which is within the claimed range of 0.1 to 30%, for the purpose of purpose of providing the desired adhesion to an applied substrate, as described above. Claims 4-5 are rejected under 35 U.S.C. 103 as being unpatentable over Kunimi in view of Lai, as applied to claims 1-3, 6 above, and further in view of Hattori (US 2012/0229744).
Hattori teaches that in a liquid crystal alignment composition (aligning agent [0043] alignment of liquid crystal molecules [0046]) comprising (i) a polymer (polyamic acid or polyimide [0129]) for liquid crystal alignment agent (aligning agent [0129]), instead of a glycidyl ester-based epoxy resin (glycidyl ester type [0251]), the (ii) compound having two or more epoxy groups in a molecule, can also be a cycloaliphatic-based epoxy ([0251]) represented by Chemical Formula 7 of Applicant (E2 [0251], col 55b), for the purpose of providing the desired improvement in durability ([0250]). Therefore, it would have been obvious to one of ordinary skill in the art at the time, to have provided a cycloaliphatic-based epoxy represented by Chemical Formula 7 of Applicant, as the (ii) compound having two or more epoxy groups in a molecule, of the liquid crystal alignment composition of Kunimi, as modified by Lai, in order to obtain .
Response to Arguments Applicant's arguments have been fully considered but they are not persuasive. Applicant argues that the present claims are directed to a liquid crystal alignment composition comprising a copolymer of [polyimide]-[polyamic acid ester]-[polyamic acid], where repeating units are represented by Chemical Formulae 1-3, wherein the repeating unit represented by Chemical Formula 1 is contained in an amount of 5 to 74 mol% relative to the total repeating units represented by Chemical Formulae 1-3, and that in view of the broad general disclosures and laundry list of isolated disclosures cited in the Office action, a person of ordinary skill in the art would not have been motivated to arrive at the subject matter of claim 1. Applicant is respectfully apprised that the present claims do not preclude the instance of a copolymer of [polyimide]-[polyamic acid ester]-[polyamic acid], where X1 = X2 = X3 = a tetravalent organic group represented by Chemical Formula 4 of Applicant (1,3-dimethyl-1,2,3,4-cyclobutanetetracarboxylic dianhydride [0184]) which is a species of a genus derived from C6 hydrocarbon, and is the same as the cyclobutane derivative of Chemical Formula 6 of Applicant where R3 of Applicant = R6 of Applicant = methyl = C1 hydrocarbon, and R4 of Applicant = R5 of Applicant = hydrogen (1,3-dimethyl-1,2,3,4-cyclobutanetetracarboxylic dianhydride [0184]); and Y1 = Y2 = Y3 = Y3 of Applicant = a divalent organic group represented by Chemical Formula 5 of Applicant in which p of Applicant = q of Applicant = 0; k of Applicant = m of Applicant = n of Applicant = 1; and 1 of Applicant = -O(CH2)2O- where z of Applicant =2 (DA-1 [0184] = 1,2-bis(4-aminophenoxy)ethane [0129], structure [0137]), since the starting polyamic acid containing amic acid repeating units represented by Chemical Formula 3 of Applicant ([0184]), is partially imidized to contain repeating units represented by Chemical Formula 1 of Applicant, to a degree of 67% ([0186]), and is further partially esterified ([0070]) to contain amic acid ester repeating units represented by Chemical Formula 2 of Applicant, for the purpose of providing the desired liquid crystal alignment stability and reliability ([0006]), where the imide repeating unit represented by Chemical Formula 1 of Applicant, is present in an amount of 67 mol% (degree of 67% [0186]) with respect to all of the repeating units represented by Chemical Formulae 1 to 3, which is within the claimed range of 5 mol% to 74 mol%, for the purpose of providing the desired fine-tuning of liquid crystal alignment characteristics, such that there is no need to pick and choose from a laundry list (just the starting polyamic acid, Example 4 [0184], of Kunimi). Applicant argues that Kunimi merely discusses prior art disclosing polyamic acid ester component of a polyimide liquid crystal alignment agent and different prior art using a blended polyamic acid ester and a polyamic acid ([0006]). Applicant is respectfully apprised that Kunimi teaches that adding amic acid ester repeating units to imide repeating units, provides a benefit of improved alignment stability and reliability (as a polymer component constituting a polyimide liquid crystal aligning agent [0006]), and that combining a polyamic acid ester containing amic acid ester repeating units, with a polyamic acid containing amic acid repeating units, gives excellent electrical properties, which is an improvement over the polyamic acid ester containing amic acid ester repeating units alone ([0006]).
Applicant argues that more importantly, Kunimi discloses that the liquid crystal aligning agent disclosed therein is already an improvement over the prior art compositions by providing better adhesion of the liquid crystal alignment film to the sealing agent and the substrate without lowering alignment and electrical properties ([0016-0018]), and that accordingly, no additional disclosures are provided in Kunimi or cited in the Office action, to have motivated a skilled artisan to modify the copolymer of Kunimi to a copolymer of [polyimide]-[polyamic acid ester]-[polyamic acid] as claimed with a reasonable expectation of success.
Accordingly, since Kunimi teaches the benefit of adding amic acid ester repeating units to imide repeating units of a polyimide liquid crystal aligning agent, as done in the prior art, while also teaching the benefit of combining a polyamic acid ester including amic acid ester repeating units, with a polyamic acid including amic acid repeating units, as done in the prior art, and since Kunimi already teaches partially imidizing the starting polyamic acid to include imide repeating units with the amic acid repeating units (Example 4 [0186]), and forming the polyamic acid ester by esterifying the starting polyamic acid ([0070]) to include amic acid ester repeating units, it would indeed have been obvious to one of ordinary skill in the art at the time, to have modified the copolymer including the amic acid repeating units represented by Chemical Formula 3 of Applicant, and the imide repeating units represented by Chemical Formula 1 of Applicant, by adding amic acid ester repeating units represented by Chemical Formula 2 of Applicant, thus forming the copolymer of [polyimide]-[polyamic acid ester]-[polyamic acid] as claimed, to take advantage of those benefits, with a reasonable expectation of success. In response to Applicant's argument that the Office's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971). Applicant’s arguments regarding the secondary references of Lai and Hattori are directed to the primary reference of Kunimi and are addressed above.
Conclusion THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a). A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action. The prior art made of record and not relied upon, US 20100243955 is considered pertinent to Applicant's disclosure. Any inquiry concerning this communication should be directed to Sow-Fun Hon whose telephone number is (571)272-1492. The examiner is on a flexible schedule but can usually be reached during a regular workweek between the hours of 10:00 AM and 6:00 PM. If attempts to reach the examiner by telephone are unsuccessful, the examiner's supervisor, Aaron Austin, can be reached at (571)272-8935. The fax phone number for the organization where this application or proceeding is assigned is (571)273-8300. Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see http://pair-direct.uspto.gov. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000. /Sophie Hon/ Sow-Fun Hon Primary Examiner, Art Unit 1782 | 2021-10-30T05:05:00 | [
"DETAILED ACTION Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . Response to Amendment Withdrawn Objection The objection to claim 6 is withdrawn due to Applicant’s amendment filed on July 15, 2021. Response to Request for Reconsideration Repeated Rejections The 35 U.S.C. 103 rejections of claims 1-6 over Kunimi in view of Lai, as the primary combination of references, are repeated below for the same reasons previously of record in the Office action mailed on April 15, 2021.",
"Claim Rejections - 35 USC § 103 The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action. Claims 1-3, 6 are rejected under 35 U.S.C. 103 as being unpatentable over Kunimi (US 2016/0244673) in view of Lai (US 2009/0194737).",
"Regarding claim 1, Kunimi teaches a liquid crystal alignment composition (abstract) comprising: (i) a copolymer for a liquid crystal aligning agent including an ([0129] = DA-1 [0184], structure [0137]), such that the amic acid repeating unit is represented by Chemical Formula 3 of Applicant, in which X3 of Applicant is a tetravalent organic group derived from C6 hydrocarbon (1,3-dimethyl-1,2,3,4-cyclobutanetetracarboxylic dianhydride [0184]) represented by the cyclobutane derivative of Chemical Formula 6 of Applicant where R3 of Applicant = R6 of Applicant = methyl = C1 hydrocarbon, and R4 of Applicant = R5 of Applicant = hydrogen (1,3-dimethyl-1,2,3,4-cyclobutanetetracarboxylic dianhydride [0184]), and Y3 of Applicant = a divalent organic group represented by Chemical Formula 5 of Applicant in which p of Applicant = q of Applicant = 0; k of Applicant = m of Applicant = n of Applicant = 1; and L1 of Applicant = -O(CH2)2O- where z of Applicant =2 (DA-1 [0184] = 1,2-bis(4-aminophenoxy)ethane [0129], structure [0137]); wherein the starting polyamic acid is partially imidized (degree was 67% [0186]), such that at least one of the starting amic acid repeating units forms a cyclized imide repeating unit represented by Chemical Formula 1 of Applicant, in which X1 of Applicant is a tetravalent organic group derived from C6 hydrocarbon (1,3-dimethyl-1,2,3,4-cyclobutanetetracarboxylic dianhydride [0184]) represented by Chemical Formula 4 of Applicant where R3 of Applicant = R6 of Applicant = methyl = C1 hydrocarbon, and R4 of Applicant = R5 of Applicant = hydrogen (1,3-dimethyl-1,2,3,4-cyclobutanetetracarboxylic dianhydride [0184]), and Y1 of Applicant is a divalent organic group represented by Chemical Formula 5 of Applicant in which p of Applicant = q of Applicant = 0; k of Applicant = m of Applicant = n of Applicant = 1; and L1 of Applicant = -O(CH2)2O- where z of Applicant =2 (DA-1 [0184] = 2 = a C1-C5 alkyl group ([0047]), X2 = a tetravalent organic group represented by (X-1) (X2 is the same as X1 [0049], structure [0028], 1,3-dimethyl-1,2,3,4-cyclobutanetetracarboxylic dianhydride ([0184]) in which R7 = R10 = methyl = C1 hydrocarbon (C1 alkyl group [0049, 0029]), R8 = R9 = hydrogen ([0029]); and Y2 is a divalent organic group represented by chemical formula (Y-2-3) where n= 2 ([0052], DA-1 [0184] = 1,2-bis(4-aminophenoxy)ethane [0129, 0137, 0184]), the formula (3) is the same as the Chemical Formula 2 of Applicant in which X2 of Applicant is a tetravalent organic group represented by Chemical Formula 6 of Applicant where R3 of Applicant = R6 of Applicant = methyl = C1 hydrocarbon, and R4 of Applicant = R5 of Applicant = hydrogen (1,3-dimethyl-1,2,3,4-cyclobutanetetracarboxylic dianhydride ([0184]), and Y2 of Applicant is a divalent organic group represented by Chemical Formula 5 of Applicant in which p of Applicant = q of Applicant = 0; k of Applicant = m of Applicant = n of Applicant = 1; and L1 of Applicant = -O(CH2)2O- where z of Applicant =2 (DA-1 [0184] = 1,2-bis(4-aminophenoxy)ethane [0129, 0137]).",
"Kunimi teaches that the starting polyamic acid is partially imidized to a degree of 67% ([0186]) such that the imide In addition, since Kunimi teaches that the imide repeating unit represented by the Chemical Formula 1 of Applicant, is formed from imidization of the starting amic acid repeating unit ([0185]) which is inherently formed from an intermediate diamine formed from the condensation reaction of 1,3-dimethyl-1,2,3,4-cyclobutanetetracarboxylic dianhydride ([0184]) which is a compound comprising X1 of Applicant that is represented by Chemical Formula 4 of Applicant (1,3-dimethyl-1,2,3,4-cyclobutanetetracarboxylic dianhydride [0184]) and 1,2-bis(4-aminophenoxy)ethane ([0129] = DA-1 [0184]) which is a compound comprising Y1 of Applicant that is represented by Chemical Formula 5 of Applicant (DA-1 [0184], structure [0137]), it follows that said imide repeating unit represented by the Chemical Formula 1 of Applicant is inherently formed from the same intermediate diamine that is a condensation reaction product of the compound comprising X1 of Applicant that is represented by Chemical Formula 4 of Applicant (1,3-dimethyl-1,2,3,4-cyclobutanetetracarboxylic dianhydride [0184]) and the compound comprising Y1 of Applicant that is represented by Chemical Formula 5 of Applicant (1,2-bis(4-aminophenoxy)ethane([0129] = DA-1 [0184], structure [0137]). In the alternative, even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself.",
"The patentability of a product does not depend on its method of production. If the product in In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985). See MPEP 2113. In the instant case, Kunimi teaches the imide repeating unit represented by the Chemical Formula 1 of Applicant, as described above. Kunimi fails to teach that liquid crystal alignment composition includes (ii) a compound having two or more epoxy groups.",
"However, Lai teaches that in a liquid crystal alignment composition (liquid crystal alignment solution [0025]) comprising: (i) a copolymer for liquid crystal alignment agent including an imide repeating unit and an amic acid repeating unit (polyimide-polyamide acid [0025]), the imide repeating unit being contained in an amount of 20 mol% relative to the total of the imide repeating unit and the amic acid repeating unit (20% imidization rate (%), 1-2 (80) tetracarboxylic acid dianhydride (mmole), Polymer A1, synthesis example 42, Table 5, page 43, mmoles, imidization rate [0068]), which is within the claimed range of 5 to 74 mol%, the liquid crystal alignment composition further comprises (ii) a compound having two epoxy groups (1,6-hexanediol diglycidyl ether [0049]), for the purpose of providing the desired adhesion to an applied substrate ([0050]). Therefore, it would have been obvious to one of ordinary skill in the art at the time, to have included (ii) a compound having two epoxy groups, in the liquid crystal alignment composition of Kunimi, in order to obtain the desired adhesion to an applied substrate, as taught by Lai.",
"2 and X3 of Applicant are each a tetravalent organic group represented by the Chemical Formula 4 of Applicant which is the same as the tetravalent cyclobutane derivative of Chemical Formula 6 of Applicant, where R3 of Applicant = R6 of Applicant = methyl = C1 hydrocarbon, and R4 of Applicant = R5 of Applicant = hydrogen (1,3-dimethyl-1,2,3,4-cyclobutanetetracarboxylic dianhydride ([0184]). Regarding claim 3, Lai teaches that the compound having two epoxy groups, is 1,6-hexanediol diglycidyl ether ([0049]) which has a molecular weight of 230 which is within the claimed range of from 100 to 10,000, for the purpose of purpose of providing the desired adhesion to a substrate, as described above. Regarding claim 6, Lai teaches that the compound having two epoxy groups, is contained in an amount of 0.1 to 3% by weight based on the weight of the liquid crystal alignment solution ([0050]) of the which the total solids is in an amount of 10% by weight ([0043]), such that when the copolymer is contained in an amount that is close to 10% by weight of the liquid crystal alignment solution, the compound having two epoxy groups, is contained in an amount of about 10 to 30% by weight based on the weight of the copolymer for liquid crystal alignment agent, which is within the claimed range of 0.1 to 30%, for the purpose of purpose of providing the desired adhesion to an applied substrate, as described above.",
"Claims 4-5 are rejected under 35 U.S.C. 103 as being unpatentable over Kunimi in view of Lai, as applied to claims 1-3, 6 above, and further in view of Hattori (US 2012/0229744). Hattori teaches that in a liquid crystal alignment composition (aligning agent [0043] alignment of liquid crystal molecules [0046]) comprising (i) a polymer (polyamic acid or polyimide [0129]) for liquid crystal alignment agent (aligning agent [0129]), instead of a glycidyl ester-based epoxy resin (glycidyl ester type [0251]), the (ii) compound having two or more epoxy groups in a molecule, can also be a cycloaliphatic-based epoxy ([0251]) represented by Chemical Formula 7 of Applicant (E2 [0251], col 55b), for the purpose of providing the desired improvement in durability ([0250]). Therefore, it would have been obvious to one of ordinary skill in the art at the time, to have provided a cycloaliphatic-based epoxy represented by Chemical Formula 7 of Applicant, as the (ii) compound having two or more epoxy groups in a molecule, of the liquid crystal alignment composition of Kunimi, as modified by Lai, in order to obtain . Response to Arguments Applicant's arguments have been fully considered but they are not persuasive. Applicant argues that the present claims are directed to a liquid crystal alignment composition comprising a copolymer of [polyimide]-[polyamic acid ester]-[polyamic acid], where repeating units are represented by Chemical Formulae 1-3, wherein the repeating unit represented by Chemical Formula 1 is contained in an amount of 5 to 74 mol% relative to the total repeating units represented by Chemical Formulae 1-3, and that in view of the broad general disclosures and laundry list of isolated disclosures cited in the Office action, a person of ordinary skill in the art would not have been motivated to arrive at the subject matter of claim 1.",
"Applicant is respectfully apprised that the present claims do not preclude the instance of a copolymer of [polyimide]-[polyamic acid ester]-[polyamic acid], where X1 = X2 = X3 = a tetravalent organic group represented by Chemical Formula 4 of Applicant (1,3-dimethyl-1,2,3,4-cyclobutanetetracarboxylic dianhydride [0184]) which is a species of a genus derived from C6 hydrocarbon, and is the same as the cyclobutane derivative of Chemical Formula 6 of Applicant where R3 of Applicant = R6 of Applicant = methyl = C1 hydrocarbon, and R4 of Applicant = R5 of Applicant = hydrogen (1,3-dimethyl-1,2,3,4-cyclobutanetetracarboxylic dianhydride [0184]); and Y1 = Y2 = Y3 = Y3 of Applicant = a divalent organic group represented by Chemical Formula 5 of Applicant in which p of Applicant = q of Applicant = 0; k of Applicant = m of Applicant = n of Applicant = 1; and 1 of Applicant = -O(CH2)2O- where z of Applicant =2 (DA-1 [0184] = 1,2-bis(4-aminophenoxy)ethane [0129], structure [0137]), since the starting polyamic acid containing amic acid repeating units represented by Chemical Formula 3 of Applicant ([0184]), is partially imidized to contain repeating units represented by Chemical Formula 1 of Applicant, to a degree of 67% ([0186]), and is further partially esterified ([0070]) to contain amic acid ester repeating units represented by Chemical Formula 2 of Applicant, for the purpose of providing the desired liquid crystal alignment stability and reliability ([0006]), where the imide repeating unit represented by Chemical Formula 1 of Applicant, is present in an amount of 67 mol% (degree of 67% [0186]) with respect to all of the repeating units represented by Chemical Formulae 1 to 3, which is within the claimed range of 5 mol% to 74 mol%, for the purpose of providing the desired fine-tuning of liquid crystal alignment characteristics, such that there is no need to pick and choose from a laundry list (just the starting polyamic acid, Example 4 [0184], of Kunimi).",
"Applicant argues that Kunimi merely discusses prior art disclosing polyamic acid ester component of a polyimide liquid crystal alignment agent and different prior art using a blended polyamic acid ester and a polyamic acid ([0006]). Applicant is respectfully apprised that Kunimi teaches that adding amic acid ester repeating units to imide repeating units, provides a benefit of improved alignment stability and reliability (as a polymer component constituting a polyimide liquid crystal aligning agent [0006]), and that combining a polyamic acid ester containing amic acid ester repeating units, with a polyamic acid containing amic acid repeating units, gives excellent electrical properties, which is an improvement over the polyamic acid ester containing amic acid ester repeating units alone ([0006]). Applicant argues that more importantly, Kunimi discloses that the liquid crystal aligning agent disclosed therein is already an improvement over the prior art compositions by providing better adhesion of the liquid crystal alignment film to the sealing agent and the substrate without lowering alignment and electrical properties ([0016-0018]), and that accordingly, no additional disclosures are provided in Kunimi or cited in the Office action, to have motivated a skilled artisan to modify the copolymer of Kunimi to a copolymer of [polyimide]-[polyamic acid ester]-[polyamic acid] as claimed with a reasonable expectation of success. Accordingly, since Kunimi teaches the benefit of adding amic acid ester repeating units to imide repeating units of a polyimide liquid crystal aligning agent, as done in the prior art, while also teaching the benefit of combining a polyamic acid ester including amic acid ester repeating units, with a polyamic acid including amic acid repeating units, as done in the prior art, and since Kunimi already teaches partially imidizing the starting polyamic acid to include imide repeating units with the amic acid repeating units (Example 4 [0186]), and forming the polyamic acid ester by esterifying the starting polyamic acid ([0070]) to include amic acid ester repeating units, it would indeed have been obvious to one of ordinary skill in the art at the time, to have modified the copolymer including the amic acid repeating units represented by Chemical Formula 3 of Applicant, and the imide repeating units represented by Chemical Formula 1 of Applicant, by adding amic acid ester repeating units represented by Chemical Formula 2 of Applicant, thus forming the copolymer of [polyimide]-[polyamic acid ester]-[polyamic acid] as claimed, to take advantage of those benefits, with a reasonable expectation of success.",
"In response to Applicant's argument that the Office's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971). Applicant’s arguments regarding the secondary references of Lai and Hattori are directed to the primary reference of Kunimi and are addressed above. Conclusion THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a). A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action.",
"In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action. The prior art made of record and not relied upon, US 20100243955 is considered pertinent to Applicant's disclosure.",
"Any inquiry concerning this communication should be directed to Sow-Fun Hon whose telephone number is (571)272-1492. The examiner is on a flexible schedule but can usually be reached during a regular workweek between the hours of 10:00 AM and 6:00 PM. If attempts to reach the examiner by telephone are unsuccessful, the examiner's supervisor, Aaron Austin, can be reached at (571)272-8935. The fax phone number for the organization where this application or proceeding is assigned is (571)273-8300. Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see http://pair-direct.uspto.gov. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000. /Sophie Hon/ Sow-Fun Hon Primary Examiner, Art Unit 1782"
] | https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2021-10-31.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Agnes, A.J. The defendant John Leeman, Jr. has filed a motion that seeks an exercise of the court’s discretion to dissolve a pretrial attachment on a certain parcel of land in the Town of Andover on grounds that it is “unreasonable” within the meaning of G.L.c. 223, §114 because there is a pending sale of the property to a third party which if allowed to proceed will, under the circumstances, generate more net cash for the benefit of the plaintiff than will result if the sale is blocked. BACKGROUND The motion before the court arises out of civil action commenced by the plaintiffs in which they allege that the defendant John Leeman, with knowledge of his wife, defendant Elizabeth Leeman, engaged in a series of fraudulent transactions while he was the accountant for two construction companies owned by the plaintiff between April 1990 and April 2001. The plaintiffs allege that the fraudulent scheme netted the defendants between 2.5 and 3.6 million dollars. The plaintiff obtained ex parte orders attaching various properties in which the defendant John Lee-man has an interest along with an order authorizing the filing of a memorandum of lis pendens. The real estate attachment is in the amount of 2.5 million dollars. The defendant John Leeman did not move to dissolve the attachment after he received notice. One of the properties that is subject to the attachment and the lis pendens is a single, undivided lot in the Town of Andover that is known as 383 Johnson Street (“locus”). The parties agree that the locus consists of three buildable lots and another lot that contains a home. It was conveyed to the defendant John Leeman and his wife, defendant Elizabeth Lee-man, by Maiy S. Hoag on June 26,2000. The purchase price was $600,000. See exhibit A to the Reply Memorandum of Defendant Elizabeth M. Leeman. There is also evidence in the record before me that Elizabeth Leeman conveyed all of her right, title and interest in the locus to her husband, John Leeman, on February 22, 2002. See Exhibit A to the Defendant’s Emergency Motion to Dissolve Attachment. The property is subject to a first mortgage held by Banknorth, N.A. in the *720amount of approximately $544,785.00 (as of January 17,2003). See Exhibit B to the Defendant’s Emergency Motion to Dissolve Attachment. The bank has advised defendant John Leeman that he is in default, has demanded payment in full, and has indicated it is moving forward with foreclosure proceedings. See Exhibit B to the Defendant’s Emergency Motion to Dissolve Attachment. During 2002, in advance of any communication with counsel for the plaintiffs, the defendant John Leeman developed a plan to sell the locus. His expectation was that he would find a suitable buyer, arrive at a suitable price, and then persuade the plaintiffs to agree to release the locus from the attachment and the lis pendens. A series of communications took place between counsel for the plaintiffs and counsel for the defendants about a plan by the defendant John Leeman to sell the locus to Mr. William Barrett, President of Colonial Village Development Corporation d/b/a William Barrett Homes. The defendant John Leeman and William Barrett entered into a purchase and sales agreement for the locus on February 28, 2002. See Exhibit A to the Defendant’s Emergency Motion to Dissolve Attachment. This agreement calls for a purchase price of 1.075 million dollars on the following terms: a deposit of $50,000 that has been paid and is held in escrow by counsel for the defendants, $700,000 payable in cash at the time of the closing, and $325,000 to be paid by a promissory note to be executed at the time of the closing that will be secured by mortgages of $108,333.00 on each of the three lots payable in three successive payments at 30, 60 and 90 days following the closing and agreed upon interest of $10,000 (subject to a per diem reduction for each day prior to August 15, 2002 after it is paid). See Exhibit A to the Defendant’s Emergency Motion to Dissolve Attachment. This P&S agreement is also subject to the attachments and lis pendens obtained by the plaintiff. Although the parties dispute the fair market value of the property, the Defendant Leeman asks the court to accept the plaintiffs view for purposes of this motion. See Defendant Leeman’s Emergency Motion at 2. The plaintiffs have offered appraisals that places the market value at 1.3 million dollars, 1.205 million dollars, and 1.1 to 1.2 million dollars respectively. Affidavit of Plaintiff Matses, attachments B, C, D, E and F. The plaintiffs current judgment is that the locus is worth 1.3 million dollars. Affidavit of Matses, para. 5. There is a factual dispute between the parties about the terms of the sale of the locus by defendant Leeman to Mr. Barrett. The defendants maintain that they outlined the terms to the plaintiffs and there was an understanding that the terms were acceptable to the plaintiffs. However, based on the affidavit by plaintiff Charles T. Matses and his attorney Joseph D. Regan, the plaintiffs carefully explained to the defendants during the past several months that the only circumstance in which the plaintiff would assent to a sale of the property by the defendant John Leeman is if, as a result, plaintiff Matses receives $600,000 (to be held in escrow by his counsel) consisting of a deposit of $450,000 cash at the time of the closing and $150,000 within four months based on notes from the buyer to plaintiff Matses secured by mortgages given by the buyer to plaintiff Matses. Regan Affidavit, para. 12-14 and Matses affidavit para. 9. This is not the deal proposed by the defendant, and this is not an arrangement to which Mr. Barrett, the prospective buyer, has agreed. Regan Affidavit, para. 14; Affidavit of William Barrett attached as exhibit C to Defendant Leeman’s emergency motion. The principal contention by the defendant Leeman is that if the property is not sold there will be a foreclosure and the result is likely to be that there will be less cash to satisfy any obligation the defendant Leeman may have to the plaintiffs. Defendant John Leeman also maintains that Mr. Barrett may sue him and further diminish the estate available to the plaintiff. Also, the defendant Leeman suggests that the proposed sale price of 1.075 million will produce net proceeds for the plaintiffs that come very close to what the plaintiffs’ threshold is because the sale to Mr. Barrett does not involve a broker or a broker’s commission, the home on one of the lots needs to be razed thus further diminishing the value of the properly, and the fact that Mr. Barrett has obtained the local approvals required for a subdivision which makes him a more attractive buyer than others who do not have such approvals. Again, however, these are facts in dispute. DISCUSSION “If an excessive or unreasonable attachment by trustee process or otherwise, is made, the defendant or person whose property has been attached may submit a written motion, in any county, to a justice of the court to which such process is returnable, for a reduction of the amount of the attachment or for its discharge.” G.L.c. 223, §114. The statute contemplates a summary hearing much like the hearing conducted when the attachment is initially requested. See Long v. George, 290 Mass. 316, 320 (1935). This statute is “remedial. . . [and] designed to afford relief against conduct in its results resembling abuse of the process of attachment.” Shea v. Peters, 230 Mass. 197, 199 (1918). In Shea, the court acted under §114 to grant relief to a person not a party to the original action whose property had been attached as the property of the defendant.1 Accord, Northeastern Malden Barrel Co., Inc. v. Binder, 341 Mass. 710 (1961) (trustee process). See also Marcus v. Pearce Woolen Mills, Inc., 353 Mass. 483, 486 (1968) (“ This remedial provision has been construed broadly to provide relief from abusive attachments”). Putting aside the parties’ disagreement about the market value of the properly and the actual amount of net proceeds that would be produced by the sale proposed by the defendant John Leeman, there is no authoriiy for the proposition that *721an attachment is “unreasonable” within the meaning of §114 because the plaintiff in the original action, in the opinion of the defendant whose property has been attached, has acted unreasonably in refusing to agree to release property from the terms of the attachment to permit it to be sold. The defendant John Leeman has devised a complex arrangement with Mr. Barrett in which some funds will be paid into escrow for the plaintiffs benefit at the time of the sale and additional funds will be paid several months later. Under this plan, there is uncertainty about payment of the amounts due under the notes, a lack of security on the part of plaintiff Matses if Mr. Barrett refuses to pay the notes, and no security for the payment of the $10,000 in interest. Furthermore, Defendant Leeman’s argument is premised on assumptions about what Banknorth, N.A. will do as a result of his default, about the result of a foreclosure sale, and the impact of such a sale on other property interests of defendant Elizabeth Leeman. It would be an exercise in speculation for this court to base a decision on these assumptions. Although the parameters of “unreasonable” conduct under §114 may extend beyond the facts in the Shea case, a judgment that a party has acted unreasonably cannot be made in circumstances such as these in which there is a dispute about the material facts. Moreover, in the present case, even if it was assumed that the sale proposed by the defendant John Leeman to Mr. Barrett would be for a price that reflected the true market value of the property, the terms of the sale expose the plaintiff Matses to risks that are different and perhaps greater than the risks he is exposed to at the present time. To release the locus from the terms of the attachment in such circumstances would be to act in excess of the authority conferred on the court under G.L.c. 223, §114. In many, if not the vast majority of cases, a pretrial attachment of real estate results in a hardship to the party whose property is attached. In light of the purpose of an attachment which is to provide the plaintiff with “a specific charge upon the property for the security for the debt sued for,” see Davenport v. Tilton, 51 Mass. (10 Metc.) 320, 327 (1845), a defendant does not qualify for relief under G.L.c. 223, §114 simply by establishing that the attachment is harmful to his interests when the relief would also disadvantage the plaintiff. ORDER The parties remain free to consider and agree to other terms and submit a joint or assented to motion to dissolve the attachment or to release the locus from it. However, until such time, it is not for this court to say whether the plaintiff is acting in his own best interest by opposing the defendant’s motion. The defendant has a right to be secure, and is not required to put his security at risk. For the above reasons, the motion is DENIED.
The defendants also cite Richardson v. Greenhood, 225 Mass. 608, 610 (1917). There, the court makes reference to the exercise of “judicial discretion” in deciding whether to dissolve an attachment, but simply assumes it was done “wisely.” The case omits any reference to the facts. | 10-17-2022 | [
"Agnes, A.J. The defendant John Leeman, Jr. has filed a motion that seeks an exercise of the court’s discretion to dissolve a pretrial attachment on a certain parcel of land in the Town of Andover on grounds that it is “unreasonable” within the meaning of G.L.c. 223, §114 because there is a pending sale of the property to a third party which if allowed to proceed will, under the circumstances, generate more net cash for the benefit of the plaintiff than will result if the sale is blocked. BACKGROUND The motion before the court arises out of civil action commenced by the plaintiffs in which they allege that the defendant John Leeman, with knowledge of his wife, defendant Elizabeth Leeman, engaged in a series of fraudulent transactions while he was the accountant for two construction companies owned by the plaintiff between April 1990 and April 2001. The plaintiffs allege that the fraudulent scheme netted the defendants between 2.5 and 3.6 million dollars. The plaintiff obtained ex parte orders attaching various properties in which the defendant John Lee-man has an interest along with an order authorizing the filing of a memorandum of lis pendens.",
"The real estate attachment is in the amount of 2.5 million dollars. The defendant John Leeman did not move to dissolve the attachment after he received notice. One of the properties that is subject to the attachment and the lis pendens is a single, undivided lot in the Town of Andover that is known as 383 Johnson Street (“locus”). The parties agree that the locus consists of three buildable lots and another lot that contains a home. It was conveyed to the defendant John Leeman and his wife, defendant Elizabeth Lee-man, by Maiy S. Hoag on June 26,2000. The purchase price was $600,000. See exhibit A to the Reply Memorandum of Defendant Elizabeth M. Leeman.",
"There is also evidence in the record before me that Elizabeth Leeman conveyed all of her right, title and interest in the locus to her husband, John Leeman, on February 22, 2002. See Exhibit A to the Defendant’s Emergency Motion to Dissolve Attachment. The property is subject to a first mortgage held by Banknorth, N.A. in the *720amount of approximately $544,785.00 (as of January 17,2003). See Exhibit B to the Defendant’s Emergency Motion to Dissolve Attachment. The bank has advised defendant John Leeman that he is in default, has demanded payment in full, and has indicated it is moving forward with foreclosure proceedings. See Exhibit B to the Defendant’s Emergency Motion to Dissolve Attachment. During 2002, in advance of any communication with counsel for the plaintiffs, the defendant John Leeman developed a plan to sell the locus.",
"His expectation was that he would find a suitable buyer, arrive at a suitable price, and then persuade the plaintiffs to agree to release the locus from the attachment and the lis pendens. A series of communications took place between counsel for the plaintiffs and counsel for the defendants about a plan by the defendant John Leeman to sell the locus to Mr. William Barrett, President of Colonial Village Development Corporation d/b/a William Barrett Homes. The defendant John Leeman and William Barrett entered into a purchase and sales agreement for the locus on February 28, 2002. See Exhibit A to the Defendant’s Emergency Motion to Dissolve Attachment. This agreement calls for a purchase price of 1.075 million dollars on the following terms: a deposit of $50,000 that has been paid and is held in escrow by counsel for the defendants, $700,000 payable in cash at the time of the closing, and $325,000 to be paid by a promissory note to be executed at the time of the closing that will be secured by mortgages of $108,333.00 on each of the three lots payable in three successive payments at 30, 60 and 90 days following the closing and agreed upon interest of $10,000 (subject to a per diem reduction for each day prior to August 15, 2002 after it is paid). See Exhibit A to the Defendant’s Emergency Motion to Dissolve Attachment. This P&S agreement is also subject to the attachments and lis pendens obtained by the plaintiff.",
"Although the parties dispute the fair market value of the property, the Defendant Leeman asks the court to accept the plaintiffs view for purposes of this motion. See Defendant Leeman’s Emergency Motion at 2. The plaintiffs have offered appraisals that places the market value at 1.3 million dollars, 1.205 million dollars, and 1.1 to 1.2 million dollars respectively. Affidavit of Plaintiff Matses, attachments B, C, D, E and F. The plaintiffs current judgment is that the locus is worth 1.3 million dollars. Affidavit of Matses, para. 5. There is a factual dispute between the parties about the terms of the sale of the locus by defendant Leeman to Mr. Barrett. The defendants maintain that they outlined the terms to the plaintiffs and there was an understanding that the terms were acceptable to the plaintiffs. However, based on the affidavit by plaintiff Charles T. Matses and his attorney Joseph D. Regan, the plaintiffs carefully explained to the defendants during the past several months that the only circumstance in which the plaintiff would assent to a sale of the property by the defendant John Leeman is if, as a result, plaintiff Matses receives $600,000 (to be held in escrow by his counsel) consisting of a deposit of $450,000 cash at the time of the closing and $150,000 within four months based on notes from the buyer to plaintiff Matses secured by mortgages given by the buyer to plaintiff Matses.",
"Regan Affidavit, para. 12-14 and Matses affidavit para. 9. This is not the deal proposed by the defendant, and this is not an arrangement to which Mr. Barrett, the prospective buyer, has agreed. Regan Affidavit, para. 14; Affidavit of William Barrett attached as exhibit C to Defendant Leeman’s emergency motion. The principal contention by the defendant Leeman is that if the property is not sold there will be a foreclosure and the result is likely to be that there will be less cash to satisfy any obligation the defendant Leeman may have to the plaintiffs. Defendant John Leeman also maintains that Mr. Barrett may sue him and further diminish the estate available to the plaintiff. Also, the defendant Leeman suggests that the proposed sale price of 1.075 million will produce net proceeds for the plaintiffs that come very close to what the plaintiffs’ threshold is because the sale to Mr. Barrett does not involve a broker or a broker’s commission, the home on one of the lots needs to be razed thus further diminishing the value of the properly, and the fact that Mr. Barrett has obtained the local approvals required for a subdivision which makes him a more attractive buyer than others who do not have such approvals.",
"Again, however, these are facts in dispute. DISCUSSION “If an excessive or unreasonable attachment by trustee process or otherwise, is made, the defendant or person whose property has been attached may submit a written motion, in any county, to a justice of the court to which such process is returnable, for a reduction of the amount of the attachment or for its discharge.” G.L.c. 223, §114. The statute contemplates a summary hearing much like the hearing conducted when the attachment is initially requested. See Long v. George, 290 Mass. 316, 320 (1935). This statute is “remedial. . . [and] designed to afford relief against conduct in its results resembling abuse of the process of attachment.” Shea v. Peters, 230 Mass.",
"197, 199 (1918). In Shea, the court acted under §114 to grant relief to a person not a party to the original action whose property had been attached as the property of the defendant.1 Accord, Northeastern Malden Barrel Co., Inc. v. Binder, 341 Mass. 710 (1961) (trustee process). See also Marcus v. Pearce Woolen Mills, Inc., 353 Mass. 483, 486 (1968) (“ This remedial provision has been construed broadly to provide relief from abusive attachments”). Putting aside the parties’ disagreement about the market value of the properly and the actual amount of net proceeds that would be produced by the sale proposed by the defendant John Leeman, there is no authoriiy for the proposition that *721an attachment is “unreasonable” within the meaning of §114 because the plaintiff in the original action, in the opinion of the defendant whose property has been attached, has acted unreasonably in refusing to agree to release property from the terms of the attachment to permit it to be sold. The defendant John Leeman has devised a complex arrangement with Mr. Barrett in which some funds will be paid into escrow for the plaintiffs benefit at the time of the sale and additional funds will be paid several months later. Under this plan, there is uncertainty about payment of the amounts due under the notes, a lack of security on the part of plaintiff Matses if Mr. Barrett refuses to pay the notes, and no security for the payment of the $10,000 in interest.",
"Furthermore, Defendant Leeman’s argument is premised on assumptions about what Banknorth, N.A. will do as a result of his default, about the result of a foreclosure sale, and the impact of such a sale on other property interests of defendant Elizabeth Leeman. It would be an exercise in speculation for this court to base a decision on these assumptions. Although the parameters of “unreasonable” conduct under §114 may extend beyond the facts in the Shea case, a judgment that a party has acted unreasonably cannot be made in circumstances such as these in which there is a dispute about the material facts. Moreover, in the present case, even if it was assumed that the sale proposed by the defendant John Leeman to Mr. Barrett would be for a price that reflected the true market value of the property, the terms of the sale expose the plaintiff Matses to risks that are different and perhaps greater than the risks he is exposed to at the present time.",
"To release the locus from the terms of the attachment in such circumstances would be to act in excess of the authority conferred on the court under G.L.c. 223, §114. In many, if not the vast majority of cases, a pretrial attachment of real estate results in a hardship to the party whose property is attached. In light of the purpose of an attachment which is to provide the plaintiff with “a specific charge upon the property for the security for the debt sued for,” see Davenport v. Tilton, 51 Mass. (10 Metc.) 320, 327 (1845), a defendant does not qualify for relief under G.L.c. 223, §114 simply by establishing that the attachment is harmful to his interests when the relief would also disadvantage the plaintiff. ORDER The parties remain free to consider and agree to other terms and submit a joint or assented to motion to dissolve the attachment or to release the locus from it.",
"However, until such time, it is not for this court to say whether the plaintiff is acting in his own best interest by opposing the defendant’s motion. The defendant has a right to be secure, and is not required to put his security at risk. For the above reasons, the motion is DENIED. The defendants also cite Richardson v. Greenhood, 225 Mass. 608, 610 (1917). There, the court makes reference to the exercise of “judicial discretion” in deciding whether to dissolve an attachment, but simply assumes it was done “wisely.” The case omits any reference to the facts."
] | https://www.courtlistener.com/api/rest/v3/opinions/8323755/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Mb. Chief Justice Pbewitt delivered the opinion of the Court. This is a bill filed in the Chancery Court at Nashville, seeking to recover a privilege tax paid under protest. The Chancellor upheld the contention of the complainant and ordered the tax paid refunded to him. This appeal resulted. The cause presents the question of whether a person operating trampolines as a source of profit is liable for the privilege tax imposed by Item 49(c), Section 67-4203, T.C.A. at the rate of $20 per annum for each such device so operated. It appears that complainant, Holt, is the owner and operator of a recreational area known as “Bordeaux Jump Center” in Davidson County, within which are located fifteen trampolines. A trampoline consists of strong cloth fifteen feet by ten feet in size, stretched and held tightly in position by, and secured to, a metal frame. It provides a springboard effect when jumped upon, and facilitates the performance of acrobatics by the use. The charge for using a trampoline is fifty cents per half hour. Complainant’s fifteen trampolines are located within a cyclone fence adjacent to a heavily travelled *639highway. The complainant also sells soft drinks and package food items at this place. Under threat of issuance of a distress warrant the complainant paid the tax in question. The Chancellor was of the opinion that Section 67-4203, T.C.A., Item 75 applied, which excludes other taxes and provides as follows: “Amusement park is defined as a park where various rides, games, shows, eating stands and the like are operated within the park. Any person paying the tax on an amusement park imposed by this Item shall not be liable for any other tax imposed under this chapter, with respect to any ride, game, shows, eating stands and the like operated within such amusement park. The tax imposed by this Item on amusement parks shall apply only to amusement parks maintained in a permanent location. The tax shall not apply to county fairs and municipal parks. Carnivals, circuses and menageries moving about from place to place and not operated at a permanent location shall not be taxed under this Item, but shall be taxed under the other applicable Items of chapters 41 and 42 of this title. ’ ’ The State insists that the tax in question is collectible under Item 49(c), Section 67-4203, T.C.A. This Section reads as follows: “All devices operated by persons as a source of profit, such as devices wherein may be seen pictures, or devices for throwing at wooden figures or any other object, throwing rings or any other device, striking an object to test the strength, and blowing to test the lungs, each per annum * * * $20.00.” *640The State relies upon the Section just quoted and in support of this reliance contends that our rather recent case of G & S Distributing Co. v. Cobb, 197 Tenn. 573, 276 S.W.2d 729, is controlling. However, in that case the “kiddy rides” were placed in retail establishments such as grocery stores or drug stores, in various localities. In the case now before us the complainant has these fifteen trampolines at a definite and permanent location and enclosed by a cyclone fence adjacent to a heavily travelled road. We think that this location, being more or less permanent, a classification should be more in the nature of an amusement park and its liability under the privilege tax arises out of Section 67-4203, T.C.A., Item 75, rather than under Item 49(c), Section 67-4203, T.C.A. In this respect the case here is distinguishable from G & S Distributing Co. v. Cobb, supra. We do think that the complainant comes under the working of Section 67-4203, T.C.A., Item 75 in that these trampolines may be classified as riding devices or games. It therefore results that we are of the opinion that the decree of the Chancellor was correct and it is affirmed. Tomlinson, Buenett, Swepston and Felts, Justices, concur. | 10-17-2022 | [
"Mb. Chief Justice Pbewitt delivered the opinion of the Court. This is a bill filed in the Chancery Court at Nashville, seeking to recover a privilege tax paid under protest. The Chancellor upheld the contention of the complainant and ordered the tax paid refunded to him. This appeal resulted. The cause presents the question of whether a person operating trampolines as a source of profit is liable for the privilege tax imposed by Item 49(c), Section 67-4203, T.C.A. at the rate of $20 per annum for each such device so operated. It appears that complainant, Holt, is the owner and operator of a recreational area known as “Bordeaux Jump Center” in Davidson County, within which are located fifteen trampolines. A trampoline consists of strong cloth fifteen feet by ten feet in size, stretched and held tightly in position by, and secured to, a metal frame.",
"It provides a springboard effect when jumped upon, and facilitates the performance of acrobatics by the use. The charge for using a trampoline is fifty cents per half hour. Complainant’s fifteen trampolines are located within a cyclone fence adjacent to a heavily travelled *639highway. The complainant also sells soft drinks and package food items at this place. Under threat of issuance of a distress warrant the complainant paid the tax in question. The Chancellor was of the opinion that Section 67-4203, T.C.A., Item 75 applied, which excludes other taxes and provides as follows: “Amusement park is defined as a park where various rides, games, shows, eating stands and the like are operated within the park. Any person paying the tax on an amusement park imposed by this Item shall not be liable for any other tax imposed under this chapter, with respect to any ride, game, shows, eating stands and the like operated within such amusement park. The tax imposed by this Item on amusement parks shall apply only to amusement parks maintained in a permanent location.",
"The tax shall not apply to county fairs and municipal parks. Carnivals, circuses and menageries moving about from place to place and not operated at a permanent location shall not be taxed under this Item, but shall be taxed under the other applicable Items of chapters 41 and 42 of this title. ’ ’ The State insists that the tax in question is collectible under Item 49(c), Section 67-4203, T.C.A. This Section reads as follows: “All devices operated by persons as a source of profit, such as devices wherein may be seen pictures, or devices for throwing at wooden figures or any other object, throwing rings or any other device, striking an object to test the strength, and blowing to test the lungs, each per annum * * * $20.00.” *640The State relies upon the Section just quoted and in support of this reliance contends that our rather recent case of G & S Distributing Co. v. Cobb, 197 Tenn. 573, 276 S.W.2d 729, is controlling.",
"However, in that case the “kiddy rides” were placed in retail establishments such as grocery stores or drug stores, in various localities. In the case now before us the complainant has these fifteen trampolines at a definite and permanent location and enclosed by a cyclone fence adjacent to a heavily travelled road. We think that this location, being more or less permanent, a classification should be more in the nature of an amusement park and its liability under the privilege tax arises out of Section 67-4203, T.C.A., Item 75, rather than under Item 49(c), Section 67-4203, T.C.A.",
"In this respect the case here is distinguishable from G & S Distributing Co. v. Cobb, supra. We do think that the complainant comes under the working of Section 67-4203, T.C.A., Item 75 in that these trampolines may be classified as riding devices or games. It therefore results that we are of the opinion that the decree of the Chancellor was correct and it is affirmed. Tomlinson, Buenett, Swepston and Felts, Justices, concur."
] | https://www.courtlistener.com/api/rest/v3/opinions/8303889/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
535 P.2d 70 (1975) 87 N.M. 427 STATE of New Mexico, Plaintiff-Appellee, v. Lowada Ann MANN, Defendant-Appellant. No. 1678. Court of Appeals of New Mexico. April 23, 1975. *71 Chester H. Walter, Jr., Chief Public Defender, Bruce L. Herr, Appellate Defender, Sarah Singleton, Associate Appellate Defender, Santa Fe, for defendant-appellant. Toney Anaya, Atty. Gen., Santa Fe, Ralph W. Muxlow II, Asst. Atty. Gen., for plaintiff-appellee.
OPINION SUTIN, Judge. Defendant was convicted of receiving stolen property of over $100 but under $2,500. Section 40A-16-11, N.M.S.A. 1953 *72 (2d Repl.Vol. 6). Defendant appeals. We reverse. In brief, our decision to reverse rests on the following analysis of the issues. (1) Admission into evidence of the preliminary hearing testimony of the absent material witness was error. (2) That testimony was cumulative of the testimony of other witnesses, which fact might render the error harmless. (3) However, admission into evidence of the preliminary hearing testimony denied to the defendant her right of confrontation. (4) Denial of the right of confrontation, a fundamental constitutional right, is never harmless error. The defendant was convicted of receiving stolen property owned by Jake Hargrove. At the time of trial, Hargrove was in Montana. The State attempted to subpoena Hargrove and learned of his absence two days before trial. He was declared to be a material witness. The record shows that the State exercised no effort to bring Mr. Hargrove to the trial. In fact, the State hesitated to announce ready for trial until such time as the Court determined that the preliminary hearing testimony was admissible. Over objection, the court allowed the State to introduce into evidence a transcript of Hargrove's preliminary hearing testimony.
A. Hargrove's former testimony was inadmissible under the Rules of Evidence.
We are confronted with Rule 804 of our Rules of Evidence [§ 20-4-804, N.M.S.A. 1953 (Repl.Vol. 4, 1973 Supp.)]. Rule 804(b)(1) permits the admission of Hargrove's former testimony as an exception to the hearsay rule if Hargrove "is unavailable as a witness". At the preliminary hearing, Hargrove was examined by the State and cross-examined by the defendant in compliance with this rule. Was Hargrove available as a witness? Rule 804(a)(5) reads: (a) Definition of Unavailability. "Unavailability as a witness" includes situations in which the declarant: * * * * * * (5) Is absent from the hearing and the proponent of his statement has been unable to procure his attendance by process or other reasonable means. [Emphasis added] On the morning of the trial, the State, in laying its foundation for introducing the preliminary hearing testimony of the absent witness, stated to the court: Please the Court, the State's attempted to serve Subpoena upon Jake Hargrove. We received information today or day before yesterday, rather, that he is in the State of Montana. He is a material witness in the case, being the owner of the property involved in the case. The State contends that this foundation is sufficient to constitute "unavailability". We disagree. The district attorney's statements are no more than bare recitals unsupported by factual elaboration. Heretofore, we have expressed doubt that such statements sufficiently demonstrate a party's inability to procure the attendance of a witness at trial. State v. Berry, 86 N.M. 138, 520 P.2d 558 (Ct.App. 1974). In the present case, we declare the statements to be insufficient because there was no compliance with the rule. State v. Berry and State v. Barela, 86 N.M. 104, 519 P.2d 1185 (Ct.App. 1974) guide us in determining the issue. These cases involve the admission into evidence of the deposition of an absent witness. Rule 29(n) of the Rules of Criminal Procedure [§ 41-23-29(n), N.M.S.A. 1953 (2d Repl.Vol. 6, 1973 Supp.)] provides that a deposition is admissible at trial: * * * * * * (3) If the party offering the deposition has been unable to procure the attendance of the witness by subpoena; (4) If the witness is out of the state, his presence cannot be secured by subpoena or other lawful means, and his absence *73 was not procured by the party offering the deposition; * * * This rule is comparable to Rule 804. In Barela, supra, and Berry, supra, we held that there must be strict compliance with Rule 29(n); that a showing must be made that the witness's presence could not have been secured by subpoena or other lawful means; and that due to failure to comply, the depositions were not admissible in evidence. The criminal information was filed April 16, 1974. Trial by jury was held June 26, 1974. We have no information as to when the State took any action to require the presence of Hargrove before trial. Rule 45(e) of the Rules of Civil Procedure [§ 21-1-1(45)(e), N.M.S.A. 1953 (Repl.Vol. 4)] governs the issuance and service of subpoenas for trial in criminal cases. Section 41-23-48(a), N.M.S.A. 1953 (2d Repl.Vol. 6, 1973 Supp.). The subpoena is not a matter of record. The issuance and attempt to serve the subpoena, as well as the time and place of the attempted service are not a matter of record. There is no evidence to show what inquiry, if any, the State made to locate Hargrove before trial. Nor is there evidence to establish when Hargrove left New Mexico. In short, the record contains no evidence as to the circumstances of the State's alleged attempt and inability to subpoena the witness. Speculation, conjecture or surmise by an appellate court is sheer imprudence when a person's freedom is at stake. We hold that a witness is available for trial unless the proponent of the former testimony makes a showing in court that the proponent was unable to procure the attendance of the witness by subpoena. The State failed to do so. See State v. Holly, 79 N.M. 516, 445 P.2d 393 (Ct.App. 1968). Under Rule 804, Hargrove's preliminary hearing testimony was not admissible in evidence.
B. The former testimony was cumulative of the testimony of other witnesses.
The State contends the testimony of Hargrove was harmless error because it was cumulative of the testimony of three other witnesses. The defendant's answer is that this contention is inconsistent with the position taken by the State at the trial that Hargrove "is a material witness in the case, being the owner of the property involved in the case." Defendant's position is untenable because no authority or facts are presented in support. In State v. Berry and State v. Barela, it was unnecessary to deal with the question of harmless error. In each case, the deposition testimony of the doctor was essential to a conviction, because it was the only evidence which proved that the substance in the defendant's possession was heroin. The deposition testimony was not cumulative of any other testimony. Therefore, the admission of the deposition testimony was prejudicial error. It infringed on the defendant's "substantial rights", and violated "substantial justice". See §§ 21-1-1(61) (Harmless Error), 21-2-1(17)(10), N.M.S.A. 1953 (Repl.Vol. 4). Having reviewed the whole record in the insant case, we hold that the Hargrove preliminary hearing testimony was not prejudicial. It was cumulative. The testimony of Hargrove's sister-in-law and two police officers established the essential elements of receiving stolen property under § 40A-16-11. "A trial court may in its discretion permit cumulative testimony." State v. Miller, 2 Or. App. 353, 467 P.2d 683, 685 (1970), "and error cannot be predicated on its admission where there is no abuse of discretion." Buckles v. State, 500 P.2d 518 (Wyo.), cert. denied, 409 U.S. 1026, 93 S.Ct. 475, 34 L.Ed.2d 320 (1972); See 23 C.J.S. Criminal Law § 1041, at 1175-77. We find no abuse of discretion in the instant case.
*74 C. Denial of the right of confrontation was reversible error.
Defendant objected to the admission of Hargrove's preliminary hearing testimony, because it denied defendant the right to confront this witness at the trial. The objection was overruled. Article II, § 14 of the New Mexico Constitution provides that "In all criminal prosecutions, the accused shall have the right * * * to be confronted with the witnesses against him; * * *" In State v. Bailey, 62 N.M. 111, 305 P.2d 725 (1956), a situation identical to the one in the instant case was presented to the trial court. Over objection, the court admitted into evidence the testimony of a witness taken at a preliminary hearing. In reversing the case, the court said: We conclude that in allowing the testimony of the witness to be read, the accused was denied his constitutional right of being confronted by the witnesses against him. The mere fact that the witness was absent from the jurisdiction of the court, was not enough. The exercise of due diligence on the part of the officers, in an effort to secure his attendance, was essential to the admission of the testimony of the absent witness. 62 N.M. at 113, 305 P.2d at 726. The essential ingredient of this rule is the exercise of due diligence by the State to secure the attendance of the witness. State v. Bailey, supra; State v. Barela, supra; State v. Mitchell, 86 N.M. 343, 524 P.2d 206 (Ct.App. 1974); State v. Jackson, 30 N.M. 309, 233 P. 49 (1924). See, also, State v. Kirk, 211 Kan. 165, 505 P.2d 619 (1973), in which admission of prior recorded testimony by an absent witness was held to be error because of the denial of the right of confrontation, even though the testimony was cumulative of the testimony of other witnesses. If the State makes such diligent effort to secure the attendance of an absent witness, and fails in this effort, the admission of the former testimony rests in the discretion of the trial court. State v. Holly, supra; State v. Jackson, supra. The record does not show any effort by the State to bring Hargrove from Montana to defendant's trial. In State v. Barela, supra, we said: The State contends the error in the admission of the deposition is harmless. We disagree. The violation of a defendant's constitutional right is never harmless. 519 P.2d at 1187. It is never harmless, unless (a) there has been a waiver of the right of confrontation, or (b) the witness is unavailable. On the right of confrontation, the United States Supreme Court has stated the following: There are few subjects, perhaps, upon which this Court and other courts have been more nearly unanimous than in their expressions of belief that the right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial which is this country's constitutional goal. Pointer v. Texas, 380 U.S. 400, 405, 85 S.Ct. 1065, 1068, 13 L.Ed.2d 923, 927 (1965). Unless there has been a waiver of the right of confrontation, or it has been shown that the witness is unavailable after due diligence has been used by the State to attempt to produce him at trial, admission of a witness's prior recorded testimony violates a defendant's right of confrontation. Infringement of that right cannot be harmless error. It is a right that is "so basic to a fair trial that [its] infraction can never be treated as harmless error." Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, 827-28, 17 L.Ed.2d 705, 710 (1967). Here, there was no showing of due diligence by the State in attempting to produce Hargrove at trial. Therefore, admission of Hargrove's preliminary hearing testimony violated defendant's right to be confronted by this witness. Such error necessitates reversal. Defendant's conviction is reversed, and defendant is granted a new trial. It is so ordered. *75 HENDLEY, J., specially concurs. HERNANDEZ, J., dissents. HENDLEY, Judge (specially concurring). I concur in Judge Sutin's result that defendant be awarded a new trial but for different reasons. First, Hargrove's testimony was inadmissible because the state made no attempt, other than the issuance of a subpoena, to secure the attendance of Hargrove. Both New Mexico and Montana have adopted the "Uniform Act to Secure the Attendance of Witnesses from without a State in Criminal Proceedings." Sections 41-12-13 through 41-12-19, N.M.S.A. 1953 (2d Repl.Vol. 6, 1972); §§ 94-9001 through 94-9007, Repl.Vol. 8, Revised Codes of Montana, 1947. I would require, under the circumstances of this case, the state to use the procedures in the Uniform Act before a witness could be declared unavailable. Section 20-4-804, N.M.S.A. 1953 (Repl. Vol. 4, 1970, Supp. 1973). Second, the state contends the error was harmless since Mr. Hargrove's testimony was corroborative of the testimony of three other witnesses. It is true that Mr. Hargrove's testimony with regard to the unauthorized taking and the identity of the property was repetitious of that of the other witnesses. However, the testimony of the other witnesses as to these two elements was hearsay although no objection was made to its admission. Our Supreme Court in State v. Romero, 67 N.M. 82, 352 P.2d 781 (1960) stated: "* * * hearsay evidence may have sufficient probative worth to support a verdict * * * However, this rule does not operate to make objectionable testimony conclusive proof of the matter asserted therein. The fact that it was hearsay does not prevent its use as proof so far as it has probative value, but this is limited to the extent of whatever rational persuasive power it may have. * * *" But compare Pitcock v. State, 168 Tex.Cr. R. 223, 324 S.W.2d 866 (1959) and Nesbit v. State, 71 Ga. App. 744, 32 S.E.2d 207 (1944), both standing for the proposition that hearsay admitted without objection is of no probative value whatsoever. As I cannot say that the hearsay testimony of the other witnesses was conclusive proof of two elements of the crime, State v. Romero, supra, and as I do not know what rational persuasive power it had in the eyes of the jury, we cannot say that the improperly received prior hearing testimony did not contribute to the conviction. See State v. Thurman, 84 N.M. 5, 498 P.2d 697 (Ct.App. 1972); State v. Lopez, 80 N.M. 599, 458 P.2d 851 (Ct.App. 1969). Thus, not being able to determine whether or not the error was harmless, I agree the defendant is entitled to a new trial. I need not reach the confrontation issue. HERNANDEZ, Judge (dissenting). The preliminary hearing testimony complained of, made by Mr. Hargrove alleges, in essence, (1) that various items of household furniture were removed from his home without authority during a period of his absence, and (2) that the same items were discovered and subsequently identified by him in the defendant's home. The prosecution established these two facts by independent sources. In my opinion, the trial testimony of detective Brewton establishes that the furniture found in the defendant's home was identified by Mr. Hargrove as his. Brewton testified that he, Mr. Hargrove, and a second Roswell City Police Officer went to the defendant's home to determine whether the missing furniture could be located there. The defendant permitted their entry, and Mr. Hargrove identified the furniture. I do not agree that this testimony was hearsay. In similar circumstances, the Nevada Supreme Court has quoted approvingly from 20 Am.Jur., Evidence, § 555, p. 467, as follows: "`An objection that a statement is hearsay is not available as to a statement *76 made in the presence of the party against whom the statement is offered in evidence and in a conversation in which he took part.'" Beasley v. State, 81 Nev. 431, 404 P.2d 911 (1965). And our Rule of Evidence, Section 20-4-801(d) provides: "a statement is not hearsay if * * * (2) The statement is offered against a party and is * * * (B) a statement of which he has manifested his adoption or belief in its truth * * *." The defendant did not challenge Mr. Hargrove's statement that the furniture was his. On the question of whether the furniture belonged to Mr. Hargrove and was taken from his home without authorization, I believe the testimony adduced at trial from Mr. Hargrove's sister-in-law serves as an independent source. On direct examination she testified as follows: "Q. And, to your knowledge, did Jake Hargrove come up missing some furniture? "A. Yes. sir. "Q. You knew about this? "A. Yes, sir." This testimony came in without objection, and nothing elicited by defense counsel on cross-examination served to undermine it. I would therefore hold that the preliminary hearing testimony read at trial was merely cumulative and that owing to the absence of proof of any prejudice suffered by the defendant as a result of its admission, what error there may have been in the trial court's failure to exact documentation from the prosecution on its claim that Mr. Hargrove was unavailable to repeat his testimony at the trial should be viewed as harmless. "Cumulative evidence has repeatedly been defined to be additional evidence of the same kind to the same point." State v. Funderburke, 251 S.C. 536, 164 S.E.2d 309 (1968). "* * * [W]hether cumulative evidence will be permitted is in the area of the court's discretion and the ruling thereon will not be disturbed on appeal unless it is made to appear that such discretion was abused." State v. Steinkraus, 76 N.M. 617, 417 P.2d 431 (1966). For the reasons stated, I do, therefore, respectfully register my dissent. | 10-30-2013 | [
"535 P.2d 70 (1975) 87 N.M. 427 STATE of New Mexico, Plaintiff-Appellee, v. Lowada Ann MANN, Defendant-Appellant. No. 1678. Court of Appeals of New Mexico. April 23, 1975. *71 Chester H. Walter, Jr., Chief Public Defender, Bruce L. Herr, Appellate Defender, Sarah Singleton, Associate Appellate Defender, Santa Fe, for defendant-appellant. Toney Anaya, Atty. Gen., Santa Fe, Ralph W. Muxlow II, Asst. Atty. Gen., for plaintiff-appellee. OPINION SUTIN, Judge.",
"Defendant was convicted of receiving stolen property of over $100 but under $2,500. Section 40A-16-11, N.M.S.A. 1953 *72 (2d Repl.Vol. 6). Defendant appeals. We reverse. In brief, our decision to reverse rests on the following analysis of the issues. (1) Admission into evidence of the preliminary hearing testimony of the absent material witness was error. (2) That testimony was cumulative of the testimony of other witnesses, which fact might render the error harmless. (3) However, admission into evidence of the preliminary hearing testimony denied to the defendant her right of confrontation. (4) Denial of the right of confrontation, a fundamental constitutional right, is never harmless error.",
"The defendant was convicted of receiving stolen property owned by Jake Hargrove. At the time of trial, Hargrove was in Montana. The State attempted to subpoena Hargrove and learned of his absence two days before trial. He was declared to be a material witness. The record shows that the State exercised no effort to bring Mr. Hargrove to the trial. In fact, the State hesitated to announce ready for trial until such time as the Court determined that the preliminary hearing testimony was admissible. Over objection, the court allowed the State to introduce into evidence a transcript of Hargrove's preliminary hearing testimony. A. Hargrove's former testimony was inadmissible under the Rules of Evidence. We are confronted with Rule 804 of our Rules of Evidence [§ 20-4-804, N.M.S.A. 1953 (Repl.Vol. 4, 1973 Supp.)].",
"Rule 804(b)(1) permits the admission of Hargrove's former testimony as an exception to the hearsay rule if Hargrove \"is unavailable as a witness\". At the preliminary hearing, Hargrove was examined by the State and cross-examined by the defendant in compliance with this rule. Was Hargrove available as a witness? Rule 804(a)(5) reads: (a) Definition of Unavailability. \"Unavailability as a witness\" includes situations in which the declarant: * * * * * * (5) Is absent from the hearing and the proponent of his statement has been unable to procure his attendance by process or other reasonable means.",
"[Emphasis added] On the morning of the trial, the State, in laying its foundation for introducing the preliminary hearing testimony of the absent witness, stated to the court: Please the Court, the State's attempted to serve Subpoena upon Jake Hargrove. We received information today or day before yesterday, rather, that he is in the State of Montana. He is a material witness in the case, being the owner of the property involved in the case. The State contends that this foundation is sufficient to constitute \"unavailability\".",
"We disagree. The district attorney's statements are no more than bare recitals unsupported by factual elaboration. Heretofore, we have expressed doubt that such statements sufficiently demonstrate a party's inability to procure the attendance of a witness at trial. State v. Berry, 86 N.M. 138, 520 P.2d 558 (Ct.App. 1974). In the present case, we declare the statements to be insufficient because there was no compliance with the rule. State v. Berry and State v. Barela, 86 N.M. 104, 519 P.2d 1185 (Ct.App. 1974) guide us in determining the issue. These cases involve the admission into evidence of the deposition of an absent witness. Rule 29(n) of the Rules of Criminal Procedure [§ 41-23-29(n), N.M.S.A. 1953 (2d Repl.Vol.",
"6, 1973 Supp.)] provides that a deposition is admissible at trial: * * * * * * (3) If the party offering the deposition has been unable to procure the attendance of the witness by subpoena; (4) If the witness is out of the state, his presence cannot be secured by subpoena or other lawful means, and his absence *73 was not procured by the party offering the deposition; * * * This rule is comparable to Rule 804. In Barela, supra, and Berry, supra, we held that there must be strict compliance with Rule 29(n); that a showing must be made that the witness's presence could not have been secured by subpoena or other lawful means; and that due to failure to comply, the depositions were not admissible in evidence. The criminal information was filed April 16, 1974.",
"Trial by jury was held June 26, 1974. We have no information as to when the State took any action to require the presence of Hargrove before trial. Rule 45(e) of the Rules of Civil Procedure [§ 21-1-1(45)(e), N.M.S.A. 1953 (Repl.Vol. 4)] governs the issuance and service of subpoenas for trial in criminal cases. Section 41-23-48(a), N.M.S.A. 1953 (2d Repl.Vol. 6, 1973 Supp.). The subpoena is not a matter of record. The issuance and attempt to serve the subpoena, as well as the time and place of the attempted service are not a matter of record. There is no evidence to show what inquiry, if any, the State made to locate Hargrove before trial.",
"Nor is there evidence to establish when Hargrove left New Mexico. In short, the record contains no evidence as to the circumstances of the State's alleged attempt and inability to subpoena the witness. Speculation, conjecture or surmise by an appellate court is sheer imprudence when a person's freedom is at stake. We hold that a witness is available for trial unless the proponent of the former testimony makes a showing in court that the proponent was unable to procure the attendance of the witness by subpoena. The State failed to do so. See State v. Holly, 79 N.M. 516, 445 P.2d 393 (Ct.App. 1968). Under Rule 804, Hargrove's preliminary hearing testimony was not admissible in evidence. B. The former testimony was cumulative of the testimony of other witnesses. The State contends the testimony of Hargrove was harmless error because it was cumulative of the testimony of three other witnesses. The defendant's answer is that this contention is inconsistent with the position taken by the State at the trial that Hargrove \"is a material witness in the case, being the owner of the property involved in the case.\" Defendant's position is untenable because no authority or facts are presented in support.",
"In State v. Berry and State v. Barela, it was unnecessary to deal with the question of harmless error. In each case, the deposition testimony of the doctor was essential to a conviction, because it was the only evidence which proved that the substance in the defendant's possession was heroin. The deposition testimony was not cumulative of any other testimony. Therefore, the admission of the deposition testimony was prejudicial error. It infringed on the defendant's \"substantial rights\", and violated \"substantial justice\".",
"See §§ 21-1-1(61) (Harmless Error), 21-2-1(17)(10), N.M.S.A. 1953 (Repl.Vol. 4). Having reviewed the whole record in the insant case, we hold that the Hargrove preliminary hearing testimony was not prejudicial. It was cumulative. The testimony of Hargrove's sister-in-law and two police officers established the essential elements of receiving stolen property under § 40A-16-11. \"A trial court may in its discretion permit cumulative testimony.\" State v. Miller, 2 Or. App. 353, 467 P.2d 683, 685 (1970), \"and error cannot be predicated on its admission where there is no abuse of discretion.\" Buckles v. State, 500 P.2d 518 (Wyo. ), cert. denied, 409 U.S. 1026, 93 S.Ct. 475, 34 L.Ed.2d 320 (1972); See 23 C.J.S. Criminal Law § 1041, at 1175-77. We find no abuse of discretion in the instant case. *74 C. Denial of the right of confrontation was reversible error. Defendant objected to the admission of Hargrove's preliminary hearing testimony, because it denied defendant the right to confront this witness at the trial. The objection was overruled. Article II, § 14 of the New Mexico Constitution provides that \"In all criminal prosecutions, the accused shall have the right * * * to be confronted with the witnesses against him; * * *\" In State v. Bailey, 62 N.M. 111, 305 P.2d 725 (1956), a situation identical to the one in the instant case was presented to the trial court.",
"Over objection, the court admitted into evidence the testimony of a witness taken at a preliminary hearing. In reversing the case, the court said: We conclude that in allowing the testimony of the witness to be read, the accused was denied his constitutional right of being confronted by the witnesses against him. The mere fact that the witness was absent from the jurisdiction of the court, was not enough. The exercise of due diligence on the part of the officers, in an effort to secure his attendance, was essential to the admission of the testimony of the absent witness. 62 N.M. at 113, 305 P.2d at 726. The essential ingredient of this rule is the exercise of due diligence by the State to secure the attendance of the witness. State v. Bailey, supra; State v. Barela, supra; State v. Mitchell, 86 N.M. 343, 524 P.2d 206 (Ct.App.",
"1974); State v. Jackson, 30 N.M. 309, 233 P. 49 (1924). See, also, State v. Kirk, 211 Kan. 165, 505 P.2d 619 (1973), in which admission of prior recorded testimony by an absent witness was held to be error because of the denial of the right of confrontation, even though the testimony was cumulative of the testimony of other witnesses. If the State makes such diligent effort to secure the attendance of an absent witness, and fails in this effort, the admission of the former testimony rests in the discretion of the trial court. State v. Holly, supra; State v. Jackson, supra. The record does not show any effort by the State to bring Hargrove from Montana to defendant's trial. In State v. Barela, supra, we said: The State contends the error in the admission of the deposition is harmless.",
"We disagree. The violation of a defendant's constitutional right is never harmless. 519 P.2d at 1187. It is never harmless, unless (a) there has been a waiver of the right of confrontation, or (b) the witness is unavailable. On the right of confrontation, the United States Supreme Court has stated the following: There are few subjects, perhaps, upon which this Court and other courts have been more nearly unanimous than in their expressions of belief that the right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial which is this country's constitutional goal. Pointer v. Texas, 380 U.S. 400, 405, 85 S.Ct. 1065, 1068, 13 L.Ed.2d 923, 927 (1965). Unless there has been a waiver of the right of confrontation, or it has been shown that the witness is unavailable after due diligence has been used by the State to attempt to produce him at trial, admission of a witness's prior recorded testimony violates a defendant's right of confrontation.",
"Infringement of that right cannot be harmless error. It is a right that is \"so basic to a fair trial that [its] infraction can never be treated as harmless error.\" Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, 827-28, 17 L.Ed.2d 705, 710 (1967). Here, there was no showing of due diligence by the State in attempting to produce Hargrove at trial. Therefore, admission of Hargrove's preliminary hearing testimony violated defendant's right to be confronted by this witness.",
"Such error necessitates reversal. Defendant's conviction is reversed, and defendant is granted a new trial. It is so ordered. *75 HENDLEY, J., specially concurs. HERNANDEZ, J., dissents. HENDLEY, Judge (specially concurring). I concur in Judge Sutin's result that defendant be awarded a new trial but for different reasons. First, Hargrove's testimony was inadmissible because the state made no attempt, other than the issuance of a subpoena, to secure the attendance of Hargrove. Both New Mexico and Montana have adopted the \"Uniform Act to Secure the Attendance of Witnesses from without a State in Criminal Proceedings.\" Sections 41-12-13 through 41-12-19, N.M.S.A.",
"1953 (2d Repl.Vol. 6, 1972); §§ 94-9001 through 94-9007, Repl.Vol. 8, Revised Codes of Montana, 1947. I would require, under the circumstances of this case, the state to use the procedures in the Uniform Act before a witness could be declared unavailable. Section 20-4-804, N.M.S.A. 1953 (Repl. Vol. 4, 1970, Supp. 1973). Second, the state contends the error was harmless since Mr. Hargrove's testimony was corroborative of the testimony of three other witnesses. It is true that Mr. Hargrove's testimony with regard to the unauthorized taking and the identity of the property was repetitious of that of the other witnesses. However, the testimony of the other witnesses as to these two elements was hearsay although no objection was made to its admission. Our Supreme Court in State v. Romero, 67 N.M. 82, 352 P.2d 781 (1960) stated: \"* * * hearsay evidence may have sufficient probative worth to support a verdict * * * However, this rule does not operate to make objectionable testimony conclusive proof of the matter asserted therein. The fact that it was hearsay does not prevent its use as proof so far as it has probative value, but this is limited to the extent of whatever rational persuasive power it may have.",
"* * *\" But compare Pitcock v. State, 168 Tex.Cr. R. 223, 324 S.W.2d 866 (1959) and Nesbit v. State, 71 Ga. App. 744, 32 S.E.2d 207 (1944), both standing for the proposition that hearsay admitted without objection is of no probative value whatsoever. As I cannot say that the hearsay testimony of the other witnesses was conclusive proof of two elements of the crime, State v. Romero, supra, and as I do not know what rational persuasive power it had in the eyes of the jury, we cannot say that the improperly received prior hearing testimony did not contribute to the conviction. See State v. Thurman, 84 N.M. 5, 498 P.2d 697 (Ct.App. 1972); State v. Lopez, 80 N.M. 599, 458 P.2d 851 (Ct.App. 1969). Thus, not being able to determine whether or not the error was harmless, I agree the defendant is entitled to a new trial. I need not reach the confrontation issue.",
"HERNANDEZ, Judge (dissenting). The preliminary hearing testimony complained of, made by Mr. Hargrove alleges, in essence, (1) that various items of household furniture were removed from his home without authority during a period of his absence, and (2) that the same items were discovered and subsequently identified by him in the defendant's home. The prosecution established these two facts by independent sources. In my opinion, the trial testimony of detective Brewton establishes that the furniture found in the defendant's home was identified by Mr. Hargrove as his. Brewton testified that he, Mr. Hargrove, and a second Roswell City Police Officer went to the defendant's home to determine whether the missing furniture could be located there. The defendant permitted their entry, and Mr. Hargrove identified the furniture. I do not agree that this testimony was hearsay. In similar circumstances, the Nevada Supreme Court has quoted approvingly from 20 Am.Jur., Evidence, § 555, p. 467, as follows: \"`An objection that a statement is hearsay is not available as to a statement *76 made in the presence of the party against whom the statement is offered in evidence and in a conversation in which he took part.'\"",
"Beasley v. State, 81 Nev. 431, 404 P.2d 911 (1965). And our Rule of Evidence, Section 20-4-801(d) provides: \"a statement is not hearsay if * * * (2) The statement is offered against a party and is * * * (B) a statement of which he has manifested his adoption or belief in its truth * * *.\" The defendant did not challenge Mr. Hargrove's statement that the furniture was his. On the question of whether the furniture belonged to Mr. Hargrove and was taken from his home without authorization, I believe the testimony adduced at trial from Mr. Hargrove's sister-in-law serves as an independent source. On direct examination she testified as follows: \"Q.",
"And, to your knowledge, did Jake Hargrove come up missing some furniture? \"A. Yes. sir. \"Q. You knew about this? \"A. Yes, sir.\" This testimony came in without objection, and nothing elicited by defense counsel on cross-examination served to undermine it. I would therefore hold that the preliminary hearing testimony read at trial was merely cumulative and that owing to the absence of proof of any prejudice suffered by the defendant as a result of its admission, what error there may have been in the trial court's failure to exact documentation from the prosecution on its claim that Mr. Hargrove was unavailable to repeat his testimony at the trial should be viewed as harmless. \"Cumulative evidence has repeatedly been defined to be additional evidence of the same kind to the same point.\" State v. Funderburke, 251 S.C. 536, 164 S.E.2d 309 (1968). \"* * * [W]hether cumulative evidence will be permitted is in the area of the court's discretion and the ruling thereon will not be disturbed on appeal unless it is made to appear that such discretion was abused.\" State v. Steinkraus, 76 N.M. 617, 417 P.2d 431 (1966). For the reasons stated, I do, therefore, respectfully register my dissent."
] | https://www.courtlistener.com/api/rest/v3/opinions/1373227/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
244 F.3d 742 (9th Cir. 2001) NATURAL RESOURCES DEFENSE COUNCIL, INC.; SNAKE RIVER ALLIANCE,Petitioners,v.SPENCER ABRAHAM,* Secretary of Energy; UNITED STATES OF AMERICA, Respondents. No. 00-70015 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted February 9, 2001Filed March 28, 2001
David E. Adelman (argued), Natural Resources Defense Council, Washington, D.C., and Eric R. Glitzenstein, Meyer& Glitzenstein, Washington, D.C., for the petitioners. Lisa E. Jones, Department of Justice, Environment & Natural Resources Division, Washington, D.C., for respondents. Petition to Review a Decision of the Department of Energy. DOE No.435.1 Before: Pamela Ann Rymer, Sidney R. Thomas and M. Margaret McKeown, Circuit Judges. Opinion by Judge Rymer RYMER, Circuit Judge:
1 This case involves Department of Energy (DOE) Order 435.1, together with its Manual and Implementation Guide, which provide (among other things) a process for determining whether certain radioactive waste streams are "waste incidental to reprocessing" that are not considered "high-level waste." The Natural Resources Defense Council, Inc. and the Snake River Alliance (collectively, NRDC) filed a petition for review in this court to set aside DOE Order 435.1. NRDC contends that the evaluation method adopted in the Order, Manual and Guide redefines "high-level radioactive waste" as low-level or transuranic waste, contrary to the Nuclear Waste Policy Act of 1982 (NWPA), 42 U.S.C. S 10101(12),1 and allows DOE, rather than the Environmental Protection Agency (EPA) and the Nuclear Regulatory Commission (NRC), to determine whether to leave this reprocessing waste in nuclear waste storage tanks at DOE's Hanford Reservation, Savannah River, and Idaho National Engineering Laboratory sites.2
2 As NRDC invokes our original jurisdiction pursuant to NWPA, 42 U.S.C. S 10139(a), we must first decide whether this is an agency decision over which S 10139(a) confers original and exclusive jurisdiction in the courts of appeals. NWPA's judicial review provisions are not a model of clarity. However, we conclude that this court lacks subject matter jurisdiction because DOE Order 435.1 pertains to management of radioactive waste at federal defense facilities and is not a decision "under" NWPA. Accordingly, we shall transfer this petition to the district court for the District of Idaho.
3 * NRDC submits that review of DOE Order 435.1 falls within S 10139(a)(1)(A). Section 10139(a) is NWPA's provision for judicial review, and subsection (1)(A) states:
4 . . . the United States courts of appeals shall have original and exclusive jurisdiction over any civil action
5 (A) for review of any final decision or action of the Secretary, the President, or the Commission under this part; . . .
6 "This part" -Part A of Subchapter I -of NWPA is entitled "Repositories for Disposal of High-Level Radioactive Waste and Spent Nuclear Fuel." Subchapter I is captioned "Disposal and Storage of High-Level Radioactive Waste, Spent Nuclear Fuel and Low-Level Radioactive Waste." Part A establishes procedures for disposal of high-level radioactive waste and spent nuclear fuel in repositories, now sited solely at Yucca Mountain, Nevada. See Nevada v. Department Of Energy, 133 F.3d 1201, 1203 (9th Cir. 1998). The purposes of "this part" are to establish a schedule for siting, constructing and operating repositories; to establish the federal responsibility for disposal of civilian waste and spent fuel; to define the relationship between the federal government and state governments with respect to disposal of such waste and spent fuel; and to establish a Nuclear Waste Fund, composed of payments made by generators and owners of such waste. 42 U.S.C. S 10131(b). Hanford, Savannah and the Idaho National Engineering Laboratory are federal facilities where high-level waste is generated and stored; they pre-date NWPA, and are not repositories. For these reasons, DOE maintains that NWPA does not govern its waste management decisions at these installations; thus, DOE Order 431.5 is not a decision under NWPA that is subject to judicial review within this court's original jurisdiction.
7 "In the NWPA, Congress created a comprehensive scheme for the interim storage and permanent disposal of high-level radioactive waste generated by civilian nuclear power plants." Indiana Michigan Power Co. v. Department of Energy, 88 F.3d 1272, 1273 (D.C. Cir. 1996). Section 10107(a) provides that NWPA does not apply to any atomic energy defense activity or facility.3 NRDC acknowledges that NWPA does not require defense high-level waste to be disposed in a repository, but points out that it does require the President to evaluate potential methods for disposing of such waste. 42 U.S.C. S 10107(b)(1). Because the President determined on April 30, 1985, that a separate facility was not necessary for defense high-level waste, NRDC notes that DOE only has authority for disposal of defense high-level wastes at Yucca Mountain.4
8 While this may be true, DOE Order 435.1 addresses management of wastes at DOE facilities. The authority to do so comes from the Atomic Energy Act (AEA), 42 U.S.C. S 2151 et seq.; the Energy Reorganization Act (ERA), Pub. L. No. 98-438, 88 Stat. 1233, codified at 42 U.S.C. S 5801 et seq.; and the Department of Energy Organization Act (DEO),Pub. L. No. 95-91, 91 Stat. 565, codified at 42 U.S.C. S 7101 et seq.
9 The AEA, enacted in 1954, established a comprehensive regulatory scheme for military and domestic nuclear energy. It authorized the Atomic Energy Commission (AEC) -now DOE and NRC -to establish instructions by rule, regulation, or order, governing possession and use of nuclear material5 and the operation of facilities used in conducting its activities.6 When the AEC was abolished in 1974, its functions were transferred to the Energy Research and Development Agency (ERDA), DOE's predecessor agency, and to the NRC. See Energy Reorganization Act of 1974 (ERA), Pub. L. No. 93438 SS 104, 201, 88 Stat. 1233, 1237-38, 1242-44, codified at 42 U.S.C. S 5814. Under the ERA, NRC was given commercial licensing and related regulatory functions; the ERDA took over the rest of AEC's functions, except that the NRC must license ERDA facilities that are authorized for "subsequent long-term storage of high-level radioactive waste generated by the Administration." 42 U.S.C. S 5842. As the Senate Committee explained, "[i]t is not the intent of the committee to require licensing of such storage facilities which are already in existence . . ." S.Rep.No. 93-980, 93d Cong., 2d sess., reprinted in 1974 U.S.C.C.A.N 5520-21; see also Natural Resources Defense Council, Inc. v. Nuclear Regulatory Commission, 606 F.2d 1261, 1267 (D.C. Cir. 1979). In 1977, Congress abolished ERDA and transferred its functions to DOE. See DEO, S 301(a), Pub. L. No. 95-91, 91 Stat. 565, 577-78 (1977), codified at 42 U.S.C. S 7151(a). This left control over existing government facilities and defense nuclear waste in DOE. See 42 U.S.C. S 7133(a)(8)(A), (B), (C), and (E).7
10 DOE Order 435.1 was promulgated in accordance with the AEA to replace a previous DOE Order on Radioactive Waste Management, DOE O 5820.2A, and applies to the management of all high-level waste, transuranic waste, and low-level waste for which DOE is responsible. It is not a decision about the siting of a repository, establishing federal responsibility for disposal of civilian radioactive waste, defining the relationship between the federal government and state governments with respect to disposal of such waste and spent fuel, or establishing a Nuclear Waste Fund under Part A of Subchapter I of NWPA. See 42 U.S.C. S 10131(b). Nor is DOE Order 435.1 a decision under any other Part of Subchapter I, or of any other Subchapter of NWPA.8 Therefore, this action does not seek review of any decision that is directly "under this part."9
11 NRDC does not argue otherwise; rather, it posits that the Manual and Guide accompanying DOE Order 435.1 state that all high-level waste must be disposed pursuant to the NWPA. The Manual provides that "[d]isposal of high-level wastemust be in accordance with the provisions of the Atomic Energy Act of 1954, as amended, the Nuclear Waste Policy Act of 1982, as amended, or any other applicable statutes." DOE M 435.1-1 at II-12. The Guide observes that "[b]ackground and knowledge of both the Nuclear Waste Policy Act of 1982, as amended, definition and the Nuclear Regulatory Commission definition, at 10 CFR Part 60, is needed to ensure that waste that is to be managed as high-level waste has been properly characterized to be high-level waste." DOE G 435.1-1 at II-1. From these statements NRDC infers that the NWPA is necessarily implicated whenever high-level waste is disposed, and the AEA does not exclusively control DOE's disposal of defense high-level waste.
12 Whether or not this is so, it does not follow that DOE was making a decision "under [Part A]" of NWPA for purposes of this court's original jurisdiction over NRDC's action. NWPA -like any other authority -can be implicated by a decision that is not "under" it for purposes of subject matter jurisdiction.
13 NRDC also points to NWPA's overarching purpose of establishing federal policy for safely disposing of all highlevel wastes, 42 U.S.C. S 10131(a),10 and contends that NWPA should be broadly construed to enfold any kind of disposal of high-level waste. In its view, this would bring the order's incidental waste process under the jurisdiction of the Act because no matter what it is called, the waste continues to be "waste resulting from reprocessing" that must be disposed in accordance with NWPA. NRDC further suggests that reading the judicial review provision in NWPA to apply to the entire Act, as the court did in General Electric Uranium Management Corp. v. Department of Energy, 764 F.2d 896 (D.C. Cir. 1985), compels us to take jurisdiction of this case. We disagree.
14 General Electric arose in the quite different context of a DOE rule establishing the basis upon which the agency would compute a fee for fuel spent to generate electricity prior to April 7, 1983. NWPA established a Nuclear Waste Fund and specifically prescribed a one-time fee for electricity generated by spent nuclear fuel. 42 U.S.C. S 10222(a)(3). However, the provision for a one-time fee is not within the same part as the judicial review provision; and the Subchapter of which it is a part itself has no specific review provision. When General Electric challenged the one-time fee set by DOE as contrary to the fee prescribed by Congress in NWPA, the court held that the rule fell within the class of agency actions reviewable under S 10139(a)(1)(A) because it was inconceivable that Congress provided review in the courts of appeals for all of the waste disposal actions identified in the Act,11 but not for questions concerning the composition of the Nuclear Waste Fund and a few other matters located in Subchapter III. Unlike orders with respect to management of waste at existingfederal (defense) facilities, some kind of one-time fee rule for civilian generators was clearly contemplated by NWPA and the rule at issue was promulgated pursuant to DOE's statutory mandate under NWPA. In these circumstances, the court concluded that it was sensible for review to be in the appellate tribunal.
15 Tennessee v. Herrington, 806 F.2d 642 (6th Cir. 1986), presented a similar situation. The State of Tennessee challenged the legality of DOE's proposal for construction of a monitored retrievable storage facility (MRS) for failure to comply with NWPA's consultation and cooperation obligations. The MRS, if adopted by Congress, was to serve as a back-up to the repository program to accommodate spent nuclear fuel and high-level radioactive waste resulting from civilian nuclear activities. 42 U.S.C. S 10161(b)(1). Section 10161 of the Act contains all of the express provisions relating to MRS, but does not expressly state that MRS facilities are subject to the jurisdictional provisions ofS 10139(a). The MRS provisions are located in Part C, not Part A of Subchapter I. However, S 10161(h) makes several sections and subsections of Part A applicable to the MRS siting process. These are the NWPA sections upon which Tennessee's claim was based. In these circumstances, the court agreed with DOE's contention that, at least to the extent DOE's conduct is required because of the incorporation of sections found in Part A, actions arising under S 10161(h) are subject to the appellate court's original jurisdiction. Here, DOE's definition of "waste incidental to reprocessing" may or may not comport with NWPA's definition of "high-level waste" in S 10101, but DOE's conduct is not required by virtue of any section of NWPA linked to Part A.
16 We recognize the value of concentrating all actions that contest final DOE decisions under NWPA in the courts of appeals. The Court of Appeals for the District of Columbia Circuit explained this well in General Electric . 764 F.2d at 903-904. Nevertheless, NWPA's provision for judicial review is limited to decisions "under" the part , or at least under the Act when the decision is pursuant to a part of the Act and relates to the purposes of the part in which the judicial review provision is placed.
17 Because DOE Order 435.1 is not a decision under Part A of Subchapter I or of any other section of NWPA, we lack original or exclusive jurisdiction over this action.
II
18 NRDC urges us to transfer the action to district court instead of dismissing it if, contrary to the position that NRDC's believes is correct, we conclude that its challenge isnot subject to judicial review under S 10139(a). DOE advances a number of arguments to the contrary, but on balance we believe that transfer is appropriate. In transferring the petition, we express no view, one way or the other, about the remaining jurisdictional and prudential issues raised by the Secretary. We leave issues of standing, ripeness, and of course the merits to the district court.
19 Although the parties have made no suggestions about a transferee forum, we presume that the District of Idaho is proper, as it is the only district in this circuit where a target plaintiff resides. Therefore, we order the petition transferred to the District of Idaho.12
20 PETITION TRANSFERRED.
Notes:
* Spencer Abraham is substituted for his predecessor, Bill Richardson, as Secretary of Energy. Fed. R. App. P. 43(c)(2).
1 Section 10101(12) provides: The term "high-level radioactive waste" means (A) the highly radioactive material resulting from the re processing of spent nuclear fuel, including liquid waste produced directly in reprocessing and any solid material derived from such liquid waste that contains fission products in sufficient concentra tions; and (B) other highly radioactive material that the Commission, consistent with existing law, determines by rule requires perma nent isolation. The Manual's definition of high-level waste is: High-level waste is the highly radioactive waste material result ing from the reprocessing of spent nuclear fuel, including liquid waste produced directly in reprocessing and any solid material derived from such liquid waste that contains fission products in sufficient concentrations; and other highly radioactive material that is determined, consistent with existing law, to require perma nent isolation. DOE M 435.1-1 at II-1. The manual describes "Waste Incidental to Reprocessing" as follows: Waste resulting from reprocessing spent nuclear fuel that is deter mined to be incidental to reprocessing is not high-level waste, and shall be managed under DOE's regulatory authority in accor dance with the requirements for transuranic waste or low-level waste, as appropriate. When determining whether spent nuclear fuel reprocessing plant wastes shall be managed as another waste type or as high-level waste, either the citation or evaluation pro cess . . . shall be used: . . . Id.
2 For purposes of this decision, we assume NRDC's standing to make a NWPA challenge. See Friends of the Earth, Inc. v. Laidlaw Environmental Servs., 528 U.S. 167 (2000).
3 Section 10107(a), "Atomic energy defense activities," states: Subject to the provisions of subsection (c) of this section, the pro visions of this chapter shall not apply with respect to any atomic energy defense activity or to any facility used in connection with any such activity. Subsection (c), "Applicability to certain repositories," provides: The provisions of this chapter shall apply with respect to any repository not used exclusively for the disposal of high-level radioactive waste or spent nuclear fuel resulting from atomic energy defense activities, research and development activities of the Secretary, or both.
4 See National Association of Regulatory Utility Commissioners (NARUC) v. Department of Energy, 851 F.2d 1424, 1426 (D.C. Cir. 1988)(hereinafter "NARUC"). In NARUC, the court explained that when Congress passed NWPA it did not decide whether high-level radioactive waste resulting from atomic energy defense activities should be stored in repositories developed under the Act or separately. Once the President determined that defense wastes should be disposed in the repositories being developed for civilian waste under NWPA, DOE was obliged under NWPA to arrange for use of the civilian repository for disposal of defense high-level waste. 42 U.S.C. S 10107(b)(2). Section 10107(b)(2) provides that "[s]uch arrangements shall include the allocation of costs of developing, constructing and, operating" the repository.
5 42 U.S.C. S 2201(b) authorized the AEC to establish by rule, regulation, or order, such standards and instruc tions to govern the possession and use of special nuclear material, source material, and byproduct material as the Commission may deem necessary or desirable to promote the common defense and security or to protect health or to minimize danger to life or prop erty . . . .
6 42 U.S.C. S 2201(i)(3) authorized the AEC to prescribe such orders as it deemed necessary to govern any activity authorized pursuant to this chapter, includ ing standards and restrictions governing the design, location, and operation of facilities used in the conduct of such activity, in order to protect health and to minimize danger to life or property . . . .
7 Section 7133(a)(8) assigns to Assistant Secretaries of DOE [n]uclear waste management responsibilities, including (A) the establishment of control over existing Government facilities for the treatment and storage of nuclear wastes, includ ing all containers, casks, buildings, vehicles, equipment, and all other materials associated with such facilities; (B) the establishment of control over all existing nuclear waste in the possession or control of the Government and all commercial nuclear waste presently stored on other than the site of a licensed nuclear power electric generating facility, except that nothing in this paragraph shall alter or effect title to such waste; (C) the establishment of temporary and permanent facilities for storage, management, and ultimate disposal of nuclear wastes; (D) the establishment of facilities for the treatment of nuclear wastes; (E) the establishment of programs for the treatment, manage ment, storage, and disposal of nuclear wastes; . . ..
8 Part B sets up an interim program for federal storage of spent fuel from civilian nuclear power plants; Part C has to do with monitored retrievable storage facilities; Part D concerns closure of low-level radioactive waste sites; Part E redirects the nuclear waste program to Yucca Mountain; Parts F and G permit benefits agreements; and Part H deals with transportation. Subchapter II of the Act provides for development of a test and evaluation facility.
9 For this purpose we assume, without deciding, that DOE Order 435.1 represents a "final" decision or action of the Secretary.
10 Section 10131(a) sets forth the Congressional findings that (1) radioactive waste creates potential risks and requires safe and environmentally acceptable methods of disposal; (2) a national problem has been created by the accumulation of (A) spent nuclear fuel from nuclear reactors; and (B) radioactive waste from (i) reprocessing of spent nuclear fuel; (ii) activities related to medical research, diagnosis, and treatment; and (iii) other sources; (3) Federal efforts during the past 30 years to devise a perma nent solution to the problems of civilian radioactive waste dis posal have not been adequate; (4) while the Federal Government has the responsibility to pro vide for the permanent disposal of high-level radioactive waste and such spent nuclear fuel as may be disposed of in order to pro tect the public health and safety and the environment, the costs of such disposal should be the responsibility of the generators and owners of such waste and spent fuel; (5) the generators and owners of high-level radioactive waste and spent nuclear fuel have the primary responsibility to provide for, and the responsibility to pay the costs of, the interim storage of such waste and spent fuel until such waste and spent fuel is accepted by the Secretary of Energy in accordance with the pro visions of this chapter; (6) State and public participation in the planning and develop ment of repositories is essential in order to promote public confi dence in the safety of disposal of such waste and spent fuel; and (7) high-level radioactive waste and spent fuel have become major subjects of public concern, and appropriate precautions must be taken to ensure that such waste and spent fuel do not adversely affect the public health and safety and the environment for this or future generations.
11 The court's list of actions concerning waste disposal over which Congress intended the courts of appeals to have review include "the choice, characterization, approval of, and authorization for construction of candidate sites; federal agency actions such as coordination and environmental review; research and development questions relating to the disposal of high-level wastes and [spent nuclear fuel], including funding and payments to the states and Indian tribes under the Act. " 764 F.2d at 901-02 (footnotes omitted).
12 We note in this connection that the Petition also seeks to set aside DOE's July 14, 1999 finding that Order 435.1 is excluded from the requirements of the National Environmental Policy Act, 42 U.S.C. SS 4321 et seq., a claim which NRDC elected not to pursue in this court. | 04-18-2012 | [
"244 F.3d 742 (9th Cir. 2001) NATURAL RESOURCES DEFENSE COUNCIL, INC.; SNAKE RIVER ALLIANCE,Petitioners,v.SPENCER ABRAHAM,* Secretary of Energy; UNITED STATES OF AMERICA, Respondents. No. 00-70015 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted February 9, 2001Filed March 28, 2001 David E. Adelman (argued), Natural Resources Defense Council, Washington, D.C., and Eric R. Glitzenstein, Meyer& Glitzenstein, Washington, D.C., for the petitioners. Lisa E. Jones, Department of Justice, Environment & Natural Resources Division, Washington, D.C., for respondents. Petition to Review a Decision of the Department of Energy. DOE No.435.1 Before: Pamela Ann Rymer, Sidney R. Thomas and M. Margaret McKeown, Circuit Judges. Opinion by Judge Rymer RYMER, Circuit Judge: 1 This case involves Department of Energy (DOE) Order 435.1, together with its Manual and Implementation Guide, which provide (among other things) a process for determining whether certain radioactive waste streams are \"waste incidental to reprocessing\" that are not considered \"high-level waste.\" The Natural Resources Defense Council, Inc. and the Snake River Alliance (collectively, NRDC) filed a petition for review in this court to set aside DOE Order 435.1. NRDC contends that the evaluation method adopted in the Order, Manual and Guide redefines \"high-level radioactive waste\" as low-level or transuranic waste, contrary to the Nuclear Waste Policy Act of 1982 (NWPA), 42 U.S.C.",
"S 10101(12),1 and allows DOE, rather than the Environmental Protection Agency (EPA) and the Nuclear Regulatory Commission (NRC), to determine whether to leave this reprocessing waste in nuclear waste storage tanks at DOE's Hanford Reservation, Savannah River, and Idaho National Engineering Laboratory sites.2 2 As NRDC invokes our original jurisdiction pursuant to NWPA, 42 U.S.C. S 10139(a), we must first decide whether this is an agency decision over which S 10139(a) confers original and exclusive jurisdiction in the courts of appeals.",
"NWPA's judicial review provisions are not a model of clarity. However, we conclude that this court lacks subject matter jurisdiction because DOE Order 435.1 pertains to management of radioactive waste at federal defense facilities and is not a decision \"under\" NWPA. Accordingly, we shall transfer this petition to the district court for the District of Idaho. 3 * NRDC submits that review of DOE Order 435.1 falls within S 10139(a)(1)(A). Section 10139(a) is NWPA's provision for judicial review, and subsection (1)(A) states: 4 . . . the United States courts of appeals shall have original and exclusive jurisdiction over any civil action 5 (A) for review of any final decision or action of the Secretary, the President, or the Commission under this part; . . . 6 \"This part\" -Part A of Subchapter I -of NWPA is entitled \"Repositories for Disposal of High-Level Radioactive Waste and Spent Nuclear Fuel.\"",
"Subchapter I is captioned \"Disposal and Storage of High-Level Radioactive Waste, Spent Nuclear Fuel and Low-Level Radioactive Waste.\" Part A establishes procedures for disposal of high-level radioactive waste and spent nuclear fuel in repositories, now sited solely at Yucca Mountain, Nevada. See Nevada v. Department Of Energy, 133 F.3d 1201, 1203 (9th Cir. 1998). The purposes of \"this part\" are to establish a schedule for siting, constructing and operating repositories; to establish the federal responsibility for disposal of civilian waste and spent fuel; to define the relationship between the federal government and state governments with respect to disposal of such waste and spent fuel; and to establish a Nuclear Waste Fund, composed of payments made by generators and owners of such waste. 42 U.S.C. S 10131(b). Hanford, Savannah and the Idaho National Engineering Laboratory are federal facilities where high-level waste is generated and stored; they pre-date NWPA, and are not repositories. For these reasons, DOE maintains that NWPA does not govern its waste management decisions at these installations; thus, DOE Order 431.5 is not a decision under NWPA that is subject to judicial review within this court's original jurisdiction. 7 \"In the NWPA, Congress created a comprehensive scheme for the interim storage and permanent disposal of high-level radioactive waste generated by civilian nuclear power plants.\" Indiana Michigan Power Co. v. Department of Energy, 88 F.3d 1272, 1273 (D.C. Cir.",
"1996). Section 10107(a) provides that NWPA does not apply to any atomic energy defense activity or facility.3 NRDC acknowledges that NWPA does not require defense high-level waste to be disposed in a repository, but points out that it does require the President to evaluate potential methods for disposing of such waste. 42 U.S.C. S 10107(b)(1). Because the President determined on April 30, 1985, that a separate facility was not necessary for defense high-level waste, NRDC notes that DOE only has authority for disposal of defense high-level wastes at Yucca Mountain.4 8 While this may be true, DOE Order 435.1 addresses management of wastes at DOE facilities. The authority to do so comes from the Atomic Energy Act (AEA), 42 U.S.C.",
"S 2151 et seq. ; the Energy Reorganization Act (ERA), Pub. L. No. 98-438, 88 Stat. 1233, codified at 42 U.S.C. S 5801 et seq. ; and the Department of Energy Organization Act (DEO),Pub. L. No. 95-91, 91 Stat. 565, codified at 42 U.S.C. S 7101 et seq. 9 The AEA, enacted in 1954, established a comprehensive regulatory scheme for military and domestic nuclear energy. It authorized the Atomic Energy Commission (AEC) -now DOE and NRC -to establish instructions by rule, regulation, or order, governing possession and use of nuclear material5 and the operation of facilities used in conducting its activities.6 When the AEC was abolished in 1974, its functions were transferred to the Energy Research and Development Agency (ERDA), DOE's predecessor agency, and to the NRC.",
"See Energy Reorganization Act of 1974 (ERA), Pub. L. No. 93438 SS 104, 201, 88 Stat. 1233, 1237-38, 1242-44, codified at 42 U.S.C. S 5814. Under the ERA, NRC was given commercial licensing and related regulatory functions; the ERDA took over the rest of AEC's functions, except that the NRC must license ERDA facilities that are authorized for \"subsequent long-term storage of high-level radioactive waste generated by the Administration.\" 42 U.S.C. S 5842. As the Senate Committee explained, \"[i]t is not the intent of the committee to require licensing of such storage facilities which are already in existence . . .\" S.Rep.No.",
"93-980, 93d Cong., 2d sess., reprinted in 1974 U.S.C.C.A.N 5520-21; see also Natural Resources Defense Council, Inc. v. Nuclear Regulatory Commission, 606 F.2d 1261, 1267 (D.C. Cir. 1979). In 1977, Congress abolished ERDA and transferred its functions to DOE. See DEO, S 301(a), Pub. L. No. 95-91, 91 Stat. 565, 577-78 (1977), codified at 42 U.S.C. S 7151(a). This left control over existing government facilities and defense nuclear waste in DOE. See 42 U.S.C. S 7133(a)(8)(A), (B), (C), and (E).7 10 DOE Order 435.1 was promulgated in accordance with the AEA to replace a previous DOE Order on Radioactive Waste Management, DOE O 5820.2A, and applies to the management of all high-level waste, transuranic waste, and low-level waste for which DOE is responsible. It is not a decision about the siting of a repository, establishing federal responsibility for disposal of civilian radioactive waste, defining the relationship between the federal government and state governments with respect to disposal of such waste and spent fuel, or establishing a Nuclear Waste Fund under Part A of Subchapter I of NWPA. See 42 U.S.C. S 10131(b).",
"Nor is DOE Order 435.1 a decision under any other Part of Subchapter I, or of any other Subchapter of NWPA.8 Therefore, this action does not seek review of any decision that is directly \"under this part. \"9 11 NRDC does not argue otherwise; rather, it posits that the Manual and Guide accompanying DOE Order 435.1 state that all high-level waste must be disposed pursuant to the NWPA. The Manual provides that \"[d]isposal of high-level wastemust be in accordance with the provisions of the Atomic Energy Act of 1954, as amended, the Nuclear Waste Policy Act of 1982, as amended, or any other applicable statutes.\" DOE M 435.1-1 at II-12. The Guide observes that \"[b]ackground and knowledge of both the Nuclear Waste Policy Act of 1982, as amended, definition and the Nuclear Regulatory Commission definition, at 10 CFR Part 60, is needed to ensure that waste that is to be managed as high-level waste has been properly characterized to be high-level waste.\"",
"DOE G 435.1-1 at II-1. From these statements NRDC infers that the NWPA is necessarily implicated whenever high-level waste is disposed, and the AEA does not exclusively control DOE's disposal of defense high-level waste. 12 Whether or not this is so, it does not follow that DOE was making a decision \"under [Part A]\" of NWPA for purposes of this court's original jurisdiction over NRDC's action. NWPA -like any other authority -can be implicated by a decision that is not \"under\" it for purposes of subject matter jurisdiction. 13 NRDC also points to NWPA's overarching purpose of establishing federal policy for safely disposing of all highlevel wastes, 42 U.S.C. S 10131(a),10 and contends that NWPA should be broadly construed to enfold any kind of disposal of high-level waste.",
"In its view, this would bring the order's incidental waste process under the jurisdiction of the Act because no matter what it is called, the waste continues to be \"waste resulting from reprocessing\" that must be disposed in accordance with NWPA. NRDC further suggests that reading the judicial review provision in NWPA to apply to the entire Act, as the court did in General Electric Uranium Management Corp. v. Department of Energy, 764 F.2d 896 (D.C. Cir. 1985), compels us to take jurisdiction of this case. We disagree. 14 General Electric arose in the quite different context of a DOE rule establishing the basis upon which the agency would compute a fee for fuel spent to generate electricity prior to April 7, 1983. NWPA established a Nuclear Waste Fund and specifically prescribed a one-time fee for electricity generated by spent nuclear fuel. 42 U.S.C.",
"S 10222(a)(3). However, the provision for a one-time fee is not within the same part as the judicial review provision; and the Subchapter of which it is a part itself has no specific review provision. When General Electric challenged the one-time fee set by DOE as contrary to the fee prescribed by Congress in NWPA, the court held that the rule fell within the class of agency actions reviewable under S 10139(a)(1)(A) because it was inconceivable that Congress provided review in the courts of appeals for all of the waste disposal actions identified in the Act,11 but not for questions concerning the composition of the Nuclear Waste Fund and a few other matters located in Subchapter III. Unlike orders with respect to management of waste at existingfederal (defense) facilities, some kind of one-time fee rule for civilian generators was clearly contemplated by NWPA and the rule at issue was promulgated pursuant to DOE's statutory mandate under NWPA. In these circumstances, the court concluded that it was sensible for review to be in the appellate tribunal. 15 Tennessee v. Herrington, 806 F.2d 642 (6th Cir. 1986), presented a similar situation.",
"The State of Tennessee challenged the legality of DOE's proposal for construction of a monitored retrievable storage facility (MRS) for failure to comply with NWPA's consultation and cooperation obligations. The MRS, if adopted by Congress, was to serve as a back-up to the repository program to accommodate spent nuclear fuel and high-level radioactive waste resulting from civilian nuclear activities. 42 U.S.C. S 10161(b)(1). Section 10161 of the Act contains all of the express provisions relating to MRS, but does not expressly state that MRS facilities are subject to the jurisdictional provisions ofS 10139(a). The MRS provisions are located in Part C, not Part A of Subchapter I.",
"However, S 10161(h) makes several sections and subsections of Part A applicable to the MRS siting process. These are the NWPA sections upon which Tennessee's claim was based. In these circumstances, the court agreed with DOE's contention that, at least to the extent DOE's conduct is required because of the incorporation of sections found in Part A, actions arising under S 10161(h) are subject to the appellate court's original jurisdiction. Here, DOE's definition of \"waste incidental to reprocessing\" may or may not comport with NWPA's definition of \"high-level waste\" in S 10101, but DOE's conduct is not required by virtue of any section of NWPA linked to Part A.",
"16 We recognize the value of concentrating all actions that contest final DOE decisions under NWPA in the courts of appeals. The Court of Appeals for the District of Columbia Circuit explained this well in General Electric . 764 F.2d at 903-904. Nevertheless, NWPA's provision for judicial review is limited to decisions \"under\" the part , or at least under the Act when the decision is pursuant to a part of the Act and relates to the purposes of the part in which the judicial review provision is placed. 17 Because DOE Order 435.1 is not a decision under Part A of Subchapter I or of any other section of NWPA, we lack original or exclusive jurisdiction over this action. II 18 NRDC urges us to transfer the action to district court instead of dismissing it if, contrary to the position that NRDC's believes is correct, we conclude that its challenge isnot subject to judicial review under S 10139(a).",
"DOE advances a number of arguments to the contrary, but on balance we believe that transfer is appropriate. In transferring the petition, we express no view, one way or the other, about the remaining jurisdictional and prudential issues raised by the Secretary. We leave issues of standing, ripeness, and of course the merits to the district court. 19 Although the parties have made no suggestions about a transferee forum, we presume that the District of Idaho is proper, as it is the only district in this circuit where a target plaintiff resides. Therefore, we order the petition transferred to the District of Idaho.12 20 PETITION TRANSFERRED. Notes: * Spencer Abraham is substituted for his predecessor, Bill Richardson, as Secretary of Energy. Fed.",
"R. App. P. 43(c)(2). 1 Section 10101(12) provides: The term \"high-level radioactive waste\" means (A) the highly radioactive material resulting from the re processing of spent nuclear fuel, including liquid waste produced directly in reprocessing and any solid material derived from such liquid waste that contains fission products in sufficient concentra tions; and (B) other highly radioactive material that the Commission, consistent with existing law, determines by rule requires perma nent isolation. The Manual's definition of high-level waste is: High-level waste is the highly radioactive waste material result ing from the reprocessing of spent nuclear fuel, including liquid waste produced directly in reprocessing and any solid material derived from such liquid waste that contains fission products in sufficient concentrations; and other highly radioactive material that is determined, consistent with existing law, to require perma nent isolation. DOE M 435.1-1 at II-1.",
"The manual describes \"Waste Incidental to Reprocessing\" as follows: Waste resulting from reprocessing spent nuclear fuel that is deter mined to be incidental to reprocessing is not high-level waste, and shall be managed under DOE's regulatory authority in accor dance with the requirements for transuranic waste or low-level waste, as appropriate. When determining whether spent nuclear fuel reprocessing plant wastes shall be managed as another waste type or as high-level waste, either the citation or evaluation pro cess . . . shall be used: . . . Id. 2 For purposes of this decision, we assume NRDC's standing to make a NWPA challenge. See Friends of the Earth, Inc. v. Laidlaw Environmental Servs., 528 U.S. 167 (2000).",
"3 Section 10107(a), \"Atomic energy defense activities,\" states: Subject to the provisions of subsection (c) of this section, the pro visions of this chapter shall not apply with respect to any atomic energy defense activity or to any facility used in connection with any such activity. Subsection (c), \"Applicability to certain repositories,\" provides: The provisions of this chapter shall apply with respect to any repository not used exclusively for the disposal of high-level radioactive waste or spent nuclear fuel resulting from atomic energy defense activities, research and development activities of the Secretary, or both.",
"4 See National Association of Regulatory Utility Commissioners (NARUC) v. Department of Energy, 851 F.2d 1424, 1426 (D.C. Cir. 1988)(hereinafter \"NARUC\"). In NARUC, the court explained that when Congress passed NWPA it did not decide whether high-level radioactive waste resulting from atomic energy defense activities should be stored in repositories developed under the Act or separately. Once the President determined that defense wastes should be disposed in the repositories being developed for civilian waste under NWPA, DOE was obliged under NWPA to arrange for use of the civilian repository for disposal of defense high-level waste. 42 U.S.C.",
"S 10107(b)(2). Section 10107(b)(2) provides that \"[s]uch arrangements shall include the allocation of costs of developing, constructing and, operating\" the repository. 5 42 U.S.C. S 2201(b) authorized the AEC to establish by rule, regulation, or order, such standards and instruc tions to govern the possession and use of special nuclear material, source material, and byproduct material as the Commission may deem necessary or desirable to promote the common defense and security or to protect health or to minimize danger to life or prop erty . . . . 6 42 U.S.C. S 2201(i)(3) authorized the AEC to prescribe such orders as it deemed necessary to govern any activity authorized pursuant to this chapter, includ ing standards and restrictions governing the design, location, and operation of facilities used in the conduct of such activity, in order to protect health and to minimize danger to life or property . .",
". . 7 Section 7133(a)(8) assigns to Assistant Secretaries of DOE [n]uclear waste management responsibilities, including (A) the establishment of control over existing Government facilities for the treatment and storage of nuclear wastes, includ ing all containers, casks, buildings, vehicles, equipment, and all other materials associated with such facilities; (B) the establishment of control over all existing nuclear waste in the possession or control of the Government and all commercial nuclear waste presently stored on other than the site of a licensed nuclear power electric generating facility, except that nothing in this paragraph shall alter or effect title to such waste; (C) the establishment of temporary and permanent facilities for storage, management, and ultimate disposal of nuclear wastes; (D) the establishment of facilities for the treatment of nuclear wastes; (E) the establishment of programs for the treatment, manage ment, storage, and disposal of nuclear wastes; . .",
".. 8 Part B sets up an interim program for federal storage of spent fuel from civilian nuclear power plants; Part C has to do with monitored retrievable storage facilities; Part D concerns closure of low-level radioactive waste sites; Part E redirects the nuclear waste program to Yucca Mountain; Parts F and G permit benefits agreements; and Part H deals with transportation. Subchapter II of the Act provides for development of a test and evaluation facility. 9 For this purpose we assume, without deciding, that DOE Order 435.1 represents a \"final\" decision or action of the Secretary. 10 Section 10131(a) sets forth the Congressional findings that (1) radioactive waste creates potential risks and requires safe and environmentally acceptable methods of disposal; (2) a national problem has been created by the accumulation of (A) spent nuclear fuel from nuclear reactors; and (B) radioactive waste from (i) reprocessing of spent nuclear fuel; (ii) activities related to medical research, diagnosis, and treatment; and (iii) other sources; (3) Federal efforts during the past 30 years to devise a perma nent solution to the problems of civilian radioactive waste dis posal have not been adequate; (4) while the Federal Government has the responsibility to pro vide for the permanent disposal of high-level radioactive waste and such spent nuclear fuel as may be disposed of in order to pro tect the public health and safety and the environment, the costs of such disposal should be the responsibility of the generators and owners of such waste and spent fuel; (5) the generators and owners of high-level radioactive waste and spent nuclear fuel have the primary responsibility to provide for, and the responsibility to pay the costs of, the interim storage of such waste and spent fuel until such waste and spent fuel is accepted by the Secretary of Energy in accordance with the pro visions of this chapter; (6) State and public participation in the planning and develop ment of repositories is essential in order to promote public confi dence in the safety of disposal of such waste and spent fuel; and (7) high-level radioactive waste and spent fuel have become major subjects of public concern, and appropriate precautions must be taken to ensure that such waste and spent fuel do not adversely affect the public health and safety and the environment for this or future generations.",
"11 The court's list of actions concerning waste disposal over which Congress intended the courts of appeals to have review include \"the choice, characterization, approval of, and authorization for construction of candidate sites; federal agency actions such as coordination and environmental review; research and development questions relating to the disposal of high-level wastes and [spent nuclear fuel], including funding and payments to the states and Indian tribes under the Act. \" 764 F.2d at 901-02 (footnotes omitted). 12 We note in this connection that the Petition also seeks to set aside DOE's July 14, 1999 finding that Order 435.1 is excluded from the requirements of the National Environmental Policy Act, 42 U.S.C. SS 4321 et seq., a claim which NRDC elected not to pursue in this court."
] | https://www.courtlistener.com/api/rest/v3/opinions/772610/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
142 Ariz. 119 (1984) 688 P.2d 1011 STATE of Arizona, Appellee, v. Louis Martinez DIAZ, Appellant. No. 6303-PR. Supreme Court of Arizona, En Banc. October 3, 1984. Robert K. Corbin, Atty. Gen. by William J. Schafer, III, Greg A. McCarthy, Phoenix, for appellee. Charles L. Weninger, Tucson, for appellant. HOLOHAN, Chief Justice. The defendant Louis Martinez Diaz was tried and convicted of two counts charging burglary in the second degree with a prior conviction. The trial court sentenced him to prison for 7.5 years on each count with the sentences to be served concurrently. The sentence on each count was enhanced by reason of the conviction on the other count. On appeal, the Court of Appeals affirmed the convictions but reduced the sentence on one of the counts to 5 years. State v. Louis Martinez Diaz, 142 Ariz. 136, 688 P.2d 1028 (App. 1984). The defendant and the state filed for review. We denied the defendant's petition for review and granted that of the state. The issue presented for review by the state was:
*120 "When a defendant is charged with two offenses occurring on separate occasions but consolidated for trial, and each offense is alleged to be a prior of the other pursuant to Ariz. Rev. Stat. Ann. § 13-604(H), and the defendant is convicted of both offenses, must the trial court treat each conviction as a subsequent one for sentencing purposes?" The Court of Appeals answered the above question by holding that only one of the two convictions could be considered a prior. We agree with the decision and reasoning of the Court of Appeals; therefore, the opinion of the Court of Appeals is approved and adopted by this court. Any suggestion to the contrary in State v. Rybolt, 133 Ariz. 276, 650 P.2d 1258 (App. 1982), is overruled. The judgments of conviction are affirmed, and the sentences as modified by the Court of Appeals are affirmed. GORDON, V.C.J., and HAYS, CAMERON and FELDMAN, JJ., concur. | 10-30-2013 | [
"142 Ariz. 119 (1984) 688 P.2d 1011 STATE of Arizona, Appellee, v. Louis Martinez DIAZ, Appellant. No. 6303-PR. Supreme Court of Arizona, En Banc. October 3, 1984. Robert K. Corbin, Atty. Gen. by William J. Schafer, III, Greg A. McCarthy, Phoenix, for appellee. Charles L. Weninger, Tucson, for appellant. HOLOHAN, Chief Justice. The defendant Louis Martinez Diaz was tried and convicted of two counts charging burglary in the second degree with a prior conviction. The trial court sentenced him to prison for 7.5 years on each count with the sentences to be served concurrently. The sentence on each count was enhanced by reason of the conviction on the other count. On appeal, the Court of Appeals affirmed the convictions but reduced the sentence on one of the counts to 5 years.",
"State v. Louis Martinez Diaz, 142 Ariz. 136, 688 P.2d 1028 (App. 1984). The defendant and the state filed for review. We denied the defendant's petition for review and granted that of the state. The issue presented for review by the state was: *120 \"When a defendant is charged with two offenses occurring on separate occasions but consolidated for trial, and each offense is alleged to be a prior of the other pursuant to Ariz. Rev. Stat. Ann. § 13-604(H), and the defendant is convicted of both offenses, must the trial court treat each conviction as a subsequent one for sentencing purposes?\" The Court of Appeals answered the above question by holding that only one of the two convictions could be considered a prior.",
"We agree with the decision and reasoning of the Court of Appeals; therefore, the opinion of the Court of Appeals is approved and adopted by this court. Any suggestion to the contrary in State v. Rybolt, 133 Ariz. 276, 650 P.2d 1258 (App. 1982), is overruled. The judgments of conviction are affirmed, and the sentences as modified by the Court of Appeals are affirmed. GORDON, V.C.J., and HAYS, CAMERON and FELDMAN, JJ., concur."
] | https://www.courtlistener.com/api/rest/v3/opinions/1132311/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
AMENDED AND RESTATED SECOND EXECUTIVE SUPPLEMENTAL RETIREMENT INCOME AGREEMENT FOR THOMAS SCHNEIDER PATHFINDER BANK Amended and Restated Effective January 1, 2005
Financial Institution Consulting Corporation 700 Colonial Road, Suite 260 Memphis, Tennessee 38117 WATS: 1-800-873-0089 FAX: (901) 684-7411 (901) 684-7400
AMENDED AND RESTATED SECOND EXECUTIVE SUPPLEMENTAL RETIREMENT INCOME AGREEMENT FOR THOMAS SCHNEIDER This Amended and Restated Executive Supplemental Retirement Income Agreement (the “Agreement”) updates and revises the Restated Executive Supplemental Retirement Income Agreement (the “Original Agreement”) for Thomas Schneider (the “Executive”), which was originally effective as of September 1, 1998. The Bank has herein amended and restated the Agreement with the intention that the Agreement shall at all times satisfy Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and the regulations thereunder. Any reference herein to the “Holding Company” shall mean Pathfinder Bancorp, Inc. and any reference herein to the “Mutual Holding Company” shall mean Pathfinder Bancorp, M.H.C. WITNESSETH: WHEREAS, the Executive is employed by the Bank; and WHEREAS, the Bank and Executive entered into the Second Executive Supplemental Retirement Income Agreement for Thomas Schneider (the “Original Agreement”) on the 1st day of September, 1998; and WHEREAS, Section 409A of the Internal Revenue Code (the “Code”), effective January 1, 2005, requires deferred compensation arrangements, including those set forth in deferred compensation arrangements, to comply with its provisions and restrictions and limitations on payments of deferred compensation; and WHEREAS, Code Section 409A and the final regulations issued thereunder in April of 2007 necessitate changes to the Original Agreement; and WHEREAS, the Bank believes it is in the best interests of the Bank to amend and restate the Original Agreement in order to reinforce and reward Executive for his service and dedication to the continued success of the Bank and incorporate the changes required by the new tax laws; and WHEREAS, the parties hereto desire to set forth the terms of the amended and restated Agreement and the continuing employment relationship of the Bank and Executive.
NOW, THEREFORE, in consideration of the premises and of the mutual promises herein contained, the Bank and the Executive agree as follows: SECTION I DEFINITIONS When used herein, the following words and phrases shall have the meanings below unless the context clearly indicates otherwise: 1.1 “Accrued Benefit Account” shall be represented by the bookkeeping entries required to record the Executive’s (i) Phantom Contributions plus (ii) accrued interest, equal to the Interest Factor, earned to-date on such amounts. However, neither the existence of such bookkeeping entries nor the Accrued Benefit Account itself shall be deemed to create either a trust of any kind, or a fiduciary relationship between the Bank and the Executive or any Beneficiary.
1.2 “Act” means the Employee Retirement Income Security Act of 1974, as amended from time to time.
1.3 “Administrator” means the Bank.
1.4 “Bank” means PATHFINDER BANK and any successor thereto.
1.5 “Beneficiary” means the person or persons (and their heirs) designated as Beneficiary in Exhibit B of this Agreement to whom the deceased Executive’s benefits are payable. If no Beneficiary is so designated, then the Executive’s Spouse, if living, will be deemed the Beneficiary. If the Executive’s Spouse is not living, than the Children of the Executive will be deemed the Beneficiaries and will take on a per stirpes basis. If there are no Children, then the Estate of the Executive will be deemed the Beneficiary.
1.6 “Benefit Age” means the Executive’s sixty-second (62nd) birthday. Notwithstanding the above, the Executive may, in his sole discretion, elect to Separate from Service on or after the Executive’s sixty-second (62nd) birthday and, in such event, the Executive’s age on such date shall constitute his “Benefit Age”; provided, however, that in the event of a Change in Control, followed within thirty-six (36) months by the Executive’s voluntary Separation from Service on or after his sixty-second birthday for one of the reasons set forth in Section 2.1(b)(2)(ii) below, the Executive’s termination shall not be considered a retirement for purposes of lowering the Executive’s Benefit Age.
1.7 “Benefit Eligibility Date” means the date on which the Executive is entitled to receive any benefit(s) pursuant to Section(s) III or V of this Agreement. It shall be the first day of the month following the month in which the Executive attains his Benefit Age.
1.8 “Board of Directors” means the board of directors of the Bank.
1.9 “Cause” means personal dishonesty, willful misconduct, willful malfeasance, breach of fiduciary duty involving personal profit, intentional failure to perform stated duties, willful violation of any law, role, regulation (other than traffic violations or similar offenses), or final cease-and-desist order, material breach of any provision of this Agreement, or gross negligence in matters of material importance to the Bank.
1.10 “Change in Control” shall mean and include the following with respect to the Mutual Holding Company, the Bank, or the Holding Company:
(i) a reorganization, merger, merger conversion, consolidation or sale of all or substantially all of the assets of the Bank, the Mutual Holding Company or the Holding Company, or a similar transaction in which the Bank, the Mutual Holding Company or the Holding Company is not the resulting entity; or
(ii) individuals who constitute the board of directors of the Bank, the Mutual Holding Company or the Holding Company on the date hereof (the “Incumbent Board”) cease for any reason to constitute at least a majority thereof, provided that any person becoming a director subsequent to the date hereof whose election was approved by a vote of at least three-quarters of the directors comprising the Incumbent Board, or whose nomination for election was approved by the Holding Company’s nominating committee which is comprised of members of the Incumbent Board, shall be, for purposes of this clause (ii) considered as though he were a member of the Incumbent Board.
Notwithstanding the foregoing, a “Change in Control” of the Bank or the Holding Company shall not be deemed to have occurred if the Mutual Holding Company ceases to own at least 51% of all outstanding shares of stock of the Holding Company in connection with a liquidation of the Mutual Holding Company into the Holding Company or a conversion of the Mutual Holding Company from mutual to stock form. In addition, “Change in Control” shall mean and include the following with respect to the Bank or the Holding Company in the event that the Mutual Holding Company converts to stock form or in the event that the Holding Company issues shares of its common stock to stockholders other than the Mutual Holding Company: (1) a change in control of a nature that would be required to be reported in response to Item 5.01 of the current report on Form 8-K, as in effect on the date hereof, pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 (hereinafter the “Exchange Act”); or
(2) an acquisition of “control” as defined in the Home Owners Loan Act, as amended, and applicable rules and regulations promulgated thereunder, as in effect at the time of the Change in Control (collectively, the “HOLA”), as determined by the Board of Directors of the Bank or the Holding Company; or
(3) at such time as:
(i) any “person” (as the term is used in Sections 13(d) and 14(d) of the Exchange Act) or “group acting in concert” is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Bank representing Twenty Percent (20%) or more of the combined voting power of the Bank’s or Holding Company’s outstanding securities ordinarily having the right to vote at the elections of directors, except for any stock purchased by the Bank’s Employee Stock Ownership Plan and/or the trust under such plan; or
(ii) a proxy statement is issued soliciting proxies from the stockholders of the Holding Company by someone other than the current management of the Holding Company, seeking stockholder approval of a plan of reorganization, merger, or consolidation of the Holding Company with one or more corporations as a result of which the outstanding shares of the class of the Holding Company’s securities are exchanged for or converted into cash or property or securities not issued by the Holding Company.
The term “person” includes an individual, a group acting in concert, a corporation, a partnership, an association, a joint venture, a pool, a joint stock company, a trust, an unincorporated organization or similar company, a syndicate or any other group formed for the purpose of acquiring, holding or disposing of securities. The term “acquire” means obtaining ownership, control, power to vote or sole power of disposition of stock, directly or indirectly or through one or more transactions or subsidiaries, through purchase, assignment, transfer, exchange, succession or other means, including (1) an increase in percentage ownership resulting from a redemption, repurchase, reverse stock split or a similar transaction involving other securities of the same class; and (2) the acquisition of stock by a group of persons and/or companies acting in concert which shall be deemed to occur upon the formation of such group, provided that an investment advisor shall not be deemed to acquire the voting stock of its advisee if the advisor (a) votes the stock only upon instruction from the beneficial owner and (b) does not provide the beneficial owner with advice concerning the voting of such stock. The term “security” includes nontransferable subscription rights issued pursuant to a plan of conversion, as well as a “security,” as defined in 15 U.S.C. §78c(2)(1); and the term “acting in concert” means (1) knowing participation in a joint activity or interdependent conscious parallel action towards a common goal whether or not pursuant to an express agreement, or (2) a combination or pooling of voting or other interests in the securities of an issuer for a common purpose pursuant to any contract, understanding, relationship, agreement or other arrangement, whether written or otherwise. Further, acting in concert with any person or company shall also be deemed to be acting in concert with any person or company that is acting in concert with such other person or company. Notwithstanding the above definitions, the boards of directors of the Bank or the Holding Company, in their absolute discretion, may make a finding that a Change in Control of the Bank or the Holding Company has taken place without the occurrence of any or all of the events enumerated above. 1.11 “Children” means the Executive’s children, both natural and adopted, then living at the time payments are due the Children under this Agreement.
1.12 “Code” means the Internal Revenue Code of 1986, as amended from time to time.
1.13 “Contribution(s)” means those annual contributions which the Bank is required to make to the Retirement Income Trust Fund on behalf of the Executive in accordance with Subsection 2.1(a) and in the amounts set forth in Exhibit A of the Agreement.
1.14 “Disability Benefit” means the benefit payable to the Executive following a determination, in accordance with Section 6, that he is no longer able, properly and satisfactorily, to perform his duties at the Bank.
1.15 “Effective Date” of this restated Agreement shall be January 1, 2005.
1.16 “Estate” means the estate of the Executive.
1.17 “Interest Factor” means monthly compounding, discounting or annuitizing, as applicable, at a rate set forth in Exhibit A.
1.18 “Payout Period” means the time frame during which certain benefits payable hereunder shall be distributed. Payments shall be made in equal monthly installments commencing on the first day of the month following the occurrence of the event which triggers distribution and continuing for one-hundred and eighty (180) months. Should the Executive make a Timely Election to receive a lump sum benefit payment, the Executive’s Payout Period shall be deemed to be one (1) month.
1.19 “Phantom Contributions” means those annual Contributions which the Bank is no longer required to make on behalf of the Executive to the Retirement Income Trust Fund. Rather, once the Executive has exercised the withdrawal rights provided for in Subsection 2.2, the Bank shall be required to record the annual amounts set forth in Exhibit A of the Agreement in the Executive’s Accrued Benefit Account, pursuant to Subsection 2.1.
1.20 “Plan Year” shall mean the calendar year.
1.21 “Retirement Age” means the Executive’s sixty-second (62nd) birthday provided, however, that the Executive’s actual Separation from Service from full-time employment may occur on or after the Executive attains age sixty-two (62) or at any later date mutually agreed upon by the parties.
1.22 “Retirement Income Trust Fund” means the trust fund account established by the Executive and into which annual Contributions will be made by the Bank on behalf of the Executive pursuant to Subsection 2.1. The contractual rights of the Bank and the Executive with respect to the Retirement Income Trust Fund shall be outlined in a separate writing to be known as the Thomas Schneider Grantor Trust agreement.
1.23 “Separation from Service” means Executive’s retirement or other termination of employment with the Bank within the meaning of Code Section 409A. No Separation from Service shall be deemed to occur due to military leave, sick leave or other bona fide leave of absence if the period of such leave does not exceed six months or, if longer, so long as Executive’s right to reemployment is provided by law or contract. If the leave exceeds six months and Executive’s right to reemployment is not provided by law or by contract, then Executive shall have a Separation from Service on the first date immediately following such six-month period.
Whether a Separation from Service has occurred is determined based on whether thefacts and circumstances indicate that the Bank and the Executive reasonablyanticipated reasonably anticipate that the level of bona fide services the Executive would perform after termination would permanently decrease to a level that is less than 50% of the average level of bona fide services performed (whether as an employee or an independent contractor) over the immediately preceding 36-month period. 1.24 “Spouse” means the individual to whom the Executive is legally married at the time of the Executive’s death.
1.25 “Supplemental Retirement Income Benefit” means an annual amount (before taking into account federal and state income taxes), payable in monthly installments throughout the Payout Period. Such benefit is projected pursuant to the Agreement for the purpose of determining the Contributions to be made to the Retirement Income Trust Fund (or Phantom Contributions to be recorded in the Accrued Benefit Account). The annual Contributions and Phantom Contributions have been actuarially determined, using the assumptions set forth in Exhibit A, in order to fund for the projected Supplemental Retirement Income Benefit. The Supplemental Retirement Income Benefit for which Contributions (or Phantom Contributions) are being made (or recorded) is set forth in Exhibit A.
1.26 “Timely Election” means the Executive has made an election to change the form of his benefit payment(s) on or before December 31, 2008 by filing with the Administrator a Notice of Election to Change Form of Payment (Exhibit C of this Agreement). In the case of benefits payable from the Accrued Benefit Account, a Timely Election shall be made by filing with the Bank a Transition Year Election Form (Exhibit D of this Agreement), provided that such election is made on or before December 31, 2008. In the case of benefits payable from the Retirement Income Trust Fund, such election may be made at any time.
SECTION II BENEFITS-GENERALLY 2.1 (a) Retirement Income Trust Fund and Accrued Benefit Account. The Executive shall establish the Thomas Schneider Grantor Trust into which the Bank shall be required to make annual Contributions on the Executive’s behalf, pursuant to Exhibit A and this Section II of the Agreement. A trustee shall be selected by the Executive. The trustee shall maintain an account, separate and distinct from the Executive’s personal contributions, which account shall constitute the Retirement Income Trust Fund. The trustee shall be charged with the responsibility of investing all contributed funds. Distributions from the Retirement Income Trust Fund of the Thomas Schneider Grantor Trust may be made by the trustee to the Executive, for purposes of payment of any income or employment taxes due and owing on Contributions by the Bank to the Retirement Income Trust Fund, if any, and on any taxable earnings associated with such Contributions which the Executive shall be required to pay from year to year, under applicable law, prior to actual receipt of any benefit payments from the Retirement Income Trust Fund. If the Executive exercises his withdrawal rights pursuant to Subsection 2.2, the Bank’s obligation to make Contributions to the Retirement Income Trust Fund shall cease and the Bank’s obligation to record Phantom Contributions in the Accrued Benefit Account shall immediately continence pursuant to Exhibit A and this Section II of the Agreement. To the extent this Agreement is inconsistent with the Thomas Schneider Grantor Trust Agreement, the Thomas Schneider Grantor Trust Agreement shall supersede this Agreement.
The annual Contributions (or Phantom Contributions) required to be made by the Bank to the Retirement Income Trust Fund (or recorded by the Bank in the Accrued Benefit Account) have been actuarially determined and are set forth in Exhibit A which is attached hereto and incorporated herein by reference. Contributions shall be made by the Bank to the Retirement Income Trust Fund (i) within seventy-five (75) days of establishment of such trust, and (ii) within the first thirty (30) days of the beginning of each subsequent Plan Year, unless this Section expressly provides otherwise. Phantom Contributions, if any, shall be recorded in the Accrued Benefit Account within the first thirty (30) days of the beginning of each applicable Plan Year, unless this Section expressly provides otherwise. Phantom Contributions shall accrue interest at a rate equal to the Interest Factor, during the Payout Period, until the balance of the Accrued Benefit Account has been fully distributed. Interest on any Phantom Contribution shall not commence until such Payout Period commences. The Administrator shall review the schedule of annual Contributions (or Phantom Contributions) provided for in Exhibit A (i) within thirty (30) days prior to the close of each Plan Year and (ii) if the Executive is employed by the Bank until attaining Retirement Age, on or immediately before attainment of such Retirement Age. Such review shall consist of an evaluation of the accuracy of all assumptions used to establish the schedule of Contributions (or Phantom Contributions). Provided that (i) the Executive has not exercised his withdrawal rights pursuant to Subsection 2.2 and (ii) the investments contained in the Retirement Income Trust Fund have been deemed reasonable by the Bank, the Administrator shall prospectively amend or supplement the schedule of Contributions provided for in Exhibit A should the Administrator determine during any such review that an increase in or supplement to the schedule of Contributions is necessary in order to adequately fund the Retirement Income Trust Fund so as to provide an annual benefit (or to provide the lump sum equivalent of such benefit, as applicable) equal to the Supplemental Retirement Income Benefit, on an after-tax basis, commencing at Benefit Age and payable for the duration of the Payout Period. (b) Withdrawal Rights Not Exercised. (1) Contributions Made Annually If the Executive does not exercise any withdrawal rights pursuant to Subsection 2.2, the annual Contributions to the Retirement Income Trust Fund shall continue each year, unless this Subsection 2.1(b) specifically states otherwise, until the earlier of (i) the last Plan Year that Contributions are required pursuant to Exhibit A, or (ii) the Plan Year of the Executive’s termination of employment. (2) Termination Following a Change in Control If the Executive does not exercise his withdrawal rights pursuant to Subsection 2.2 and a Change in Control occurs at the Bank, followed within thirty-six (36) months by either (i) the Executive’s involuntary termination of employment, or (ii) Executive’s voluntary termination of employment after: (A) a material change in the Executive’s function, duties, or responsibilities, which change would cause the Executive’s position to become one of lesser responsibility, importance, or scope from the position the Executive held at the time of the Change in Control, (B) a relocation of the Executive’s principal place of employment by more than thirty (30) miles from its location prior to the Change in Control, or (C) a material reduction in the benefits and perquisites to the Executive from those being provided-at the time of the Change in Control, the Contribution set forth on Schedule A shall continue to be required of the Bank. The Bank shall be required to make an immediate lump sum contribution to the Retirement Income Trust Fund equal to (i) the full Contribution required for the Plan Year in which such termination occurs, if not yet made, plus (ii) the present value (computed using a discount rate equal to the Interest Factor) of all remaining Contributions to the Retirement Income Trust Fund; provided, however, in no event shall the Contribution be less than an amount which is sufficient to provide the Executive with after-tax benefits (assuming a constant tax rate equal to the rate in effect as of the date of Executive’s termination) beginning at his Benefit Age, equal in amount to that benefit which would have been payable to the Executive if no secular trust had been implemented and the benefit obligation had been accrued under APB Opinion No. 12, as amended by FAS 106. (3) Termination For Cause If the Executive does not exercise his withdrawal rights pursuant to Subsection 2.2, and is terminated for Cause pursuant to Subsection 5.2, no further Contribution(s) to the Retirement Income Trust Fund shall be required of the Bank, and if not yet made, no Contribution shall be required for the Plan Year in which such termination for Cause occurs. (4) Involuntary Termination of Employment If the Executive does not exercise his withdrawal rights pursuant to Subsection 2.2, and the Executive’s employment with the Bank is involuntarily terminated for any reason, including a termination due. to disability of the Executive but excluding termination for Cause, or termination following a Change in Control within twenty-four (24) months of such Change in Control, within thirty (30) days of such involuntary termination of employment, the Bank shall be required to make an immediate lump sum Contribution to the Executive’s Retirement Income Trust Fund in an amount equal to the: (i) the full Contribution required for the Plan Year in which such involuntary termination occurs, if not yet made, plus (ii) the present value (computed using a discount rate equal to the Interest Factor) of all remaining Contributions to the Retirement Income Trust Fund; provided however, that, if necessary, an amount shall be contributed to the Retirement Income Trust Fund which is sufficient to provide the Executive with after tax benefits (assuming a constant tax rate equal to the rate in effect as of the date of the Executive’s termination) beginning at his Benefit Age, equal in amount to that benefit which would have been payable to the Executive if no secular trust had been implemented and the benefit obligation had been accrued under APB Opinion No. 12, as amended by FAS 106. (5) Death During Employment If the Executive does not exercise any withdrawal rights pursuant to Subsection 2.2, and dies while employed by the Bank, and if, following the Executive’s death, the assets of the Retirement Income Trust Fund are insufficient to provide the Supplemental Retirement Income Benefit to which the Executive is entitled, the Bank shall be required to make a Contribution to the Retirement Income Trust Fund equal to the sum of the remaining Contributions set forth on Exhibit A, after taking into consideration any payments under any life insurance policies that may have been obtained on the Executive’s life by the Retirement Income Trust Fund. Such final contribution shall be payable in a lump sum to the Retirement Income Trust Fund within thirty (30) days of the Executive’s death. (c) Withdrawal Rights Exercised. (1) Phantom Contributions Made Annually If the Executive exercises his withdrawal rights pursuant to Subsection 2.2, no further Contributions to the Retirement Income Trust Fund shall be required of the Bank. Thereafter, Phantom Contributions shall be recorded annually in the Executives Accrued Benefit Account within thirty (30) days of the beginning of each Plan Year, commencing with the first Plan Year following the Plan Year in which the Executive exercises his withdrawal rights. Such Phantom Contributions shall continue to be recorded annually, unless this Subsection 2.1(c) specifically states otherwise, until the earlier of (i) the last Plan Year that Phantom Contributions are required pursuant to Exhibit A, or (ii) the Plan Year of the Executive’s termination of employment. (2) Termination Following a Change in Control If the Executive exercises his withdrawal rights pursuant to Subsection 2.2, Phantom Contributions shall commence in the Plan Year following the Plan Year in which the Executive first exercises his withdrawal rights. If a Change in Control occurs at the Bank, and within thirty-six (36) months of such Change in Control, the Executive’s employment is either (i) involuntarily terminated, or (ii) voluntarily terminated by the Executive after: (A) a material change in the Executive’s function, duties, or responsibilities, which change would cause the Executive’s position to become one of lesser responsibility, importance, or scope from the position the Executive held at the time of the Change in Control, (B) a relocation of the Executive’s principal place of employment by more than thirty (30) miles from its location prior to the Change in Control, or (C) a material reduction in the benefits and perquisites to the Executive from those being provided at the time of the Change in Control, the Phantom Contribution set forth below shall be required of the Bank. The Bank shall be required to record a lump sum Phantom Contribution in the Accrued Benefit Account within ten (10) days of the Executive’s termination of employment. The amount of such final Phantom Contribution shall be actuarially determined based on the Phantom Contribution required, at such time, in order to provide a benefit via this Agreement equivalent to the Supplemental Retirement Income Benefit, on an after-tax basis, commencing on the Executive’s Benefit Eligibility Date and continuing for the duration of the Payout Period. (Such actuarial determination shall reflect the fact that amounts shall be payable from both the Accrued Benefit Account as well as the Retirement Income Trust Fund and shall also reflect the amount and timing of any withdrawal(s) made by the Executive from the Retirement Income Trust Fund pursuant to Subsection 2.2.) (3) Termination For Cause If the Executive is terminated for Cause pursuant to Subsection 5.2, the entire balance of the Executive’s Accrued Benefit Account at the time of such termination, which shall include any Phantom Contributions which have been recorded plus interest accrued on such Phantom Contributions, shall be forfeited. (4) Involuntary Termination of Employment If the Executive exercises his withdrawal rights pursuant to Subsection 2.2, and the Executive’s employment with the Bank is involuntarily terminated for any reason including termination due to disability of the Executive, but excluding termination for Cause, or termination following a Change in Control, within thirty (30) days of such involuntary termination of employment, the Bank shall be required to record a final Phantom Contribution in an amount equal to: (i) the full Phantom Contribution required for the Plan Year in which such involuntary termination occurs, if not yet made, plus (ii) the present value (computed using a discount rate equal to the Interest Factor) of all remaining Phantom Contributions. (5) Death During Employment If the Executive exercises his withdrawal rights pursuant to Subsection 2.2, and dies while employed by the Bank, Phantom Contributions included on Exhibit A shall be required of the Bank. Such Phantom Contributions shall commence in the Plan Year following the Plan Year in which the Executive exercises his withdrawal rights and shall continue through the Plan Year in which the Executive dies. The Bank shall also be required to record a final Phantom Contribution within thirty (30) days of the Executive’s death. The amount of such final Phantom Contribution shall be actuarially determined based on the Phantom Contribution required at such time (if any), in order to provide a benefit via this Agreement equivalent to the Supplemental Retirement Income Benefit commencing within thirty (30) days of the date the Administrator receives notice of the Executive’s death and continuing for the duration of the Payout Period. (Such actuarial determination shall reflect the fact that amounts shall be payable from the Accrued Benefit Account as well as the Retirement Income Trust Fund and shall also reflect the amount and timing of any withdrawal(s) made by the Executive pursuant to Subsection 2.2). 2.2 Withdrawals From Retirement Income Trust Fund.
Exercise of withdrawal rights by the Executive pursuant to the Thomas Schneider Grantor Trust agreement shall terminate the Bank’s obligation to make any further Contributions to the Retirement Income Trust Fund, and the Bank’s obligation to record Phantom Contributions pursuant to Subsection 2.1(c) shall commence. For purposes of this Subsection 2.2, “exercise of withdrawal rights” shall mean those withdrawal rights to which the Executive is entitled under Article III of the Thomas Schneider Grantor Trust Agreement and shall exclude any distributions made by the trustee of the Retirement Income Trust Fund to the Executive for purposes of payment of income taxes in accordance with Subsection 2.1 of this Agreement and the tax reimbursement formula contained in the trust document, or other trust expenses properly payable from the Thomas Schneider Grantor Trust pursuant to the provisions of the trust document. 2.3 Benefits Payable From Retirement Income Trust Fund.
Notwithstanding anything else to the contrary in this Agreement, in the event that the trustee of the Retirement Income Trust Fund purchases a life insurance policy with the Contributions to and, if applicable, earnings of the Trust, and such lift insurance policy is intended to continue in force beyond the Payout Period for the disability or retirement benefits payable from the Retirement Income Trust Fund pursuant to this Agreement, then the trustee shall have discretion to determine the portion of the cash value of such policy available for purposes of annuitizing the Retirement Income Trust Fund (it being understood that for purposes of this Section 2.3, “annuitizing” does not mean surrender of such policy and annuitizing of the cash value received upon such surrender) to provide the disability or retirement benefits payable under this Agreement, after taking into consideration the amounts reasonably believed to be required in order to maintain the cash value of such policy to continue such policy in effect until the death of the Executive and payment of death benefits thereunder.
SECTION III RETIREMENT BENEFIT 3.1 (a) Normal form of payment.
If (i) the Executive is employed with the Bank until reaching his Retirement Age, and (ii) the Executive has not made a Timely Election to receive a lump sum benefit, this Subsection 3.1(a) shall be controlling with respect to retirement benefits. The Retirement Income Trust Fund, measured as of the Executive’s Benefit Age, shall be annuitized (using the Interest Factor) into monthly installments and shall be payable for the Payout Period. Such benefit payments shall commence on the Executive’s Benefit Eligibility Date. Should Retirement Income Trust Fund assets actually earn a rate of return, following the date such balance is annuitized, which is less than the rate of return used to annuitize the Retirement Income Trust Fund, no additional contributions to the Retirement Income Trust Fund shall be required by the Bank in order to fund the final benefit payment(s) and make up for any shortage attributable to the less-than-expected rate of return. Should Retirement Income Trust Fund assets actually earn a rate of return, following the date such balance is annuitized, which is greater than the rate of return used to annuitize the Retirement Income Trust Fund, the final benefit payment to the Executive (or his Beneficiary) shall distribute the excess amounts attributable to the greater-than expected rate of return. The Executive may at anytime during the Payout Period request to receive the unpaid balance of his Retirement Income Trust Fund in a lump sum payment. If such a lump sum payment is requested by the Executive, payment of the balance of the Retirement Income Trust Fund in such lump sum form shall be made only if the Executive gives notice to both the Administrator and trustee in writing. Such lump sum payment shall be payable within thirty (30) days of such notice. In the event the Executive dies at any time after attaining his Benefit Age, but prior to commencement or completion of all monthly payments due and owing hereunder, (i) the trustee of the Retirement Income Trust Fund shall pay to the Executive’s Beneficiary the monthly installments (or a continuation of such monthly installments if they have already commenced) for the balance of months remaining in the Payout Period, or (ii) the Executive’s Beneficiary may request to receive the unpaid balance of the Executive’s Retirement Income Trust Fund in a lump sum payment. If a lump sum payment is requested by the Beneficiary, payment of the balance of the Retirement Income Trust Fund in such lump sum form shall be made only if the Executive’s Beneficiary notifies both the Administrator and trustee in writing of such election within ninety (90) days of the Executive’s death. Such lump sum payment shall be payable within thirty (30) days of such notice. The Executive’s Accrued Benefit Account (if applicable), measured as of the Executive’s Benefit Age, shall be annuitized (using the Interest Factor) into monthly installments and shall be payable for the Payout Period. Such benefit payments shall commence on the Executive’s Benefit Eligibility Date. Notwithstanding the foregoing, in the event the Executive is a Specified Employee (within the meaning of Treasury Regulations §1.409A-1(i)), then, to the extent necessary to avoid penalties under Code Section 409A, any payments of the Executive’s Accrued Benefit Account to which Executive is entitled for the first six months following Separation from Service shall be held and shall be paid to the Executive on the first day of the seventh month following the Executive’s Benefit Age. In the event the Executive dies at any time after attaining his Benefit Age, but prior to commencement or completion of all the payments due and owing hereunder, (i) the Bank shall pay to the Executive’s Beneficiary the same monthly installments (or a continuation of such monthly installments if they have already commenced) for the balance of months remaining in the Payout Period. (b) Alternative payout option. If (i) the Executive is employed with the Bank until reaching his Retirement Age, and (ii) the Executive has made a Timely Election to receive a lump sum benefit, this Subsection 3.1(b) shall be controlling with respect to retirement benefits. The balance of the Retirement Income Trust Fund, measured as of the Executive’s Benefit Age, shall be paid to the Executive in a lump sum on his Benefit Eligibility Date. In the event the Executive dies after becoming eligible for such payment (upon attainment of his Benefit Age), but before the actual payment is made, his Beneficiary shall be entitled to receive the lump sum benefit in accordance with this Subsection 3.1(b) within thirty (30) days of the date the Administrator receives notice of the Executive’s death. The balance of the Executive’s Accrued Benefit Account (if applicable), measured as of the Executive’s Benefit Age, shall be paid to the Executive in a lump sum on his Benefit Eligibility Date. Notwithstanding the foregoing, in the event Executive is a Specified Employee (within the meaning of Treasury Regulations §1.409A-1(i)), and to the extent necessary to avoid penalties under Code Section 409A, such payment of the balance of the Executive’s Accrued Benefit Account shall be made to the Executive on the first day of the seventh month following the Executive’s Benefit Age. In the event the Executive dies after becoming eligible for such payment (upon attainment of his Benefit Age), but before the actual payment is made, his Beneficiary shall be entitled to receive the lump sum benefit in accordance with this Subsection 3.1(b) within thirty (30) days of the date the Administrator receives notice of the Executive’s death. 3.2 Additional Death Benefit - Burial Expense. In addition to the above-described benefits, upon the Executive’s death, the Executive’s Beneficiary shall be entitled to receive a one-time lump sum death benefit in the amount of Ten Thousand Dollars ($10,000.00). This benefit shall be provided specifically for the purpose of providing payment for burial and/or funeral expenses of the Executive. Such benefit shall be payable within thirty (30) days of the Executive’s death. The Executive’s Beneficiary shall not be entitled to such benefit if the Executive is removed for Cause prior to death. Notwithstanding anything in this Section 3.2 to the contrary, if the Executive is also a participant in any other Trustee Deferred Compensation Agreement or an Executive Deferred Compensation Agreement under which an additional $10,000 death benefit for burial expenses is being paid, no additional death benefit shall be paid under this Section 3.2.
SECTION IV PRE-RETIREMENT DEATH BENEFIT 4.1 (a) Normal form of payment.
If (i) the Executive dies while employed by the Bank, and (ii) the Executive has not made a Timely Election to receive a lump sum benefit, this Subsection 4.1(a) shall be controlling with respect to pre-retirement death benefits. The balance of the Executive’s Retirement Income Trust Fund, measured as of the later of (i) the Executive’s death, or (ii) the date any final lump sum Contribution is made pursuant to Subsection 2.1(b), shall be annuitized (using the Interest Factor) into monthly installments and shall be payable for the Payout Period. Such benefits shall commence within thirty (30) days of the date of the Executive’s death. Should Retirement Income Trust Fund assets actually earn a rate of return, following the date such balance is annuitized, which is less than the rate of return used to annuitize the Retirement income Trust Fund, no additional contributions to the Retirement Income Trust Fund shall be required by the Bank in order to fund the final benefit payment(s) and make up for any shortage attributable to the less-than-expected rate of return. Should Retirement Income Trust Fund assets actually earn a rate of return, following the date such balance is annuitized, which is greater than the rate of return used to annuitize the Retirement Income Trust Fund, the final benefit payment to the Executive’s Beneficiary shall distribute the excess amounts attributable to the greater-than-expected rate of return. The Executive’s Beneficiary may request to receive the unpaid balance of the Executive’s Retirement Income Trust Fund in a lump sum payment. If a lump sum payment is requested by the Beneficiary, payment of the balance of the Retirement Income Trust Fund in such lump sum form shall be made only if the Executive’s Beneficiary notifies both the Administrator and trustee in writing of such election within ninety (90) days of the Executive’s death. Such lump sum payment shall be made within thirty (30) days of such notice. The Executive’s Accrued Benefit Account (if applicable), measured as of the later of (i) the Executive’s death or (ii) the date any final lump sum Phantom Contribution is recorded in the Accrued Benefit Account pursuant to Subsection 2.1(c), shall be annuitized (using the Interest Factor) into monthly installments and shall be payable to the Executive’s Beneficiary for the Payout Period. Such benefit payments shall commence within thirty (30) days of the date the Executive’s death, or if later, within thirty (30) days after any final lump sum Phantom Contribution is recorded in the Accrued Benefit Account in accordance with Subsection 2.1(c), provided that payment commences within two and one-half months immediately following the taxable year of the Executive’s death. (b) Alternative payout option. If (i) the Executive dies while employed by the Bank, and (ii) the Executive has made a Timely Election to receive a lump sum benefit, this Subsection 4.1(b) shall be controlling with respect to pre-retirement death benefits. The balance of the Executive’s Retirement Income Trust Fund, measured as of the later of (i) the Executive’s death, or (ii) the date any final lump sum Contribution is made pursuant to Subsection 2.1(b), shall be paid to the Executive’s Beneficiary in a lump sum within thirty (30) days of the date of the Executive’s death. The balance of the Executive’s Accrued Benefit Account (if applicable), measured as of the later of (i) the Executive’s death, or (ii) the date any final Phantom Contribution is recorded pursuant to Subsection 2.1(c), shall be paid to the Executive’s Beneficiary in a lump sum within thirty (30) days of the date of the Executive’s death. SECTION V BENEFIT(S) IN THE EVENT OF TERMINATION OF SERVICE PRIOR TO RETIREMENT AGE 5.1 Voluntary or Involuntary Termination of Service Other Than for Cause. In the event the Executive’s service with the Bank is voluntarily or involuntarily terminated prior to Retirement Age, for any reason including a Change in Control, but excluding (i) any disability related termination for which the Board of Directors has approved early payment of benefits pursuant to Subsection 6.1, (ii) the Executive’s pre-retirement death, which shall be covered in Section IV, or (iii) termination for Cause, which shall be covered in Subsection 5.2, the Executive (or his Beneficiary) shall be entitled to receive benefits in accordance with this Subsection 5.1. Payments of benefits pursuant to this Subsection 5.1 shall be made in accordance with Subsection 5.1 (a) or 5.1 (b) below, as applicable.
(a) Normal form of payment. (1) Executive Lives Until Benefit Age If (i) after such termination, the Executive lives until attaining his Benefit Age, and (ii) the Executive has not made a Timely Election to receive a lump sum benefit, this Subsection 5.1(a)(1) shall be controlling with respect to retirement benefits. The Retirement Income Trust Fund, measured as of the Executive’s Benefit Age, shall be annuitized (using the Interest Factor) into monthly installments and shall be payable for the Payout Period. Such payments shall commence on the Executive’s Benefit Eligibility Date. Should Retirement Income Trust Fund assets actually earn a rate of return, following the date such balance is annuitized, which is less than the rate of return used to annuitize the Retirement Income Trust Fund, no additional contributions to the Retirement Income Trust Fund shall be required by the Bank in order to fund the final benefit payment(s) and make up for any shortage attributable to the less-than-expected rate of return. Should Retirement Income Trust Fund assets actually earn a rate of return, following the date such balance is annuitized, which is greater than the rate of return used to annuitize the Retirement Income Trust Fund, the final benefit payment to the Executive (or his Beneficiary) shall distribute the excess amounts attributable to the greater-than-expected rate of return. The Executive may at anytime during the Payout Period request to receive the unpaid balance of his Retirement Income Trust Fund in a lump sum payment. If such a lump sum payment is requested by the Executive, payment of the balance of the Retirement Income Trust Fund in such lump sum form shall be made only if the Executive gives notice to both the Administrator and trustee in writing. Such lump sum payment shall be payable within thirty (30) days of such notice. In the event the Executive dies at any time after attaining his Benefit Age, but prior to commencement or completion of all monthly payments due and owing hereunder, (i) the trustee of the Retirement Income Trust Fund shall pay to the Executive’s Beneficiary the monthly installments (or a continuation of the monthly installments if they have already commenced) for the balance of months remaining in the Payout Period, or (ii) the Executive’s Beneficiary may request to receive the unpaid balance of the Executive’s Retirement Income Trust Fund in a lump sum payment. If a lump sum payment is requested by the Beneficiary, payment of the balance of the Retirement Income Trust Fund in such lump sum form shall be made only if the Executive’s Beneficiary notifies both the Administrator and trustee in writing of such election within ninety (90) days of the Executive’s death. Such lump sum payment shall be made within thirty (30) days of such notice. The Executive’s Accrued Benefit Account (if applicable), measured as of the Executive’s Benefit Age, shall be annuitized (using the Interest Factor) into monthly installments and shall be payable for the Payout Period. Such benefit payments shall commence on the Executive’s Benefit Eligibility Date. In the event the Executive dies at any time after attaining his Benefit Age, but prior to commencement or completion of all the payments due and owing hereunder, (i) the Bank shall pay to the Executive’s Beneficiary the same monthly installments (or a continuation of such monthly installments if they have already commenced) for the balance of months remaining in the Payout Period. (2) Executive Dies Prior to Benefit Age If (i) after such termination, the Executive dies prior to attaining his Benefit Age, and (ii) the Executive has not made a Timely Election to receive a lump sum benefit, this Subsection 5.1(a)(2) shall be controlling with respect to retirement benefits. The Retirement Income Trust Fund, measured as of the date of the Executive’s death, shall be annuitized (using the Interest Factor) into monthly installments and shall be payable for the Payout Period. Such payments shall commence within thirty (30) days of the Executive’s death. Should Retirement Income Trust Fund assets actually earn a rate of return, following the date such balance is annuitized, which is less than the rate of return used to annuitize the Retirement Income Trust Fund, no additional contributions to the Retirement Income Trust Fund shall be required by the Bank in order to fund the final benefit payment(s) and make up for any shortage attributable to the less-than-expected rate of return. Should Retirement Income Trust Fund assets actually earn a rate of return, following the date such balance is annuitized, which is greater than the rate of return used to annuitize the Retirement Income Trust Fund, the final benefit payment to the Executive’s Beneficiary shall distribute the excess amounts attributable to the greater than-expected rate of return. The Executive’s Beneficiary may request to receive the unpaid balance of the Executive’s Retirement Income Trust Fund in the form of a lump sum payment. If a lump sum payment is requested by the Beneficiary, payment of the balance of the Retirement Income Trust Fund in such lump sum form shall be made only if the Executive’s Beneficiary notifies both the Administrator and trustee in writing of such election within ninety (90) days of the Executive’s death. Such lump sum payment shall be made within thirty (30) days of such notice. The Executive’s Accrued Benefit Account (if applicable), measured as of the date of the Executive’s death, shall be annuitized (using the Interest Factor) into monthly installments and shall be payable for the Payout Period. Such payments shall commence within thirty (30) days of the Executive’s death. (b) Alternative Payout Option. If (i) after such termination, the Executive lives until attaining his Benefit Age, and (ii) the Executive has made a Timely Election to receive a lump sum benefit, this Subsection 5.1(b)(1) shall be controlling with respect to retirement benefits. The balance of the Retirement Income Trust Fund, measured as of the Executive’s Benefit Age, shall be paid to the Executive in a lump sum on his Benefit Eligibility Date. In the event the Executive dies after becoming eligible for such payment (upon attainment of his Benefit Age), but before the actual payment is made, his Beneficiary shall be entitled to receive the lump sum benefit in accordance with this Subsection 5.1(b)(1) within thirty (30) days of the date of the Executive’s death. The balance of the Executive’s Accrued Benefit Account (if applicable), measured as of the Executive’s Benefit Age, shall be paid to the Executive in a lump sum on his Benefit Eligibility Date. In the event the Executive dies after becoming eligible for such payment (upon attainment of his Benefit Age), but before the actual payment is made, his Beneficiary shall be entitled to receive the lump sum benefit in accordance with this Subsection 5.1(b)(1) within thirty (30) days of the date of the Executive’s death. (2) Executive Dies Prior to Benefit Age If (i) after such termination, the Executive dies prior to attaining his Benefit Age, and (ii) the Executive has made a Timely Election to receive a lump sum benefit, this Subsection 5.1(b)(2) shall be controlling with respect to pre-retirement death benefits. The balance of the Retirement Income Trust Fund, measured as of the date of the Executive’s death, shall be paid to the Executive’s Beneficiary within thirty (30) days of the date of the Executive’s death. The balance of the Executive’s Accrued Benefit Account (if applicable), measured as of the date of the Executive’s death, shall be paid to the Executive’s Beneficiary within thirty (30) days of the Executive’s death. 5.2 Termination For Cause.
If the Executive is terminated for Cause, all benefits under this Agreement, other than those which can be paid from previous Contributions to the Retirement Income Trust Fund (and earnings on such Contributions), shall be forfeited. Furthermore, no further Contributions (or Phantom Contributions, as applicable) shall be required of the Bank for the year in which such termination for Cause occurs (if not yet made). The Executive shall be entitled to receive a benefit in accordance with this Subsection 5.2. The balance of the Executive’s Retirement Income Trust Fund shall be paid to the Executive in a lump sum on his Benefit Eligibility Date. In the event the Executive dies prior to his Benefit Eligibility Date, his Beneficiary shall be entitled to receive the balance of the Executive’s Retirement Income Trust.
SECTION VI DISABILITY BENEFIT If the Executive’s service is terminated prior to Retirement Age due to a disability which meets the criteria set forth below, the Executive will receive the Disability Benefit in lieu of the retirement benefit(s) available pursuant to Section 5.1 (which is (are) not available prior to the Executive’s Benefit Eligibility Date). In any instance in which (i) the Executive is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death, or last for a continuous period of not less than 12 months; (ii) by reason of any medically determinable physical or mental impairment that can be expected to result in death, or last for continuous period of not less than 12 months, Executive is receiving income replacement benefits for a period of not less than three months under an accident and health plan covering employees of the Bank; or (iii) the Executive is determined to be totally disabled by the Social Security Administration., the Executive shall be entitled to the following lump sum benefit(s). The lump sum benefit(s) to which the Executive is entitled shall include: (i) the balance of the Retirement Income Trust Fund, plus (ii) the balance of the Accrued Benefit Account (if applicable). The benefit(s) shall be paid within thirty (30) days following the date of the Executive is determined to be disabled. In the event the Executive dies after becoming eligible for such payment(s) but before the actual payment(s) is (are) made, his Beneficiary shall be entitled to receive the benefit(s) provided for in this Section 6 within thirty (30) days of the date the Administrator receives notice of the Executive’s death. SECTION VII BENEFICIARY DESIGNATION The Executive shall make an initial designation of primary and secondary Beneficiaries upon execution of this Agreement and shall have the right to change such designation, at any subsequent time, by submitting to (i) the Administrator, and (ii) the trustee of the Retirement Income Trust Fund, in substantially the form attached as Exhibit B to this Agreement, a written designation of primary and secondary Beneficiaries. Any Beneficiary designation made subsequent to execution of this Agreement shall become effective only when receipt thereof is acknowledged in writing by the Administrator. SECTION VIII NON-COMPETITION 8.1 Non-Competition During Employment.
In consideration of the agreements of the Bank contained herein and of the payments to be made by the Bank pursuant hereto, the Executive hereby agrees that, for as long as he remains employed by the Bank, he will devote substantially all of his time, skill, diligence and attention to the business of the Bank, and will not actively engage, either directly or indirectly, in any business or other activity which is, or may be deemed to be, in any way competitive with or adverse to the best interests of the business of the Bank, unless the Executive has the prior express written consent of the Bank. 8.2 Breach of Non-Competition Clause.
(a) Continued Employment Following Breach. In the event (i) any material breach by the Executive of the agreements and covenants described in Subsection 8.1 occurs, and (ii) the Executive continues employment at the Bank following such breach, all further Contributions to the Retirement Income Trust Fund (or Phantom Contributions recorded in the Accrued Benefit Account) shall immediately cease, and all benefits under this Agreement, other than those which can be paid from previous Contributions to the Retirement Income Trust Fund (and earnings on such Contributions), shall be forfeited. The Executive (or his Beneficiary) shall be entitled to receive a benefit from the Retirement Income Trust Fund in accordance with Subpart (1) or (2) below, as applicable. (1) Executive Lives Until Benefit Age If, following such breach, the Executive lives until attaining his Benefit Age, he shall be entitled to receive a benefit from the Retirement Income Trust Fund in accordance with this Subsection 8.2(a)(1). The balance of the Retirement Income Trust Fund, measured as of the Executive’s Benefit Age, shall be paid to the Executive in a lump sum on his Benefit Eligibility Date. In the event the Executive dies after attaining his Benefit Age but before actual payment is made, his Beneficiary shall be entitled to receive the lump sum benefit in accordance with this Subsection 8.2(a)(l) within thirty (30) days of the date of the Executive’s death. (2) Executive Dies Prior to Benefit Age. If, following such breach, the Executive dies prior to attaining his Benefit Age, his Beneficiary shall be entitled to receive a benefit from the Retirement Income Trust Fund in accordance with this Subsection 8.2 (a)(2). The balance of the Retirement Income Trust Fund, measured as of the date of the Executive’s death, shall be paid to the Executive’s Beneficiary in a lump sum within thirty (30) days of the date of the Executive’s death. (b) Termination of Employment Following Breach. In the event (i) any material breach by the Executive of the agreements and covenants described in Subsection 8.1 occurs, and (ii) the Executive’s employment with the Bank is terminated due to such breach, such termination shall be deemed to be for Cause and the benefits payable to the Executive shall be paid in accordance with Subsection 5.2 of this Agreement. 8.3 Non-Competition Following Employment.
Executive further understands and agrees that, following Executive’s termination of employment, the Bank’s obligation, if any, to make payments to the Executive from the Accrued Benefit Account shall be conditioned on the Executive’s forbearance from actively engaging, either directly or indirectly in any business or other activity which is, or may be deemed to be, in any way competitive with or adverse to the best interests of the Bank, unless the Executive has the prior written consent of the Bank. In the event of the Executive’s breach of the covenants and agreements contained herein, further payments to the Executive from the Accrued Benefit Account, if any, shall cease and Executive’s rights to amounts credited to the Accrued Benefit Account shall be forfeited. SECTION IX EXECUTIVE’S RIGHT TO ASSETS The rights of the Executive, any Beneficiary, or any other person claiming through the Executive under this Agreement, shall be solely those of an unsecured general creditor of the Bank. The Executive, the Beneficiary, or any other person claiming through the Executive, shall only have the right to receive from the Bank those payments or amounts so specified under this Agreement. The Executive agrees that he, his Beneficiary, or any other person claiming through him shall have no rights or interests whatsoever in any asset of the Bank, including any insurance policies or contracts which the Bank may possess or obtain to informally fund this Agreement. Any asset used or acquired by the Bank in connection with the liabilities it has assumed under this Agreement shall not be deemed to be held under any trust for the benefit of the Executive or his Beneficiaries, unless such asset is contained in the rabbi trust described in Section XII of this Agreement. Any such asset shall be and remain, a general, unpledged asset of the Bank in the event of the Bank’s insolvency. SECTION X RESTRICTIONS UPON FUNDING The Bank shall have no obligation to set aside, earmark or entrust any fund or money with which to pay its obligations under this Agreement, other than those Contributions required to be made to the Retirement Income Trust Fund. The Executive, his Beneficiaries or any successor in interest to him shall be and remain simply a general unsecured creditor of the Bank in the same manner as any other creditor having a general claim for matured and unpaid compensation. The Bank reserves the absolute right in its sole discretion to either purchase assets to meet its obligations undertaken by this Agreement or to refrain from the same and to determine the extent, nature, and method of such asset purchases. Should the Bank decide to purchase assets such as life insurance, mutual funds, disability policies or annuities, the Bank reserves the absolute right, in its sole discretion, to replace such assets from time to time or to terminate its investment in such assets at any time, in whole or in part. At no time shall the Executive be deemed to have any lien, right, title or interest in or to any specific investment or to any assets of the Bank. If the Bank elects to invest in a life insurance, disability or annuity policy upon the life of the Executive, then the Executive shall assist the Bank by freely submitting to a physical examination and by supplying such additional information necessary to obtain such insurance or annuities. SECTION XI ACT PROVISIONS 11.1 Named Fiduciary and Administrator. The Bank, as Administrator, shall be the Named Fiduciary of this Agreement. As Administrator, the Bank shall be responsible for the management, control and administration of the Agreement as established herein. The Administrator may delegate to others certain aspects of the management and operational responsibilities of the Agreement, including the employment of advisors and the delegation of ministerial duties to qualified individuals.
11.2 Claims Procedure and Arbitration. In the event that benefits under this Agreement are not paid to the Executive (or to his Beneficiary in the case of the Executive’s death) and such claimants feel they are entitled to receive such benefits, then a written claim must be made to the Administrator within sixty (60) days from the date payments are refused. The Administrator shall review the written claim and, if the claim is denied, in whole or in part, it shall provide in writing, within ninety (90) days of receipt of such claim, its specific reasons for such denial, reference to the provisions of this Agreement upon which the denial is based, and any additional material or information necessary to perfect the claim. Such writing by the Administrator shall further indicate the additional steps which must be undertaken by claimants if an additional review of the claim denial is desired.
If claimants desire a second review, they shall notify the Administrator in writing within sixty (60) days of the first claim denial. Claimants may review this Agreement or any documents relating thereto and submit any issues and comments, in writing, they may feel appropriate. In its sole discretion, the Administrator shall then review the second claim and provide a written decision within sixty (60) days of receipt of such claim. This decision shall state the specific reasons for the decision and shall include reference to specific provisions of this Agreement upon which the decision is based. If claimants continue to dispute the benefit denial based upon completed performance of this Plan and the Joinder Agreement or the meaning and effect of the terms and conditions thereof, then claimants may submit the dispute to mediation, administered by the American Arbitration Association (“AAA”) (or a mediator selected by the parties) in accordance with the AAA’s Commercial Mediation Rules. If mediation is not successful in resolving the dispute, it shall be settled by arbitration administered by the AAA under its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. SECTION XII MISCELLANEOUS 12.1 No Effect on Employment Rights. Nothing contained herein will confer upon the Executive the right to be retained in the service of the Bank nor limit the right of the Bank to discharge or otherwise deal with the Executive without regard to the existence of the Agreement.
12.2 State Law. The Agreement is established under, and will be construed according to, the laws of the state of New York, to the extent such laws are not preempted by the Act and valid regulations published thereunder.
12.3 Severability. In the event that any of the provisions of this Agreement or portion thereof, are held to be inoperative or invalid by any court of competent jurisdiction, then: (1) insofar as is reasonable, effect will be given to the intent manifested in the provisions held invalid or inoperative, and (2) the validity and enforceability of the remaining provisions will not be affected thereby.
12.4 Incapacity of Recipient. In the event the Executive is declared incompetent and a conservator or other person legally charged with the care of his person or Estate is appointed, any benefits under the Agreement to which such Executive is entitled shall be paid to such conservator or other person legally charged with the care of his person or Estate.
12.5 Unclaimed Benefit. The Executive shall keep the Bank informed of his current address and the current address of his Beneficiaries. The Bank shall not be obligated to search for the whereabouts of any person. If the location of the Executive is not made known to the Bank as of the date upon which any payment of any benefits from the Accrued Benefit Account may first be made, the Bank shall delay payment of the Executive’s benefit payment(s) until the location of the Executive is made known to the Bank; however, the Bank shall only be obligated to hold such benefit payment(s) for the Executive until the expiration of thirty-six (36) months. Upon expiration of the thirty-six (36) month period, the Bank may discharge its obligation by payment to the Executive’s Beneficiary. If the location of the Executive’s Beneficiary is not made known to the Bank by the end of an additional two (2) month period following expiration of the thirty-six (36) month period, the Bank may discharge its obligation by payment to the Executive’s Estate. If there is no Estate in existence at such time or if such fact cannot be determined by the Bank, the Executive and his Beneficiary(ies) shall thereupon forfeit any rights to the balance, if any, of the Executive’s Accrued Benefit Account provided for such Executive and/or Beneficiary under this Agreement.
12.6 Limitations on Liability. Notwithstanding any of the preceding provisions of the Agreement, no individual acting as an employee or agent of the Bank, or as a member of the Board of Directors shall be personally liable to the Executive or any other person for any claim, loss, liability or expense incurred in connection with the Agreement.
12.7 Gender. Whenever in this Agreement words are used in the masculine or neuter gender, they shall be read and construed as in the masculine, feminine or neuter gender, whenever they should so apply.
12.8 Effect on Other Corporate Benefit Agreements. Nothing contained in this Agreement shall affect the right of the Executive to participate in or be covered by any qualified or non-qualified pension, profit sharing, group, bonus or other supplemental compensation or fringe benefit agreement constituting a part of the Bank’s existing or future compensation structure.
12.9 Suicide. Notwithstanding anything to the contrary in this Agreement, if the Executive’s death results from suicide, whether sane or insane, within twenty-six (26) months after September 1, 1998, all further Contributions to the Retirement Income Trust Fund (or Phantom Contributions recorded in the Accrued Benefit Account) shall thereupon cease, and no Contribution (or Phantom Contribution) shall be made by the Bank to the Retirement Income Trust Fund (or recorded in the Accrued Benefit Account) in the year such death resulting from suicide occurs (if not yet made). All benefits other than those available from previous Contributions to the Retirement Income Trust Fund under this Agreement shall be forfeited, and this Agreement shall become null and void. The balance of the Retirement Income Trust Fund, measured as of the Executive’s date of death, shall be paid to the Beneficiary within thirty (30) days of the date the Administrator receives notice of the Executive’s death.
12.10 Inurement. This Agreement shall be binding upon and shall inure to the benefit of the Bank, its successors and assigns, and the Executive, his successors, heirs, executors, administrators, and Beneficiaries.
12.11 Headings. Headings and sub-headings in this Agreement are inserted for reference and convenience only and shall not be deemed a part of this Agreement.
12.12 Establishment of a Rabbi Trust. The Bank shall establish a rabbi trust into which the Bank shall contribute assets which shall be held therein, subject to the claims of the Bank’s creditors in the event of the Bank’s “Insolvency” (as defined in such rabbi trust agreement), until the contributed assets are paid to the Executive and/or his Beneficiary in such manner and at such times as specified in this Agreement. It is the intention of the Bank that the contribution or contributions to the rabbi trust shall provide the Bank with a source of funds to assist it in meeting the liabilities of this Agreement.
12.13 Source of Payments. All payments provided in this Agreement shall be timely paid in cash or check from the general funds of the Bank or the assets of the rabbi trust, to the extent made from the Accrued Benefit Account.
12.14 Tax Withholding and Code Section 409A Taxes With Respect to the Accrued Benefit Account. Any distribution under this Agreement from the Executive’s Accrued Benefit Account shall be reduced by the amount of any taxes required to be withheld from such distribution. This Agreement shall permit the acceleration of the time or schedule of a payment to pay employment related taxes as permitted under Treasury Regulation Section 1.409A-3(j) or to pay any taxes that may become due at any time that the arrangement fails to meet the requirements of Code Section 409A and the regulations and other guidance promulgated thereunder. In the latter case, such payments shall not exceed the amount required to be included in income as the result of the failure to comply with the requirements of Code Section 409A.
12.15 Acceleration of Payments from the Accrued Benefit Account. Except as specifically permitted herein or in other sections of this Agreement, no acceleration of the time or schedule of any payment may be made hereunder from the Executive’s Accrued Benefit Account. Notwithstanding the foregoing, payments may be accelerated hereunder by the Bank, in accordance with the provisions of Treasury Regulation Section 1.409A-3(j)(4) and any subsequent guidance issued by the United States Treasury Department. Accordingly, payments may be accelerated, in accordance with requirements and conditions of the Treasury Regulations (or subsequent guidance) in the following circumstances: (i) as a result of certain domestic relations orders; (ii) in compliance with ethics agreements with the Federal government; (iii) in compliance with ethics laws or conflicts of interest laws; (iv) in limited cash-outs (but not in excess of the limit under Code Section 402(g)(1)(B)); (v) in the case of certain distributions to avoid a non-allocation year under Code Section 409(p); (vi) to apply certain offsets in satisfaction of a debt of the Executive to the Bank; (vii) in satisfaction of certain bona fide disputes between the Executive and the Bank; or (viii) for any other purpose set forth in the Treasury Regulations and subsequent guidance.
SECTION XIII AMENDMENT/PLAN TERMINATION 13.1 Amendment or Plan Termination. This Agreement shall not be amended, modified or terminated at any time, in whole or part, without the mutual written consent of the Executive and the Bank, and such mutual consent shall be required even if the Executive is no longer employed by the Bank. No amendment, modification or termination of the Agreement by the Bank shall directly or indirectly deprive the Executive of all or any portion of the Executive’s Retirement Income Trust Fund (and Accrued Benefit Account, if applicable) as of the effective date of the resolution amending or terminating the Agreement.
13.2 Executive’s Right to Payment Following Plan Termination. In the event of a termination of the Agreement, with respect to the Executive’s Retirement Income Trust Fund, the Executive shall be entitled to the balance, if any, of his Retirement Income Trust Fund. However, if such termination is done in anticipation of or pursuant to a “Change in Control,” such balance(s) shall include the final Contribution made (or recorded) pursuant to Subsection 2.1(b)(2) (or 2.1(c)(2)). Payment of the balance(s) of the Executive’s Retirement Income Trust Fund shall not be dependent upon his continuation of employment with the Bank following the termination date of the Agreement. Payment of the balance(s) of the Executive’s Retirement Income Trust Fund shall be made in a lump sum within thirty (30) days of the date of termination of the Agreement. Notwithstanding the foregoing, in the event of a termination of the Agreement, with respect to the Executive’s Accrued Benefit Account (if applicable), the Agreement shall cease to operate and the Bank shall pay out to the Executive the balance or his Accrued Benefit Account only upon the following circumstances and conditions:
(a) The Bank may terminate the Agreement within 12 months of a corporate dissolution taxed under Code Section 331, or with approval of a bankruptcy court pursuant to 11 U.S.C. §503(b)(1)(A), provided that the amounts deferred under the Agreement are included in the Executive’s gross income in the latest of (i) the calendar year in which the Agreement terminates; (ii) the calendar year in which the amount is no longer subject to a substantial risk of forfeiture; or (iii) the first calendar year in which the payment is administratively practicable.
(b) The Bank may terminate the Agreement within the 30 days preceding a Change in Control (but not following a Change in Control), provided that the Agreement shall only be treated as terminated if all substantially similar arrangements sponsored by the Bank are terminated so that the Executive and all executives under substantially similar arrangements are required to receive all amounts of compensation deferred under the terminated arrangements within 12 months of the date of the termination of the arrangements. For these purposes, “Change in Control” shall be defined in accordance with the Treasury Regulations under Code Section 409A.
(c) The Bank may terminate the Agreement provided that: (i) the termination and liquidation does not occur proximate to a downturn in the financial health of the Bank; (ii) all arrangements sponsored by the Bank that would be aggregated with this Agreement under Treasury Regulations Section 1.409A-1(c) if the Executive covered by this Agreement was also covered by any of those other arrangements are also terminated; (iii) no payments other than payments that would be payable under the terms of the arrangement if the termination had not occurred are made within 12 months of the termination of the arrangement; (iv) all payments are made within 24 months of the termination of the arrangements; and (v) the Bank does not adopt a new arrangement that would be aggregated with any terminated arrangement under Treasury Regulations Section 1.409A-1(c) if the Executive participated in both arrangements, at any time within three years following the date of termination of the arrangement.
SECTION XIV EXECUTION 14.1 This Agreement and the Thomas Schneider Grantor Trust Agreement set forth the entire understanding of the parties hereto with respect to the transactions contemplated hereby, and any previous agreements or understandings between the parties hereto regarding the subject matter hereof are merged into and superseded by this Agreement and the Thomas Schneider Grantor Trust Agreement.
14.2 This Agreement shall be executed in triplicate, each copy of which, when so executed and delivered, shall be an original, but all three copies shall together constitute one and the same instrument.
[Remainder of page intentionally left blank] IN WITNESS WHEREOF, the Bank and the Executive have caused this Agreement to be executed on the day and date first above written. : PATHFINDER BANK: By: /s/ Thomas W. Schneider 12/23/08 President & CEO DATE (Title) : EXECUTIVE: 12/23/08 /s/ Thomas W. Schneider DATE Thomas Schneider
CONDITIONS, ASSUMPTIONS, AND SCHEDULE OF CONTRIBUTIONS AND PHANTOM CONTRIBUTIONS 1. Interest Factor - for purposes of
a. the Accrued Benefit Account - shall be six percent (6%) per annum, compounded monthly.
b. the Retirement Income Trust Fund - for purposes of annuitizing the balance of the Retirement Income Trust Fund over the Payout Period, the trustee of the Thomas Schneider Grantor Trust shall exercise discretion in selecting the appropriate rate given the nature of the investments contained in the Retirement Income Trust Fund and the expected return associated with the investments. For these purposes, if the trustee of the Retirement Income Trust Fund has purchased a life insurance policy, the trustee shall have the discretion to determine the portion of the cash value of such policy available for purposes of annuitizing the Retirement Income Trust Fund, in accordance with Section 2.3 of the Agreement.
2. The amount of the annual Contributions (or Phantom Contributions) to the Retirement Income Trust Fund (or Accrued Benefit Account) has been based on the annual incremental accounting accruals which would be required of the Bank through the earlier of the Executive’s death or Retirement Age, (i) pursuant to APB Opinion No. 12, as amended by FAS 106 and (ii) assuming a discount rate equal to six percent (6%) per annum, in order to provide the unfunded, non-qualified Supplemental Retirement Income Benefit.
3. Supplemental Retirement Income Benefit means an actuarially determined annual amount equal to Seventy One Thousand One Hundred Forty-nine Dollars ($71,149) at age 62 if paid entirely from the Accrued Benefit Account or Forty Four Thousand Four Hundred Eighty-nine Dollars ($44,489) at age 62 if paid from the Retirement Income Trust Fund.
The Supplemental Retirement Income Benefit: · the definition of Supplemental Retirement Income Benefit has been incorporated into the Agreement for the sole purpose of actuarially establishing the amount of annual Contributions (or Phantom Contributions) to the Retirement Income Trust Fund (or Accrued Benefit Account). The amount of any actual retirement, pre-retirement or disability benefit payable pursuant to the Agreement will be a function of (i) the amount and timing of Contributions (or Phantom Contributions) to the Retirement Income Trust Fund (or Accrued Benefit Account) and (u) the actual investment experience of such Contributions (or the monthly compounding rate of Phantom Contributions).
4. Schedule of Annual Gross Contributions/Phantom Contributions
Plan Year Amount 1998 17,623 1999 8,264 2000 9,217 2001 10,255 2002 11,387 2003 12,619 2004 13,960 2005 15,418 2006 17,003 2007 18,724 2008 20,594 2009 22,623 2010 24,823 2011 27,209 2012 29,796 2013 32,597 2014 36,631 2015 38,915 2016 42,469 2017 46,312 2018 50,469 2019 54,962 2020 59,817 2021 65,063 2022 61,064
AMENDED AND RESTATED SECOND EXECUTIVE SUPPLEMENTAL RETIREMENT INCOME AGREEMENT BENEFICIARY DESIGNATION The Executive, under the teams of the Executive Supplemental Retirement Income Agreement executed by the Bank, dated the 1st day of January 2005, hereby designates the following Beneficiary(ies) to receive any guaranteed payments or death benefits under such Agreement, following his death: PRIMARY BENEFICIARY: Joy Ann Schneider SECONDARY BENEFICIARY: Thomas J. Schneider, Matthew R. Schneider, James A. Schneider, per stirpes This Beneficiary Designation hereby revokes any prior Beneficiary Designation which may have been in effect. Such Beneficiary Designation is revocable. DATE: December 23, 2008
/s/ Edward Mervine /s/ Thomas W. Schneider (WITNESS) EXECUTIVE /s/ Tonya Crisafulli (WITNESS)
AMENDED AND RESTATED SECOND EXECUTIVE SUPPLEMENTAL RETIREMENT INCOME AGREEMENT NOTICE OF ELECTION TO CHANGE FORM OF PAYMENT TO: Bank Attention: I hereby give notice of my election to change the form of payment of my Supplemental Retirement Income Benefit from my Retirement Income Trust Fund, as specified below. I understand that such notice, in order to be effective, must be submitted in accordance with the time requirements described in my Executive Supplemental Retirement Agreement. I understand that this form is not applicable to my Accrued Benefit Account. I hereby elect to change the form of payment of my benefits from monthly installments throughout my Payout Period to a lump sum benefit payment.
I hereby elect to change the form of payment of my benefits from a lump sum benefit payment to monthly installments throughout my Payout Period. Such election hereby revokes my previous notice of election to receive a lump sum form of benefit payments.
Executive Date Acknowledged By: Title: Date: ________________________________________
AMENDED AND RESTATED SECOND EXECUTIVE SUPPLEMENTAL RETIREMENT INCOME AGREEMENT TRANSITION YEAR ELECTION FORM
Instructions: you have a limited period of time to use this Transition Year Election Form to elect to change the form of payment of your Supplemental Retirement Income Benefit from your Accrued Benefit Account, as specified below.
Due to IRS rules, you must complete this form no later than December 31, 2008. If you elect to change the form of payment of your Supplemental Retirement Income Benefit from your Accrued Benefit Account, you may not use this election form to change the form of payment with respect to benefits that are scheduled to be paid to you in 2008, or otherwise to cause your benefits to be paid to you in 2008.
I hereby elect to change the form of payment of my benefits from my Accrued Benefit Account from monthly installments throughout my Payout Period to a lump sum benefit payment.
I hereby elect to change the form of payment of my benefits from my Accrued Benefit Account from a lump sum benefit payment to monthly installments throughout my Payout Period. Such election hereby revokes my previous notice of election to receive a lump sum form of benefit payments.
Executive Date Acknowledged By: Title: Date: ________________________________________ | [
"AMENDED AND RESTATED SECOND EXECUTIVE SUPPLEMENTAL RETIREMENT INCOME AGREEMENT FOR THOMAS SCHNEIDER PATHFINDER BANK Amended and Restated Effective January 1, 2005 Financial Institution Consulting Corporation 700 Colonial Road, Suite 260 Memphis, Tennessee 38117 WATS: 1-800-873-0089 FAX: (901) 684-7411 (901) 684-7400 AMENDED AND RESTATED SECOND EXECUTIVE SUPPLEMENTAL RETIREMENT INCOME AGREEMENT FOR THOMAS SCHNEIDER This Amended and Restated Executive Supplemental Retirement Income Agreement (the “Agreement”) updates and revises the Restated Executive Supplemental Retirement Income Agreement (the “Original Agreement”) for Thomas Schneider (the “Executive”), which was originally effective as of September 1, 1998. The Bank has herein amended and restated the Agreement with the intention that the Agreement shall at all times satisfy Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and the regulations thereunder.",
"Any reference herein to the “Holding Company” shall mean Pathfinder Bancorp, Inc. and any reference herein to the “Mutual Holding Company” shall mean Pathfinder Bancorp, M.H.C. WITNESSETH: WHEREAS, the Executive is employed by the Bank; and WHEREAS, the Bank and Executive entered into the Second Executive Supplemental Retirement Income Agreement for Thomas Schneider (the “Original Agreement”) on the 1st day of September, 1998; and WHEREAS, Section 409A of the Internal Revenue Code (the “Code”), effective January 1, 2005, requires deferred compensation arrangements, including those set forth in deferred compensation arrangements, to comply with its provisions and restrictions and limitations on payments of deferred compensation; and WHEREAS, Code Section 409A and the final regulations issued thereunder in April of 2007 necessitate changes to the Original Agreement; and WHEREAS, the Bank believes it is in the best interests of the Bank to amend and restate the Original Agreement in order to reinforce and reward Executive for his service and dedication to the continued success of the Bank and incorporate the changes required by the new tax laws; and WHEREAS, the parties hereto desire to set forth the terms of the amended and restated Agreement and the continuing employment relationship of the Bank and Executive.",
"NOW, THEREFORE, in consideration of the premises and of the mutual promises herein contained, the Bank and the Executive agree as follows: SECTION I DEFINITIONS When used herein, the following words and phrases shall have the meanings below unless the context clearly indicates otherwise: 1.1 “Accrued Benefit Account” shall be represented by the bookkeeping entries required to record the Executive’s (i) Phantom Contributions plus (ii) accrued interest, equal to the Interest Factor, earned to-date on such amounts. However, neither the existence of such bookkeeping entries nor the Accrued Benefit Account itself shall be deemed to create either a trust of any kind, or a fiduciary relationship between the Bank and the Executive or any Beneficiary. 1.2 “Act” means the Employee Retirement Income Security Act of 1974, as amended from time to time.",
"1.3 “Administrator” means the Bank. 1.4 “Bank” means PATHFINDER BANK and any successor thereto. 1.5 “Beneficiary” means the person or persons (and their heirs) designated as Beneficiary in Exhibit B of this Agreement to whom the deceased Executive’s benefits are payable. If no Beneficiary is so designated, then the Executive’s Spouse, if living, will be deemed the Beneficiary. If the Executive’s Spouse is not living, than the Children of the Executive will be deemed the Beneficiaries and will take on a per stirpes basis.",
"If there are no Children, then the Estate of the Executive will be deemed the Beneficiary. 1.6 “Benefit Age” means the Executive’s sixty-second (62nd) birthday. Notwithstanding the above, the Executive may, in his sole discretion, elect to Separate from Service on or after the Executive’s sixty-second (62nd) birthday and, in such event, the Executive’s age on such date shall constitute his “Benefit Age”; provided, however, that in the event of a Change in Control, followed within thirty-six (36) months by the Executive’s voluntary Separation from Service on or after his sixty-second birthday for one of the reasons set forth in Section 2.1(b)(2)(ii) below, the Executive’s termination shall not be considered a retirement for purposes of lowering the Executive’s Benefit Age. 1.7 “Benefit Eligibility Date” means the date on which the Executive is entitled to receive any benefit(s) pursuant to Section(s) III or V of this Agreement. It shall be the first day of the month following the month in which the Executive attains his Benefit Age. 1.8 “Board of Directors” means the board of directors of the Bank. 1.9 “Cause” means personal dishonesty, willful misconduct, willful malfeasance, breach of fiduciary duty involving personal profit, intentional failure to perform stated duties, willful violation of any law, role, regulation (other than traffic violations or similar offenses), or final cease-and-desist order, material breach of any provision of this Agreement, or gross negligence in matters of material importance to the Bank.",
"1.10 “Change in Control” shall mean and include the following with respect to the Mutual Holding Company, the Bank, or the Holding Company: (i) a reorganization, merger, merger conversion, consolidation or sale of all or substantially all of the assets of the Bank, the Mutual Holding Company or the Holding Company, or a similar transaction in which the Bank, the Mutual Holding Company or the Holding Company is not the resulting entity; or (ii) individuals who constitute the board of directors of the Bank, the Mutual Holding Company or the Holding Company on the date hereof (the “Incumbent Board”) cease for any reason to constitute at least a majority thereof, provided that any person becoming a director subsequent to the date hereof whose election was approved by a vote of at least three-quarters of the directors comprising the Incumbent Board, or whose nomination for election was approved by the Holding Company’s nominating committee which is comprised of members of the Incumbent Board, shall be, for purposes of this clause (ii) considered as though he were a member of the Incumbent Board. Notwithstanding the foregoing, a “Change in Control” of the Bank or the Holding Company shall not be deemed to have occurred if the Mutual Holding Company ceases to own at least 51% of all outstanding shares of stock of the Holding Company in connection with a liquidation of the Mutual Holding Company into the Holding Company or a conversion of the Mutual Holding Company from mutual to stock form.",
"In addition, “Change in Control” shall mean and include the following with respect to the Bank or the Holding Company in the event that the Mutual Holding Company converts to stock form or in the event that the Holding Company issues shares of its common stock to stockholders other than the Mutual Holding Company: (1) a change in control of a nature that would be required to be reported in response to Item 5.01 of the current report on Form 8-K, as in effect on the date hereof, pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 (hereinafter the “Exchange Act”); or (2) an acquisition of “control” as defined in the Home Owners Loan Act, as amended, and applicable rules and regulations promulgated thereunder, as in effect at the time of the Change in Control (collectively, the “HOLA”), as determined by the Board of Directors of the Bank or the Holding Company; or (3) at such time as: (i) any “person” (as the term is used in Sections 13(d) and 14(d) of the Exchange Act) or “group acting in concert” is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Bank representing Twenty Percent (20%) or more of the combined voting power of the Bank’s or Holding Company’s outstanding securities ordinarily having the right to vote at the elections of directors, except for any stock purchased by the Bank’s Employee Stock Ownership Plan and/or the trust under such plan; or (ii) a proxy statement is issued soliciting proxies from the stockholders of the Holding Company by someone other than the current management of the Holding Company, seeking stockholder approval of a plan of reorganization, merger, or consolidation of the Holding Company with one or more corporations as a result of which the outstanding shares of the class of the Holding Company’s securities are exchanged for or converted into cash or property or securities not issued by the Holding Company.",
"The term “person” includes an individual, a group acting in concert, a corporation, a partnership, an association, a joint venture, a pool, a joint stock company, a trust, an unincorporated organization or similar company, a syndicate or any other group formed for the purpose of acquiring, holding or disposing of securities. The term “acquire” means obtaining ownership, control, power to vote or sole power of disposition of stock, directly or indirectly or through one or more transactions or subsidiaries, through purchase, assignment, transfer, exchange, succession or other means, including (1) an increase in percentage ownership resulting from a redemption, repurchase, reverse stock split or a similar transaction involving other securities of the same class; and (2) the acquisition of stock by a group of persons and/or companies acting in concert which shall be deemed to occur upon the formation of such group, provided that an investment advisor shall not be deemed to acquire the voting stock of its advisee if the advisor (a) votes the stock only upon instruction from the beneficial owner and (b) does not provide the beneficial owner with advice concerning the voting of such stock.",
"The term “security” includes nontransferable subscription rights issued pursuant to a plan of conversion, as well as a “security,” as defined in 15 U.S.C. §78c(2)(1); and the term “acting in concert” means (1) knowing participation in a joint activity or interdependent conscious parallel action towards a common goal whether or not pursuant to an express agreement, or (2) a combination or pooling of voting or other interests in the securities of an issuer for a common purpose pursuant to any contract, understanding, relationship, agreement or other arrangement, whether written or otherwise. Further, acting in concert with any person or company shall also be deemed to be acting in concert with any person or company that is acting in concert with such other person or company. Notwithstanding the above definitions, the boards of directors of the Bank or the Holding Company, in their absolute discretion, may make a finding that a Change in Control of the Bank or the Holding Company has taken place without the occurrence of any or all of the events enumerated above.",
"1.11 “Children” means the Executive’s children, both natural and adopted, then living at the time payments are due the Children under this Agreement. 1.12 “Code” means the Internal Revenue Code of 1986, as amended from time to time. 1.13 “Contribution(s)” means those annual contributions which the Bank is required to make to the Retirement Income Trust Fund on behalf of the Executive in accordance with Subsection 2.1(a) and in the amounts set forth in Exhibit A of the Agreement. 1.14 “Disability Benefit” means the benefit payable to the Executive following a determination, in accordance with Section 6, that he is no longer able, properly and satisfactorily, to perform his duties at the Bank. 1.15 “Effective Date” of this restated Agreement shall be January 1, 2005.",
"1.16 “Estate” means the estate of the Executive. 1.17 “Interest Factor” means monthly compounding, discounting or annuitizing, as applicable, at a rate set forth in Exhibit A. 1.18 “Payout Period” means the time frame during which certain benefits payable hereunder shall be distributed. Payments shall be made in equal monthly installments commencing on the first day of the month following the occurrence of the event which triggers distribution and continuing for one-hundred and eighty (180) months. Should the Executive make a Timely Election to receive a lump sum benefit payment, the Executive’s Payout Period shall be deemed to be one (1) month. 1.19 “Phantom Contributions” means those annual Contributions which the Bank is no longer required to make on behalf of the Executive to the Retirement Income Trust Fund.",
"Rather, once the Executive has exercised the withdrawal rights provided for in Subsection 2.2, the Bank shall be required to record the annual amounts set forth in Exhibit A of the Agreement in the Executive’s Accrued Benefit Account, pursuant to Subsection 2.1. 1.20 “Plan Year” shall mean the calendar year. 1.21 “Retirement Age” means the Executive’s sixty-second (62nd) birthday provided, however, that the Executive’s actual Separation from Service from full-time employment may occur on or after the Executive attains age sixty-two (62) or at any later date mutually agreed upon by the parties. 1.22 “Retirement Income Trust Fund” means the trust fund account established by the Executive and into which annual Contributions will be made by the Bank on behalf of the Executive pursuant to Subsection 2.1.",
"The contractual rights of the Bank and the Executive with respect to the Retirement Income Trust Fund shall be outlined in a separate writing to be known as the Thomas Schneider Grantor Trust agreement. 1.23 “Separation from Service” means Executive’s retirement or other termination of employment with the Bank within the meaning of Code Section 409A. No Separation from Service shall be deemed to occur due to military leave, sick leave or other bona fide leave of absence if the period of such leave does not exceed six months or, if longer, so long as Executive’s right to reemployment is provided by law or contract.",
"If the leave exceeds six months and Executive’s right to reemployment is not provided by law or by contract, then Executive shall have a Separation from Service on the first date immediately following such six-month period. Whether a Separation from Service has occurred is determined based on whether thefacts and circumstances indicate that the Bank and the Executive reasonablyanticipated reasonably anticipate that the level of bona fide services the Executive would perform after termination would permanently decrease to a level that is less than 50% of the average level of bona fide services performed (whether as an employee or an independent contractor) over the immediately preceding 36-month period. 1.24 “Spouse” means the individual to whom the Executive is legally married at the time of the Executive’s death.",
"1.25 “Supplemental Retirement Income Benefit” means an annual amount (before taking into account federal and state income taxes), payable in monthly installments throughout the Payout Period. Such benefit is projected pursuant to the Agreement for the purpose of determining the Contributions to be made to the Retirement Income Trust Fund (or Phantom Contributions to be recorded in the Accrued Benefit Account). The annual Contributions and Phantom Contributions have been actuarially determined, using the assumptions set forth in Exhibit A, in order to fund for the projected Supplemental Retirement Income Benefit. The Supplemental Retirement Income Benefit for which Contributions (or Phantom Contributions) are being made (or recorded) is set forth in Exhibit A. 1.26 “Timely Election” means the Executive has made an election to change the form of his benefit payment(s) on or before December 31, 2008 by filing with the Administrator a Notice of Election to Change Form of Payment (Exhibit C of this Agreement).",
"In the case of benefits payable from the Accrued Benefit Account, a Timely Election shall be made by filing with the Bank a Transition Year Election Form (Exhibit D of this Agreement), provided that such election is made on or before December 31, 2008. In the case of benefits payable from the Retirement Income Trust Fund, such election may be made at any time. SECTION II BENEFITS-GENERALLY 2.1 (a) Retirement Income Trust Fund and Accrued Benefit Account. The Executive shall establish the Thomas Schneider Grantor Trust into which the Bank shall be required to make annual Contributions on the Executive’s behalf, pursuant to Exhibit A and this Section II of the Agreement. A trustee shall be selected by the Executive. The trustee shall maintain an account, separate and distinct from the Executive’s personal contributions, which account shall constitute the Retirement Income Trust Fund. The trustee shall be charged with the responsibility of investing all contributed funds. Distributions from the Retirement Income Trust Fund of the Thomas Schneider Grantor Trust may be made by the trustee to the Executive, for purposes of payment of any income or employment taxes due and owing on Contributions by the Bank to the Retirement Income Trust Fund, if any, and on any taxable earnings associated with such Contributions which the Executive shall be required to pay from year to year, under applicable law, prior to actual receipt of any benefit payments from the Retirement Income Trust Fund. If the Executive exercises his withdrawal rights pursuant to Subsection 2.2, the Bank’s obligation to make Contributions to the Retirement Income Trust Fund shall cease and the Bank’s obligation to record Phantom Contributions in the Accrued Benefit Account shall immediately continence pursuant to Exhibit A and this Section II of the Agreement.",
"To the extent this Agreement is inconsistent with the Thomas Schneider Grantor Trust Agreement, the Thomas Schneider Grantor Trust Agreement shall supersede this Agreement. The annual Contributions (or Phantom Contributions) required to be made by the Bank to the Retirement Income Trust Fund (or recorded by the Bank in the Accrued Benefit Account) have been actuarially determined and are set forth in Exhibit A which is attached hereto and incorporated herein by reference. Contributions shall be made by the Bank to the Retirement Income Trust Fund (i) within seventy-five (75) days of establishment of such trust, and (ii) within the first thirty (30) days of the beginning of each subsequent Plan Year, unless this Section expressly provides otherwise. Phantom Contributions, if any, shall be recorded in the Accrued Benefit Account within the first thirty (30) days of the beginning of each applicable Plan Year, unless this Section expressly provides otherwise.",
"Phantom Contributions shall accrue interest at a rate equal to the Interest Factor, during the Payout Period, until the balance of the Accrued Benefit Account has been fully distributed. Interest on any Phantom Contribution shall not commence until such Payout Period commences. The Administrator shall review the schedule of annual Contributions (or Phantom Contributions) provided for in Exhibit A (i) within thirty (30) days prior to the close of each Plan Year and (ii) if the Executive is employed by the Bank until attaining Retirement Age, on or immediately before attainment of such Retirement Age. Such review shall consist of an evaluation of the accuracy of all assumptions used to establish the schedule of Contributions (or Phantom Contributions). Provided that (i) the Executive has not exercised his withdrawal rights pursuant to Subsection 2.2 and (ii) the investments contained in the Retirement Income Trust Fund have been deemed reasonable by the Bank, the Administrator shall prospectively amend or supplement the schedule of Contributions provided for in Exhibit A should the Administrator determine during any such review that an increase in or supplement to the schedule of Contributions is necessary in order to adequately fund the Retirement Income Trust Fund so as to provide an annual benefit (or to provide the lump sum equivalent of such benefit, as applicable) equal to the Supplemental Retirement Income Benefit, on an after-tax basis, commencing at Benefit Age and payable for the duration of the Payout Period.",
"(b) Withdrawal Rights Not Exercised. (1) Contributions Made Annually If the Executive does not exercise any withdrawal rights pursuant to Subsection 2.2, the annual Contributions to the Retirement Income Trust Fund shall continue each year, unless this Subsection 2.1(b) specifically states otherwise, until the earlier of (i) the last Plan Year that Contributions are required pursuant to Exhibit A, or (ii) the Plan Year of the Executive’s termination of employment. (2) Termination Following a Change in Control If the Executive does not exercise his withdrawal rights pursuant to Subsection 2.2 and a Change in Control occurs at the Bank, followed within thirty-six (36) months by either (i) the Executive’s involuntary termination of employment, or (ii) Executive’s voluntary termination of employment after: (A) a material change in the Executive’s function, duties, or responsibilities, which change would cause the Executive’s position to become one of lesser responsibility, importance, or scope from the position the Executive held at the time of the Change in Control, (B) a relocation of the Executive’s principal place of employment by more than thirty (30) miles from its location prior to the Change in Control, or (C) a material reduction in the benefits and perquisites to the Executive from those being provided-at the time of the Change in Control, the Contribution set forth on Schedule A shall continue to be required of the Bank. The Bank shall be required to make an immediate lump sum contribution to the Retirement Income Trust Fund equal to (i) the full Contribution required for the Plan Year in which such termination occurs, if not yet made, plus (ii) the present value (computed using a discount rate equal to the Interest Factor) of all remaining Contributions to the Retirement Income Trust Fund; provided, however, in no event shall the Contribution be less than an amount which is sufficient to provide the Executive with after-tax benefits (assuming a constant tax rate equal to the rate in effect as of the date of Executive’s termination) beginning at his Benefit Age, equal in amount to that benefit which would have been payable to the Executive if no secular trust had been implemented and the benefit obligation had been accrued under APB Opinion No.",
"12, as amended by FAS 106. (3) Termination For Cause If the Executive does not exercise his withdrawal rights pursuant to Subsection 2.2, and is terminated for Cause pursuant to Subsection 5.2, no further Contribution(s) to the Retirement Income Trust Fund shall be required of the Bank, and if not yet made, no Contribution shall be required for the Plan Year in which such termination for Cause occurs. (4) Involuntary Termination of Employment If the Executive does not exercise his withdrawal rights pursuant to Subsection 2.2, and the Executive’s employment with the Bank is involuntarily terminated for any reason, including a termination due. to disability of the Executive but excluding termination for Cause, or termination following a Change in Control within twenty-four (24) months of such Change in Control, within thirty (30) days of such involuntary termination of employment, the Bank shall be required to make an immediate lump sum Contribution to the Executive’s Retirement Income Trust Fund in an amount equal to the: (i) the full Contribution required for the Plan Year in which such involuntary termination occurs, if not yet made, plus (ii) the present value (computed using a discount rate equal to the Interest Factor) of all remaining Contributions to the Retirement Income Trust Fund; provided however, that, if necessary, an amount shall be contributed to the Retirement Income Trust Fund which is sufficient to provide the Executive with after tax benefits (assuming a constant tax rate equal to the rate in effect as of the date of the Executive’s termination) beginning at his Benefit Age, equal in amount to that benefit which would have been payable to the Executive if no secular trust had been implemented and the benefit obligation had been accrued under APB Opinion No.",
"12, as amended by FAS 106. (5) Death During Employment If the Executive does not exercise any withdrawal rights pursuant to Subsection 2.2, and dies while employed by the Bank, and if, following the Executive’s death, the assets of the Retirement Income Trust Fund are insufficient to provide the Supplemental Retirement Income Benefit to which the Executive is entitled, the Bank shall be required to make a Contribution to the Retirement Income Trust Fund equal to the sum of the remaining Contributions set forth on Exhibit A, after taking into consideration any payments under any life insurance policies that may have been obtained on the Executive’s life by the Retirement Income Trust Fund. Such final contribution shall be payable in a lump sum to the Retirement Income Trust Fund within thirty (30) days of the Executive’s death. (c) Withdrawal Rights Exercised.",
"(1) Phantom Contributions Made Annually If the Executive exercises his withdrawal rights pursuant to Subsection 2.2, no further Contributions to the Retirement Income Trust Fund shall be required of the Bank. Thereafter, Phantom Contributions shall be recorded annually in the Executives Accrued Benefit Account within thirty (30) days of the beginning of each Plan Year, commencing with the first Plan Year following the Plan Year in which the Executive exercises his withdrawal rights. Such Phantom Contributions shall continue to be recorded annually, unless this Subsection 2.1(c) specifically states otherwise, until the earlier of (i) the last Plan Year that Phantom Contributions are required pursuant to Exhibit A, or (ii) the Plan Year of the Executive’s termination of employment.",
"(2) Termination Following a Change in Control If the Executive exercises his withdrawal rights pursuant to Subsection 2.2, Phantom Contributions shall commence in the Plan Year following the Plan Year in which the Executive first exercises his withdrawal rights. If a Change in Control occurs at the Bank, and within thirty-six (36) months of such Change in Control, the Executive’s employment is either (i) involuntarily terminated, or (ii) voluntarily terminated by the Executive after: (A) a material change in the Executive’s function, duties, or responsibilities, which change would cause the Executive’s position to become one of lesser responsibility, importance, or scope from the position the Executive held at the time of the Change in Control, (B) a relocation of the Executive’s principal place of employment by more than thirty (30) miles from its location prior to the Change in Control, or (C) a material reduction in the benefits and perquisites to the Executive from those being provided at the time of the Change in Control, the Phantom Contribution set forth below shall be required of the Bank.",
"The Bank shall be required to record a lump sum Phantom Contribution in the Accrued Benefit Account within ten (10) days of the Executive’s termination of employment. The amount of such final Phantom Contribution shall be actuarially determined based on the Phantom Contribution required, at such time, in order to provide a benefit via this Agreement equivalent to the Supplemental Retirement Income Benefit, on an after-tax basis, commencing on the Executive’s Benefit Eligibility Date and continuing for the duration of the Payout Period. (Such actuarial determination shall reflect the fact that amounts shall be payable from both the Accrued Benefit Account as well as the Retirement Income Trust Fund and shall also reflect the amount and timing of any withdrawal(s) made by the Executive from the Retirement Income Trust Fund pursuant to Subsection 2.2.)",
"(3) Termination For Cause If the Executive is terminated for Cause pursuant to Subsection 5.2, the entire balance of the Executive’s Accrued Benefit Account at the time of such termination, which shall include any Phantom Contributions which have been recorded plus interest accrued on such Phantom Contributions, shall be forfeited. (4) Involuntary Termination of Employment If the Executive exercises his withdrawal rights pursuant to Subsection 2.2, and the Executive’s employment with the Bank is involuntarily terminated for any reason including termination due to disability of the Executive, but excluding termination for Cause, or termination following a Change in Control, within thirty (30) days of such involuntary termination of employment, the Bank shall be required to record a final Phantom Contribution in an amount equal to: (i) the full Phantom Contribution required for the Plan Year in which such involuntary termination occurs, if not yet made, plus (ii) the present value (computed using a discount rate equal to the Interest Factor) of all remaining Phantom Contributions.",
"(5) Death During Employment If the Executive exercises his withdrawal rights pursuant to Subsection 2.2, and dies while employed by the Bank, Phantom Contributions included on Exhibit A shall be required of the Bank. Such Phantom Contributions shall commence in the Plan Year following the Plan Year in which the Executive exercises his withdrawal rights and shall continue through the Plan Year in which the Executive dies. The Bank shall also be required to record a final Phantom Contribution within thirty (30) days of the Executive’s death. The amount of such final Phantom Contribution shall be actuarially determined based on the Phantom Contribution required at such time (if any), in order to provide a benefit via this Agreement equivalent to the Supplemental Retirement Income Benefit commencing within thirty (30) days of the date the Administrator receives notice of the Executive’s death and continuing for the duration of the Payout Period. (Such actuarial determination shall reflect the fact that amounts shall be payable from the Accrued Benefit Account as well as the Retirement Income Trust Fund and shall also reflect the amount and timing of any withdrawal(s) made by the Executive pursuant to Subsection 2.2).",
"2.2 Withdrawals From Retirement Income Trust Fund. Exercise of withdrawal rights by the Executive pursuant to the Thomas Schneider Grantor Trust agreement shall terminate the Bank’s obligation to make any further Contributions to the Retirement Income Trust Fund, and the Bank’s obligation to record Phantom Contributions pursuant to Subsection 2.1(c) shall commence. For purposes of this Subsection 2.2, “exercise of withdrawal rights” shall mean those withdrawal rights to which the Executive is entitled under Article III of the Thomas Schneider Grantor Trust Agreement and shall exclude any distributions made by the trustee of the Retirement Income Trust Fund to the Executive for purposes of payment of income taxes in accordance with Subsection 2.1 of this Agreement and the tax reimbursement formula contained in the trust document, or other trust expenses properly payable from the Thomas Schneider Grantor Trust pursuant to the provisions of the trust document.",
"2.3 Benefits Payable From Retirement Income Trust Fund. Notwithstanding anything else to the contrary in this Agreement, in the event that the trustee of the Retirement Income Trust Fund purchases a life insurance policy with the Contributions to and, if applicable, earnings of the Trust, and such lift insurance policy is intended to continue in force beyond the Payout Period for the disability or retirement benefits payable from the Retirement Income Trust Fund pursuant to this Agreement, then the trustee shall have discretion to determine the portion of the cash value of such policy available for purposes of annuitizing the Retirement Income Trust Fund (it being understood that for purposes of this Section 2.3, “annuitizing” does not mean surrender of such policy and annuitizing of the cash value received upon such surrender) to provide the disability or retirement benefits payable under this Agreement, after taking into consideration the amounts reasonably believed to be required in order to maintain the cash value of such policy to continue such policy in effect until the death of the Executive and payment of death benefits thereunder.",
"SECTION III RETIREMENT BENEFIT 3.1 (a) Normal form of payment. If (i) the Executive is employed with the Bank until reaching his Retirement Age, and (ii) the Executive has not made a Timely Election to receive a lump sum benefit, this Subsection 3.1(a) shall be controlling with respect to retirement benefits. The Retirement Income Trust Fund, measured as of the Executive’s Benefit Age, shall be annuitized (using the Interest Factor) into monthly installments and shall be payable for the Payout Period. Such benefit payments shall commence on the Executive’s Benefit Eligibility Date.",
"Should Retirement Income Trust Fund assets actually earn a rate of return, following the date such balance is annuitized, which is less than the rate of return used to annuitize the Retirement Income Trust Fund, no additional contributions to the Retirement Income Trust Fund shall be required by the Bank in order to fund the final benefit payment(s) and make up for any shortage attributable to the less-than-expected rate of return. Should Retirement Income Trust Fund assets actually earn a rate of return, following the date such balance is annuitized, which is greater than the rate of return used to annuitize the Retirement Income Trust Fund, the final benefit payment to the Executive (or his Beneficiary) shall distribute the excess amounts attributable to the greater-than expected rate of return. The Executive may at anytime during the Payout Period request to receive the unpaid balance of his Retirement Income Trust Fund in a lump sum payment.",
"If such a lump sum payment is requested by the Executive, payment of the balance of the Retirement Income Trust Fund in such lump sum form shall be made only if the Executive gives notice to both the Administrator and trustee in writing. Such lump sum payment shall be payable within thirty (30) days of such notice. In the event the Executive dies at any time after attaining his Benefit Age, but prior to commencement or completion of all monthly payments due and owing hereunder, (i) the trustee of the Retirement Income Trust Fund shall pay to the Executive’s Beneficiary the monthly installments (or a continuation of such monthly installments if they have already commenced) for the balance of months remaining in the Payout Period, or (ii) the Executive’s Beneficiary may request to receive the unpaid balance of the Executive’s Retirement Income Trust Fund in a lump sum payment. If a lump sum payment is requested by the Beneficiary, payment of the balance of the Retirement Income Trust Fund in such lump sum form shall be made only if the Executive’s Beneficiary notifies both the Administrator and trustee in writing of such election within ninety (90) days of the Executive’s death.",
"Such lump sum payment shall be payable within thirty (30) days of such notice. The Executive’s Accrued Benefit Account (if applicable), measured as of the Executive’s Benefit Age, shall be annuitized (using the Interest Factor) into monthly installments and shall be payable for the Payout Period. Such benefit payments shall commence on the Executive’s Benefit Eligibility Date. Notwithstanding the foregoing, in the event the Executive is a Specified Employee (within the meaning of Treasury Regulations §1.409A-1(i)), then, to the extent necessary to avoid penalties under Code Section 409A, any payments of the Executive’s Accrued Benefit Account to which Executive is entitled for the first six months following Separation from Service shall be held and shall be paid to the Executive on the first day of the seventh month following the Executive’s Benefit Age. In the event the Executive dies at any time after attaining his Benefit Age, but prior to commencement or completion of all the payments due and owing hereunder, (i) the Bank shall pay to the Executive’s Beneficiary the same monthly installments (or a continuation of such monthly installments if they have already commenced) for the balance of months remaining in the Payout Period. (b) Alternative payout option.",
"If (i) the Executive is employed with the Bank until reaching his Retirement Age, and (ii) the Executive has made a Timely Election to receive a lump sum benefit, this Subsection 3.1(b) shall be controlling with respect to retirement benefits. The balance of the Retirement Income Trust Fund, measured as of the Executive’s Benefit Age, shall be paid to the Executive in a lump sum on his Benefit Eligibility Date. In the event the Executive dies after becoming eligible for such payment (upon attainment of his Benefit Age), but before the actual payment is made, his Beneficiary shall be entitled to receive the lump sum benefit in accordance with this Subsection 3.1(b) within thirty (30) days of the date the Administrator receives notice of the Executive’s death.",
"The balance of the Executive’s Accrued Benefit Account (if applicable), measured as of the Executive’s Benefit Age, shall be paid to the Executive in a lump sum on his Benefit Eligibility Date. Notwithstanding the foregoing, in the event Executive is a Specified Employee (within the meaning of Treasury Regulations §1.409A-1(i)), and to the extent necessary to avoid penalties under Code Section 409A, such payment of the balance of the Executive’s Accrued Benefit Account shall be made to the Executive on the first day of the seventh month following the Executive’s Benefit Age. In the event the Executive dies after becoming eligible for such payment (upon attainment of his Benefit Age), but before the actual payment is made, his Beneficiary shall be entitled to receive the lump sum benefit in accordance with this Subsection 3.1(b) within thirty (30) days of the date the Administrator receives notice of the Executive’s death. 3.2 Additional Death Benefit - Burial Expense. In addition to the above-described benefits, upon the Executive’s death, the Executive’s Beneficiary shall be entitled to receive a one-time lump sum death benefit in the amount of Ten Thousand Dollars ($10,000.00). This benefit shall be provided specifically for the purpose of providing payment for burial and/or funeral expenses of the Executive. Such benefit shall be payable within thirty (30) days of the Executive’s death. The Executive’s Beneficiary shall not be entitled to such benefit if the Executive is removed for Cause prior to death.",
"Notwithstanding anything in this Section 3.2 to the contrary, if the Executive is also a participant in any other Trustee Deferred Compensation Agreement or an Executive Deferred Compensation Agreement under which an additional $10,000 death benefit for burial expenses is being paid, no additional death benefit shall be paid under this Section 3.2. SECTION IV PRE-RETIREMENT DEATH BENEFIT 4.1 (a) Normal form of payment. If (i) the Executive dies while employed by the Bank, and (ii) the Executive has not made a Timely Election to receive a lump sum benefit, this Subsection 4.1(a) shall be controlling with respect to pre-retirement death benefits. The balance of the Executive’s Retirement Income Trust Fund, measured as of the later of (i) the Executive’s death, or (ii) the date any final lump sum Contribution is made pursuant to Subsection 2.1(b), shall be annuitized (using the Interest Factor) into monthly installments and shall be payable for the Payout Period. Such benefits shall commence within thirty (30) days of the date of the Executive’s death. Should Retirement Income Trust Fund assets actually earn a rate of return, following the date such balance is annuitized, which is less than the rate of return used to annuitize the Retirement income Trust Fund, no additional contributions to the Retirement Income Trust Fund shall be required by the Bank in order to fund the final benefit payment(s) and make up for any shortage attributable to the less-than-expected rate of return.",
"Should Retirement Income Trust Fund assets actually earn a rate of return, following the date such balance is annuitized, which is greater than the rate of return used to annuitize the Retirement Income Trust Fund, the final benefit payment to the Executive’s Beneficiary shall distribute the excess amounts attributable to the greater-than-expected rate of return. The Executive’s Beneficiary may request to receive the unpaid balance of the Executive’s Retirement Income Trust Fund in a lump sum payment. If a lump sum payment is requested by the Beneficiary, payment of the balance of the Retirement Income Trust Fund in such lump sum form shall be made only if the Executive’s Beneficiary notifies both the Administrator and trustee in writing of such election within ninety (90) days of the Executive’s death. Such lump sum payment shall be made within thirty (30) days of such notice.",
"The Executive’s Accrued Benefit Account (if applicable), measured as of the later of (i) the Executive’s death or (ii) the date any final lump sum Phantom Contribution is recorded in the Accrued Benefit Account pursuant to Subsection 2.1(c), shall be annuitized (using the Interest Factor) into monthly installments and shall be payable to the Executive’s Beneficiary for the Payout Period. Such benefit payments shall commence within thirty (30) days of the date the Executive’s death, or if later, within thirty (30) days after any final lump sum Phantom Contribution is recorded in the Accrued Benefit Account in accordance with Subsection 2.1(c), provided that payment commences within two and one-half months immediately following the taxable year of the Executive’s death. (b) Alternative payout option. If (i) the Executive dies while employed by the Bank, and (ii) the Executive has made a Timely Election to receive a lump sum benefit, this Subsection 4.1(b) shall be controlling with respect to pre-retirement death benefits. The balance of the Executive’s Retirement Income Trust Fund, measured as of the later of (i) the Executive’s death, or (ii) the date any final lump sum Contribution is made pursuant to Subsection 2.1(b), shall be paid to the Executive’s Beneficiary in a lump sum within thirty (30) days of the date of the Executive’s death. The balance of the Executive’s Accrued Benefit Account (if applicable), measured as of the later of (i) the Executive’s death, or (ii) the date any final Phantom Contribution is recorded pursuant to Subsection 2.1(c), shall be paid to the Executive’s Beneficiary in a lump sum within thirty (30) days of the date of the Executive’s death.",
"SECTION V BENEFIT(S) IN THE EVENT OF TERMINATION OF SERVICE PRIOR TO RETIREMENT AGE 5.1 Voluntary or Involuntary Termination of Service Other Than for Cause. In the event the Executive’s service with the Bank is voluntarily or involuntarily terminated prior to Retirement Age, for any reason including a Change in Control, but excluding (i) any disability related termination for which the Board of Directors has approved early payment of benefits pursuant to Subsection 6.1, (ii) the Executive’s pre-retirement death, which shall be covered in Section IV, or (iii) termination for Cause, which shall be covered in Subsection 5.2, the Executive (or his Beneficiary) shall be entitled to receive benefits in accordance with this Subsection 5.1. Payments of benefits pursuant to this Subsection 5.1 shall be made in accordance with Subsection 5.1 (a) or 5.1 (b) below, as applicable. (a) Normal form of payment.",
"(1) Executive Lives Until Benefit Age If (i) after such termination, the Executive lives until attaining his Benefit Age, and (ii) the Executive has not made a Timely Election to receive a lump sum benefit, this Subsection 5.1(a)(1) shall be controlling with respect to retirement benefits. The Retirement Income Trust Fund, measured as of the Executive’s Benefit Age, shall be annuitized (using the Interest Factor) into monthly installments and shall be payable for the Payout Period. Such payments shall commence on the Executive’s Benefit Eligibility Date. Should Retirement Income Trust Fund assets actually earn a rate of return, following the date such balance is annuitized, which is less than the rate of return used to annuitize the Retirement Income Trust Fund, no additional contributions to the Retirement Income Trust Fund shall be required by the Bank in order to fund the final benefit payment(s) and make up for any shortage attributable to the less-than-expected rate of return.",
"Should Retirement Income Trust Fund assets actually earn a rate of return, following the date such balance is annuitized, which is greater than the rate of return used to annuitize the Retirement Income Trust Fund, the final benefit payment to the Executive (or his Beneficiary) shall distribute the excess amounts attributable to the greater-than-expected rate of return. The Executive may at anytime during the Payout Period request to receive the unpaid balance of his Retirement Income Trust Fund in a lump sum payment. If such a lump sum payment is requested by the Executive, payment of the balance of the Retirement Income Trust Fund in such lump sum form shall be made only if the Executive gives notice to both the Administrator and trustee in writing. Such lump sum payment shall be payable within thirty (30) days of such notice. In the event the Executive dies at any time after attaining his Benefit Age, but prior to commencement or completion of all monthly payments due and owing hereunder, (i) the trustee of the Retirement Income Trust Fund shall pay to the Executive’s Beneficiary the monthly installments (or a continuation of the monthly installments if they have already commenced) for the balance of months remaining in the Payout Period, or (ii) the Executive’s Beneficiary may request to receive the unpaid balance of the Executive’s Retirement Income Trust Fund in a lump sum payment.",
"If a lump sum payment is requested by the Beneficiary, payment of the balance of the Retirement Income Trust Fund in such lump sum form shall be made only if the Executive’s Beneficiary notifies both the Administrator and trustee in writing of such election within ninety (90) days of the Executive’s death. Such lump sum payment shall be made within thirty (30) days of such notice. The Executive’s Accrued Benefit Account (if applicable), measured as of the Executive’s Benefit Age, shall be annuitized (using the Interest Factor) into monthly installments and shall be payable for the Payout Period. Such benefit payments shall commence on the Executive’s Benefit Eligibility Date.",
"In the event the Executive dies at any time after attaining his Benefit Age, but prior to commencement or completion of all the payments due and owing hereunder, (i) the Bank shall pay to the Executive’s Beneficiary the same monthly installments (or a continuation of such monthly installments if they have already commenced) for the balance of months remaining in the Payout Period. (2) Executive Dies Prior to Benefit Age If (i) after such termination, the Executive dies prior to attaining his Benefit Age, and (ii) the Executive has not made a Timely Election to receive a lump sum benefit, this Subsection 5.1(a)(2) shall be controlling with respect to retirement benefits. The Retirement Income Trust Fund, measured as of the date of the Executive’s death, shall be annuitized (using the Interest Factor) into monthly installments and shall be payable for the Payout Period. Such payments shall commence within thirty (30) days of the Executive’s death. Should Retirement Income Trust Fund assets actually earn a rate of return, following the date such balance is annuitized, which is less than the rate of return used to annuitize the Retirement Income Trust Fund, no additional contributions to the Retirement Income Trust Fund shall be required by the Bank in order to fund the final benefit payment(s) and make up for any shortage attributable to the less-than-expected rate of return. Should Retirement Income Trust Fund assets actually earn a rate of return, following the date such balance is annuitized, which is greater than the rate of return used to annuitize the Retirement Income Trust Fund, the final benefit payment to the Executive’s Beneficiary shall distribute the excess amounts attributable to the greater than-expected rate of return.",
"The Executive’s Beneficiary may request to receive the unpaid balance of the Executive’s Retirement Income Trust Fund in the form of a lump sum payment. If a lump sum payment is requested by the Beneficiary, payment of the balance of the Retirement Income Trust Fund in such lump sum form shall be made only if the Executive’s Beneficiary notifies both the Administrator and trustee in writing of such election within ninety (90) days of the Executive’s death. Such lump sum payment shall be made within thirty (30) days of such notice. The Executive’s Accrued Benefit Account (if applicable), measured as of the date of the Executive’s death, shall be annuitized (using the Interest Factor) into monthly installments and shall be payable for the Payout Period. Such payments shall commence within thirty (30) days of the Executive’s death. (b) Alternative Payout Option. If (i) after such termination, the Executive lives until attaining his Benefit Age, and (ii) the Executive has made a Timely Election to receive a lump sum benefit, this Subsection 5.1(b)(1) shall be controlling with respect to retirement benefits.",
"The balance of the Retirement Income Trust Fund, measured as of the Executive’s Benefit Age, shall be paid to the Executive in a lump sum on his Benefit Eligibility Date. In the event the Executive dies after becoming eligible for such payment (upon attainment of his Benefit Age), but before the actual payment is made, his Beneficiary shall be entitled to receive the lump sum benefit in accordance with this Subsection 5.1(b)(1) within thirty (30) days of the date of the Executive’s death. The balance of the Executive’s Accrued Benefit Account (if applicable), measured as of the Executive’s Benefit Age, shall be paid to the Executive in a lump sum on his Benefit Eligibility Date.",
"In the event the Executive dies after becoming eligible for such payment (upon attainment of his Benefit Age), but before the actual payment is made, his Beneficiary shall be entitled to receive the lump sum benefit in accordance with this Subsection 5.1(b)(1) within thirty (30) days of the date of the Executive’s death. (2) Executive Dies Prior to Benefit Age If (i) after such termination, the Executive dies prior to attaining his Benefit Age, and (ii) the Executive has made a Timely Election to receive a lump sum benefit, this Subsection 5.1(b)(2) shall be controlling with respect to pre-retirement death benefits. The balance of the Retirement Income Trust Fund, measured as of the date of the Executive’s death, shall be paid to the Executive’s Beneficiary within thirty (30) days of the date of the Executive’s death. The balance of the Executive’s Accrued Benefit Account (if applicable), measured as of the date of the Executive’s death, shall be paid to the Executive’s Beneficiary within thirty (30) days of the Executive’s death.",
"5.2 Termination For Cause. If the Executive is terminated for Cause, all benefits under this Agreement, other than those which can be paid from previous Contributions to the Retirement Income Trust Fund (and earnings on such Contributions), shall be forfeited. Furthermore, no further Contributions (or Phantom Contributions, as applicable) shall be required of the Bank for the year in which such termination for Cause occurs (if not yet made). The Executive shall be entitled to receive a benefit in accordance with this Subsection 5.2. The balance of the Executive’s Retirement Income Trust Fund shall be paid to the Executive in a lump sum on his Benefit Eligibility Date. In the event the Executive dies prior to his Benefit Eligibility Date, his Beneficiary shall be entitled to receive the balance of the Executive’s Retirement Income Trust. SECTION VI DISABILITY BENEFIT If the Executive’s service is terminated prior to Retirement Age due to a disability which meets the criteria set forth below, the Executive will receive the Disability Benefit in lieu of the retirement benefit(s) available pursuant to Section 5.1 (which is (are) not available prior to the Executive’s Benefit Eligibility Date).",
"In any instance in which (i) the Executive is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death, or last for a continuous period of not less than 12 months; (ii) by reason of any medically determinable physical or mental impairment that can be expected to result in death, or last for continuous period of not less than 12 months, Executive is receiving income replacement benefits for a period of not less than three months under an accident and health plan covering employees of the Bank; or (iii) the Executive is determined to be totally disabled by the Social Security Administration., the Executive shall be entitled to the following lump sum benefit(s).",
"The lump sum benefit(s) to which the Executive is entitled shall include: (i) the balance of the Retirement Income Trust Fund, plus (ii) the balance of the Accrued Benefit Account (if applicable). The benefit(s) shall be paid within thirty (30) days following the date of the Executive is determined to be disabled. In the event the Executive dies after becoming eligible for such payment(s) but before the actual payment(s) is (are) made, his Beneficiary shall be entitled to receive the benefit(s) provided for in this Section 6 within thirty (30) days of the date the Administrator receives notice of the Executive’s death. SECTION VII BENEFICIARY DESIGNATION The Executive shall make an initial designation of primary and secondary Beneficiaries upon execution of this Agreement and shall have the right to change such designation, at any subsequent time, by submitting to (i) the Administrator, and (ii) the trustee of the Retirement Income Trust Fund, in substantially the form attached as Exhibit B to this Agreement, a written designation of primary and secondary Beneficiaries. Any Beneficiary designation made subsequent to execution of this Agreement shall become effective only when receipt thereof is acknowledged in writing by the Administrator. SECTION VIII NON-COMPETITION 8.1 Non-Competition During Employment. In consideration of the agreements of the Bank contained herein and of the payments to be made by the Bank pursuant hereto, the Executive hereby agrees that, for as long as he remains employed by the Bank, he will devote substantially all of his time, skill, diligence and attention to the business of the Bank, and will not actively engage, either directly or indirectly, in any business or other activity which is, or may be deemed to be, in any way competitive with or adverse to the best interests of the business of the Bank, unless the Executive has the prior express written consent of the Bank.",
"8.2 Breach of Non-Competition Clause. (a) Continued Employment Following Breach. In the event (i) any material breach by the Executive of the agreements and covenants described in Subsection 8.1 occurs, and (ii) the Executive continues employment at the Bank following such breach, all further Contributions to the Retirement Income Trust Fund (or Phantom Contributions recorded in the Accrued Benefit Account) shall immediately cease, and all benefits under this Agreement, other than those which can be paid from previous Contributions to the Retirement Income Trust Fund (and earnings on such Contributions), shall be forfeited. The Executive (or his Beneficiary) shall be entitled to receive a benefit from the Retirement Income Trust Fund in accordance with Subpart (1) or (2) below, as applicable. (1) Executive Lives Until Benefit Age If, following such breach, the Executive lives until attaining his Benefit Age, he shall be entitled to receive a benefit from the Retirement Income Trust Fund in accordance with this Subsection 8.2(a)(1). The balance of the Retirement Income Trust Fund, measured as of the Executive’s Benefit Age, shall be paid to the Executive in a lump sum on his Benefit Eligibility Date. In the event the Executive dies after attaining his Benefit Age but before actual payment is made, his Beneficiary shall be entitled to receive the lump sum benefit in accordance with this Subsection 8.2(a)(l) within thirty (30) days of the date of the Executive’s death. (2) Executive Dies Prior to Benefit Age.",
"If, following such breach, the Executive dies prior to attaining his Benefit Age, his Beneficiary shall be entitled to receive a benefit from the Retirement Income Trust Fund in accordance with this Subsection 8.2 (a)(2). The balance of the Retirement Income Trust Fund, measured as of the date of the Executive’s death, shall be paid to the Executive’s Beneficiary in a lump sum within thirty (30) days of the date of the Executive’s death.",
"(b) Termination of Employment Following Breach. In the event (i) any material breach by the Executive of the agreements and covenants described in Subsection 8.1 occurs, and (ii) the Executive’s employment with the Bank is terminated due to such breach, such termination shall be deemed to be for Cause and the benefits payable to the Executive shall be paid in accordance with Subsection 5.2 of this Agreement. 8.3 Non-Competition Following Employment. Executive further understands and agrees that, following Executive’s termination of employment, the Bank’s obligation, if any, to make payments to the Executive from the Accrued Benefit Account shall be conditioned on the Executive’s forbearance from actively engaging, either directly or indirectly in any business or other activity which is, or may be deemed to be, in any way competitive with or adverse to the best interests of the Bank, unless the Executive has the prior written consent of the Bank. In the event of the Executive’s breach of the covenants and agreements contained herein, further payments to the Executive from the Accrued Benefit Account, if any, shall cease and Executive’s rights to amounts credited to the Accrued Benefit Account shall be forfeited. SECTION IX EXECUTIVE’S RIGHT TO ASSETS The rights of the Executive, any Beneficiary, or any other person claiming through the Executive under this Agreement, shall be solely those of an unsecured general creditor of the Bank.",
"The Executive, the Beneficiary, or any other person claiming through the Executive, shall only have the right to receive from the Bank those payments or amounts so specified under this Agreement. The Executive agrees that he, his Beneficiary, or any other person claiming through him shall have no rights or interests whatsoever in any asset of the Bank, including any insurance policies or contracts which the Bank may possess or obtain to informally fund this Agreement. Any asset used or acquired by the Bank in connection with the liabilities it has assumed under this Agreement shall not be deemed to be held under any trust for the benefit of the Executive or his Beneficiaries, unless such asset is contained in the rabbi trust described in Section XII of this Agreement.",
"Any such asset shall be and remain, a general, unpledged asset of the Bank in the event of the Bank’s insolvency. SECTION X RESTRICTIONS UPON FUNDING The Bank shall have no obligation to set aside, earmark or entrust any fund or money with which to pay its obligations under this Agreement, other than those Contributions required to be made to the Retirement Income Trust Fund. The Executive, his Beneficiaries or any successor in interest to him shall be and remain simply a general unsecured creditor of the Bank in the same manner as any other creditor having a general claim for matured and unpaid compensation. The Bank reserves the absolute right in its sole discretion to either purchase assets to meet its obligations undertaken by this Agreement or to refrain from the same and to determine the extent, nature, and method of such asset purchases. Should the Bank decide to purchase assets such as life insurance, mutual funds, disability policies or annuities, the Bank reserves the absolute right, in its sole discretion, to replace such assets from time to time or to terminate its investment in such assets at any time, in whole or in part. At no time shall the Executive be deemed to have any lien, right, title or interest in or to any specific investment or to any assets of the Bank.",
"If the Bank elects to invest in a life insurance, disability or annuity policy upon the life of the Executive, then the Executive shall assist the Bank by freely submitting to a physical examination and by supplying such additional information necessary to obtain such insurance or annuities. SECTION XI ACT PROVISIONS 11.1 Named Fiduciary and Administrator. The Bank, as Administrator, shall be the Named Fiduciary of this Agreement. As Administrator, the Bank shall be responsible for the management, control and administration of the Agreement as established herein. The Administrator may delegate to others certain aspects of the management and operational responsibilities of the Agreement, including the employment of advisors and the delegation of ministerial duties to qualified individuals. 11.2 Claims Procedure and Arbitration. In the event that benefits under this Agreement are not paid to the Executive (or to his Beneficiary in the case of the Executive’s death) and such claimants feel they are entitled to receive such benefits, then a written claim must be made to the Administrator within sixty (60) days from the date payments are refused.",
"The Administrator shall review the written claim and, if the claim is denied, in whole or in part, it shall provide in writing, within ninety (90) days of receipt of such claim, its specific reasons for such denial, reference to the provisions of this Agreement upon which the denial is based, and any additional material or information necessary to perfect the claim. Such writing by the Administrator shall further indicate the additional steps which must be undertaken by claimants if an additional review of the claim denial is desired. If claimants desire a second review, they shall notify the Administrator in writing within sixty (60) days of the first claim denial. Claimants may review this Agreement or any documents relating thereto and submit any issues and comments, in writing, they may feel appropriate. In its sole discretion, the Administrator shall then review the second claim and provide a written decision within sixty (60) days of receipt of such claim. This decision shall state the specific reasons for the decision and shall include reference to specific provisions of this Agreement upon which the decision is based.",
"If claimants continue to dispute the benefit denial based upon completed performance of this Plan and the Joinder Agreement or the meaning and effect of the terms and conditions thereof, then claimants may submit the dispute to mediation, administered by the American Arbitration Association (“AAA”) (or a mediator selected by the parties) in accordance with the AAA’s Commercial Mediation Rules. If mediation is not successful in resolving the dispute, it shall be settled by arbitration administered by the AAA under its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. SECTION XII MISCELLANEOUS 12.1 No Effect on Employment Rights. Nothing contained herein will confer upon the Executive the right to be retained in the service of the Bank nor limit the right of the Bank to discharge or otherwise deal with the Executive without regard to the existence of the Agreement.",
"12.2 State Law. The Agreement is established under, and will be construed according to, the laws of the state of New York, to the extent such laws are not preempted by the Act and valid regulations published thereunder. 12.3 Severability. In the event that any of the provisions of this Agreement or portion thereof, are held to be inoperative or invalid by any court of competent jurisdiction, then: (1) insofar as is reasonable, effect will be given to the intent manifested in the provisions held invalid or inoperative, and (2) the validity and enforceability of the remaining provisions will not be affected thereby. 12.4 Incapacity of Recipient. In the event the Executive is declared incompetent and a conservator or other person legally charged with the care of his person or Estate is appointed, any benefits under the Agreement to which such Executive is entitled shall be paid to such conservator or other person legally charged with the care of his person or Estate. 12.5 Unclaimed Benefit.",
"The Executive shall keep the Bank informed of his current address and the current address of his Beneficiaries. The Bank shall not be obligated to search for the whereabouts of any person. If the location of the Executive is not made known to the Bank as of the date upon which any payment of any benefits from the Accrued Benefit Account may first be made, the Bank shall delay payment of the Executive’s benefit payment(s) until the location of the Executive is made known to the Bank; however, the Bank shall only be obligated to hold such benefit payment(s) for the Executive until the expiration of thirty-six (36) months. Upon expiration of the thirty-six (36) month period, the Bank may discharge its obligation by payment to the Executive’s Beneficiary.",
"If the location of the Executive’s Beneficiary is not made known to the Bank by the end of an additional two (2) month period following expiration of the thirty-six (36) month period, the Bank may discharge its obligation by payment to the Executive’s Estate. If there is no Estate in existence at such time or if such fact cannot be determined by the Bank, the Executive and his Beneficiary(ies) shall thereupon forfeit any rights to the balance, if any, of the Executive’s Accrued Benefit Account provided for such Executive and/or Beneficiary under this Agreement. 12.6 Limitations on Liability. Notwithstanding any of the preceding provisions of the Agreement, no individual acting as an employee or agent of the Bank, or as a member of the Board of Directors shall be personally liable to the Executive or any other person for any claim, loss, liability or expense incurred in connection with the Agreement. 12.7 Gender.",
"Whenever in this Agreement words are used in the masculine or neuter gender, they shall be read and construed as in the masculine, feminine or neuter gender, whenever they should so apply. 12.8 Effect on Other Corporate Benefit Agreements. Nothing contained in this Agreement shall affect the right of the Executive to participate in or be covered by any qualified or non-qualified pension, profit sharing, group, bonus or other supplemental compensation or fringe benefit agreement constituting a part of the Bank’s existing or future compensation structure. 12.9 Suicide. Notwithstanding anything to the contrary in this Agreement, if the Executive’s death results from suicide, whether sane or insane, within twenty-six (26) months after September 1, 1998, all further Contributions to the Retirement Income Trust Fund (or Phantom Contributions recorded in the Accrued Benefit Account) shall thereupon cease, and no Contribution (or Phantom Contribution) shall be made by the Bank to the Retirement Income Trust Fund (or recorded in the Accrued Benefit Account) in the year such death resulting from suicide occurs (if not yet made). All benefits other than those available from previous Contributions to the Retirement Income Trust Fund under this Agreement shall be forfeited, and this Agreement shall become null and void. The balance of the Retirement Income Trust Fund, measured as of the Executive’s date of death, shall be paid to the Beneficiary within thirty (30) days of the date the Administrator receives notice of the Executive’s death. 12.10 Inurement.",
"This Agreement shall be binding upon and shall inure to the benefit of the Bank, its successors and assigns, and the Executive, his successors, heirs, executors, administrators, and Beneficiaries. 12.11 Headings. Headings and sub-headings in this Agreement are inserted for reference and convenience only and shall not be deemed a part of this Agreement. 12.12 Establishment of a Rabbi Trust. The Bank shall establish a rabbi trust into which the Bank shall contribute assets which shall be held therein, subject to the claims of the Bank’s creditors in the event of the Bank’s “Insolvency” (as defined in such rabbi trust agreement), until the contributed assets are paid to the Executive and/or his Beneficiary in such manner and at such times as specified in this Agreement. It is the intention of the Bank that the contribution or contributions to the rabbi trust shall provide the Bank with a source of funds to assist it in meeting the liabilities of this Agreement. 12.13 Source of Payments.",
"All payments provided in this Agreement shall be timely paid in cash or check from the general funds of the Bank or the assets of the rabbi trust, to the extent made from the Accrued Benefit Account. 12.14 Tax Withholding and Code Section 409A Taxes With Respect to the Accrued Benefit Account. Any distribution under this Agreement from the Executive’s Accrued Benefit Account shall be reduced by the amount of any taxes required to be withheld from such distribution. This Agreement shall permit the acceleration of the time or schedule of a payment to pay employment related taxes as permitted under Treasury Regulation Section 1.409A-3(j) or to pay any taxes that may become due at any time that the arrangement fails to meet the requirements of Code Section 409A and the regulations and other guidance promulgated thereunder. In the latter case, such payments shall not exceed the amount required to be included in income as the result of the failure to comply with the requirements of Code Section 409A.",
"12.15 Acceleration of Payments from the Accrued Benefit Account. Except as specifically permitted herein or in other sections of this Agreement, no acceleration of the time or schedule of any payment may be made hereunder from the Executive’s Accrued Benefit Account. Notwithstanding the foregoing, payments may be accelerated hereunder by the Bank, in accordance with the provisions of Treasury Regulation Section 1.409A-3(j)(4) and any subsequent guidance issued by the United States Treasury Department.",
"Accordingly, payments may be accelerated, in accordance with requirements and conditions of the Treasury Regulations (or subsequent guidance) in the following circumstances: (i) as a result of certain domestic relations orders; (ii) in compliance with ethics agreements with the Federal government; (iii) in compliance with ethics laws or conflicts of interest laws; (iv) in limited cash-outs (but not in excess of the limit under Code Section 402(g)(1)(B)); (v) in the case of certain distributions to avoid a non-allocation year under Code Section 409(p); (vi) to apply certain offsets in satisfaction of a debt of the Executive to the Bank; (vii) in satisfaction of certain bona fide disputes between the Executive and the Bank; or (viii) for any other purpose set forth in the Treasury Regulations and subsequent guidance. SECTION XIII AMENDMENT/PLAN TERMINATION 13.1 Amendment or Plan Termination.",
"This Agreement shall not be amended, modified or terminated at any time, in whole or part, without the mutual written consent of the Executive and the Bank, and such mutual consent shall be required even if the Executive is no longer employed by the Bank. No amendment, modification or termination of the Agreement by the Bank shall directly or indirectly deprive the Executive of all or any portion of the Executive’s Retirement Income Trust Fund (and Accrued Benefit Account, if applicable) as of the effective date of the resolution amending or terminating the Agreement. 13.2 Executive’s Right to Payment Following Plan Termination. In the event of a termination of the Agreement, with respect to the Executive’s Retirement Income Trust Fund, the Executive shall be entitled to the balance, if any, of his Retirement Income Trust Fund.",
"However, if such termination is done in anticipation of or pursuant to a “Change in Control,” such balance(s) shall include the final Contribution made (or recorded) pursuant to Subsection 2.1(b)(2) (or 2.1(c)(2)). Payment of the balance(s) of the Executive’s Retirement Income Trust Fund shall not be dependent upon his continuation of employment with the Bank following the termination date of the Agreement. Payment of the balance(s) of the Executive’s Retirement Income Trust Fund shall be made in a lump sum within thirty (30) days of the date of termination of the Agreement. Notwithstanding the foregoing, in the event of a termination of the Agreement, with respect to the Executive’s Accrued Benefit Account (if applicable), the Agreement shall cease to operate and the Bank shall pay out to the Executive the balance or his Accrued Benefit Account only upon the following circumstances and conditions: (a) The Bank may terminate the Agreement within 12 months of a corporate dissolution taxed under Code Section 331, or with approval of a bankruptcy court pursuant to 11 U.S.C.",
"§503(b)(1)(A), provided that the amounts deferred under the Agreement are included in the Executive’s gross income in the latest of (i) the calendar year in which the Agreement terminates; (ii) the calendar year in which the amount is no longer subject to a substantial risk of forfeiture; or (iii) the first calendar year in which the payment is administratively practicable. (b) The Bank may terminate the Agreement within the 30 days preceding a Change in Control (but not following a Change in Control), provided that the Agreement shall only be treated as terminated if all substantially similar arrangements sponsored by the Bank are terminated so that the Executive and all executives under substantially similar arrangements are required to receive all amounts of compensation deferred under the terminated arrangements within 12 months of the date of the termination of the arrangements.",
"For these purposes, “Change in Control” shall be defined in accordance with the Treasury Regulations under Code Section 409A. (c) The Bank may terminate the Agreement provided that: (i) the termination and liquidation does not occur proximate to a downturn in the financial health of the Bank; (ii) all arrangements sponsored by the Bank that would be aggregated with this Agreement under Treasury Regulations Section 1.409A-1(c) if the Executive covered by this Agreement was also covered by any of those other arrangements are also terminated; (iii) no payments other than payments that would be payable under the terms of the arrangement if the termination had not occurred are made within 12 months of the termination of the arrangement; (iv) all payments are made within 24 months of the termination of the arrangements; and (v) the Bank does not adopt a new arrangement that would be aggregated with any terminated arrangement under Treasury Regulations Section 1.409A-1(c) if the Executive participated in both arrangements, at any time within three years following the date of termination of the arrangement. SECTION XIV EXECUTION 14.1 This Agreement and the Thomas Schneider Grantor Trust Agreement set forth the entire understanding of the parties hereto with respect to the transactions contemplated hereby, and any previous agreements or understandings between the parties hereto regarding the subject matter hereof are merged into and superseded by this Agreement and the Thomas Schneider Grantor Trust Agreement. 14.2 This Agreement shall be executed in triplicate, each copy of which, when so executed and delivered, shall be an original, but all three copies shall together constitute one and the same instrument.",
"[Remainder of page intentionally left blank] IN WITNESS WHEREOF, the Bank and the Executive have caused this Agreement to be executed on the day and date first above written. : PATHFINDER BANK: By: /s/ Thomas W. Schneider 12/23/08 President & CEO DATE (Title) : EXECUTIVE: 12/23/08 /s/ Thomas W. Schneider DATE Thomas Schneider CONDITIONS, ASSUMPTIONS, AND SCHEDULE OF CONTRIBUTIONS AND PHANTOM CONTRIBUTIONS 1. Interest Factor - for purposes of a. the Accrued Benefit Account - shall be six percent (6%) per annum, compounded monthly. b. the Retirement Income Trust Fund - for purposes of annuitizing the balance of the Retirement Income Trust Fund over the Payout Period, the trustee of the Thomas Schneider Grantor Trust shall exercise discretion in selecting the appropriate rate given the nature of the investments contained in the Retirement Income Trust Fund and the expected return associated with the investments. For these purposes, if the trustee of the Retirement Income Trust Fund has purchased a life insurance policy, the trustee shall have the discretion to determine the portion of the cash value of such policy available for purposes of annuitizing the Retirement Income Trust Fund, in accordance with Section 2.3 of the Agreement.",
"2. The amount of the annual Contributions (or Phantom Contributions) to the Retirement Income Trust Fund (or Accrued Benefit Account) has been based on the annual incremental accounting accruals which would be required of the Bank through the earlier of the Executive’s death or Retirement Age, (i) pursuant to APB Opinion No. 12, as amended by FAS 106 and (ii) assuming a discount rate equal to six percent (6%) per annum, in order to provide the unfunded, non-qualified Supplemental Retirement Income Benefit.",
"3. Supplemental Retirement Income Benefit means an actuarially determined annual amount equal to Seventy One Thousand One Hundred Forty-nine Dollars ($71,149) at age 62 if paid entirely from the Accrued Benefit Account or Forty Four Thousand Four Hundred Eighty-nine Dollars ($44,489) at age 62 if paid from the Retirement Income Trust Fund. The Supplemental Retirement Income Benefit: · the definition of Supplemental Retirement Income Benefit has been incorporated into the Agreement for the sole purpose of actuarially establishing the amount of annual Contributions (or Phantom Contributions) to the Retirement Income Trust Fund (or Accrued Benefit Account). The amount of any actual retirement, pre-retirement or disability benefit payable pursuant to the Agreement will be a function of (i) the amount and timing of Contributions (or Phantom Contributions) to the Retirement Income Trust Fund (or Accrued Benefit Account) and (u) the actual investment experience of such Contributions (or the monthly compounding rate of Phantom Contributions).",
"4. Schedule of Annual Gross Contributions/Phantom Contributions Plan Year Amount 1998 17,623 1999 8,264 2000 9,217 2001 10,255 2002 11,387 2003 12,619 2004 13,960 2005 15,418 2006 17,003 2007 18,724 2008 20,594 2009 22,623 2010 24,823 2011 27,209 2012 29,796 2013 32,597 2014 36,631 2015 38,915 2016 42,469 2017 46,312 2018 50,469 2019 54,962 2020 59,817 2021 65,063 2022 61,064 AMENDED AND RESTATED SECOND EXECUTIVE SUPPLEMENTAL RETIREMENT INCOME AGREEMENT BENEFICIARY DESIGNATION The Executive, under the teams of the Executive Supplemental Retirement Income Agreement executed by the Bank, dated the 1st day of January 2005, hereby designates the following Beneficiary(ies) to receive any guaranteed payments or death benefits under such Agreement, following his death: PRIMARY BENEFICIARY: Joy Ann Schneider SECONDARY BENEFICIARY: Thomas J. Schneider, Matthew R. Schneider, James A. Schneider, per stirpes This Beneficiary Designation hereby revokes any prior Beneficiary Designation which may have been in effect. Such Beneficiary Designation is revocable.",
"DATE: December 23, 2008 /s/ Edward Mervine /s/ Thomas W. Schneider (WITNESS) EXECUTIVE /s/ Tonya Crisafulli (WITNESS) AMENDED AND RESTATED SECOND EXECUTIVE SUPPLEMENTAL RETIREMENT INCOME AGREEMENT NOTICE OF ELECTION TO CHANGE FORM OF PAYMENT TO: Bank Attention: I hereby give notice of my election to change the form of payment of my Supplemental Retirement Income Benefit from my Retirement Income Trust Fund, as specified below. I understand that such notice, in order to be effective, must be submitted in accordance with the time requirements described in my Executive Supplemental Retirement Agreement. I understand that this form is not applicable to my Accrued Benefit Account. I hereby elect to change the form of payment of my benefits from monthly installments throughout my Payout Period to a lump sum benefit payment. I hereby elect to change the form of payment of my benefits from a lump sum benefit payment to monthly installments throughout my Payout Period.",
"Such election hereby revokes my previous notice of election to receive a lump sum form of benefit payments. Executive Date Acknowledged By: Title: Date: ________________________________________ AMENDED AND RESTATED SECOND EXECUTIVE SUPPLEMENTAL RETIREMENT INCOME AGREEMENT TRANSITION YEAR ELECTION FORM Instructions: you have a limited period of time to use this Transition Year Election Form to elect to change the form of payment of your Supplemental Retirement Income Benefit from your Accrued Benefit Account, as specified below. Due to IRS rules, you must complete this form no later than December 31, 2008.",
"If you elect to change the form of payment of your Supplemental Retirement Income Benefit from your Accrued Benefit Account, you may not use this election form to change the form of payment with respect to benefits that are scheduled to be paid to you in 2008, or otherwise to cause your benefits to be paid to you in 2008. I hereby elect to change the form of payment of my benefits from my Accrued Benefit Account from monthly installments throughout my Payout Period to a lump sum benefit payment. I hereby elect to change the form of payment of my benefits from my Accrued Benefit Account from a lump sum benefit payment to monthly installments throughout my Payout Period.",
"Such election hereby revokes my previous notice of election to receive a lump sum form of benefit payments. Executive Date Acknowledged By: Title: Date: ________________________________________"
] | https://github.com/TheAtticusProject/cuad | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
|
DETAILED ACTION Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . Priority Receipt is acknowledged of a certified copy of JP 2019-019655 filed February 6, 2019 as required by 37 CFR 1.55. Claim Status Claims Filing Date June 15, 2022 Amended 1, 3 Under Examination 1-3
Withdrawn Claim Rejections - 35 USC § 112 The following 112(b) rejections are withdrawn due to claim amendment: Claim 1 lines 8-13 “heating…while maintaining all amorphous alloy ribbons other than the one amorphous alloy ribbon…of the laminated body within a temperature range less than the crystallization starting temperature” and lines 20-27 “wherein a crystallization and a generation of heat thereby are propagated from the one amorphous alloy ribbon at the one end to the other amorphous alloy ribbon at the other end…as a result of the heating…to manufacture a plurality of nanocrystalline alloy ribbons…”. Claim 1 lines 14-19 “wherein an ambient temperature around the laminated body is held after the heating the laminated body…”. Claim 1 lines 15-16 “the laminated body is maintained within a temperature range in which the laminated body can be crystallized by heating”. Response to Arguments In the remarks filed June 15, 2022, the applicant argues claim 1 has been amended for clarity (Remarks pg. 4 para. 5). The claim amendments filed June 15, 2022 introduced new 112(a) and 112(b) rejections as detailed below. Claim Interpretation Claim 1 lines 16-20 “after heating the first amorphous alloy ribbon to the second temperature, propagating crystallization and generation of heat…” is given the following claim interpretation. Claim 1 line 16 “after heating the first amorphous alloy ribbon to the second temperature” refers back to claim 1 lines 10-15, which also require “maintaining the remaining amorphous alloy ribbons within a temperature range less than the crystallization starting temperature”. Therefore, claim 1 line 16 “after heating…” refers back to after heating the first amorphous alloy ribbon while maintaining the remaining amorphous alloy ribbons as recited in lines 10-15. Claim Rejections - 35 USC § 112 The following is a quotation of the first paragraph of 35 U.S.C. 112(a): (a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112: The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 2 and 3 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. Claim 2 line 3 “pressurizing the laminated body in the lamination direction” fails to comply with the written description requirement. Amended claim 1 recites the steps of forming a laminated body, heating to a first temperature, holding, heating a first amorphous alloy ribbon to a second temperature, and propagating. The pressurizing step as claimed is performed anytime during the process of claim 1 after forming of the laminated body, such as before, during, or after the steps of heating to a first temperature, holding, heating a first amorphous alloy ribbon to a second temperature, and/or propagating. However, applicant’s specification, such as in [0074] and [0075], only supports pressurizing after heating the end portion in the lamination direction of the laminated body to the second temperature range in the second heat treatment step because it enhances crystallization transmission. Therefore, claim 2 is broader than what is supported by the specification. Claim 3 lines 3-5 “bringing a heat dissipating member into contact with the amorphous alloy ribbon at the opposite end of the laminated body” fails to comply with the written description requirement. Amended claim 1 recites the steps of forming a laminated body, heating to a first temperature, holding, heating a first amorphous alloy ribbon to a second temperature, and propagating. The bringing into contact of the heat dissipating member as claimed is performed anytime during the process of claim 1 after forming of the laminated body, such as before, during, or after the steps of heating to a first temperature, holding, heating a first amorphous alloy ribbon to a second temperature, and/or propagating. However, applicant’s specification, such as in [0076], only supports it being performed before or after heating the end portion of the laminated body to a second temperature range to effectively suppress heat accumulation. Therefore, claim 3 is broader than what is supported by the specification. The following is a quotation of 35 U.S.C. 112(b): (b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph: The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-3 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention. Claim 1 lines 8-9 “holding the laminated body in an ambient temperature” and lines 21-25 “wherein the ambient temperature is a temperature range in which the laminated body crystallizes by propagation of the generation of heat after heating the first amorphous alloy ribbon to the second temperature range” renders the claim indefinite. It is unclear if and/or how the step of “holding the laminated body in an ambient temperature” is related to the crystallization by propagation of the generation of heat after heating the first amorphous alloy ribbon to the second temperature range. The ambient temperature range is recited in lines 21-24 as being one in which “the laminated body crystallizes by propagation of the generation of heat after heating the first amorphous alloy ribbon to the second temperature range”. It is unclear if and/or how the holding of the ambient temperature is or is not related to the propagating crystallization step of lines 16-20. The holding step does not recite a duration and it is not recited as occurring during any subsequent steps, such as heating a first amorphous alloy ribbon at one end of the laminated body in a lamination direction to a second temperature and/or propagating crystallization. The “holding the laminated body in an ambient temperature” is only required to be performed “after heating the laminated body to the first temperature”. For example, the holding step could be required to be present only 1) before heating to a second temperature, 2) during heating to a second temperature, but not propagating, or 3) during both heating to a second temperature and propagating. In applicant’s specification [0021]-[0026], [0047]-[0068] are related to applicant’s claimed manufacturing of a laminated body process. In particular [0022], [0056], and [0057] discuss the ambient temperature, including how it relates to the heating to a first temperature, heating a first end of the laminated body to a second temperature, and propagation of crystallization. Also [0058]-[0067] discuss the relationship between respective heat amounts. In [0022] applicant’s specification recites “after the first heat treatment step, the ambient temperature around the laminated body 10 is held such that the whole laminated body 10 is maintained within the temperature range in which the crystallization of the whole laminated body 10 can occur by heating the whole first split ribbon 2A to the second temperature range in the second heat treatment step.” It appears that applicant’s specification indicates the “holding the laminated body in an ambient temperature” occurs during the subsequently claimed “heating…to a second temperature” and the “propagation crystallization…” steps. Claim 3 lines 3-5 “the amorphous alloy ribbon at the opposite end of the laminated body” renders the claim indefinite. There is insufficient antecedent basis. It is unclear what the claimed amorphous alloy ribbon is opposite to and which end of the laminated body is “the opposite end”. Claim 2 is rejected as depending from claim 1. Related Art Idei (JP 2016-197646 machine translation) Idei teaches manufacturing a nanocrystalline soft magnetic alloy ([0001]) by laminating a sheet-shaped amorphous alloy ([0020]) with holes in the core metal ([0023]) into which a heat conductive member is inserted ([0026]-[0028]) then coating with a thermal conductivity higher than the amorphous alloy in contact with the heating element such that the covered is in a state where heat can be transferred to the heated body ([0029], [0030]) . In Idei the entirety of the alloy body is coated with a heating element such that during heating the entirety of the body is heated, which does not read on heating a first amorphous alloy ribbon at one end of the laminated body in a lamination direction to a second temperature range equal to or more than the crystallization starting temperature and propagating crystallization and generation of heat through the laminated body from the first amorphous alloy ribbon to an amorphous alloy ribbon at the opposite end of the laminated body in a lamination direction. Allowable Subject Matter Claim 1 would be allowable if rewritten or amended to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action. The following is an examiner’s statement of reasons for allowance: The prior art of record either alone or in combination does not teach or suggest a method for manufacturing a laminated body by forming a laminated body by laminating a plurality of amorphous alloy ribbons, heating the laminated body to a first temperature range less than a crystallization starting temperature of the amorphous alloy ribbon, holding the laminated body in an ambient temperature, heating a first amorphous alloy ribbon at one end of the laminated body in a lamination range to a second temperature range equal to or more than the crystallization temperature, while maintaining the remaining amorphous alloy ribbons within a temperature range less than the crystallization starting temperature, then propagating crystallization and generation of heat through the laminated body from the first amorphous alloy ribbon to an amorphous alloy ribbon at the opposite end of the laminated body in a lamination direction to manufacture a plurality of nanocrystalline alloy ribbons in which the plurality of amorphous alloy ribbons are crystallized in the laminated body, wherein the ambient temperature is a temperature range in which the laminated body crystallizes by propagation of the generation of heat after heating the first amorphous alloy ribbon to the second temperature range in combination with the other limitations recited in claim 1. Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.” Conclusion Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a). A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the date of this final action.
Contact Information Any inquiry concerning this communication or earlier communications from the examiner should be directed to STEPHANI HILL whose telephone number is (571)272-2523. The examiner can normally be reached on Monday-Friday 7am-12pm. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, KEITH WALKER can be reached on 571-272-3458. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see https://ppair-my.uspto.gov/pair/PrivatePair. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/S.H./Examiner, Art Unit 1735
/PAUL A WARTALOWICZ/Primary Examiner, Art Unit 1735 | 2022-07-16T12:36:28 | [
"DETAILED ACTION Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . Priority Receipt is acknowledged of a certified copy of JP 2019-019655 filed February 6, 2019 as required by 37 CFR 1.55. Claim Status Claims Filing Date June 15, 2022 Amended 1, 3 Under Examination 1-3 Withdrawn Claim Rejections - 35 USC § 112 The following 112(b) rejections are withdrawn due to claim amendment: Claim 1 lines 8-13 “heating…while maintaining all amorphous alloy ribbons other than the one amorphous alloy ribbon…of the laminated body within a temperature range less than the crystallization starting temperature” and lines 20-27 “wherein a crystallization and a generation of heat thereby are propagated from the one amorphous alloy ribbon at the one end to the other amorphous alloy ribbon at the other end…as a result of the heating…to manufacture a plurality of nanocrystalline alloy ribbons…”. Claim 1 lines 14-19 “wherein an ambient temperature around the laminated body is held after the heating the laminated body…”.",
"Claim 1 lines 15-16 “the laminated body is maintained within a temperature range in which the laminated body can be crystallized by heating”. Response to Arguments In the remarks filed June 15, 2022, the applicant argues claim 1 has been amended for clarity (Remarks pg. 4 para. 5). The claim amendments filed June 15, 2022 introduced new 112(a) and 112(b) rejections as detailed below. Claim Interpretation Claim 1 lines 16-20 “after heating the first amorphous alloy ribbon to the second temperature, propagating crystallization and generation of heat…” is given the following claim interpretation. Claim 1 line 16 “after heating the first amorphous alloy ribbon to the second temperature” refers back to claim 1 lines 10-15, which also require “maintaining the remaining amorphous alloy ribbons within a temperature range less than the crystallization starting temperature”. Therefore, claim 1 line 16 “after heating…” refers back to after heating the first amorphous alloy ribbon while maintaining the remaining amorphous alloy ribbons as recited in lines 10-15. Claim Rejections - 35 USC § 112 The following is a quotation of the first paragraph of 35 U.S.C.",
"112(a): (a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention. The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112: The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention. Claims 2 and 3 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement.",
"The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. Claim 2 line 3 “pressurizing the laminated body in the lamination direction” fails to comply with the written description requirement. Amended claim 1 recites the steps of forming a laminated body, heating to a first temperature, holding, heating a first amorphous alloy ribbon to a second temperature, and propagating. The pressurizing step as claimed is performed anytime during the process of claim 1 after forming of the laminated body, such as before, during, or after the steps of heating to a first temperature, holding, heating a first amorphous alloy ribbon to a second temperature, and/or propagating.",
"However, applicant’s specification, such as in [0074] and [0075], only supports pressurizing after heating the end portion in the lamination direction of the laminated body to the second temperature range in the second heat treatment step because it enhances crystallization transmission. Therefore, claim 2 is broader than what is supported by the specification. Claim 3 lines 3-5 “bringing a heat dissipating member into contact with the amorphous alloy ribbon at the opposite end of the laminated body” fails to comply with the written description requirement. Amended claim 1 recites the steps of forming a laminated body, heating to a first temperature, holding, heating a first amorphous alloy ribbon to a second temperature, and propagating. The bringing into contact of the heat dissipating member as claimed is performed anytime during the process of claim 1 after forming of the laminated body, such as before, during, or after the steps of heating to a first temperature, holding, heating a first amorphous alloy ribbon to a second temperature, and/or propagating.",
"However, applicant’s specification, such as in [0076], only supports it being performed before or after heating the end portion of the laminated body to a second temperature range to effectively suppress heat accumulation. Therefore, claim 3 is broader than what is supported by the specification. The following is a quotation of 35 U.S.C. 112(b): (b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention. The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph: The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention. Claims 1-3 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention. Claim 1 lines 8-9 “holding the laminated body in an ambient temperature” and lines 21-25 “wherein the ambient temperature is a temperature range in which the laminated body crystallizes by propagation of the generation of heat after heating the first amorphous alloy ribbon to the second temperature range” renders the claim indefinite.",
"It is unclear if and/or how the step of “holding the laminated body in an ambient temperature” is related to the crystallization by propagation of the generation of heat after heating the first amorphous alloy ribbon to the second temperature range. The ambient temperature range is recited in lines 21-24 as being one in which “the laminated body crystallizes by propagation of the generation of heat after heating the first amorphous alloy ribbon to the second temperature range”. It is unclear if and/or how the holding of the ambient temperature is or is not related to the propagating crystallization step of lines 16-20. The holding step does not recite a duration and it is not recited as occurring during any subsequent steps, such as heating a first amorphous alloy ribbon at one end of the laminated body in a lamination direction to a second temperature and/or propagating crystallization. The “holding the laminated body in an ambient temperature” is only required to be performed “after heating the laminated body to the first temperature”. For example, the holding step could be required to be present only 1) before heating to a second temperature, 2) during heating to a second temperature, but not propagating, or 3) during both heating to a second temperature and propagating.",
"In applicant’s specification [0021]-[0026], [0047]-[0068] are related to applicant’s claimed manufacturing of a laminated body process. In particular [0022], [0056], and [0057] discuss the ambient temperature, including how it relates to the heating to a first temperature, heating a first end of the laminated body to a second temperature, and propagation of crystallization. Also [0058]-[0067] discuss the relationship between respective heat amounts. In [0022] applicant’s specification recites “after the first heat treatment step, the ambient temperature around the laminated body 10 is held such that the whole laminated body 10 is maintained within the temperature range in which the crystallization of the whole laminated body 10 can occur by heating the whole first split ribbon 2A to the second temperature range in the second heat treatment step.” It appears that applicant’s specification indicates the “holding the laminated body in an ambient temperature” occurs during the subsequently claimed “heating…to a second temperature” and the “propagation crystallization…” steps. Claim 3 lines 3-5 “the amorphous alloy ribbon at the opposite end of the laminated body” renders the claim indefinite. There is insufficient antecedent basis.",
"It is unclear what the claimed amorphous alloy ribbon is opposite to and which end of the laminated body is “the opposite end”. Claim 2 is rejected as depending from claim 1. Related Art Idei (JP 2016-197646 machine translation) Idei teaches manufacturing a nanocrystalline soft magnetic alloy ([0001]) by laminating a sheet-shaped amorphous alloy ([0020]) with holes in the core metal ([0023]) into which a heat conductive member is inserted ([0026]-[0028]) then coating with a thermal conductivity higher than the amorphous alloy in contact with the heating element such that the covered is in a state where heat can be transferred to the heated body ([0029], [0030]) . In Idei the entirety of the alloy body is coated with a heating element such that during heating the entirety of the body is heated, which does not read on heating a first amorphous alloy ribbon at one end of the laminated body in a lamination direction to a second temperature range equal to or more than the crystallization starting temperature and propagating crystallization and generation of heat through the laminated body from the first amorphous alloy ribbon to an amorphous alloy ribbon at the opposite end of the laminated body in a lamination direction.",
"Allowable Subject Matter Claim 1 would be allowable if rewritten or amended to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action. The following is an examiner’s statement of reasons for allowance: The prior art of record either alone or in combination does not teach or suggest a method for manufacturing a laminated body by forming a laminated body by laminating a plurality of amorphous alloy ribbons, heating the laminated body to a first temperature range less than a crystallization starting temperature of the amorphous alloy ribbon, holding the laminated body in an ambient temperature, heating a first amorphous alloy ribbon at one end of the laminated body in a lamination range to a second temperature range equal to or more than the crystallization temperature, while maintaining the remaining amorphous alloy ribbons within a temperature range less than the crystallization starting temperature, then propagating crystallization and generation of heat through the laminated body from the first amorphous alloy ribbon to an amorphous alloy ribbon at the opposite end of the laminated body in a lamination direction to manufacture a plurality of nanocrystalline alloy ribbons in which the plurality of amorphous alloy ribbons are crystallized in the laminated body, wherein the ambient temperature is a temperature range in which the laminated body crystallizes by propagation of the generation of heat after heating the first amorphous alloy ribbon to the second temperature range in combination with the other limitations recited in claim 1.",
"Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.” Conclusion Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a). A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the date of this final action. Contact Information Any inquiry concerning this communication or earlier communications from the examiner should be directed to STEPHANI HILL whose telephone number is (571)272-2523. The examiner can normally be reached on Monday-Friday 7am-12pm. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool.",
"To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, KEITH WALKER can be reached on 571-272-3458. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see https://ppair-my.uspto.gov/pair/PrivatePair. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000. /S.H./Examiner, Art Unit 1735 /PAUL A WARTALOWICZ/Primary Examiner, Art Unit 1735"
] | https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-07-17.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
53 F.3d 338NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Alfredo ESTRADA-MACIEL, Petitioner,v.IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 94-70472. United States Court of Appeals, Ninth Circuit. Submitted April 19, 1995.*Decided April 26, 1995.
Before: BROWNING, SNEED, and T.G. NELSON, Circuit Judges.
1 MEMORANDUM**
2 Alfredo Estrada-Maciel petitions for review of the Board of Immigration Appeals' ("BIA") order which: (1) held that remand of Estrada-Maciel's case for a new hearing was not warranted, and (2) dismissed his appeal from the immigration judge's ("IJ") order to deport him to Mexico. We have jurisdiction under 8 U.S.C. Sec. 1105a(a), and deny the petition for review.
3 In his petition for review, Estrada-Maciel contends that the BIA erred by dismissing his appeal from the IJ's order of deportation because: (1) the IJ improperly held his deportation hearing in absentia because he was present outside the courtroom when the hearing was scheduled to begin; and (2) in any event, the IJ should have reopened his case based upon his oral motion.
4 * Background
5 In May 1991, the Immigration and Naturalization Service ("INS") issued Estrada-Maciel an order to show cause ("OSC"), charging Estrada-Maciel with having entered the United States without inspection.
6 On November 5, 1992, a hearing was scheduled to consider Estrada-Maciel's applications for relief from deportation. The hearing was to begin at 1:00 p.m. At 1:15 p.m., the IJ went on record to indicate that neither Estrada-Maciel nor his lawyer had appeared in court. The IJ also indicated that the court interpreter had paged the hallway and the waiting room for Estrada-Maciel and that there was no response.
7 An in absentia hearing was then held at which the IJ found that Estrada-Maciel had abandoned his claims for relief from deportation and ordered him deported to Mexico. The IJ noted for the record and "for any reviewing authority later on," however, that Estrada-Maciel's application for a suspension of deportation showed that he was convicted of manslaughter and served a prison sentence of approximately three years which would disqualify him for the suspension as a matter of law.
8 In addition, the IJ was told by the government attorney that Estrada-Maciel was admitted to the United States as a resident "through amnesty, but his status was terminated on June 7th, 1990, because of his conviction for voluntary manslaughter," and presented with evidence in the form of a certification to that effect. Based on the termination of his status as a legal permanent resident, the IJ concluded that Estrada-Maciel would be ineligible for discretionary relief from deportation under section 212(c) of the Immigration and Nationality Act ("INA"), 8 U.S.C. Sec. 1182(c).
9 The deportation hearing concluded at 1:20 p.m. Sometime shortly thereafter, Estrada-Maciel and his attorney arrived at the hearing room. At 1:30 p.m., the IJ went back on record and explained that he had already entered an order of deportation. Thereafter, at least ostensibly, the IJ heard Estrada-Maciel's oral request to vacate his deportation order and consider his case on the merits, referring to this request as a "motion to reopen."
10 The IJ then specifically asked Estrada-Maciel's attorney why they were not in court at 1:00 p.m., to which Estrada-Maciel's attorney responded that there were "a number of urgent matters and the fact that there was some unexpected traffic." After conferring with Estrada-Maciel, Estrada-Maciel's attorney told the IJ that Estrada-Maciel had been outside the hearing room since 1:00 p.m., did not hear his name called, and did not want to enter the courtroom without his lawyer. In addition, Estrada-Maciel's attorney told the IJ that there were other independent witnesses who could confirm that Estrada-Maciel had been outside the hearing room at 1:00 p.m.
11 The IJ then engaged in a colloquy with Estrada-Maciel's counsel, in which the IJ indicated that even if he were to reopen the hearing, Estrada-Maciel was ineligible for any form of relief from deportation because of his manslaughter conviction and because he had not been a lawful permanent resident for seven years. Estrada-Maciel's attorney argued that Estrada-Maciel's particular conviction was not for a crime of moral turpitude and that he had lived in the United States far longer than seven years. After hearing the arguments, the IJ denied Estrada-Maciel's motion to reopen the hearing, and informed Estrada-Maciel's attorney that if he believed that the IJ's decision was incorrect, he could appeal it.
12 Estrada-Maciel appealed directly from the IJ's decision to the BIA, never filing a written motion to reopen proceedings with the IJ or a motion to remand with the BIA, contending that the IJ erred in (1) ordering him deported in absentia, and (2) denying his oral motion to reopen.
13 On May 23, 1994, the BIA on its own motion determined that a remand of Estrada-Maciel's case was not appropriate and dismissed Estrada-Maciel's appeal because: (1) Estrada-Maciel failed to provide new evidence which was unavailable to the IJ at the time of the in absentia hearing which would establish "reasonable cause" for his failure to appear; and (2) there was no evidence in the record to substantiate Estrada-Maciel's claim that he was at the courtroom for the hearing as scheduled. The BIA did not review the IJ's decision denying Estrada-Maciel's oral request to reopen his case, apparently treating his oral motion and the IJ's decision on that motion as a legal nullity.
II Standard of Review
14 We review the BIA decision for abuse of discretion. INS v. Doherty, 502 U.S. 314, 323 (1992); Rodriguez v. INS, 841 F.2d 865, 867 (9th Cir.1987).
III Merits
15 A. Whether an In Absentia Hearing Was Properly Held
16 Estrada-Maciel contends that the BIA erred by dismissing his appeal from the IJ's order of deportation because the IJ improperly held his deportation hearing in absentia since he was present outside the courtroom at 1:00 p.m. when the hearing was scheduled to begin. This contention lacks merit.
17 A deportation hearing may be held in absentia if the alien has been given a reasonable opportunity to be present and fails to appear. 8 U.S.C. Sec. 1252(b); INS v. Lopez-Mendoza, 468 U.S. 1032, 1038-39 (1984).
18 Here, Estrada-Maciel concedes that he had notice of the hearing date and time, and, thus, a reasonable opportunity to be present at the hearing. See Lopez-Mendoza, 468 U.S. at 1038-39. In addition, the record indicates that the IJ did not begin the hearing until 1:15 p.m., after the court interpreter, at the direction of the IJ, paged the hallway and waiting-room for Estrada-Maciel and received no response. Thus, despite Estrada-Maciel's claim to the contrary, the evidence in the record supports the BIA's conclusion that Estrada-Maciel was not at the courtroom for the hearing as scheduled. Consequently, the IJ properly held Estrada-Maciel's deportation hearing in absentia.
B. Estrada-Maciel's Oral Motion to Reopen
19 Estrada-Maciel contends that the BIA erred by letting stand the IJ's order of deportation. This contention lacks merit.
20 The BIA may remand a case decided in absentia for a new hearing if the alien establishes that he had "reasonable cause" for his absence from the proceedings, Matter of Haim, 19 I. & N. Dec. 641, 642 (BIA 1988), regardless of whether the alien has established prima facie eligibility for the substantive relief sought, Matter of Ruiz, Int.Dec. 3116 (BIA 1989).1 If an alien seeks to establish reasonable cause on the basis of facts not available to the IJ at the time of the hearing, however, the facts are required to be submitted in writing, and to be supported by affidavits or other evidentiary material. 8 C.F.R. Sec. 103.5; INS v. Wang, 450 U.S. 139, 141 (1981) (per curiam).
21 Here, Estrada-Maciel's motion was based on new facts not before the IJ at the time of the deportation hearing and, thus, the motion should have been in writing, and supported by affidavits or other evidentiary material. 8 C.F.R. Sec. 103.5; Wang, 450 U.S. at 141. In addition, the facts which were in the record at the time of the deportation hearing did not establish "reasonable cause" for Estrada-Maciel's failure to appear at the hearing on time. Therefore, the BIA did not abuse its discretion by finding that he failed to meet his burden based on the record at the time of the hearing.
22 Nonetheless, the IJ did mislead Estrada-Maciel by holding a hearing on the merits of his oral motion to reopen,2 which the BIA subsequently treated as a legal nullity, and further misled Estrada-Maciel by directing his attorney to appeal from the IJ's decision rather than filing a motion to reopen in the proper form. Given these circumstances, in the exercise of our discretion, we stay our mandate for sixty days from the filing of this memorandum to allow Estrada-Maciel the opportunity to file a motion to reopen in the proper form with the BIA. Within fourteen days of the expiration of this period, each party shall file a status report. If Estrada-Maciel files a motion to reopen, the mandate will be further stayed for such time as is necessary for the BIA's disposition of the motion. See Roque-Carranza v. INS, 778 F.2d 1373, 1374 (9th Cir.1985). If Estrada-Maciel fails to file a motion to reopen within the sixty-day period or fails to file a timely status report, the mandate may issue without further notice.
23 PETITION FOR REVIEW DENIED.
* The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4
** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
1 The BIA may, moreover, remand a case for a new hearing on its own motion, as it considered doing, but rejected, here. See 8 C.F.R. Sec. 3.2
2 We also note that the IJ did not deny the motion because it did not comply with the applicable regulations, but for the improper reason that Estrada-Maciel had failed to establish eligibility for the relief from deportation which he sought. See Matter of Ruiz, Int.Dec. 3116 | 04-17-2012 | [
"53 F.3d 338NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Alfredo ESTRADA-MACIEL, Petitioner,v.IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 94-70472. United States Court of Appeals, Ninth Circuit. Submitted April 19, 1995. *Decided April 26, 1995. Before: BROWNING, SNEED, and T.G. NELSON, Circuit Judges. 1 MEMORANDUM** 2 Alfredo Estrada-Maciel petitions for review of the Board of Immigration Appeals' (\"BIA\") order which: (1) held that remand of Estrada-Maciel's case for a new hearing was not warranted, and (2) dismissed his appeal from the immigration judge's (\"IJ\") order to deport him to Mexico. We have jurisdiction under 8 U.S.C. Sec. 1105a(a), and deny the petition for review. 3 In his petition for review, Estrada-Maciel contends that the BIA erred by dismissing his appeal from the IJ's order of deportation because: (1) the IJ improperly held his deportation hearing in absentia because he was present outside the courtroom when the hearing was scheduled to begin; and (2) in any event, the IJ should have reopened his case based upon his oral motion. 4 * Background 5 In May 1991, the Immigration and Naturalization Service (\"INS\") issued Estrada-Maciel an order to show cause (\"OSC\"), charging Estrada-Maciel with having entered the United States without inspection.",
"6 On November 5, 1992, a hearing was scheduled to consider Estrada-Maciel's applications for relief from deportation. The hearing was to begin at 1:00 p.m. At 1:15 p.m., the IJ went on record to indicate that neither Estrada-Maciel nor his lawyer had appeared in court. The IJ also indicated that the court interpreter had paged the hallway and the waiting room for Estrada-Maciel and that there was no response. 7 An in absentia hearing was then held at which the IJ found that Estrada-Maciel had abandoned his claims for relief from deportation and ordered him deported to Mexico. The IJ noted for the record and \"for any reviewing authority later on,\" however, that Estrada-Maciel's application for a suspension of deportation showed that he was convicted of manslaughter and served a prison sentence of approximately three years which would disqualify him for the suspension as a matter of law. 8 In addition, the IJ was told by the government attorney that Estrada-Maciel was admitted to the United States as a resident \"through amnesty, but his status was terminated on June 7th, 1990, because of his conviction for voluntary manslaughter,\" and presented with evidence in the form of a certification to that effect. Based on the termination of his status as a legal permanent resident, the IJ concluded that Estrada-Maciel would be ineligible for discretionary relief from deportation under section 212(c) of the Immigration and Nationality Act (\"INA\"), 8 U.S.C.",
"Sec. 1182(c). 9 The deportation hearing concluded at 1:20 p.m. Sometime shortly thereafter, Estrada-Maciel and his attorney arrived at the hearing room. At 1:30 p.m., the IJ went back on record and explained that he had already entered an order of deportation. Thereafter, at least ostensibly, the IJ heard Estrada-Maciel's oral request to vacate his deportation order and consider his case on the merits, referring to this request as a \"motion to reopen.\" 10 The IJ then specifically asked Estrada-Maciel's attorney why they were not in court at 1:00 p.m., to which Estrada-Maciel's attorney responded that there were \"a number of urgent matters and the fact that there was some unexpected traffic.\" After conferring with Estrada-Maciel, Estrada-Maciel's attorney told the IJ that Estrada-Maciel had been outside the hearing room since 1:00 p.m., did not hear his name called, and did not want to enter the courtroom without his lawyer.",
"In addition, Estrada-Maciel's attorney told the IJ that there were other independent witnesses who could confirm that Estrada-Maciel had been outside the hearing room at 1:00 p.m. 11 The IJ then engaged in a colloquy with Estrada-Maciel's counsel, in which the IJ indicated that even if he were to reopen the hearing, Estrada-Maciel was ineligible for any form of relief from deportation because of his manslaughter conviction and because he had not been a lawful permanent resident for seven years. Estrada-Maciel's attorney argued that Estrada-Maciel's particular conviction was not for a crime of moral turpitude and that he had lived in the United States far longer than seven years. After hearing the arguments, the IJ denied Estrada-Maciel's motion to reopen the hearing, and informed Estrada-Maciel's attorney that if he believed that the IJ's decision was incorrect, he could appeal it. 12 Estrada-Maciel appealed directly from the IJ's decision to the BIA, never filing a written motion to reopen proceedings with the IJ or a motion to remand with the BIA, contending that the IJ erred in (1) ordering him deported in absentia, and (2) denying his oral motion to reopen.",
"13 On May 23, 1994, the BIA on its own motion determined that a remand of Estrada-Maciel's case was not appropriate and dismissed Estrada-Maciel's appeal because: (1) Estrada-Maciel failed to provide new evidence which was unavailable to the IJ at the time of the in absentia hearing which would establish \"reasonable cause\" for his failure to appear; and (2) there was no evidence in the record to substantiate Estrada-Maciel's claim that he was at the courtroom for the hearing as scheduled. The BIA did not review the IJ's decision denying Estrada-Maciel's oral request to reopen his case, apparently treating his oral motion and the IJ's decision on that motion as a legal nullity. II Standard of Review 14 We review the BIA decision for abuse of discretion.",
"INS v. Doherty, 502 U.S. 314, 323 (1992); Rodriguez v. INS, 841 F.2d 865, 867 (9th Cir.1987). III Merits 15 A. Whether an In Absentia Hearing Was Properly Held 16 Estrada-Maciel contends that the BIA erred by dismissing his appeal from the IJ's order of deportation because the IJ improperly held his deportation hearing in absentia since he was present outside the courtroom at 1:00 p.m. when the hearing was scheduled to begin. This contention lacks merit. 17 A deportation hearing may be held in absentia if the alien has been given a reasonable opportunity to be present and fails to appear.",
"8 U.S.C. Sec. 1252(b); INS v. Lopez-Mendoza, 468 U.S. 1032, 1038-39 (1984). 18 Here, Estrada-Maciel concedes that he had notice of the hearing date and time, and, thus, a reasonable opportunity to be present at the hearing. See Lopez-Mendoza, 468 U.S. at 1038-39. In addition, the record indicates that the IJ did not begin the hearing until 1:15 p.m., after the court interpreter, at the direction of the IJ, paged the hallway and waiting-room for Estrada-Maciel and received no response. Thus, despite Estrada-Maciel's claim to the contrary, the evidence in the record supports the BIA's conclusion that Estrada-Maciel was not at the courtroom for the hearing as scheduled. Consequently, the IJ properly held Estrada-Maciel's deportation hearing in absentia. B. Estrada-Maciel's Oral Motion to Reopen 19 Estrada-Maciel contends that the BIA erred by letting stand the IJ's order of deportation.",
"This contention lacks merit. 20 The BIA may remand a case decided in absentia for a new hearing if the alien establishes that he had \"reasonable cause\" for his absence from the proceedings, Matter of Haim, 19 I. & N. Dec. 641, 642 (BIA 1988), regardless of whether the alien has established prima facie eligibility for the substantive relief sought, Matter of Ruiz, Int.Dec. 3116 (BIA 1989).1 If an alien seeks to establish reasonable cause on the basis of facts not available to the IJ at the time of the hearing, however, the facts are required to be submitted in writing, and to be supported by affidavits or other evidentiary material. 8 C.F.R. Sec. 103.5; INS v. Wang, 450 U.S. 139, 141 (1981) (per curiam). 21 Here, Estrada-Maciel's motion was based on new facts not before the IJ at the time of the deportation hearing and, thus, the motion should have been in writing, and supported by affidavits or other evidentiary material. 8 C.F.R.",
"Sec. 103.5; Wang, 450 U.S. at 141. In addition, the facts which were in the record at the time of the deportation hearing did not establish \"reasonable cause\" for Estrada-Maciel's failure to appear at the hearing on time. Therefore, the BIA did not abuse its discretion by finding that he failed to meet his burden based on the record at the time of the hearing. 22 Nonetheless, the IJ did mislead Estrada-Maciel by holding a hearing on the merits of his oral motion to reopen,2 which the BIA subsequently treated as a legal nullity, and further misled Estrada-Maciel by directing his attorney to appeal from the IJ's decision rather than filing a motion to reopen in the proper form.",
"Given these circumstances, in the exercise of our discretion, we stay our mandate for sixty days from the filing of this memorandum to allow Estrada-Maciel the opportunity to file a motion to reopen in the proper form with the BIA. Within fourteen days of the expiration of this period, each party shall file a status report. If Estrada-Maciel files a motion to reopen, the mandate will be further stayed for such time as is necessary for the BIA's disposition of the motion. See Roque-Carranza v. INS, 778 F.2d 1373, 1374 (9th Cir.1985). If Estrada-Maciel fails to file a motion to reopen within the sixty-day period or fails to file a timely status report, the mandate may issue without further notice. 23 PETITION FOR REVIEW DENIED. * The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4 ** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R.",
"36-3 1 The BIA may, moreover, remand a case for a new hearing on its own motion, as it considered doing, but rejected, here. See 8 C.F.R. Sec. 3.2 2 We also note that the IJ did not deny the motion because it did not comply with the applicable regulations, but for the improper reason that Estrada-Maciel had failed to establish eligibility for the relief from deportation which he sought.",
"See Matter of Ruiz, Int.Dec. 3116"
] | https://www.courtlistener.com/api/rest/v3/opinions/694880/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Citation Nr: 1335219
Decision Date: 11/01/13 Archive Date: 11/13/13
DOCKET NO. 08-26 466 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon
THE ISSUE
Entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for disability of the right wrist, right hip, right knee, right ankle, and right foot, claimed to have been caused during a February 2004 VA examination.
REPRESENTATION
Veteran represented by: Oregon Department of Veterans' Affairs
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
Heather J. Harter, Counsel
INTRODUCTION
The Veteran served on active duty from March 1961 to July 1962.
This case is before the Board of Veterans' Appeals (Board) on appeal from a July 2006 RO decision. In March 2011, the Veteran presented testimony relevant to the issues on appeal before the undersigned Veterans Law Judge at a Board hearing held at the Portland RO. A transcript of the hearing is associated with the claims file and has been reviewed. In March 2012, the Board remanded the matter for a VA examination by a physician who had not previously examined or treated the Veteran, and a medical opinion. In March 2013, the Board again remanded the matter for further clarification of the medical opinion obtained. Such development has now been fully accomplished and the appeal is again before the Board for review.
This appeal was processed using the Veterans Benefits Management System, a paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record.
FINDING OF FACT
Disability of the right wrist, right hip, right knee, right ankle, and right foot was not proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA during a February 2004 VA examination.
CONCLUSION OF LAW
The criteria for VA compensation benefits under the provisions of 38 U.S.C.A. § 1151 for disability of the right wrist, right hip, right knee, right ankle, and right foot have not been met. 38 U.S.C.A. § 1151, 5107 (West 2002); 38 C.F.R. § 3.361 (2013).
REASONS AND BASES FOR FINDING AND CONCLUSION
Duties to notify and assist
When an application for benefits is received, VA has certain notice and assistance requirements under the law. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). First, proper notice must be provided to a claimant before the initial VA decision on a claim for benefits and must: (1) inform the claimant about the information and evidence not of record necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. The VA is also required to inform the Veteran of how the VA assigns disability ratings and effective dates. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was provided with this information as to the 38 U.S.C.A. § 1151 claim in a May 2006 letter prior to the initial decision in the case.
With regard to the VA examination reports which are of record, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). However, unless the claimant challenges the adequacy of the examination or opinion, the Board may assume that the examination report and opinion are adequate, and need not affirmatively establish the adequacy of the examination report or the competence of the examiner. Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011) (holding that although the Board is required to consider issues independently raised by the evidence of record, the Board is still 'entitled to assume' the competency of a VA examiner and the adequacy of a VA opinion without 'demonstrating why the medical examiners' reports were competent and sufficiently informed'); see also Rizzo v. Shinseki, 580 F.3d 1288, 1290-1291 (Fed. Cir. 2009) (holding that the Board is entitled to assume the competency of a VA examiner unless the competence is challenged).
The Board finds that the VA examinations and the addendum reports obtained in this case are adequate. The examination reports relied upon were predicated on a review of the claims folder and the relevant medical records contained therein; contain a description of the history of the disabilities at issue; and document and consider the Veteran's complaints and symptoms. The examiners considered the available pertinent evidence of record, and provided a rationale for the opinions rendered, relying on and citing to the records reviewed. Accordingly, the Board finds that the VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4).
Private medical records, Social Security records, VA treatment records and VA examination reports have been obtained and reviewed in support of the Veteran's claim. The Veteran's hearing testimony and his written contentions have been carefully reviewed. All relevant records and contentions have been carefully reviewed. The Board therefore concludes that the VA's duties to notify and assist have been met with regard to the matters decided herein.
With respect to the aforementioned March 2011 Board hearing, the Court held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the RO official or Veterans Law Judge who conducts a hearing must fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the Veterans Law Judge specifically noted the bases of the prior determinations or the elements that were lacking to substantiate the claim. She asked specific questions, directed at identifying the Veteran's main contentions. She also specifically sought to identify any pertinent evidence not currently associated with the claims. Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board
hearing. As such, the Board finds that, consistent with Bryant, the Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).
Standard of review
Once the evidence has been assembled, it is the Board's responsibility to evaluate the record. 38 U.S.C.A. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.
The Board must consider all the evidence of record and discuss in its decision all "potentially applicable" provisions of law and regulation. See 38 U.S.C. § 7104(a); Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). The Board is also required to provide a statement of reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for its decision, as well as to facilitate further appellate review. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet. App. 517, 527 (1995); Gilbert, 56 (1990). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table).
The Board has thoroughly reviewed all the evidence in the Veteran's electronic claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the claimant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The claimant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran).
Analysis
Under 38 U.S.C.A. § 1151, VA compensation shall be awarded for a qualifying additional disability or a qualifying death of a Veteran in the same manner as if such additional disability were service connected. A disability or death is a qualifying additional disability or qualifying death if the disability or death was not the result of the Veteran's willful misconduct and either:
1) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by the Secretary, either by a Department employee or in a Department facility, and the proximate cause of the disability or death was either A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or B) an event not reasonably foreseeable; or
2) the disability or death was proximately caused by the provision of training and rehabilitation services by the Secretary as part of an approved rehabilitation program. 38 U.S.C.A. § 1151; 38 C.F.R. § 3.361.
The first step of developing a claim under 38 U.S.C.A. § 1151 is to determine whether the Veteran has an additional disability as a result of a VA procedure. To make this determination, we compare the Veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment, etc. upon which the claim is based to the Veteran's condition after such care. Each involved body part or system is considered separately. 38 C.F.R. § 3.361(b).
If it is determined that the Veteran has an additional disability resulting from VA care, the second step is to establish the case of the additional disability; in other words, to determine whether the VA actions actually caused the additional disability. To establish causation, the evidence must show that the VA care actually resulted in the additional disability. Merely showing that the Veteran received care and that he has an additional disability does not establish cause. Furthermore, medical care cannot cause the continuance or natural progress of a disease or injury for which the care was furnished, unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c). The proximate cause of disability is defined for these purposes as the action or event that directly caused the disability, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361(d).
However, causation alone is not sufficient to warrant compensation under 38 U.S.C.A. § 1151. Rather the third step in the analysis requires that the evidence must show either that the additional disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing the hospital care, medical or surgical treatment, or examination; or that it was an event that was not reasonably foreseeable. To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a Veteran's additional disability or death, it must be shown that the hospital care or medical or surgical treatment caused the Veteran's additional disability or death; and either (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care or medical or surgical treatment without the Veteran's informed consent. 38 C.F.R. § 3.361(d).
Whether the proximate cause of a Veteran's additional disability was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. In a recent case, the Court emphasized that the standard is not actual foreseeability or possible foreseeability, but that the test is driven wholly by how a "reasonable health care provider" would behave if asked to perform a certain procedure on a veteran with the same characteristics as the veteran in a given case. Schertz v. Shinseki, No. 11-2694 (Vet. App. Sep. 26, 2013).
The Veteran contends that during a VA examination conducted in February 2004, the examiner injured his right wrist, right hip, right knee, right ankle, and right foot. In a July 2007 statement, he explained his theory of the case: "I believe the VA examiner was way too forceful during the examination. He aggravated the conditions that he was checking. Instead of checking my limitations as to how I was able to move the different limbs, he forced them to the point that he couldn't move them. I don't believe this is right. By using his method, he could push anyone to a full range of motion." During the March 2011 Board hearing, he explained it as follows:
Well, this doctor up there in Vancouver, he was, he found out I didn't have any material, you know, for him to look at and he just got totally different, you know? He was just like a mad man. He had me laying on this table and the table was sitting against the wall and he had me holding on like that and he grabbed my right leg and he was pushing it up and twisting it back and forth and carrying on with it. And, you know, I said, "Gee, doc, that hurts." You know? And I could feel something wasn't feeling good and I was sitting there kind of dazed a little bit. And he said, "Okay. Sit up." So I got up and he says let me see your hands. So I put my hands out and he says, "Oh," he says, "I want to see your hands," and he grabbed this wrist like that and he twisted it around and I said, "Gee, that's kind of rough. That hurt." You know? And he says, "Well," he said, "I just wanted to see your hand." Well, it still hurts when I go and grab it or try to twist it to where I can feel it in here, or squeeze something or if I'm carrying something, if I touch it the wrong way, you know, I can still feel that. And my right hip, it's constantly hurting. And when I go up the stairs, I can feel my knees, of course, both knees, you know, are hurting, but. And then my foot on the front, if I'm going upstairs, especially if I'm carrying a bag of groceries, you know, I says, "Damn, that hurts."
Review of the Veteran's voluminous claims file reveals that the February 2004 VA examination was scheduled for the purpose of evaluating claims for entitlement to service connection for a rib disability, a cervical spine disability, a left knee disability, and a left ankle disability; all of which were subsequently denied.
The examination report reflects that although the examination was conducted for purposes of evaluating claims pertaining to the Veteran's left side, the examiner also examined the Veteran's right side, for purposes of comparison. Thus, the examiner measured the Veteran's range of left and right knee motion, both feet and both ankles, both hips, and both wrists. In the report the examiner noted that the Veteran tended to be a bit hyper-reactive during the examination, although the examiner provided no further explanation as to what he meant by this statement. With regard to the examination findings, the Veteran had full range of motion and full grip strength in both wrists. He had full strength and range of motion of both feet and ankles. He had equal flexion and extension in both knees as well. The medial and lateral collateral ligaments of both knee joints were clinically intact during the examination. His range of hip motion was described as full bilaterally. The examiner specified that there was no orthopedic diagnosis for the right knee, and did not render any further comment upon or diagnosis pertaining to the Veteran's right foot, ankle, hip, or his wrist.
More than a year later, in April 2005, the Veteran filed what he termed, "a complaint against the examining doctor who treated me aggressively during the examination. He has made my right foot, my right knee, and my right ankle, and right hip hurt, also my right wrist hurts from him twisting on it." He also enclosed a letter from the Director of the VA Medical Center where the examination was conducted, apparently a response to a complaint the Veteran had made to that institution. This response is set forth in pertinent part:
This is in reply to your letter expressing your concern that the provider hurt you during the Compensation & Pension exam on February 19, 2004.
Upon receiving your letter, I contacted the Administrative Director of our Primary Care Division and directed her to review your concerns and notify me of her findings. I have received those findings and would like to share them with you.
The Board of Veterans' Appeals in Washington, D.C., requested the exam conducted on February 19, 2004. They request very specific information in order to make a fair and accurate adjudication of your claim. An appeals claim requires that our provider conduct a more detailed and intensive physical examination to provide the details needed by the Board. It was not the provider's intent to cause your harm, pain, or suffering. If his report had not adequately described the degree of range of motion requested by the Appeals Board, they might not have sufficient information to resolve your case.
Please accept our apologies for any distress, anxiety, or inconvenience you may have experienced. The provider in question has been made aware of your concerns and extends his regret for your discomfort during the exam.
Recent medical records reflect orthopedic diagnoses of arthritis affecting the Veteran's neck, back, both knees, left ankle, and left foot. An earlier August 1996 diagnostic report reflects a diagnosis of bilateral carpal tunnel syndrome. The veteran does not carry current diagnoses from his medical care providers indicative of any disability involving his right foot and ankle, his right hip, and his right wrist. An X-ray report dated in May 2011 reflects a finding of enthesopathy in the ligaments and tendons of the right hip, foot, and ankle, however. A letter from the Veteran's primary care physician to the Veteran, notifying him of these findings reflects her assessment that, "The most prominent finding is enthesopathy or inflammation in the ligaments and tendons of the hip, foot, and ankle. This is usually from a form of arthritis called 'spondyloarthritis.' It is sometimes treated with different medications than 'regular' arthritis. If you want to see a specialist at the Portland VA to have this checked out further and see if any special treatment might be helpful, let me know." There is no indication, that the Veteran sought further specialist evaluation of this matter, however.
In May 2012, the Veteran's medical records and claims file were reviewed by a VA physician who is a Board certified orthopedic surgeon. The physician noted that the examiner who had performed the February 2004 examination was a Board-certified orthopedist. The physician also noted that the examiner was not a personal friend. After reviewing the evidence of record, the physician concluded that the Veteran had not suffered any additional disability during the 2004 VA examination, and provided the following explanation:
My conclusions regarding the submitted charges by [the Veteran] is that these charges are unfounded and that there is no likelihood at all of any causation or aggravation of any condition of [the Veteran] in the specific areas of [right] wrist, [right] knee, [right] ankle, right foot, and right hip. The Veteran in the hearing of March 24, 2011 made statements that the examining doctor changed after initially starting out as friendly and easy-going to a mean individual and that 'he grabbed my right leg and was pushing it up and twisting it back and forth and carrying on with it." He also states that the doctor grabbed his wrists and twisted them around. I have reviewed the [examination] report of that date and it indicates [the Veteran]complaining of pain in many areas and telling the doctor that certain maneuvers hurt. The report indicates McMurray maneuvers being done on his knees which were negative. Thus maneuver is done in exactly the manner as the Veteran described and is very indicated and appropriate for knee exams. If the maneuver were termed as positive then one would expect pain on the maneuver as well as a click. The test was negative here and therefore should not have produced any pain. There was no laxity, effusion, synovitis, or other than normal findings for the knee exams. The wrist examination as done was indicated and appropriately carried out to determine passive motion as well as any laxity of the wrist bones-these exam maneuvers were also normal. There is a comment in this [report] that the Veteran 'tends to be a bit hyper-reactive during the exam.' There are no civilian records in the C-file concerning any treatments for the right foot, right ankle, right knee, right hip, or right wrist either before or after the Feb. 2004 exam. There are no Portland VAMC progress notes concerning any treatment anywhere for the injury claimed or for any pre-existing injury. There are no orthopedic clinic visits before or after 2004. There are x-rays on Vista Imaging that note normal foot, normal ankle, normal hip and knee radiographs on date of 5/26/2011. One would assume that if some sort of injury had occurred due to the [examination] of 2004 that there would be x-ray findings by now and that there would be evidence of treatment somewhere. The truth is that the exam done was appropriate, indicated and necessary to make the diagnosis of any of these conditions. No abnormal exam findings of any of these claimed areas were present other than some mild complain[ts] about pain which is not an objective exam finding. Therefore, with normal exam objective findings, normal x-rays, and no follow up visits, the only conclusion is that there were no known conditions of Feb. 2004 in these joints which could have been aggravated or disability increased by the normal examination routines of the doctor that day.
Because this opinion report did not contain any discussion of the May 2011 X-ray findings regarding enthesopathy in the ligaments and tendons of the right hip, foot, and ankle, the Board remanded this matter again for clarification as to the significance, if any, of the enthesopathy. Review of the resulting report shows that the physician again reviewed the Veteran's claims file and medical records, and also reviewed the original X-ray images. Based upon this review, he rendered the following opinion:
Enthesopathy is commonly known as a traction spur. They are quite common and not due to acute trauma. They are often due to ageing or from low levels of chronic strain from physical activity. Although they were not specifically addressed in the x-ray reports in 2004, review of those images show that they were present on x-rays of the R knee and L ankle in 2004. They were not changed when compared to x-rays in 2011. The enthesopathies were clearly not caused by the examiner in 2004.
Upon careful and liberal review of the evidence of record, the Board cannot identify any additional disability following the 2004 VA examination. It is not even clear that the Veteran has any disability at all involving his right wrist, other than some mild carpal tunnel syndrome identified in August 1996, well prior to the examination. That he has the enthesopathy affecting his right hip, right ankle, and right foot is established in the record. Also established in the record is right knee arthritis. None of these disabilities is shown to have their inception during the 2004 VA examination, however. As set forth above, the first step in developing a claim under 38 U.S.C.A. § 1151 is to determine whether the Veteran has an additional disability as a result of a VA procedure, in this case, a VA examination. The right carpal tunnel syndrome pre-existed the 2004 VA examination by many years. Likewise the right knee arthritis pre-existed the 2004 VA examination by many years. The enthesopathies of the right hip, right ankle, and right foot were not identified until 2011. None of these things could be reasonably said to have occurred during or proximate to the 2004 examination.
The only indication of any disability related to the examination is the Veteran's own report of experiencing pain during the examination, and of continuing pain since then. The United States Court of Appeals for the Federal Circuit has held that pain alone, cannot be compensable in the absence of proof of a disease or injury to which the current pain can be connected by medical evidence. Sanchez-Benitez v. Principi, 259 F.3d 1356, 1361 (2001). In this regard, it is relevant to note that Social Security psychiatric evaluation reports, dated in the 1980s, well prior to the 2004 examination, reflect that the Veteran has a diagnosis of a psychogenic pain disorder, manifested by preoccupation with his bodily sensations and hypochondrial ideation. While this diagnosis may in part or wholly explain the Veteran's complaints, which are no doubt entirely sincere on his part, it further supports the conclusion that the Veteran does not have any current additional disability arising from the 2004 VA examination. In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A current disability at some point during the appeal period is required for a successful claim for VA benefits. McClain v. Nicholson, 21 Vet. App. 319 (2007).
Even assuming, however, that some unspecified disability involving the pain the Veteran reports during the examination and afterward, exists, the claim must still be denied because the second element of causation is not met. All the medical evidence of record is against the claim that any additional disability resulted from the VA examination. The May 2012 physician reviewer explained that the Veteran's report during the hearing of grabbing and twisting his right arm and right leg represented normal and appropriate clinical orthopedic testing of the joints at issue. He also explained that because the 2004 examiner was carefully looking for signs of pain during the examination and found none, it is less likely the Veteran was actually experiencing pain at these points during the examination.
As a layperson with no demonstrated medical expertise, the Veteran is not competent to render a complex medical opinion as to the cause of his current vague and unsubstantiated complaints. Although there is no categorical requirement of " 'competent medical evidence ... [when] the determinative issue involves either medical etiology or a medical diagnosis,' " more than a mere assertion on the part of a claimant is required to establish either a current diagnosis or a nexus between a diagnosis and an event, such as an injury." Davidson v. Shinseki, 581 F.3d at 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007)). "Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Id. As such, to the extent that he believes that his current complaints were the result of the examiner's actions during the 2004 examination, he lacks the medical expertise to competently provide such evidence of record. Nevertheless, an expert medical opinion was sought from a physician with equivalent credentials to those of the 2004 VA examiner. This opinion and the following clarification are thorough and directly address the question at hand.
Moreover, even if cause were shown, and as discussed above it is not; the evidence does not support in any way the proposition that any current disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing a compensation examination to the Veteran. (Element three).
In summary, none of the elements which form a successful claim for benefits under 38 U.S.C.A. § 1151 are shown here. The preponderance of the evidence is therefore against the Veteran's claim and VA compensation benefits for disability of the right wrist, right hip, right knee, right ankle, and right foot are denied.
ORDER
Compensation benefits under the provisions of 38 U.S.C.A. § 1151 for disability of the right wrist, right hip, right knee, right ankle, and right foot are denied.
____________________________________________
Michelle L. Kane
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs | 11-01-2013 | [
"Citation Nr: 1335219 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 08-26 466 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon THE ISSUE Entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for disability of the right wrist, right hip, right knee, right ankle, and right foot, claimed to have been caused during a February 2004 VA examination. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Heather J. Harter, Counsel INTRODUCTION The Veteran served on active duty from March 1961 to July 1962. This case is before the Board of Veterans' Appeals (Board) on appeal from a July 2006 RO decision. In March 2011, the Veteran presented testimony relevant to the issues on appeal before the undersigned Veterans Law Judge at a Board hearing held at the Portland RO. A transcript of the hearing is associated with the claims file and has been reviewed. In March 2012, the Board remanded the matter for a VA examination by a physician who had not previously examined or treated the Veteran, and a medical opinion. In March 2013, the Board again remanded the matter for further clarification of the medical opinion obtained.",
"Such development has now been fully accomplished and the appeal is again before the Board for review. This appeal was processed using the Veterans Benefits Management System, a paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDING OF FACT Disability of the right wrist, right hip, right knee, right ankle, and right foot was not proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA during a February 2004 VA examination. CONCLUSION OF LAW The criteria for VA compensation benefits under the provisions of 38 U.S.C.A. § 1151 for disability of the right wrist, right hip, right knee, right ankle, and right foot have not been met. 38 U.S.C.A. § 1151, 5107 (West 2002); 38 C.F.R. § 3.361 (2013).",
"REASONS AND BASES FOR FINDING AND CONCLUSION Duties to notify and assist When an application for benefits is received, VA has certain notice and assistance requirements under the law. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). First, proper notice must be provided to a claimant before the initial VA decision on a claim for benefits and must: (1) inform the claimant about the information and evidence not of record necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. The VA is also required to inform the Veteran of how the VA assigns disability ratings and effective dates.",
"Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was provided with this information as to the 38 U.S.C.A. § 1151 claim in a May 2006 letter prior to the initial decision in the case. With regard to the VA examination reports which are of record, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.",
"Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). However, unless the claimant challenges the adequacy of the examination or opinion, the Board may assume that the examination report and opinion are adequate, and need not affirmatively establish the adequacy of the examination report or the competence of the examiner. Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011) (holding that although the Board is required to consider issues independently raised by the evidence of record, the Board is still 'entitled to assume' the competency of a VA examiner and the adequacy of a VA opinion without 'demonstrating why the medical examiners' reports were competent and sufficiently informed'); see also Rizzo v. Shinseki, 580 F.3d 1288, 1290-1291 (Fed. Cir. 2009) (holding that the Board is entitled to assume the competency of a VA examiner unless the competence is challenged). The Board finds that the VA examinations and the addendum reports obtained in this case are adequate.",
"The examination reports relied upon were predicated on a review of the claims folder and the relevant medical records contained therein; contain a description of the history of the disabilities at issue; and document and consider the Veteran's complaints and symptoms. The examiners considered the available pertinent evidence of record, and provided a rationale for the opinions rendered, relying on and citing to the records reviewed. Accordingly, the Board finds that the VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). Private medical records, Social Security records, VA treatment records and VA examination reports have been obtained and reviewed in support of the Veteran's claim. The Veteran's hearing testimony and his written contentions have been carefully reviewed.",
"All relevant records and contentions have been carefully reviewed. The Board therefore concludes that the VA's duties to notify and assist have been met with regard to the matters decided herein. With respect to the aforementioned March 2011 Board hearing, the Court held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the RO official or Veterans Law Judge who conducts a hearing must fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the Veterans Law Judge specifically noted the bases of the prior determinations or the elements that were lacking to substantiate the claim.",
"She asked specific questions, directed at identifying the Veteran's main contentions. She also specifically sought to identify any pertinent evidence not currently associated with the claims. Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).",
"Standard of review Once the evidence has been assembled, it is the Board's responsibility to evaluate the record. 38 U.S.C.A. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that \"a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail.\" To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet.",
"App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Board must consider all the evidence of record and discuss in its decision all \"potentially applicable\" provisions of law and regulation. See 38 U.S.C. § 7104(a); Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). The Board is also required to provide a statement of reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for its decision, as well as to facilitate further appellate review. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet. App.",
"517, 527 (1995); Gilbert, 56 (1990). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). The Board has thoroughly reviewed all the evidence in the Veteran's electronic claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the claimant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir.",
"2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The claimant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran).",
"Analysis Under 38 U.S.C.A. § 1151, VA compensation shall be awarded for a qualifying additional disability or a qualifying death of a Veteran in the same manner as if such additional disability were service connected. A disability or death is a qualifying additional disability or qualifying death if the disability or death was not the result of the Veteran's willful misconduct and either: 1) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by the Secretary, either by a Department employee or in a Department facility, and the proximate cause of the disability or death was either A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or B) an event not reasonably foreseeable; or 2) the disability or death was proximately caused by the provision of training and rehabilitation services by the Secretary as part of an approved rehabilitation program. 38 U.S.C.A. § 1151; 38 C.F.R.",
"§ 3.361. The first step of developing a claim under 38 U.S.C.A. § 1151 is to determine whether the Veteran has an additional disability as a result of a VA procedure. To make this determination, we compare the Veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment, etc. upon which the claim is based to the Veteran's condition after such care.",
"Each involved body part or system is considered separately. 38 C.F.R. § 3.361(b). If it is determined that the Veteran has an additional disability resulting from VA care, the second step is to establish the case of the additional disability; in other words, to determine whether the VA actions actually caused the additional disability. To establish causation, the evidence must show that the VA care actually resulted in the additional disability. Merely showing that the Veteran received care and that he has an additional disability does not establish cause. Furthermore, medical care cannot cause the continuance or natural progress of a disease or injury for which the care was furnished, unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c). The proximate cause of disability is defined for these purposes as the action or event that directly caused the disability, as distinguished from a remote contributing cause. 38 C.F.R.",
"§ 3.361(d). However, causation alone is not sufficient to warrant compensation under 38 U.S.C.A. § 1151. Rather the third step in the analysis requires that the evidence must show either that the additional disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing the hospital care, medical or surgical treatment, or examination; or that it was an event that was not reasonably foreseeable. To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a Veteran's additional disability or death, it must be shown that the hospital care or medical or surgical treatment caused the Veteran's additional disability or death; and either (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care or medical or surgical treatment without the Veteran's informed consent. 38 C.F.R.",
"§ 3.361(d). Whether the proximate cause of a Veteran's additional disability was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R.",
"§ 17.32. In a recent case, the Court emphasized that the standard is not actual foreseeability or possible foreseeability, but that the test is driven wholly by how a \"reasonable health care provider\" would behave if asked to perform a certain procedure on a veteran with the same characteristics as the veteran in a given case. Schertz v. Shinseki, No. 11-2694 (Vet. App. Sep. 26, 2013). The Veteran contends that during a VA examination conducted in February 2004, the examiner injured his right wrist, right hip, right knee, right ankle, and right foot. In a July 2007 statement, he explained his theory of the case: \"I believe the VA examiner was way too forceful during the examination. He aggravated the conditions that he was checking. Instead of checking my limitations as to how I was able to move the different limbs, he forced them to the point that he couldn't move them. I don't believe this is right.",
"By using his method, he could push anyone to a full range of motion.\" During the March 2011 Board hearing, he explained it as follows: Well, this doctor up there in Vancouver, he was, he found out I didn't have any material, you know, for him to look at and he just got totally different, you know? He was just like a mad man. He had me laying on this table and the table was sitting against the wall and he had me holding on like that and he grabbed my right leg and he was pushing it up and twisting it back and forth and carrying on with it. And, you know, I said, \"Gee, doc, that hurts.\" You know? And I could feel something wasn't feeling good and I was sitting there kind of dazed a little bit. And he said, \"Okay. Sit up.\"",
"So I got up and he says let me see your hands. So I put my hands out and he says, \"Oh,\" he says, \"I want to see your hands,\" and he grabbed this wrist like that and he twisted it around and I said, \"Gee, that's kind of rough. That hurt.\" You know? And he says, \"Well,\" he said, \"I just wanted to see your hand.\" Well, it still hurts when I go and grab it or try to twist it to where I can feel it in here, or squeeze something or if I'm carrying something, if I touch it the wrong way, you know, I can still feel that. And my right hip, it's constantly hurting. And when I go up the stairs, I can feel my knees, of course, both knees, you know, are hurting, but. And then my foot on the front, if I'm going upstairs, especially if I'm carrying a bag of groceries, you know, I says, \"Damn, that hurts.\"",
"Review of the Veteran's voluminous claims file reveals that the February 2004 VA examination was scheduled for the purpose of evaluating claims for entitlement to service connection for a rib disability, a cervical spine disability, a left knee disability, and a left ankle disability; all of which were subsequently denied. The examination report reflects that although the examination was conducted for purposes of evaluating claims pertaining to the Veteran's left side, the examiner also examined the Veteran's right side, for purposes of comparison. Thus, the examiner measured the Veteran's range of left and right knee motion, both feet and both ankles, both hips, and both wrists. In the report the examiner noted that the Veteran tended to be a bit hyper-reactive during the examination, although the examiner provided no further explanation as to what he meant by this statement.",
"With regard to the examination findings, the Veteran had full range of motion and full grip strength in both wrists. He had full strength and range of motion of both feet and ankles. He had equal flexion and extension in both knees as well. The medial and lateral collateral ligaments of both knee joints were clinically intact during the examination. His range of hip motion was described as full bilaterally. The examiner specified that there was no orthopedic diagnosis for the right knee, and did not render any further comment upon or diagnosis pertaining to the Veteran's right foot, ankle, hip, or his wrist. More than a year later, in April 2005, the Veteran filed what he termed, \"a complaint against the examining doctor who treated me aggressively during the examination. He has made my right foot, my right knee, and my right ankle, and right hip hurt, also my right wrist hurts from him twisting on it.\"",
"He also enclosed a letter from the Director of the VA Medical Center where the examination was conducted, apparently a response to a complaint the Veteran had made to that institution. This response is set forth in pertinent part: This is in reply to your letter expressing your concern that the provider hurt you during the Compensation & Pension exam on February 19, 2004. Upon receiving your letter, I contacted the Administrative Director of our Primary Care Division and directed her to review your concerns and notify me of her findings. I have received those findings and would like to share them with you. The Board of Veterans' Appeals in Washington, D.C., requested the exam conducted on February 19, 2004.",
"They request very specific information in order to make a fair and accurate adjudication of your claim. An appeals claim requires that our provider conduct a more detailed and intensive physical examination to provide the details needed by the Board. It was not the provider's intent to cause your harm, pain, or suffering. If his report had not adequately described the degree of range of motion requested by the Appeals Board, they might not have sufficient information to resolve your case. Please accept our apologies for any distress, anxiety, or inconvenience you may have experienced. The provider in question has been made aware of your concerns and extends his regret for your discomfort during the exam. Recent medical records reflect orthopedic diagnoses of arthritis affecting the Veteran's neck, back, both knees, left ankle, and left foot. An earlier August 1996 diagnostic report reflects a diagnosis of bilateral carpal tunnel syndrome.",
"The veteran does not carry current diagnoses from his medical care providers indicative of any disability involving his right foot and ankle, his right hip, and his right wrist. An X-ray report dated in May 2011 reflects a finding of enthesopathy in the ligaments and tendons of the right hip, foot, and ankle, however. A letter from the Veteran's primary care physician to the Veteran, notifying him of these findings reflects her assessment that, \"The most prominent finding is enthesopathy or inflammation in the ligaments and tendons of the hip, foot, and ankle.",
"This is usually from a form of arthritis called 'spondyloarthritis.' It is sometimes treated with different medications than 'regular' arthritis. If you want to see a specialist at the Portland VA to have this checked out further and see if any special treatment might be helpful, let me know.\" There is no indication, that the Veteran sought further specialist evaluation of this matter, however. In May 2012, the Veteran's medical records and claims file were reviewed by a VA physician who is a Board certified orthopedic surgeon. The physician noted that the examiner who had performed the February 2004 examination was a Board-certified orthopedist. The physician also noted that the examiner was not a personal friend.",
"After reviewing the evidence of record, the physician concluded that the Veteran had not suffered any additional disability during the 2004 VA examination, and provided the following explanation: My conclusions regarding the submitted charges by [the Veteran] is that these charges are unfounded and that there is no likelihood at all of any causation or aggravation of any condition of [the Veteran] in the specific areas of [right] wrist, [right] knee, [right] ankle, right foot, and right hip. The Veteran in the hearing of March 24, 2011 made statements that the examining doctor changed after initially starting out as friendly and easy-going to a mean individual and that 'he grabbed my right leg and was pushing it up and twisting it back and forth and carrying on with it.\" He also states that the doctor grabbed his wrists and twisted them around. I have reviewed the [examination] report of that date and it indicates [the Veteran]complaining of pain in many areas and telling the doctor that certain maneuvers hurt.",
"The report indicates McMurray maneuvers being done on his knees which were negative. Thus maneuver is done in exactly the manner as the Veteran described and is very indicated and appropriate for knee exams. If the maneuver were termed as positive then one would expect pain on the maneuver as well as a click. The test was negative here and therefore should not have produced any pain. There was no laxity, effusion, synovitis, or other than normal findings for the knee exams. The wrist examination as done was indicated and appropriately carried out to determine passive motion as well as any laxity of the wrist bones-these exam maneuvers were also normal. There is a comment in this [report] that the Veteran 'tends to be a bit hyper-reactive during the exam.' There are no civilian records in the C-file concerning any treatments for the right foot, right ankle, right knee, right hip, or right wrist either before or after the Feb. 2004 exam. There are no Portland VAMC progress notes concerning any treatment anywhere for the injury claimed or for any pre-existing injury. There are no orthopedic clinic visits before or after 2004.",
"There are x-rays on Vista Imaging that note normal foot, normal ankle, normal hip and knee radiographs on date of 5/26/2011. One would assume that if some sort of injury had occurred due to the [examination] of 2004 that there would be x-ray findings by now and that there would be evidence of treatment somewhere. The truth is that the exam done was appropriate, indicated and necessary to make the diagnosis of any of these conditions. No abnormal exam findings of any of these claimed areas were present other than some mild complain[ts] about pain which is not an objective exam finding. Therefore, with normal exam objective findings, normal x-rays, and no follow up visits, the only conclusion is that there were no known conditions of Feb. 2004 in these joints which could have been aggravated or disability increased by the normal examination routines of the doctor that day.",
"Because this opinion report did not contain any discussion of the May 2011 X-ray findings regarding enthesopathy in the ligaments and tendons of the right hip, foot, and ankle, the Board remanded this matter again for clarification as to the significance, if any, of the enthesopathy. Review of the resulting report shows that the physician again reviewed the Veteran's claims file and medical records, and also reviewed the original X-ray images. Based upon this review, he rendered the following opinion: Enthesopathy is commonly known as a traction spur. They are quite common and not due to acute trauma. They are often due to ageing or from low levels of chronic strain from physical activity. Although they were not specifically addressed in the x-ray reports in 2004, review of those images show that they were present on x-rays of the R knee and L ankle in 2004. They were not changed when compared to x-rays in 2011.",
"The enthesopathies were clearly not caused by the examiner in 2004. Upon careful and liberal review of the evidence of record, the Board cannot identify any additional disability following the 2004 VA examination. It is not even clear that the Veteran has any disability at all involving his right wrist, other than some mild carpal tunnel syndrome identified in August 1996, well prior to the examination. That he has the enthesopathy affecting his right hip, right ankle, and right foot is established in the record. Also established in the record is right knee arthritis. None of these disabilities is shown to have their inception during the 2004 VA examination, however. As set forth above, the first step in developing a claim under 38 U.S.C.A.",
"§ 1151 is to determine whether the Veteran has an additional disability as a result of a VA procedure, in this case, a VA examination. The right carpal tunnel syndrome pre-existed the 2004 VA examination by many years. Likewise the right knee arthritis pre-existed the 2004 VA examination by many years. The enthesopathies of the right hip, right ankle, and right foot were not identified until 2011. None of these things could be reasonably said to have occurred during or proximate to the 2004 examination. The only indication of any disability related to the examination is the Veteran's own report of experiencing pain during the examination, and of continuing pain since then. The United States Court of Appeals for the Federal Circuit has held that pain alone, cannot be compensable in the absence of proof of a disease or injury to which the current pain can be connected by medical evidence. Sanchez-Benitez v. Principi, 259 F.3d 1356, 1361 (2001).",
"In this regard, it is relevant to note that Social Security psychiatric evaluation reports, dated in the 1980s, well prior to the 2004 examination, reflect that the Veteran has a diagnosis of a psychogenic pain disorder, manifested by preoccupation with his bodily sensations and hypochondrial ideation. While this diagnosis may in part or wholly explain the Veteran's complaints, which are no doubt entirely sincere on his part, it further supports the conclusion that the Veteran does not have any current additional disability arising from the 2004 VA examination.",
"In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A current disability at some point during the appeal period is required for a successful claim for VA benefits. McClain v. Nicholson, 21 Vet. App. 319 (2007). Even assuming, however, that some unspecified disability involving the pain the Veteran reports during the examination and afterward, exists, the claim must still be denied because the second element of causation is not met. All the medical evidence of record is against the claim that any additional disability resulted from the VA examination. The May 2012 physician reviewer explained that the Veteran's report during the hearing of grabbing and twisting his right arm and right leg represented normal and appropriate clinical orthopedic testing of the joints at issue. He also explained that because the 2004 examiner was carefully looking for signs of pain during the examination and found none, it is less likely the Veteran was actually experiencing pain at these points during the examination. As a layperson with no demonstrated medical expertise, the Veteran is not competent to render a complex medical opinion as to the cause of his current vague and unsubstantiated complaints. Although there is no categorical requirement of \" 'competent medical evidence ... [when] the determinative issue involves either medical etiology or a medical diagnosis,' \" more than a mere assertion on the part of a claimant is required to establish either a current diagnosis or a nexus between a diagnosis and an event, such as an injury.\" Davidson v. Shinseki, 581 F.3d at 1316 (Fed.",
"Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007)). \"Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.\" Id. As such, to the extent that he believes that his current complaints were the result of the examiner's actions during the 2004 examination, he lacks the medical expertise to competently provide such evidence of record.",
"Nevertheless, an expert medical opinion was sought from a physician with equivalent credentials to those of the 2004 VA examiner. This opinion and the following clarification are thorough and directly address the question at hand. Moreover, even if cause were shown, and as discussed above it is not; the evidence does not support in any way the proposition that any current disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing a compensation examination to the Veteran. (Element three). In summary, none of the elements which form a successful claim for benefits under 38 U.S.C.A. § 1151 are shown here.",
"The preponderance of the evidence is therefore against the Veteran's claim and VA compensation benefits for disability of the right wrist, right hip, right knee, right ankle, and right foot are denied. ORDER Compensation benefits under the provisions of 38 U.S.C.A. § 1151 for disability of the right wrist, right hip, right knee, right ankle, and right foot are denied. ____________________________________________ Michelle L. Kane Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs"
] | https://drive.google.com/drive/folders/12lAd8Os7VFeqbTKi4wcqJqODjHIn0-yQ?usp=sharing | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
DETAILED ACTION Notice of Pre-AIA or AIA Status The present application is being examined under the pre-AIA first to invent provisions. Examiner’s Comments Response to Amendment Claims 27-42 remain pending in this application and are in condition for allowance. Response to Arguments Applicant’s arguments, see remarks, filed 11/15/2021, with respect to the rejection of the claims under 35 U.S.C. §103(a) in the Pre-Brief Appeal have been fully considered and are persuasive. However, the amendments to the claims place the claims in condition for allowance. EXAMINER’S AMENDMENT An examiner’s amendment to the record appears below. Should the changes and/or additions be unacceptable to applicant, an amendment may be filed as provided by 37 CFR 1.312. To ensure consideration of such an amendment, it MUST be submitted no later than the payment of the issue fee. Authorization for this examiner’s amendment was given in an interview with Harnik Shukla on 02/17/2022. This application is amended as follows (see strikethrough and underline below). Claim 27. A system for determining whether it is safe to operate a closed loop provide a risk profile to a clinician for the patient, wherein the risk profile comprises a matrix including a plurality of risk levels for varying values of glucose, change in glucose, and change in insulin; receive an input from the clinician for each of the plurality of risk levels; receive measurements indicative of glucose in the patient from the sensor; determine a first trend corresponding to a change in insulin for the patient; determine a second trend corresponding to a change in the glucose measurements; apply rules on the received measurements, the first trend, and the second trend, wherein the rules include the risk profile that was parameterized by the clinician for when to exit closed loop delivery for the patient; determine whether it is safe to operate a closed loop delivery of insulin to the patient based on the application of rules; and prevent exit closed loop delivery of insulin and prompt user intervention based on the determination of safety using the application of rules. Claim 35. A method for determining whether it is safe to operate a closed loop delivery of insulin to a patient, the method comprising: measuring an indication of glucose in the patient with a sensor in communication with a controller; providing a risk profile to a clinician for the patient, wherein the risk profile comprises a matrix including a plurality of risk levels for varying values of glucose, change in glucose, and change in insulin; receiving an input from the clinician for each of the plurality of risk levels; receiving, at the controller, measurements indicative of the risk profile configured to be parameterized by the clinician for when to exit closed loop delivery; and preventing exiting closed loop delivery of insulin and prompting user intervention based on the determination of safety using the application of rules. Examiner’s Statement of Reason for Allowance Claims 27-42 are allowed. The following is an examiner’s statement of reasons for allowance: Regarding claims 27 and 35 the prior art of record does not teach or otherwise render obvious in combination with all claim limitations: “provide a risk profile to a clinician for the patient, wherein the risk profile comprises a matrix including a plurality of risk levels for varying values of glucose, change in glucose, and change in insulin; receive an input from the clinician for each of the plurality of risk levels” Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.” Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to TIFFANY LEGETTE-THOMPSON whose telephone number is (571)270-7078. The examiner can normally be reached M-F 7:30-4:30. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Kevin Sirmons can be reached on 571-272-4965. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/TIFFANY LEGETTE/Primary Examiner, Art Unit 3783 | 2022-03-08T15:31:13 | [
"DETAILED ACTION Notice of Pre-AIA or AIA Status The present application is being examined under the pre-AIA first to invent provisions. Examiner’s Comments Response to Amendment Claims 27-42 remain pending in this application and are in condition for allowance. Response to Arguments Applicant’s arguments, see remarks, filed 11/15/2021, with respect to the rejection of the claims under 35 U.S.C. §103(a) in the Pre-Brief Appeal have been fully considered and are persuasive. However, the amendments to the claims place the claims in condition for allowance. EXAMINER’S AMENDMENT An examiner’s amendment to the record appears below. Should the changes and/or additions be unacceptable to applicant, an amendment may be filed as provided by 37 CFR 1.312. To ensure consideration of such an amendment, it MUST be submitted no later than the payment of the issue fee. Authorization for this examiner’s amendment was given in an interview with Harnik Shukla on 02/17/2022. This application is amended as follows (see strikethrough and underline below). Claim 27.",
"A system for determining whether it is safe to operate a closed loop provide a risk profile to a clinician for the patient, wherein the risk profile comprises a matrix including a plurality of risk levels for varying values of glucose, change in glucose, and change in insulin; receive an input from the clinician for each of the plurality of risk levels; receive measurements indicative of glucose in the patient from the sensor; determine a first trend corresponding to a change in insulin for the patient; determine a second trend corresponding to a change in the glucose measurements; apply rules on the received measurements, the first trend, and the second trend, wherein the rules include the risk profile that was parameterized by the clinician for when to exit closed loop delivery for the patient; determine whether it is safe to operate a closed loop delivery of insulin to the patient based on the application of rules; and prevent exit closed loop delivery of insulin and prompt user intervention based on the determination of safety using the application of rules.",
"Claim 35. A method for determining whether it is safe to operate a closed loop delivery of insulin to a patient, the method comprising: measuring an indication of glucose in the patient with a sensor in communication with a controller; providing a risk profile to a clinician for the patient, wherein the risk profile comprises a matrix including a plurality of risk levels for varying values of glucose, change in glucose, and change in insulin; receiving an input from the clinician for each of the plurality of risk levels; receiving, at the controller, measurements indicative of the risk profile configured to be parameterized by the clinician for when to exit closed loop delivery; and preventing exiting closed loop delivery of insulin and prompting user intervention based on the determination of safety using the application of rules.",
"Examiner’s Statement of Reason for Allowance Claims 27-42 are allowed. The following is an examiner’s statement of reasons for allowance: Regarding claims 27 and 35 the prior art of record does not teach or otherwise render obvious in combination with all claim limitations: “provide a risk profile to a clinician for the patient, wherein the risk profile comprises a matrix including a plurality of risk levels for varying values of glucose, change in glucose, and change in insulin; receive an input from the clinician for each of the plurality of risk levels” Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee.",
"Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.” Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to TIFFANY LEGETTE-THOMPSON whose telephone number is (571)270-7078. The examiner can normally be reached M-F 7:30-4:30. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Kevin Sirmons can be reached on 571-272-4965. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format.",
"For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000. /TIFFANY LEGETTE/Primary Examiner, Art Unit 3783"
] | https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-03-13.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Exhibit 10.1
FOURTEENTH AMENDMENT
Dated as of August 30, 2007
to
RECEIVABLES SALE AGREEMENT
Dated as of December 21, 2001
THIS FOURTEENTH AMENDMENT (the “Amendment”), dated as of August 30, 2007, is entered into among PerkinElmer Receivables Company, as Seller (the “Seller”), PerkinElmer, Inc., as Initial Collection Agent (the “Initial Collection Agent,” and together with any successor thereto, the “Collection Agents”), the committed purchasers party thereto (the “Committed Purchasers”), Windmill Funding Corporation (“Windmill”), and ABN AMRO Bank N.V., as agent for the Purchasers (the “Agent”)
WITNESSETH:
WHEREAS, the Seller, the Initial Collection Agent, the Agent, the Committed Purchasers and Windmill have heretofore executed and delivered a Receivables Sale Agreement, dated as of December 21, 2001 (as amended, supplemented or otherwise modified through the date hereof, the “Sale Agreement”),
WHEREAS, the parties hereto desire to amend the Sale Agreement as provided herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto hereby agree that the Sale Agreement shall be and is hereby amended as follows:
Section 1. The defined term “Credit Agreement” appearing in Schedule I to the Sale Agreement is hereby amended in its entirety and as so amended shall read as follows:
“Credit Agreement” means that certain Amended and Restated Credit Agreement dated as of August 13, 2007, as amended, among the Parent, Wallac Oy and certain other subsidiaries as Borrowers the lenders from time to time party thereto, Bank of America, N.A., as Administrative Agent, Swing Line Lender, and L/C Issuer, Citibank Global Markets Inc. and HSBC Bank USA, National Association, as Co-Syndication Agents, ABN AMRO Bank N.V. and Deutsche Bank Securities Inc., as Co-Documentation Agents and Banc of America Securities LLC and Citigroup Global Markets Inc., as Joint Lead Arrangers and Joint Book Managers.
Section 2. The defined term “Prime Rate” appearing in Schedule I to the Sale Agreement is hereby amended in its entirety and as so amended shall read as follows:
--------------------------------------------------------------------------------
“Prime Rate” means, for any period, the daily average during such period of (a) the sum of (x) the greater of (i) the floating commercial loan rate per annum of ABN AMRO (which rate is a reference rate and does not necessarily represent the lowest or best rate actually charged to any customer by ABN AMRO) announced from time to time as its prime rate or equivalent for dollar loans in the USA, changing as and when said rate changes and (ii) the Federal Funds Rate plus 0.75% plus (y) during the pendency of a Termination Event, 2.00%.
Section 3. This Amendment shall become effective on the date the Agent has received (i) counterparts hereof executed by Seller, Initial Collection Agent, each Purchaser and the Agent and (ii) an executed Guarantor’s Acknowledgment and Consent.
Section 4. To induce the Agent and the Purchasers to enter into this Amendment, the Seller and Initial Collection Agent represent and warrant to the Agent and the Purchasers that: (a) the representations and warranties contained in the Transaction Documents, are true and correct in all material respects as of the date hereof with the same effect as though made on the date hereof (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct in all material respects only as of such specified date); (b) no Potential Termination Event exists; (c) this Amendment has been duly authorized by all necessary corporate proceedings and duly executed and delivered by each of the Seller and the Initial Collection Agent, and the Sale Agreement, as amended by this Amendment, and each of the other Transaction Documents are the legal, valid and binding obligations of the Seller and the Initial Collection Agent, enforceable against the Seller and the Initial Collection Agent in accordance with their respective terms, except as enforceability may be limited by bankruptcy, insolvency or other similar laws of general application affecting the enforcement of creditors’ rights or by general principles of equity; and (d) no consent, approval, authorization, order, registration or qualification with any governmental authority is required for, and in the absence of which would adversely effect, the legal and valid execution and delivery or performance by the Seller or the Initial Collection Agent of this Amendment or the performance by the Seller or the Initial Collection Agent of the Sale Agreement, as amended by this Amendment, or any other Transaction Document to which they are a party.
Section 5. This Amendment may be executed in any number of counterparts and by the different parties on separate counterparts and each such counterpart shall be deemed to be an original, but all such counterparts shall together constitute but one and the same Amendment.
Section 6. Except as specifically provided above, the Sale Agreement and the other Transaction Documents shall remain in full force and effect and are hereby ratified and confirmed in all respects. Nothing herein shall be interpreted as permitting any Lien to be granted to any Person in the Receivables or any other property of the Originators or the Seller in which the Agent or any Purchaser has an interest under the Transaction Documents. The execution, delivery, and effectiveness of this Amendment shall not operate as a waiver of any right, power, or remedy of any Agent or any Purchaser under the Sale Agreement or any of the
2
--------------------------------------------------------------------------------
other Transaction Documents, nor constitute a waiver or modification of any provision of any of the other Transaction Documents. All defined terms used herein and not defined herein shall have the same meaning herein as in the Sale Agreement. The Seller agrees to pay on demand all costs and expenses (including reasonable fees and expenses of counsel) of or incurred by the Agent and each Purchaser Agent in connection with the negotiation, preparation, execution and delivery of this Amendment.
Section 7. This Amendment and the rights and obligations of the parties hereunder shall be construed in accordance with and be governed by the law of the State of Illinois.
3
--------------------------------------------------------------------------------
IN WITNESS WHEREOF, the parties have caused this Amendment to be executed and delivered by their duly authorized officers as of the date first above written.
ABN AMRO BANK N.V., as the Agent, as the Committed Purchaser By: /s/ Kristina Nevillo Title: Vice President By: /s/ Theo J. Chinto Senior Vice President
WINDMILL FUNDING CORPORATION By: /s/ Bernard J. Angelo Title: Vice President
PERKINELMER RECEIVABLES COMPANY By: /s/ Jack Healy Title: President
PERKINELMER, INC. By: /s/ Steven Delahunt Title: Treasurer
4
--------------------------------------------------------------------------------
Guarantor’s Acknowledgment and Consent
The undersigned, PerkinElmer, Inc., has heretofore executed and delivered the Limited Guaranty dated as of December 21, 2001 (the “Guaranty”) and hereby consents to the Amendment to the Sale Agreement as set forth above and confirms that the Guaranty and all of the undersigned’s obligations thereunder remain in full force and effect. The undersigned further agrees that the consent of the undersigned to any further amendments to the Sale Agreement shall not be required as a result of this consent having been obtained, except to the extent, if any, required by the Guaranty referred to above.
PERKINELMER, INC. By: /s/ Steven Delahunt Title: Treasurer
5 | [
"Exhibit 10.1 FOURTEENTH AMENDMENT Dated as of August 30, 2007 to RECEIVABLES SALE AGREEMENT Dated as of December 21, 2001 THIS FOURTEENTH AMENDMENT (the “Amendment”), dated as of August 30, 2007, is entered into among PerkinElmer Receivables Company, as Seller (the “Seller”), PerkinElmer, Inc., as Initial Collection Agent (the “Initial Collection Agent,” and together with any successor thereto, the “Collection Agents”), the committed purchasers party thereto (the “Committed Purchasers”), Windmill Funding Corporation (“Windmill”), and ABN AMRO Bank N.V., as agent for the Purchasers (the “Agent”) WITNESSETH: WHEREAS, the Seller, the Initial Collection Agent, the Agent, the Committed Purchasers and Windmill have heretofore executed and delivered a Receivables Sale Agreement, dated as of December 21, 2001 (as amended, supplemented or otherwise modified through the date hereof, the “Sale Agreement”), WHEREAS, the parties hereto desire to amend the Sale Agreement as provided herein; NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto hereby agree that the Sale Agreement shall be and is hereby amended as follows: Section 1.",
"The defined term “Credit Agreement” appearing in Schedule I to the Sale Agreement is hereby amended in its entirety and as so amended shall read as follows: “Credit Agreement” means that certain Amended and Restated Credit Agreement dated as of August 13, 2007, as amended, among the Parent, Wallac Oy and certain other subsidiaries as Borrowers the lenders from time to time party thereto, Bank of America, N.A., as Administrative Agent, Swing Line Lender, and L/C Issuer, Citibank Global Markets Inc. and HSBC Bank USA, National Association, as Co-Syndication Agents, ABN AMRO Bank N.V. and Deutsche Bank Securities Inc., as Co-Documentation Agents and Banc of America Securities LLC and Citigroup Global Markets Inc., as Joint Lead Arrangers and Joint Book Managers. Section 2. The defined term “Prime Rate” appearing in Schedule I to the Sale Agreement is hereby amended in its entirety and as so amended shall read as follows: -------------------------------------------------------------------------------- “Prime Rate” means, for any period, the daily average during such period of (a) the sum of (x) the greater of (i) the floating commercial loan rate per annum of ABN AMRO (which rate is a reference rate and does not necessarily represent the lowest or best rate actually charged to any customer by ABN AMRO) announced from time to time as its prime rate or equivalent for dollar loans in the USA, changing as and when said rate changes and (ii) the Federal Funds Rate plus 0.75% plus (y) during the pendency of a Termination Event, 2.00%. Section 3.",
"This Amendment shall become effective on the date the Agent has received (i) counterparts hereof executed by Seller, Initial Collection Agent, each Purchaser and the Agent and (ii) an executed Guarantor’s Acknowledgment and Consent. Section 4. To induce the Agent and the Purchasers to enter into this Amendment, the Seller and Initial Collection Agent represent and warrant to the Agent and the Purchasers that: (a) the representations and warranties contained in the Transaction Documents, are true and correct in all material respects as of the date hereof with the same effect as though made on the date hereof (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct in all material respects only as of such specified date); (b) no Potential Termination Event exists; (c) this Amendment has been duly authorized by all necessary corporate proceedings and duly executed and delivered by each of the Seller and the Initial Collection Agent, and the Sale Agreement, as amended by this Amendment, and each of the other Transaction Documents are the legal, valid and binding obligations of the Seller and the Initial Collection Agent, enforceable against the Seller and the Initial Collection Agent in accordance with their respective terms, except as enforceability may be limited by bankruptcy, insolvency or other similar laws of general application affecting the enforcement of creditors’ rights or by general principles of equity; and (d) no consent, approval, authorization, order, registration or qualification with any governmental authority is required for, and in the absence of which would adversely effect, the legal and valid execution and delivery or performance by the Seller or the Initial Collection Agent of this Amendment or the performance by the Seller or the Initial Collection Agent of the Sale Agreement, as amended by this Amendment, or any other Transaction Document to which they are a party.",
"Section 5. This Amendment may be executed in any number of counterparts and by the different parties on separate counterparts and each such counterpart shall be deemed to be an original, but all such counterparts shall together constitute but one and the same Amendment. Section 6. Except as specifically provided above, the Sale Agreement and the other Transaction Documents shall remain in full force and effect and are hereby ratified and confirmed in all respects. Nothing herein shall be interpreted as permitting any Lien to be granted to any Person in the Receivables or any other property of the Originators or the Seller in which the Agent or any Purchaser has an interest under the Transaction Documents.",
"The execution, delivery, and effectiveness of this Amendment shall not operate as a waiver of any right, power, or remedy of any Agent or any Purchaser under the Sale Agreement or any of the 2 -------------------------------------------------------------------------------- other Transaction Documents, nor constitute a waiver or modification of any provision of any of the other Transaction Documents. All defined terms used herein and not defined herein shall have the same meaning herein as in the Sale Agreement. The Seller agrees to pay on demand all costs and expenses (including reasonable fees and expenses of counsel) of or incurred by the Agent and each Purchaser Agent in connection with the negotiation, preparation, execution and delivery of this Amendment. Section 7. This Amendment and the rights and obligations of the parties hereunder shall be construed in accordance with and be governed by the law of the State of Illinois. 3 -------------------------------------------------------------------------------- IN WITNESS WHEREOF, the parties have caused this Amendment to be executed and delivered by their duly authorized officers as of the date first above written. ABN AMRO BANK N.V., as the Agent, as the Committed Purchaser By: /s/ Kristina Nevillo Title: Vice President By: /s/ Theo J. Chinto Senior Vice President WINDMILL FUNDING CORPORATION By: /s/ Bernard J. Angelo Title: Vice President PERKINELMER RECEIVABLES COMPANY By: /s/ Jack Healy Title: President PERKINELMER, INC. By: /s/ Steven Delahunt Title: Treasurer 4 -------------------------------------------------------------------------------- Guarantor’s Acknowledgment and Consent The undersigned, PerkinElmer, Inc., has heretofore executed and delivered the Limited Guaranty dated as of December 21, 2001 (the “Guaranty”) and hereby consents to the Amendment to the Sale Agreement as set forth above and confirms that the Guaranty and all of the undersigned’s obligations thereunder remain in full force and effect.",
"The undersigned further agrees that the consent of the undersigned to any further amendments to the Sale Agreement shall not be required as a result of this consent having been obtained, except to the extent, if any, required by the Guaranty referred to above. PERKINELMER, INC. By: /s/ Steven Delahunt Title: Treasurer 5"
] | https://github.com/TheAtticusProject/cuad | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
|
SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
1104 CAF 11-01187 PRESENT: FAHEY, J.P., PERADOTTO, CARNI, WHALEN, AND MARTOCHE, JJ.
IN THE MATTER OF GENA S. --------------------------------------------- GENESEE COUNTY DEPARTMENT OF SOCIAL SERVICES, PETITIONER-RESPONDENT; MEMORANDUM AND ORDER KAREN M., RESPONDENT-APPELLANT. --------------------------------------------- JACQUELINE M. GRASSO, ESQ., ATTORNEY FOR THE CHILD, APPELLANT. (APPEAL NO. 1.)
DAVID J. PAJAK, ALDEN, FOR RESPONDENT-APPELLANT.
JACQUELINE M. GRASSO, ATTORNEY FOR THE CHILD, BATAVIA, APPELLANT PRO SE.
CHARLES N. ZAMBITO, COUNTY ATTORNEY, BATAVIA (PAULA A. CAMPBELL OF COUNSEL), FOR PETITIONER-RESPONDENT.
Appeals from an order of the Family Court, Genesee County (Eric R. Adams, J.), entered May 19, 2011 in a proceeding pursuant to Social Services Law § 384-b. The order, among other things, transferred the guardianship and custody of Gena S. to petitioner.
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs and the matter is remitted to Family Court, Genesee County, for further proceedings in accordance with the following Memorandum: Respondent mother is the mother of Gena S., Misty S. and Shaundra D. (children). In appeal Nos. 1 through 3, the mother appeals from respective orders of disposition that, inter alia, terminated her parental rights with respect to each child on the ground of permanent neglect and freed each child for adoption (dispositional orders). In appeal Nos. 4 through 6, the mother appeals from respective orders determining that the continuation of the permanency goal of placement for adoption is in the best interests of each child (permanency orders). Gena S. appeals from the orders relating to her in appeal Nos. 1 and 4.
We address the mother’s appeals first and note at the outset that her appeals from the permanency orders (appeal Nos. 4 through 6) must be dismissed. “Inasmuch as her parental rights had been terminated, [the mother] lacked standing to participate in the permanency hearing conducted by [Family Court]. [The mother] thus is not aggrieved by the permanency hearing orders and lacks standing to pursue her appeals -2- 1104 CAF 11-01187
from the orders in [appeal Nos. 4 through 6]” (Matter of April C., 31 AD3d 1200, 1201).
In her appeals from the dispositional orders (appeal Nos. 1 through 3), the mother contends that the court erred in refusing to approve her plan for the children to live with a friend of hers while the mother was incarcerated. That contention lacks merit inasmuch as the record establishes that petitioner, not the court, determined that the mother’s friend was not a viable resource for the children. We further reject the mother’s contention that the court improperly determined that she failed to plan for the future of the children, although she was able to do so (see generally Social Services Law § 384-b [7] [a]; Matter of Star Leslie W., 63 NY2d 136, 142; Matter of John B. [Julie W.], 93 AD3d 1221, 1222, lv denied 19 NY3d 806; Matter of Giovanni K., 62 AD3d 1242, 1243, lv denied 12 NY3d 715; cf. Matter of Rachael N. [Christine N.], 70 AD3d 1374, 1374, lv denied 15 NY3d 708). Here, the record establishes that the mother’s only viable plan for the children was that they remain in foster care until she is released from incarceration. The failure of an incarcerated parent to provide any “realistic and feasible” alternative to having the children remain in foster care until the parent’s release from prison, however, supports a finding of permanent neglect (Matter of Jamel Raheem B. [Vernice B.], 89 AD3d 933, 935, lv denied 18 NY3d 808; see § 384-b [7] [c]; Matter of “Female” V., 21 AD3d 1118, 1119, lv denied 6 NY3d 708, 6 NY3d 709; see also Matter of Gregory B., 74 NY2d 77, 90, rearg denied 74 NY2d 880). Contrary to the mother’s suggestion, this is not a case in which her prolonged separation from the children was “due to litigation initiated or necessitated by [petitioner’s] actions” (Matter of Sanjivini K., 47 NY2d 374, 381).
We next address the appeals of Gena S. With regard to her appeal from the dispositional order, Gena contends that the court should not have terminated the mother’s parental rights with respect to her. As stated by the attorney for the child representing Gena (AFC), throughout the course of this matter, “Gena’s wishes could not [have been] any clearer; she consistently stated that she wants to be reunited with the mother.” Gena, who was born in 1997, was approximately one month shy of her 14th birthday when the dispositional order at issue was entered on May 19, 2011, and her consent to adoption would have been required had she been 14 years old at that time (see Domestic Relations Law § 111 [1] [a]). Gena is now over 15 years old and, according to the AFC, she still refuses to consent to adoption. The AFC contends that Gena “has no real bond with anyone” except for the mother and Gena’s sisters, and that it is highly unlikely that Gena will ever be adopted.
We may consider those new facts and allegations “to the extent [that] they indicate that the record before us is no longer sufficient” to determine whether termination of respondent’s parental rights is in Gena’s best interests (Matter of Michael B., 80 NY2d 299, 318; see Matter of Nichols v Nichols-Johnson, 78 AD3d 1679, 1680; see generally Matter of Samuel Fabien G., 52 AD3d 713, 714). Inasmuch as it is not clear on the record before us that termination of the -3- 1104 CAF 11-01187
mother’s parental rights with respect to Gena is in Gena’s best interests, we remit the matter to Family Court for a new dispositional hearing to determine the best interests of that child. We note that the conflict between the result with respect to Gena and the results with respect to her sisters is of no moment inasmuch as termination has been upheld with respect to younger siblings in similar circumstances (see Matter of Marc David D., 20 AD3d 565, 567; Matter of Dominique A.W., 17 AD3d 1038, 1039, lv denied 5 NY3d 706).
With regard to Gena’s appeal from the permanency order, we note that we have held that a permanency goal of placement for adoption is not always in the best interests of a child over the age of 14 (see Matter of Lavalle W. [Halvorsen], 88 AD3d 1300, 1300-1301; Matter of Sean S. [Halvorsen], 85 AD3d 1575, 1576). In view of that precedent, and the uncertainty as to what an appropriate alternative permanency goal may now be for Gena, we remit the matter to Family Court for the determination of a new permanency goal appropriate for her.
In light of our determination, we need not address Gena’s contention concerning the court’s refusal to grant posttermination contact between her and the mother.
Entered: December 21, 2012 Frances E. Cafarell Clerk of the Court | 10-08-2016 | [
"SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department 1104 CAF 11-01187 PRESENT: FAHEY, J.P., PERADOTTO, CARNI, WHALEN, AND MARTOCHE, JJ. IN THE MATTER OF GENA S. --------------------------------------------- GENESEE COUNTY DEPARTMENT OF SOCIAL SERVICES, PETITIONER-RESPONDENT; MEMORANDUM AND ORDER KAREN M., RESPONDENT-APPELLANT. --------------------------------------------- JACQUELINE M. GRASSO, ESQ., ATTORNEY FOR THE CHILD, APPELLANT. (APPEAL NO. 1.) DAVID J. PAJAK, ALDEN, FOR RESPONDENT-APPELLANT. JACQUELINE M. GRASSO, ATTORNEY FOR THE CHILD, BATAVIA, APPELLANT PRO SE. CHARLES N. ZAMBITO, COUNTY ATTORNEY, BATAVIA (PAULA A. CAMPBELL OF COUNSEL), FOR PETITIONER-RESPONDENT. Appeals from an order of the Family Court, Genesee County (Eric R. Adams, J. ), entered May 19, 2011 in a proceeding pursuant to Social Services Law § 384-b.",
"The order, among other things, transferred the guardianship and custody of Gena S. to petitioner. It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs and the matter is remitted to Family Court, Genesee County, for further proceedings in accordance with the following Memorandum: Respondent mother is the mother of Gena S., Misty S. and Shaundra D. (children). In appeal Nos. 1 through 3, the mother appeals from respective orders of disposition that, inter alia, terminated her parental rights with respect to each child on the ground of permanent neglect and freed each child for adoption (dispositional orders). In appeal Nos. 4 through 6, the mother appeals from respective orders determining that the continuation of the permanency goal of placement for adoption is in the best interests of each child (permanency orders). Gena S. appeals from the orders relating to her in appeal Nos.",
"1 and 4. We address the mother’s appeals first and note at the outset that her appeals from the permanency orders (appeal Nos. 4 through 6) must be dismissed. “Inasmuch as her parental rights had been terminated, [the mother] lacked standing to participate in the permanency hearing conducted by [Family Court]. [The mother] thus is not aggrieved by the permanency hearing orders and lacks standing to pursue her appeals -2- 1104 CAF 11-01187 from the orders in [appeal Nos. 4 through 6]” (Matter of April C., 31 AD3d 1200, 1201).",
"In her appeals from the dispositional orders (appeal Nos. 1 through 3), the mother contends that the court erred in refusing to approve her plan for the children to live with a friend of hers while the mother was incarcerated. That contention lacks merit inasmuch as the record establishes that petitioner, not the court, determined that the mother’s friend was not a viable resource for the children. We further reject the mother’s contention that the court improperly determined that she failed to plan for the future of the children, although she was able to do so (see generally Social Services Law § 384-b [7] [a]; Matter of Star Leslie W., 63 NY2d 136, 142; Matter of John B. [Julie W.], 93 AD3d 1221, 1222, lv denied 19 NY3d 806; Matter of Giovanni K., 62 AD3d 1242, 1243, lv denied 12 NY3d 715; cf. Matter of Rachael N. [Christine N.], 70 AD3d 1374, 1374, lv denied 15 NY3d 708).",
"Here, the record establishes that the mother’s only viable plan for the children was that they remain in foster care until she is released from incarceration. The failure of an incarcerated parent to provide any “realistic and feasible” alternative to having the children remain in foster care until the parent’s release from prison, however, supports a finding of permanent neglect (Matter of Jamel Raheem B. [Vernice B. ], 89 AD3d 933, 935, lv denied 18 NY3d 808; see § 384-b [7] [c]; Matter of “Female” V., 21 AD3d 1118, 1119, lv denied 6 NY3d 708, 6 NY3d 709; see also Matter of Gregory B., 74 NY2d 77, 90, rearg denied 74 NY2d 880). Contrary to the mother’s suggestion, this is not a case in which her prolonged separation from the children was “due to litigation initiated or necessitated by [petitioner’s] actions” (Matter of Sanjivini K., 47 NY2d 374, 381). We next address the appeals of Gena S. With regard to her appeal from the dispositional order, Gena contends that the court should not have terminated the mother’s parental rights with respect to her. As stated by the attorney for the child representing Gena (AFC), throughout the course of this matter, “Gena’s wishes could not [have been] any clearer; she consistently stated that she wants to be reunited with the mother.” Gena, who was born in 1997, was approximately one month shy of her 14th birthday when the dispositional order at issue was entered on May 19, 2011, and her consent to adoption would have been required had she been 14 years old at that time (see Domestic Relations Law § 111 [1] [a]).",
"Gena is now over 15 years old and, according to the AFC, she still refuses to consent to adoption. The AFC contends that Gena “has no real bond with anyone” except for the mother and Gena’s sisters, and that it is highly unlikely that Gena will ever be adopted. We may consider those new facts and allegations “to the extent [that] they indicate that the record before us is no longer sufficient” to determine whether termination of respondent’s parental rights is in Gena’s best interests (Matter of Michael B., 80 NY2d 299, 318; see Matter of Nichols v Nichols-Johnson, 78 AD3d 1679, 1680; see generally Matter of Samuel Fabien G., 52 AD3d 713, 714).",
"Inasmuch as it is not clear on the record before us that termination of the -3- 1104 CAF 11-01187 mother’s parental rights with respect to Gena is in Gena’s best interests, we remit the matter to Family Court for a new dispositional hearing to determine the best interests of that child. We note that the conflict between the result with respect to Gena and the results with respect to her sisters is of no moment inasmuch as termination has been upheld with respect to younger siblings in similar circumstances (see Matter of Marc David D., 20 AD3d 565, 567; Matter of Dominique A.W., 17 AD3d 1038, 1039, lv denied 5 NY3d 706). With regard to Gena’s appeal from the permanency order, we note that we have held that a permanency goal of placement for adoption is not always in the best interests of a child over the age of 14 (see Matter of Lavalle W. [Halvorsen], 88 AD3d 1300, 1300-1301; Matter of Sean S. [Halvorsen], 85 AD3d 1575, 1576). In view of that precedent, and the uncertainty as to what an appropriate alternative permanency goal may now be for Gena, we remit the matter to Family Court for the determination of a new permanency goal appropriate for her. In light of our determination, we need not address Gena’s contention concerning the court’s refusal to grant posttermination contact between her and the mother. Entered: December 21, 2012 Frances E. Cafarell Clerk of the Court"
] | https://www.courtlistener.com/api/rest/v3/opinions/4085358/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
McDERMOTT, District Judge. A general demurrer has been lodged against the petition, and has been elaborately briefed and argued; it now comes on for decision. The petition alleges: Kansas City, Mo., owns approximately 54 acres of ground in Kansas, upon which is constructed its waterworks plant, the sole source of water supply for Kansas City, Mo.; the creation of- the plaintiff drainage district, within which is located the lands of the defendant; that this district was created under the Kansas statutes for the purpose of protecting the lands within the district from overflow from the Missouri river, from being flooded by surface water, and for general drainage purposes; that the cost of said, improvement was more than a million dollars, which has been paid for by the issuance and sale of bonds of the district, and that special assessments have been levied against the property in the district in proportion to the benefits for the purpose of paying the bonds; that the defendant has refused to pay the assessments levied against its property for the four-year period from 1924 to 1927, inclusive, and'that it is now indebted to the plaintiff in the sum of $12,860.50-, for which sum judgment, with interest and penalties as provided by law, is prayed. The general demurrer presents several questions, one of which is of importance. These questions are: (1) That, by virtue of a joint resolution passed by the Legislatures of Kansas and Missouri, and approved by Congress, this property is not subject to this assessment; (2) that, even if a liability exists, it cannot be enforced in this action, because a personal liability cannot be created against a nonresident, and the sole remedy of the plaintiff is to sell the waterworks property at public sale for unpaid taxes; and (3) that, even if a personal judgment can be rendered, the drainage district is not the proper party plaintiff. Of these, in their order. I. Many years ago the question arose as to.whether this property was subject to general taxation. The question came before the Supreme Court of Kansas in the case of State v. Holcomb, 85 Kan. 178, 116 P. 251, 50 L. R. A. (N. S.) 243, Ann. Cas. 1912D, 800, and it was there held that this property was subject to general taxation, just as any other private property located in the state. It was held: “And so it may be said here that when a city of the state of Missouri comes into Kansas, it comes as a private party and brings with it none of the prerogatives of sovereignty. The general rule is that all property, *614not expressly exempted, is taxable, and the fact that the state does not tax itself and its municipalities to obtain revenue for itself is no reason why a foreign municipality, who is here in the capacity of a private proprietor and whose property receives protection from the state, should contribute nothing toward that protection or should escape paying the taxes imposed upon other owners of property.” Certiorari was denied by the Supreme Court of the United States. 226 U. S. 599, 33 S. Ct. 112, 57 L. Ed. 375. To remedy this situation, the Legislature of Kansas and the Legislature of Missouri passed identical joint resolutions; the Kansas resolution being chapter 304 of the Laws of 1921. This resolution recites the facts concerning the location of the waterworks plants of the two cities of Kansas City, Kan., and Kansas City, Mo.; that it is to the material benefit of each city that each should contribute to a common fund in protecting the banks of the Missouri river so as to assure an adequate flow of water to both plants; that the water plants of both cities are connected, so that each serves as a standby for the benefit of the other, in case of an emergency. Because of these things, the following compact was entered into: “The state of Kansas, nor any county, township or municipality located within said state, or any official thereof shall ever assess, levy or collect any taxes, assessments or imposts of any kind or character whatsoever on the portion of the waterworks plant of the municipality of Kansas City, Missouri, now or hereafter located within the territory of the state of Kansas.” A reciprocal right of eminent domain was also granted. The making of this compact was approved by joint resolution of Congress. If any substantial doubt exists about the matter, it should be resolved in favor of the defendant. States must be ever zealous in carrying out the letter as well as the spirit of their obligations; but, as I see the matter, the intent of this resolution is not subject to serious dispute. The briefs indulge in a refinement and nicety of interpretation and definition, that seem to be entirely unnecessary in construing this resolution. After all, the object of the inquiry is to arrive at the intent of the parties as expressed in their agreement, in the light of existing circumstances. Bearing in mind that the Kansas court had shortly theretofore held that these properties .located in Kansas were subject to general taxation, while the adjoining waterworks properties of Kansas City, Kan., were not subject to general taxation; bearing in mind that the waterworks property of Kansas City, Mo., would not be subject to general taxation if it were located across the line in Kansas City, Mo. — the object of the agreement seems to be clear. What the parties were striving to do, and what they effectually did, was to place the properties of Kansas City, Mo., located in Kansas, in exactly the same situation as the properties would have been if they were located in Missouri, and in exactly the same situation as the adjoining Kansas City, Kan., waterworks properties. In short, the intention of the parties was toi remove the state line as far as these particular propertiés are concerned. The argument of the defendant, however, leads to the irrational conclusion that by this compact, the properties of Kansas City, Mo., which happen to be located in Kansas, are granted an immunity which they would not obtain if they were located in Missouri, and an immunity which the Kansas City, Kan., waterworks properties do not enjoy. I can find nothing in the resolution or the attendant circumstances that leads to any such conclusion. There certainly was no intention, expressed or fairly implied, to require other property owners in Kansas to increase the value of the defendant’s waterworks plant, by diking and drainage, or by the construction of pavements or sidewalks. In both Kansas and Missouri, public properties of municipalities are exempt from general taxation, but are subject to assessments for special improvements, such as paving, sidewalks, and drainage. For some of the Missouri cases to this effect, see Drainage District v. Bates, 269 Mo. 78, 189 S. W. 1176; Houck v. Drainage District, 248 Mo. 373, 154 S. W. 739. For the Kansas cases to the same effect, see Commissioners of Franklin Co. v. City of Ottawa, 49 Kan, 747, 31 P. 788, 33 Am. St. Rep. 396; Wichita v. Board of Education, 92 Kan. 967, 142 P. 946. The property of the defendant would be subject to this assessment if it were located in Missouri; the properties of the Kansas City, Kan., waterworks are subject to the assessment. There is nothing in the resolution or the circumstances to indicate that Kansas intended to grant an immunity to the properties of the defendant which it does not grant to properties of Kansas City, Kan., nor that Missouri intended that its proper*615ties should be freed from special assessments in Kansas to which they are subject in Missouri. If any refinement of logic is necessary to support this point, it will be found in the case of Illinois Central Railroad Co. v. City of Decatur, 147 U. S. 190, 13 S. Ct. 293, 37 L. Ed. 132, where the Supreme Court of the United States, speaking through Mr. Justice Brewer, held that an exemption of “any tax or public imposition whatever” did not relieve from an obligation to pay for pavement of the streets, and that an exemption from “all public taxes, rates, and assessments” did not discharge from liability for special improvements, and that exemption from “taxes, charges, and impositions” did not relieve from such special assessments. It is neither necessary nor proper to undertake an exact definition of the phrase “municipality” as used in this act, for the reason that other questions may arise in the future which are not now present for determination. Suffice it to say that the compact does not exempt from such assessments as directly benefit the property, such as pavement, sidewalks, or drainage. H. Even if the defendant is liable for this assessment, and ought to pay the same, defendant’s counsel urge that the remedy is not an action at law for the amount of the taxes, but the remedy is limited to the public sale of the waterworks property of the defendant, as in the ease of an ordinary town lot. The argument is that the ownership and operation of a waterworks plant is not a part of the governmental functions of the city, but is the exercise of a proprietary function; that the Supreme Court of Kansas has held that Kansas City, Mo., owns this particular property in its proprietary capacity and not in its public capacity; that ordinarily the imposition of a tax or an assessment does not give rise to any personal liability, but the sole recourse of the taxing body is to put the property up and sell it at forced sale. It is difficult to believe that such an argument is seriously made. The city of Kansas City, Mo., is a municipality larger than many states; it is as jealous of its good name and its credit as states and other great municipalities. It is not believed that, if it should finally be held by the court of last resort that Kansas City, Mo., is indebted on account of this benefit to its property, that that great city would decline to pay its just and honest obligation. Neither is it believed that it would permit the lives and health and property of its citizens to be imperiled by the sale of its waterworks property for an obligation that is paltry compared with its value. In the briefs filed in this ease, the plaintiff is invited to put up this waterworks property at public sale and knock it off to the highest bidder for the purpose of paying this obligation. Until the city of Kansas City, Mo., declines to pay the obligation, if it is finally adjudged to be a legal obligation, there should be no need of spending any particular time in an inquiry as to a method of collection, whether it be by personal judgment, a forced sale of the properties or a part thereof, a sequestration of a portion of the revenues, or a receivership; but, since the power of the plaintiff to collect this obligation is challenged, even if it should he found to be a legal liability, this may be said about the matter: It is argued that neither the state of Kansas, nór any subdivision thereof, may create a personal tax liability on a nonresident. Dewey v. Des Moines, 173 U. S. 193, 19 S. Ct. 379, 43 L. Ed. 665. The fact that personal service of summons may be had upon the nonresident does not cure the matter, for the assessment is in itself in the nature of a judgment. It is argued by the plaintiff that, since the defendant is actively engaged in business in Kansas, it is like a foreign corporation which actively engages in business in the state, and has gained the attributes, and assumed the responsibilities, of residence. The question would only be of importance, however, if the amount of the assessment exceeded the value of the property located in Kansas, and an effort was made to collect a deficiency judgment. That situation does not exist in the present case. This does not reach the question. The question in this ease is whether a sale at public auction of properties used for the benefit of the public is an appropriate means of collecting an assessment which is less than the value of the property. It is true that, in the ordinary case, an action at law for a money judgment cannot be maintained for the purpose of collecting a tax. However, not only the Kansas courts, but the courts of the country generally, have recognized that it is not feasible, nor proper, to sell a courthouse, a schoolhouse, or a fire station, for the collection of a tax. It has therefore been held that in such cases, an action at law for a money judgment is proper. Commissioners of Franklin Co. v. City of Ottawa, 49 Kan. 747, 31 P. 788, 33 Am. St. Rep. 396; Jefferson Co. v. Oskaloosa, 80 Kan. 587, 102 P. 1095; Wichita v. Board of Education, 92 Kan. 967, 142 P. 946; *616State v. Southern S. S. Co., 13 La. Ann. 497; McLean v. Bloomington, 106 Ill. 209; Northern Ala. R. Co. v. Lowery, 3 Ala. App. 511, 57 So. 260. The question is really one of circuity of action. If the circumstances presented, are such that, if a forced sale of the property for the purpose of collecting the tax would be enjoined in the public interest, then, in order to avoid such second action, a judgment may be rendered in the instant case. The question of what a court of equity would do, in such an action, is not answered by the mere statement that the property is held in a proprietary capacity. Courts of equity will enjoin private corporations from cutting off a supply of gas to the' public where the cutting off of such supply would work an untold hardship on hundreds of innocent families, will enjoin a railroad company from suspending transportation facilities, and a telephone company from cutting off the service. The state of Missouri has enjoined fire insurance companies from withdrawing from the state. The petition in this ease alleges that the waterworks plant located in this drainage district is the sole source of water supply to the great city of Kansas City, Mo., If that is true, and if it should appear that no part of the property could be sold without cutting off that supply of water, it goes without saying that no court would permit .the properties of a great city to be subject to a widespread conflagration béeause of lack of water, or the lives of its citizens to be jeopardized by lack of proper sewage facilities, or their comfort and convenience jeopardized by lack of water for drinking and bathing purposes, and this even if the properties were owned by a private corporation. If, upon the hearing of this case, it develops that a part of the properties can be sold, sufficient to satisfy the liability, without interfering with the operation of the Waterworks properties, and the defendant at that time insists upon such sale rather than pay a judgment, the question can then be determined as to the propriety of a personal judgment. But such facts do not appear from the petition. The defendant’s constitutional rights can be protected upon final hearing by a determination as to whether the fair value of its properties exceeds the total assessments for this improvement. III. It is contended that, since this assessment has been certified by the plaintiff to Wyandotte county, that Wyandotte county is the proper party plaintiff, and some apprehension is expressed by the defendant as to whether, if a judgment is rendered in favor of plaintiff and paid, that Wyandotte county might seek to collect it a second time. The plaintiff is a proper party. If the defendant does not pay its proportion of this benefit, the other property lying within the district must pay it, for it cannot be a liability upon the county at large. If it shall be eventually determined that a liability exists, there is abundant power in the court to protect the defendant against paying it a second' time, by the requirement of a receipt by the county as_ a condition of the payment, or by making the county a party defendant. The plaintiff claims that any defense is barred by the statute of Kansas, which requires that certain objections to such assessments shall be made within 30 days; but others need not be, and it will be time enough to determine the effect of this statute when the defenses are presented. The demurrer will be overruled, and the defendant given 30 days in which to answer. | 07-23-2022 | [
"McDERMOTT, District Judge. A general demurrer has been lodged against the petition, and has been elaborately briefed and argued; it now comes on for decision. The petition alleges: Kansas City, Mo., owns approximately 54 acres of ground in Kansas, upon which is constructed its waterworks plant, the sole source of water supply for Kansas City, Mo. ; the creation of- the plaintiff drainage district, within which is located the lands of the defendant; that this district was created under the Kansas statutes for the purpose of protecting the lands within the district from overflow from the Missouri river, from being flooded by surface water, and for general drainage purposes; that the cost of said, improvement was more than a million dollars, which has been paid for by the issuance and sale of bonds of the district, and that special assessments have been levied against the property in the district in proportion to the benefits for the purpose of paying the bonds; that the defendant has refused to pay the assessments levied against its property for the four-year period from 1924 to 1927, inclusive, and'that it is now indebted to the plaintiff in the sum of $12,860.50-, for which sum judgment, with interest and penalties as provided by law, is prayed.",
"The general demurrer presents several questions, one of which is of importance. These questions are: (1) That, by virtue of a joint resolution passed by the Legislatures of Kansas and Missouri, and approved by Congress, this property is not subject to this assessment; (2) that, even if a liability exists, it cannot be enforced in this action, because a personal liability cannot be created against a nonresident, and the sole remedy of the plaintiff is to sell the waterworks property at public sale for unpaid taxes; and (3) that, even if a personal judgment can be rendered, the drainage district is not the proper party plaintiff. Of these, in their order. I. Many years ago the question arose as to.whether this property was subject to general taxation.",
"The question came before the Supreme Court of Kansas in the case of State v. Holcomb, 85 Kan. 178, 116 P. 251, 50 L. R. A. (N. S.) 243, Ann. Cas. 1912D, 800, and it was there held that this property was subject to general taxation, just as any other private property located in the state. It was held: “And so it may be said here that when a city of the state of Missouri comes into Kansas, it comes as a private party and brings with it none of the prerogatives of sovereignty. The general rule is that all property, *614not expressly exempted, is taxable, and the fact that the state does not tax itself and its municipalities to obtain revenue for itself is no reason why a foreign municipality, who is here in the capacity of a private proprietor and whose property receives protection from the state, should contribute nothing toward that protection or should escape paying the taxes imposed upon other owners of property.” Certiorari was denied by the Supreme Court of the United States.",
"226 U. S. 599, 33 S. Ct. 112, 57 L. Ed. 375. To remedy this situation, the Legislature of Kansas and the Legislature of Missouri passed identical joint resolutions; the Kansas resolution being chapter 304 of the Laws of 1921. This resolution recites the facts concerning the location of the waterworks plants of the two cities of Kansas City, Kan., and Kansas City, Mo. ; that it is to the material benefit of each city that each should contribute to a common fund in protecting the banks of the Missouri river so as to assure an adequate flow of water to both plants; that the water plants of both cities are connected, so that each serves as a standby for the benefit of the other, in case of an emergency. Because of these things, the following compact was entered into: “The state of Kansas, nor any county, township or municipality located within said state, or any official thereof shall ever assess, levy or collect any taxes, assessments or imposts of any kind or character whatsoever on the portion of the waterworks plant of the municipality of Kansas City, Missouri, now or hereafter located within the territory of the state of Kansas.” A reciprocal right of eminent domain was also granted. The making of this compact was approved by joint resolution of Congress.",
"If any substantial doubt exists about the matter, it should be resolved in favor of the defendant. States must be ever zealous in carrying out the letter as well as the spirit of their obligations; but, as I see the matter, the intent of this resolution is not subject to serious dispute. The briefs indulge in a refinement and nicety of interpretation and definition, that seem to be entirely unnecessary in construing this resolution. After all, the object of the inquiry is to arrive at the intent of the parties as expressed in their agreement, in the light of existing circumstances. Bearing in mind that the Kansas court had shortly theretofore held that these properties .located in Kansas were subject to general taxation, while the adjoining waterworks properties of Kansas City, Kan., were not subject to general taxation; bearing in mind that the waterworks property of Kansas City, Mo., would not be subject to general taxation if it were located across the line in Kansas City, Mo.",
"— the object of the agreement seems to be clear. What the parties were striving to do, and what they effectually did, was to place the properties of Kansas City, Mo., located in Kansas, in exactly the same situation as the properties would have been if they were located in Missouri, and in exactly the same situation as the adjoining Kansas City, Kan., waterworks properties. In short, the intention of the parties was toi remove the state line as far as these particular propertiés are concerned. The argument of the defendant, however, leads to the irrational conclusion that by this compact, the properties of Kansas City, Mo., which happen to be located in Kansas, are granted an immunity which they would not obtain if they were located in Missouri, and an immunity which the Kansas City, Kan., waterworks properties do not enjoy. I can find nothing in the resolution or the attendant circumstances that leads to any such conclusion. There certainly was no intention, expressed or fairly implied, to require other property owners in Kansas to increase the value of the defendant’s waterworks plant, by diking and drainage, or by the construction of pavements or sidewalks.",
"In both Kansas and Missouri, public properties of municipalities are exempt from general taxation, but are subject to assessments for special improvements, such as paving, sidewalks, and drainage. For some of the Missouri cases to this effect, see Drainage District v. Bates, 269 Mo. 78, 189 S. W. 1176; Houck v. Drainage District, 248 Mo. 373, 154 S. W. 739. For the Kansas cases to the same effect, see Commissioners of Franklin Co. v. City of Ottawa, 49 Kan, 747, 31 P. 788, 33 Am. St. Rep. 396; Wichita v. Board of Education, 92 Kan. 967, 142 P. 946.",
"The property of the defendant would be subject to this assessment if it were located in Missouri; the properties of the Kansas City, Kan., waterworks are subject to the assessment. There is nothing in the resolution or the circumstances to indicate that Kansas intended to grant an immunity to the properties of the defendant which it does not grant to properties of Kansas City, Kan., nor that Missouri intended that its proper*615ties should be freed from special assessments in Kansas to which they are subject in Missouri. If any refinement of logic is necessary to support this point, it will be found in the case of Illinois Central Railroad Co. v. City of Decatur, 147 U. S. 190, 13 S. Ct. 293, 37 L. Ed.",
"132, where the Supreme Court of the United States, speaking through Mr. Justice Brewer, held that an exemption of “any tax or public imposition whatever” did not relieve from an obligation to pay for pavement of the streets, and that an exemption from “all public taxes, rates, and assessments” did not discharge from liability for special improvements, and that exemption from “taxes, charges, and impositions” did not relieve from such special assessments. It is neither necessary nor proper to undertake an exact definition of the phrase “municipality” as used in this act, for the reason that other questions may arise in the future which are not now present for determination. Suffice it to say that the compact does not exempt from such assessments as directly benefit the property, such as pavement, sidewalks, or drainage.",
"H. Even if the defendant is liable for this assessment, and ought to pay the same, defendant’s counsel urge that the remedy is not an action at law for the amount of the taxes, but the remedy is limited to the public sale of the waterworks property of the defendant, as in the ease of an ordinary town lot. The argument is that the ownership and operation of a waterworks plant is not a part of the governmental functions of the city, but is the exercise of a proprietary function; that the Supreme Court of Kansas has held that Kansas City, Mo., owns this particular property in its proprietary capacity and not in its public capacity; that ordinarily the imposition of a tax or an assessment does not give rise to any personal liability, but the sole recourse of the taxing body is to put the property up and sell it at forced sale. It is difficult to believe that such an argument is seriously made. The city of Kansas City, Mo., is a municipality larger than many states; it is as jealous of its good name and its credit as states and other great municipalities. It is not believed that, if it should finally be held by the court of last resort that Kansas City, Mo., is indebted on account of this benefit to its property, that that great city would decline to pay its just and honest obligation.",
"Neither is it believed that it would permit the lives and health and property of its citizens to be imperiled by the sale of its waterworks property for an obligation that is paltry compared with its value. In the briefs filed in this ease, the plaintiff is invited to put up this waterworks property at public sale and knock it off to the highest bidder for the purpose of paying this obligation. Until the city of Kansas City, Mo., declines to pay the obligation, if it is finally adjudged to be a legal obligation, there should be no need of spending any particular time in an inquiry as to a method of collection, whether it be by personal judgment, a forced sale of the properties or a part thereof, a sequestration of a portion of the revenues, or a receivership; but, since the power of the plaintiff to collect this obligation is challenged, even if it should he found to be a legal liability, this may be said about the matter: It is argued that neither the state of Kansas, nór any subdivision thereof, may create a personal tax liability on a nonresident.",
"Dewey v. Des Moines, 173 U. S. 193, 19 S. Ct. 379, 43 L. Ed. 665. The fact that personal service of summons may be had upon the nonresident does not cure the matter, for the assessment is in itself in the nature of a judgment. It is argued by the plaintiff that, since the defendant is actively engaged in business in Kansas, it is like a foreign corporation which actively engages in business in the state, and has gained the attributes, and assumed the responsibilities, of residence. The question would only be of importance, however, if the amount of the assessment exceeded the value of the property located in Kansas, and an effort was made to collect a deficiency judgment. That situation does not exist in the present case. This does not reach the question. The question in this ease is whether a sale at public auction of properties used for the benefit of the public is an appropriate means of collecting an assessment which is less than the value of the property.",
"It is true that, in the ordinary case, an action at law for a money judgment cannot be maintained for the purpose of collecting a tax. However, not only the Kansas courts, but the courts of the country generally, have recognized that it is not feasible, nor proper, to sell a courthouse, a schoolhouse, or a fire station, for the collection of a tax. It has therefore been held that in such cases, an action at law for a money judgment is proper. Commissioners of Franklin Co. v. City of Ottawa, 49 Kan. 747, 31 P. 788, 33 Am. St. Rep. 396; Jefferson Co. v. Oskaloosa, 80 Kan. 587, 102 P. 1095; Wichita v. Board of Education, 92 Kan. 967, 142 P. 946; *616State v. Southern S. S. Co., 13 La. Ann. 497; McLean v. Bloomington, 106 Ill. 209; Northern Ala. R. Co. v. Lowery, 3 Ala. App. 511, 57 So.",
"260. The question is really one of circuity of action. If the circumstances presented, are such that, if a forced sale of the property for the purpose of collecting the tax would be enjoined in the public interest, then, in order to avoid such second action, a judgment may be rendered in the instant case. The question of what a court of equity would do, in such an action, is not answered by the mere statement that the property is held in a proprietary capacity. Courts of equity will enjoin private corporations from cutting off a supply of gas to the' public where the cutting off of such supply would work an untold hardship on hundreds of innocent families, will enjoin a railroad company from suspending transportation facilities, and a telephone company from cutting off the service. The state of Missouri has enjoined fire insurance companies from withdrawing from the state. The petition in this ease alleges that the waterworks plant located in this drainage district is the sole source of water supply to the great city of Kansas City, Mo., If that is true, and if it should appear that no part of the property could be sold without cutting off that supply of water, it goes without saying that no court would permit .the properties of a great city to be subject to a widespread conflagration béeause of lack of water, or the lives of its citizens to be jeopardized by lack of proper sewage facilities, or their comfort and convenience jeopardized by lack of water for drinking and bathing purposes, and this even if the properties were owned by a private corporation.",
"If, upon the hearing of this case, it develops that a part of the properties can be sold, sufficient to satisfy the liability, without interfering with the operation of the Waterworks properties, and the defendant at that time insists upon such sale rather than pay a judgment, the question can then be determined as to the propriety of a personal judgment. But such facts do not appear from the petition. The defendant’s constitutional rights can be protected upon final hearing by a determination as to whether the fair value of its properties exceeds the total assessments for this improvement. III. It is contended that, since this assessment has been certified by the plaintiff to Wyandotte county, that Wyandotte county is the proper party plaintiff, and some apprehension is expressed by the defendant as to whether, if a judgment is rendered in favor of plaintiff and paid, that Wyandotte county might seek to collect it a second time.",
"The plaintiff is a proper party. If the defendant does not pay its proportion of this benefit, the other property lying within the district must pay it, for it cannot be a liability upon the county at large. If it shall be eventually determined that a liability exists, there is abundant power in the court to protect the defendant against paying it a second' time, by the requirement of a receipt by the county as_ a condition of the payment, or by making the county a party defendant. The plaintiff claims that any defense is barred by the statute of Kansas, which requires that certain objections to such assessments shall be made within 30 days; but others need not be, and it will be time enough to determine the effect of this statute when the defenses are presented. The demurrer will be overruled, and the defendant given 30 days in which to answer."
] | https://www.courtlistener.com/api/rest/v3/opinions/6838039/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Maltbie, Judge. The plaintiff offered in evidence the translated copy of the title to Rafael De Aguirre to the land in controversy. On the first leaf o,r page of said certified copy there appear the following words and figures: “Title in favor of Rafael de Aguirre for 11 leagues of land, 10 of which are situated on San Jani C. and Williamson’s creeks, and one league on Cow bayou, west side of Brazos, issued by T. Lessessier, alcalde of San Felipe, October 22, 1829.” Written in pencil: “This is the genuine title to Rafael de Aguirre— the name Perfecto Valdez inserted through mistake. J. P. B.” Also in pencil. “See Mr. Borden’s letters, file 3636. Refer to title to Rafael de Aguirre on west of Brazos, ¡Note 1.” The above is a true copy of the memoranda attached to the title, which was objected to on the ground that the page or leaf was no part of the title issued by the officers of the government, but a memoranda made by some person unknown, at an indefinite time, expressing the opinion or conclusion of such person upon the issue now being litigated — that is, as to whether the Aguirre title is genuine, and because the Commissioner could not validate the title, if a forgery, by an order or ruling, and said evidence was calculated to mislead the jury — which objections were overruled, and the point saved, and is now assigned as error. The evidence objected to was the declaration of some unknown person, expressing an opinion as to the validity of the Aguirre grant, and in the nature of hearsay testimony; *97being read in connection with and as a part of the title, was calculated to influence the jury in determining whether the Aguirre grant was genuine or a forgery and was clearly inadmissible. A very similar question was considered in the case of Hanrick v. Cavanaugh, 60 Texas, 24. This ruling is attempted to be sustained under articles 2252, 2253, Revised Statutes. On the ground that the Commissioner of the General Land Office is authorized to certify to a copy of any document or record in his office, and also to certify to any fact contained in the records of his office. But said articles provide that the facts certified by the Commissioner shall be in evidence in all cases in which the originals would be; thus evincing no intention to extend the rules of evidence, so as to make evidence admissible that was before inadmissible under the rules of the common law. The statute providing the means of authenticating copies of documents in all cases when it was not for any reason proper or convenient to take the original out of the office; and also for authenticating copies of any indorsement in any book or file upon a paper, or any like fact, pertaining to a document or record in such office. The plaintiff then offered in evidence a certificate of the Commissioner of the General Land Office, to the effect, that the eleven leagues represented on the map of McLennan county as having been titled to Rafael de Aguirre, October 4, 1833, had been located over an adverse location patented by virtue of valid certificates. This was objected to, substantially on the ground, that the certificate was not competent evidence of the facts sought to be proved, and was not the best evidence, and because the Land Commissioner, by permitting locations of valid certificates to be made on the eleven league grant in McLennan county, could not invalidate the old title thereto, if otherwise valid, and because it was calculated to mislead and confuse the jury. These objections being overruled defendant excepted, and has assigned the ruling of the court as error. We are of opinion that the evidence should have been excluded. (Rev. Stat., art. 2253; Buford v. Bostick, 50 Texas, 375; R. R. Co. v. McGehee, 49 Texas, 489; Hanrick v. Cavanaugh, 60 Texas, 24; Hanrick v. Dodd, 62 Texas, 90.) It is next insisted that the court erred in refusing to permit defendant to prove that there were other joint owners to the land beside the plaintiff. The petition alleged that E. G. Hannick was the sole owner in fee of the land in question. Section 3, article 4786, Revised Statutes, requires that the petition shall state the interest claimed by the plaintiff in ■'he premises; and if *98he claims an undivided interest, he shall state the sum and the amount thereof. The plaintiff had fully complied with the statute, in setting forth his title; and the court did not err in refusing to permit the defendant to prove that there were other joint owners of the land beside the plaintiff, defendant not offering to connect himself with such title; if there were other joint owners, plaintiff would have been entitled to recover their interest as against a stranger. (Pilcher v. Kirk, 55 Texas, 208, and authorities cited.) The fifth and last assignment which will be considered, is, that the court erred in refusing to allow defendant, under the pleadings in this case, to show that ho was a possessor in good faith and the value of his improvements. It appeared that defendant bought out E. M. Breuer; that Breuer possessed all of the qualifications, and had taken the necessary steps to entitle him to pre-empt the land if it had been vacant public domain and that defendant possessed the same qualifications, and had purchased Breuer’s interest and was in possession, claiming as a pre-emptionist. The defendant’s plea for valuable improvements in good faith was sufficient unless invalidated by the following averments: “ Defendant says that he was informed and did believe that said land was vacant public domain, subject to pre-emption. That he knew it was claimed and held by plaintiff under the Aguirre grant, but that he believed that said grant was a forgery; that the district court had so held in the case of Hanrick v. Cavanaugh, and that the judgment had been affirmed by the Supreme Court.” Under this state of facts, defendant offered to prove all of the material allegations of his answer in support of his plea, but the same was excluded upon objection of plaintiff. Was the defendant in a condition under the facts and pleading to make good his claim for valuable improvements on the land? If the defendant had good reason to believe the land to be vacant, and settled u])on it, with intent to acquire a title by pre-emption, he would be entitled to the value of his improvements made while he was thus an occupant, so believing, unless there was some fact connected with the settlement that would prevent the occupant from being a settler in good faith. (Thompson v. Comstock, 59 Texas, 319; Sellman v. Lee, 55 Texas, 322.) One may be a possessor in good faith, who knew of the title of another, if he has reasonable and strong grounds to believe in the soundness of his own title. (Sartain v. Hamilton, 12 *99Texas, 222.) As a general rule, to constitute one a possessor in good faith, he must not only believe that he is the true owner, and have reasonable grounds for the belief, but he must be ignorant that his title is contested by one having a better right. But there may be cases when, though aware of an adverse claim, the possessor may have reasonable and strong grounds to believe such claim to be destitute of any just or legal foundation; and so be in possession in good faith. (Dorn v. Dunham, 24 Texas, 380.) In the Institutes of Asso & Manuel, good faith is said to consist in the possessor’s believing that the person from whom he received a thing had a right to transfer it. The defendant in. this case knew of the claim of the plaintiff, but he also knew that the title had been declared by the district court of Williamson county to be a forgery, and that the judgment had been affirmed by the Supreme Court; and we are of opinion that these judgments of the district and Supreme Court would, to the mind of the ordinary citizen, be reasonable and strong grounds to believe that the plaintiff’s title was invalid, ■and, as a consequence, the State would have the right to transfer the title to him, and think that the evidence should have been admitted. It is contended by appellee that the undisputed evidence shows that appellant entered upon the land in subordination to the right of appellee, and is estopped to dispute his title. A sufficient reply is that the issue was not made and submitted to the consideration of the jury in the court below; and it affirmatively appears from the pleading and evidence that the jury in no event would have been called upon to determine this question unless appellee’s title had have been found to be a forgery. We know of no rule of law that would authorize the court, when there has been a jury trial, and material errors committed, to affirm a judgment when issues of fact that the parties have not submitted to the jury on such trial. Our conclusion is that the judgment should be reversed and the cause remanded.
Reversed and remanded.
Opinion adopted November 22, 1887. Chief Justice Willie did not sit in this case. | 09-02-2021 | [
"Maltbie, Judge. The plaintiff offered in evidence the translated copy of the title to Rafael De Aguirre to the land in controversy. On the first leaf o,r page of said certified copy there appear the following words and figures: “Title in favor of Rafael de Aguirre for 11 leagues of land, 10 of which are situated on San Jani C. and Williamson’s creeks, and one league on Cow bayou, west side of Brazos, issued by T. Lessessier, alcalde of San Felipe, October 22, 1829.” Written in pencil: “This is the genuine title to Rafael de Aguirre— the name Perfecto Valdez inserted through mistake. J. P. B.” Also in pencil.",
"“See Mr. Borden’s letters, file 3636. Refer to title to Rafael de Aguirre on west of Brazos, ¡Note 1.” The above is a true copy of the memoranda attached to the title, which was objected to on the ground that the page or leaf was no part of the title issued by the officers of the government, but a memoranda made by some person unknown, at an indefinite time, expressing the opinion or conclusion of such person upon the issue now being litigated — that is, as to whether the Aguirre title is genuine, and because the Commissioner could not validate the title, if a forgery, by an order or ruling, and said evidence was calculated to mislead the jury — which objections were overruled, and the point saved, and is now assigned as error. The evidence objected to was the declaration of some unknown person, expressing an opinion as to the validity of the Aguirre grant, and in the nature of hearsay testimony; *97being read in connection with and as a part of the title, was calculated to influence the jury in determining whether the Aguirre grant was genuine or a forgery and was clearly inadmissible.",
"A very similar question was considered in the case of Hanrick v. Cavanaugh, 60 Texas, 24. This ruling is attempted to be sustained under articles 2252, 2253, Revised Statutes. On the ground that the Commissioner of the General Land Office is authorized to certify to a copy of any document or record in his office, and also to certify to any fact contained in the records of his office. But said articles provide that the facts certified by the Commissioner shall be in evidence in all cases in which the originals would be; thus evincing no intention to extend the rules of evidence, so as to make evidence admissible that was before inadmissible under the rules of the common law. The statute providing the means of authenticating copies of documents in all cases when it was not for any reason proper or convenient to take the original out of the office; and also for authenticating copies of any indorsement in any book or file upon a paper, or any like fact, pertaining to a document or record in such office. The plaintiff then offered in evidence a certificate of the Commissioner of the General Land Office, to the effect, that the eleven leagues represented on the map of McLennan county as having been titled to Rafael de Aguirre, October 4, 1833, had been located over an adverse location patented by virtue of valid certificates.",
"This was objected to, substantially on the ground, that the certificate was not competent evidence of the facts sought to be proved, and was not the best evidence, and because the Land Commissioner, by permitting locations of valid certificates to be made on the eleven league grant in McLennan county, could not invalidate the old title thereto, if otherwise valid, and because it was calculated to mislead and confuse the jury. These objections being overruled defendant excepted, and has assigned the ruling of the court as error. We are of opinion that the evidence should have been excluded. (Rev.",
"Stat., art. 2253; Buford v. Bostick, 50 Texas, 375; R. R. Co. v. McGehee, 49 Texas, 489; Hanrick v. Cavanaugh, 60 Texas, 24; Hanrick v. Dodd, 62 Texas, 90.) It is next insisted that the court erred in refusing to permit defendant to prove that there were other joint owners to the land beside the plaintiff. The petition alleged that E. G. Hannick was the sole owner in fee of the land in question. Section 3, article 4786, Revised Statutes, requires that the petition shall state the interest claimed by the plaintiff in ■'he premises; and if *98he claims an undivided interest, he shall state the sum and the amount thereof. The plaintiff had fully complied with the statute, in setting forth his title; and the court did not err in refusing to permit the defendant to prove that there were other joint owners of the land beside the plaintiff, defendant not offering to connect himself with such title; if there were other joint owners, plaintiff would have been entitled to recover their interest as against a stranger. (Pilcher v. Kirk, 55 Texas, 208, and authorities cited.) The fifth and last assignment which will be considered, is, that the court erred in refusing to allow defendant, under the pleadings in this case, to show that ho was a possessor in good faith and the value of his improvements.",
"It appeared that defendant bought out E. M. Breuer; that Breuer possessed all of the qualifications, and had taken the necessary steps to entitle him to pre-empt the land if it had been vacant public domain and that defendant possessed the same qualifications, and had purchased Breuer’s interest and was in possession, claiming as a pre-emptionist. The defendant’s plea for valuable improvements in good faith was sufficient unless invalidated by the following averments: “ Defendant says that he was informed and did believe that said land was vacant public domain, subject to pre-emption.",
"That he knew it was claimed and held by plaintiff under the Aguirre grant, but that he believed that said grant was a forgery; that the district court had so held in the case of Hanrick v. Cavanaugh, and that the judgment had been affirmed by the Supreme Court.” Under this state of facts, defendant offered to prove all of the material allegations of his answer in support of his plea, but the same was excluded upon objection of plaintiff. Was the defendant in a condition under the facts and pleading to make good his claim for valuable improvements on the land? If the defendant had good reason to believe the land to be vacant, and settled u])on it, with intent to acquire a title by pre-emption, he would be entitled to the value of his improvements made while he was thus an occupant, so believing, unless there was some fact connected with the settlement that would prevent the occupant from being a settler in good faith.",
"(Thompson v. Comstock, 59 Texas, 319; Sellman v. Lee, 55 Texas, 322.) One may be a possessor in good faith, who knew of the title of another, if he has reasonable and strong grounds to believe in the soundness of his own title. (Sartain v. Hamilton, 12 *99Texas, 222.) As a general rule, to constitute one a possessor in good faith, he must not only believe that he is the true owner, and have reasonable grounds for the belief, but he must be ignorant that his title is contested by one having a better right. But there may be cases when, though aware of an adverse claim, the possessor may have reasonable and strong grounds to believe such claim to be destitute of any just or legal foundation; and so be in possession in good faith. (Dorn v. Dunham, 24 Texas, 380.)",
"In the Institutes of Asso & Manuel, good faith is said to consist in the possessor’s believing that the person from whom he received a thing had a right to transfer it. The defendant in. this case knew of the claim of the plaintiff, but he also knew that the title had been declared by the district court of Williamson county to be a forgery, and that the judgment had been affirmed by the Supreme Court; and we are of opinion that these judgments of the district and Supreme Court would, to the mind of the ordinary citizen, be reasonable and strong grounds to believe that the plaintiff’s title was invalid, ■and, as a consequence, the State would have the right to transfer the title to him, and think that the evidence should have been admitted. It is contended by appellee that the undisputed evidence shows that appellant entered upon the land in subordination to the right of appellee, and is estopped to dispute his title. A sufficient reply is that the issue was not made and submitted to the consideration of the jury in the court below; and it affirmatively appears from the pleading and evidence that the jury in no event would have been called upon to determine this question unless appellee’s title had have been found to be a forgery.",
"We know of no rule of law that would authorize the court, when there has been a jury trial, and material errors committed, to affirm a judgment when issues of fact that the parties have not submitted to the jury on such trial. Our conclusion is that the judgment should be reversed and the cause remanded. Reversed and remanded. Opinion adopted November 22, 1887. Chief Justice Willie did not sit in this case."
] | https://www.courtlistener.com/api/rest/v3/opinions/4895489/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
App.dism. | 08-22-2021 | [
"App.dism."
] | https://www.courtlistener.com/api/rest/v3/opinions/4831960/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Name: 85/94/EEC: Commission Decision of 21 December 1984 amending Decision 83/218/EEC as regards the list of establishments in Romania approved for the purposes of importing fresh meat into the Community Type: Decision_ENTSCHEID Subject Matter: agri-foodstuffs; Europe; health Date Published: 1985-02-06
Avis juridique important|31985D009485/94/EEC: Commission Decision of 21 December 1984 amending Decision 83/218/EEC as regards the list of establishments in Romania approved for the purposes of importing fresh meat into the Community Official Journal L 033 , 06/02/1985 P. 0015 - 0016 Spanish special edition: Chapter 03 Volume 33 P. 0155 Portuguese special edition Chapter 03 Volume 33 P. 0155 *****COMMISSION DECISION of 21 December 1984 amending Decision 83/218/EEC as regards the list of establishments in Romania approved for the purposes of importing fresh meat into the Community (85/94/EEC) THE COMMISSION OF THE EUROPEAN COMMUNITIES, Having regard to the Treaty establishing the European Economic Community, Having regard to Council Directive 72/462/EEC of 12 December 1972 on health and veterinary inspection problems upon importation of bovine animals, swine and fresh meat from third countries (1), as last amended by Directive 83/91/EEC (2), and in particular Articles 4 (1) and 18 (1) (a) and (b) thereof, Having regard to Council Directive 77/96/EEC of 21 December 1976 on the examination for trichinae (trichinella spiralis) upon importation from third countries of fresh meat derived from domestic swine (3), as last amended by Directive 84/319/EEC (4), and in particular Article 4 thereof, Whereas a list of establishments in Romania, approved for the purposes of the importation of fresh meat into the Community, was drawn up initially by Commission Decision 83/218/EEC (5), as last amended by Decision 84/356/EEC (6); Whereas a routine inspection under Article 5 of Directive 72/462/EEC and Article 3 (1) of Commission Decision 83/196/EEC of 8 April 1983 concerning on-the-spot inspections to be carried out in respect of the importation of bovine animals, swine and fresh meat from non-member countries (7) has revealed that the level of hygiene of certain establishments has altered since the last inspection; Whereas this same inspection has shown that some establishments comply with the general and special conditions laid down in Directive 77/96/EEC; whereas, therefore, these establishments may be authorized to carry out the examination to detect the presence of trichinae in fresh pigmeat; Whereas the list of establishments should, therefore, be amended; Whereas the measures provided for in this Decision are in accordance with the opinion of the Standing Veterinary Committee, HAS ADOPTED THIS DECISION: Article 1 The Annex to Decision 83/218/EEC is hereby replaced by the Annex to this Decision. Article 2 This Decision is addressed to the Member States. Done at Brussels, 21 December 1984. For the Commission Poul DALSAGER Member of the Commission (1) OJ No L 302, 31. 12. 1972, p. 28. (2) OJ No L 59, 5. 3. 1983, p. 34. (3) OJ No L 26, 31. 1. 1977, p. 67. (4) OJ No L 167, 27. 6. 1984, p. 34. (5) OJ No L 121, 7. 5. 1983, p. 23. (6) OJ No L 186 , 13. 7. 1984, p. 55. (7) OJ No L 108, 26. 4. 1983, p. 18. ANNEX LIST OF ESTABLISHMENTS 1.2.3 // // // // Approval No // Establishment // Address // // // I. BOVINE MEAT A. Slaughterhouses and cutting plants 1.2.3 // // // // 2 // Industria carnii Bacau // Bacau // 11 // Industria carnii Turnu Severin // Turnu Severin // 37 // Industria carnii Galati // Galati // 60 // Industria carnii Alexandria // Alexandria // 61 // Industria carnii Buzau // Buzau // // // B. Slaughterhouse 1.2.3 // // // // 48 // Industria carnii Craiova // Craiova // // // C. Cutting premises 1.2.3 // // // // 30 // Antrepozitul Frigorific Timisoara // Timisoara // 42 // Fabrica de conserve carne, semiconserve, Frigorifer Suceava // Seceava // 83 // Antrepozitul Frigorific Piatra Neamt // Piatra Neamt // // // II. PIGMEAT (1) A. Slaughterhouses and cutting premises 1.2.3 // // // // 2 T // Industria carnii Bacau // Bacau // 8 T // Abatorul Iasi // Tomesti // 11 T // Industria carnii Turnu Severin // Turnu Severin // 37 T // Industria carnii Galati // Galati // 60 T // Industria carnii Alexandria // Alexandria // 61 T // Industria carnii Buzau // Buzau // // // B. Slaughterhouse 1.2.3 // // // // 10 T // Industria carnii Tirgu-Mures // Tirgu-Mures (Neumarkt) // // // C. Cutting premises 1.2.3 // // // // 30 // Antrepozitul Frigorific Timisoara // Timisoara // 42 // Fabrica de conserve carne, semiconserve, Frigorifer Suceava // Suceava // 83 // Antrepozitul Frigorific Piatra Neamt // Piatra Neamt // // // (1) The establishments with the indication 'T' are authorized, within the meaning of Article 4 of Directive 77/96/EEC, to perform the examination for detection of trichinae provided for in Article 2 of the aforementioned Directive. III. HORSEMEAT Slaughterhouse and cutting premises 1.2.3 // // // // 2 // Industria carnii Bacau // Bacau // // // | 1985-02-06 | [
"Name: 85/94/EEC: Commission Decision of 21 December 1984 amending Decision 83/218/EEC as regards the list of establishments in Romania approved for the purposes of importing fresh meat into the Community Type: Decision_ENTSCHEID Subject Matter: agri-foodstuffs; Europe; health Date Published: 1985-02-06 Avis juridique important|31985D009485/94/EEC: Commission Decision of 21 December 1984 amending Decision 83/218/EEC as regards the list of establishments in Romania approved for the purposes of importing fresh meat into the Community Official Journal L 033 , 06/02/1985 P. 0015 - 0016 Spanish special edition: Chapter 03 Volume 33 P. 0155 Portuguese special edition Chapter 03 Volume 33 P. 0155 *****COMMISSION DECISION of 21 December 1984 amending Decision 83/218/EEC as regards the list of establishments in Romania approved for the purposes of importing fresh meat into the Community (85/94/EEC) THE COMMISSION OF THE EUROPEAN COMMUNITIES, Having regard to the Treaty establishing the European Economic Community, Having regard to Council Directive 72/462/EEC of 12 December 1972 on health and veterinary inspection problems upon importation of bovine animals, swine and fresh meat from third countries (1), as last amended by Directive 83/91/EEC (2), and in particular Articles 4 (1) and 18 (1) (a) and (b) thereof, Having regard to Council Directive 77/96/EEC of 21 December 1976 on the examination for trichinae (trichinella spiralis) upon importation from third countries of fresh meat derived from domestic swine (3), as last amended by Directive 84/319/EEC (4), and in particular Article 4 thereof, Whereas a list of establishments in Romania, approved for the purposes of the importation of fresh meat into the Community, was drawn up initially by Commission Decision 83/218/EEC (5), as last amended by Decision 84/356/EEC (6); Whereas a routine inspection under Article 5 of Directive 72/462/EEC and Article 3 (1) of Commission Decision 83/196/EEC of 8 April 1983 concerning on-the-spot inspections to be carried out in respect of the importation of bovine animals, swine and fresh meat from non-member countries (7) has revealed that the level of hygiene of certain establishments has altered since the last inspection; Whereas this same inspection has shown that some establishments comply with the general and special conditions laid down in Directive 77/96/EEC; whereas, therefore, these establishments may be authorized to carry out the examination to detect the presence of trichinae in fresh pigmeat; Whereas the list of establishments should, therefore, be amended; Whereas the measures provided for in this Decision are in accordance with the opinion of the Standing Veterinary Committee, HAS ADOPTED THIS DECISION: Article 1 The Annex to Decision 83/218/EEC is hereby replaced by the Annex to this Decision.",
"Article 2 This Decision is addressed to the Member States. Done at Brussels, 21 December 1984. For the Commission Poul DALSAGER Member of the Commission (1) OJ No L 302, 31. 12. 1972, p. 28. (2) OJ No L 59, 5. 3. 1983, p. 34. (3) OJ No L 26, 31. 1. 1977, p. 67. (4) OJ No L 167, 27. 6. 1984, p. 34. (5) OJ No L 121, 7. 5.",
"1983, p. 23. (6) OJ No L 186 , 13. 7. 1984, p. 55. (7) OJ No L 108, 26. 4. 1983, p. 18. ANNEX LIST OF ESTABLISHMENTS 1.2.3 // // // // Approval No // Establishment // Address // // // I. BOVINE MEAT A. Slaughterhouses and cutting plants 1.2.3 // // // // 2 // Industria carnii Bacau // Bacau // 11 // Industria carnii Turnu Severin // Turnu Severin // 37 // Industria carnii Galati // Galati // 60 // Industria carnii Alexandria // Alexandria // 61 // Industria carnii Buzau // Buzau // // // B. Slaughterhouse 1.2.3 // // // // 48 // Industria carnii Craiova // Craiova // // // C. Cutting premises 1.2.3 // // // // 30 // Antrepozitul Frigorific Timisoara // Timisoara // 42 // Fabrica de conserve carne, semiconserve, Frigorifer Suceava // Seceava // 83 // Antrepozitul Frigorific Piatra Neamt // Piatra Neamt // // // II. PIGMEAT (1) A. Slaughterhouses and cutting premises 1.2.3 // // // // 2 T // Industria carnii Bacau // Bacau // 8 T // Abatorul Iasi // Tomesti // 11 T // Industria carnii Turnu Severin // Turnu Severin // 37 T // Industria carnii Galati // Galati // 60 T // Industria carnii Alexandria // Alexandria // 61 T // Industria carnii Buzau // Buzau // // // B. Slaughterhouse 1.2.3 // // // // 10 T // Industria carnii Tirgu-Mures // Tirgu-Mures (Neumarkt) // // // C. Cutting premises 1.2.3 // // // // 30 // Antrepozitul Frigorific Timisoara // Timisoara // 42 // Fabrica de conserve carne, semiconserve, Frigorifer Suceava // Suceava // 83 // Antrepozitul Frigorific Piatra Neamt // Piatra Neamt // // // (1) The establishments with the indication 'T' are authorized, within the meaning of Article 4 of Directive 77/96/EEC, to perform the examination for detection of trichinae provided for in Article 2 of the aforementioned Directive.",
"III. HORSEMEAT Slaughterhouse and cutting premises 1.2.3 // // // // 2 // Industria carnii Bacau // Bacau // // //"
] | https://dataverse.harvard.edu/dataset.xhtml?persistentId=doi:10.7910/DVN/0EGYWY | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
EXHIBIT 10.1 INTELLICELL BIOSCIENCES, INC LABORATORY SERVICES LICENSE AGREEMENT This LABORATORY SERVICES LICENSE AGREEMENT (this “Agreement”), dated as of April 7, 2012 (the “Effective Date”), by and between IntelliCell Biosciences Inc. a New York corporation with offices at 30 East 76th Street, New York, New York 10021 (“ICB”) and StemCells21Co, Ltd. with offices at 7th floor the Urbis Building, the Aetas Bangkok Hote, 53, soi Ruam Rudee, Phloenehit Road, Lumpini, Pathumwan, Bangkok, 10330, The Kingdom of Thailand (“Licensee”). WHEREAS, ICB is the owner or otherwise has developed and/or controls certain pending Patents and Technology as hereinafter defined to be marketed under protected trademarks owned by ICB or its Affiliates; and WHEREAS, Licensee desires to obtain an exclusive license from ICB to utilize the Patents and Technology so that Licensee can provide Tissue Processing services for Physicians in the Territory and/or grant further sublicenses of the licensed Technology to sublicensees in the Territory; WHEREAS, ICB is willing to grant to Licensee a license, upon the terms and conditions hereinafter set forth. NOW, THEREFORE, in consideration of the foregoing recitals and the mutual covenants and agreements of the Parties contained in this Agreement, the Parties agree as follows: 1. DEFINITIONS For the purposes of this Agreement, the following terms shall have the meanings set forth in this Section 1: “Affiliate” of any Person shall mean with respect to any Person (the “Initial Person”) any Person directly or indirectly controlling, controlled by, or under common control with, the Initial Person.For purposes of this definition, “control” (including with correlative meanings, the terms “controlling”, “controlled by” and under “common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise. “Confidential Information” shall mean information that was or will be developed, created, conveyed or discovered by or on behalf of either Party, or which became or will become known by, or was or is conveyed to it which has commercial value in its business and includes, but is not limited to, trade secrets, copyrights, patent applications, computer programs, designs, technology, ideas, know-how, processes, compositions, data improvements, inventions (whether patentable or not), works of authorship, work for hire, business and product development plans, customer or patient lists, patient information, policies and procedures, and other similar information received in confidence by or for it, or developed exclusively for it by third parties, from any other person or entity. 1 “Laboratory Facility” shall mean a facility located within the Territory that shall be owned and operated by Licensee and/or a third party to utilize and commercially exploit the Patents and Technology and/or perform Tissue Processing. “Party” shall mean ICB or Licensee, or any of their employees, consultants, affiliates, licensees or sublicensees, and, when used in the plural, shall mean ICB and Licensee, or any of their employees consultants, affiliates, licensees or sublicensees. “Patents” shall mean the patent application (or applications) set forth on Exhibit A attached hereto. “Person” shall mean any natural person, corporation, firm, business trust, joint venture, association, university, organization, company, partnership or other business entity, or any government or any agency or political subdivision thereof. “Technology” shall mean the combination of technology, know-how and other intellectual property defined in the Patent and in other materials provided to Licensee by ICB and Affiliates of ICB and which facilitates, and is required for, the Tissue Processing. “Territory” shall mean solely the geographical area set forth on Exhibit B attached hereto. “Third Party” shall mean any Person who or which is neither a Party nor an Affiliate of a Party. “Trademarks” shall mean the trademarks set forth on Exhibit C attached hereto. “Tissue Processing” shall mean the separation of Adipose Stromal Vascular Fraction from fat tissue utilizing the Technology. 2. REPRESENTATIONS AND WARRANTIES OF ICB ICB represents and warrants to Licensee that: (a)the execution and delivery of this Agreement and the performance of the transactions contemplated hereby have been duly authorized by all appropriate ICB corporate action; (b)this Agreement is a legal and valid obligation binding upon ICB and enforceable in accordance with its terms, and the execution, delivery and performance of this Agreement by the Parties does not conflict with any agreement, instrument or understanding to which ICB is a Party or by which it is bound; 2 (c)ICB has the full right and legal capacity to grant the rights granted to Licensee hereunder without violating the rights of any Third Party; (d)Licensed Patent Rights have been properly filed and are being diligently prosecuted and ICB and/or its affiliates is/are the sole owner and inventor of the Licensed Patent Rights and Licensed Technology. 3. REPRESENTATIONS AND WARRANTIES OF LICENSEE Licensee represents and warrants to ICB that: (a)the execution and delivery of this Agreement and the performance of the transactions contemplated hereby have been duly authorized by all appropriate Licensee corporate action; and (b)this Agreement is a legal and valid obligation binding upon Licensee and enforceable in accordance with its terms, and the execution, delivery and performance of this Agreement by the Parties does not conflict with any agreement, instrument or understanding to which Licensee is a Party of or by which it is bound. (c)During the Term (as defined below), Licensee shall market and promote the Patents and Technology and Trademarks for the provision of Tissue Processing to physicians and/or other third parties interested in establishing new tissue-processing facilities within the Territory. ICB acknowledges and agrees that Licensee may market and promote the technology through the use of media within the Territory. ICB will provide Licensee all relevant marketing materials during the Term. Licensee has the right to create its own documents and marketing material related to the Technology subject to the approval of ICB.ICB will be deemed to have approved any proposed advertising, promotional material or product name or label if Licensee submits specimens thereof to ICB for review together with complete particulars about the proposed use thereof, and Licensee provides any additional information reasonably requested by ICB concerning such proposed use, and Licensor does not notify Licensee of its disapproval within ten (10) days after Licensee submits such material to ICB (extended as necessary to permit ICB the same length of time to evaluate any such additional information requested by ICB). (d)Compliance with Laws.Licensee represents and warrants to ICB that it will comply with Applicable Laws, including, but not limited to, the Health Insurance Portability and Accountability Act (“HIPAA”) of 1996 and its implementing regulations. If Licensee fails to meet applicable professional standards, Licensee shall, without additional compensation from ICB, correct or revise any errors or deficiencies in items or services furnished under this Agreement. Failure by Licensee to comply with any applicable law shall be considered a material breach of this Agreement. Upon the request of ICB, Licensee shall provide ICB with a copy of all of its relevant licenses, registrations and credentials (and any renewals thereof). 3 (e)Throughout the Term, Licensee shall provide ICB with brief written reports no less frequently than monthly summarizing Licensee’s efforts to utilize and commercially exploit the Patents and Technology, and/or to grant sublicenses. 4. GRANT OF LICENSE Technology License Grant.Subject to the terms and conditions of this Agreement, ICB hereby grants to Licensee (i) an exclusive, non-assignable, non-transferable, license to utilize and commercially exploit the licensed Technology, solely for the provision of Tissue Processing and solely within the Territory, and strictly for no other purposes; (ii) the right to grant sublicenses in accordance with the provisions regarding Sublicenses set forth below; and (iii) a right of first refusal to acquire a license in respect of any other applications of the Patents and Technology in the Territory and shall not exploit or otherwise deal with any such application or grant any such license to any other person in any part of the Territory without complying with this requirement. Licensee agrees that all efforts to exploit the licensed Technology (whether by Licensee or any sublicensee) shall be made under and using the name “IntelliCell Thailand” or such other similar name as may be approved by ICB. Trademark License Grant.Subject to the terms and conditions of this Agreement, ICB hereby grants to Licensee (i) an exclusive, non-assignable, non-transferable, royalty-bearing license to use the Trademarks, solely in connection with the Tissue Processing and solely within the Territory, and strictly for no other purposes; (ii) the right to grant sublicenses in accordance with the provisions regarding Sublicenses set forth below; and (iii) a right of first refusal to acquire a license in respect of any other applications of the Trademarks in the Territory and shall not exploit or otherwise deal with any such application or grant any such license to any other person in any part of the Territory without complying with this requirement. Licensee agrees that all efforts to exploit the licensed Trademarks (whether by Licensee or any sublicensee) shall be made under and using the name “IntelliCell Thailand” or such other similar name as may be approved by ICB. Sublicense.Licensee shall have the right to grant sublicenses to any Sublicensee to all or any portion of its rights granted under the license granted hereunder. Exploitation.Licensee hereby accepts the rights granted to Licensee pursuant to this Agreement and agrees to use its best efforts in its use and exploitation of such rights throughout the Territory.Licensee shall not utilize the licensed Technology, nor solicit business, market, promote, advertise, distribute nor perform any Tissue Processing, outside of the Territory, either directly or indirectly, itself or through Third Parties. Notwithstanding the foregoing, the Parties agree that Licensee may market and promote the use of the licensed Technology and/or the performance of Tissue Processing through the use of media within the Territory. Licensee shall promptly refer all inquiries with respect to the Tissue Processing from any persons or entities outside the Territory to ICB. 4 Reservation of Rights. Notwithstanding any other provision of this Agreement, ICB hereby reserves the perpetual, royalty-free worldwide right to license and use the Patents and Technology, and the Trademarks licensed hereunder for any purpose, including marketing the Patent and Technology within or outside the Territory, it being the intent of the Parties that ICB shall be entitled to continue to use and enjoy the Patents and Technology, and the Trademarks to the fullest extent; provided, however, that ICB agrees not to grant any license to use the Patents and Technology, and the Trademarks for use in the Tissue Processing, to any Person within the Territory for the duration of the Term. Ownership of Patent, Trademarks and Technology. The Parties expressly acknowledge and agree that the licensed Technology, and the licensed Trademarks are, and shall remain, the sole property of ICB, and that Licensee shall have no right, title or interest therein except as explicitly set forth in this Agreement. All rights, title and interest in and to any and all improvements, developments or inventions relating to the licensed Technology and the licensed Trademarks or arising from the license of the Technology and the Trademarks hereunder, that are made, arrived at or discovered by or on behalf of ICB, Licensee or their affiliates, are and shall be owned solely and exclusively by ICB; and, if intended for or applicable to the Tissue Processing, shall be automatically licensed to Licensee on the same terms hereof applicable to the licensed Technology, and the licensed Trademarks. Right of First Refusal.In the event that ICB makes or develops new or additional Patents and Technology and Trademarks relating to Tissue Processing which it wishes to license and/or sell in the Territory, it shall provide written notice of the same to Licensee and offer Licensee the option (the “Option”) to license and/or purchase such intellectual property.If Licensee does not give ICB notice of its exercise of the Option before the end of the Option Period, or if Licensee indicates in writing to ICB that it does not intend to exercise the Option, then ICB shall be free to license sell and/or convey such intellectual property. If License provides ICB with written notice of its desire to exercise the Option, then the parties shall immediately engage in good faith negotiation of an appropriate license or transfer agreement. If the parties are not able, despite their good faith efforts, to agree of terms within thirty (30) days after initiation of such negotiations, then ICB shall be free to seek and negotiate and enter into agreement(s) with other third-parties. 5. PATENT AND TRADEMARKS No Obligation to Prosecute or Maintain the Patents and Trademarks. ICB shall not have any obligation to prosecute or maintain the licensed Technology or the licensed Trademarks. Responsibilities for Filing, Prosecuting and Maintaining the Patent and Trademarks.ICB shall have the exclusive right, but not the duty, to file, prosecute and maintain the appropriate patent and trademark protection for the licensed Technology and the licensed Trademarks in any jurisdiction. Infringement.Licensee shall give ICB prompt written notice of any claim or allegation received by it that the use of the licensed Technology, and/or the licensed Trademarks constitutes an infringement of a Third Party patent, trademark or other intellectual property right. ICB shall have the exclusive right, at its option and expense, to undertake and control the litigation of any alleged infringement of the licensed Technology, and/or the licensed Trademarks. Licensee shall cooperate in any such actions. 5 Patent and Trademark Enforcement.With respect to any alleged infringement involving the licensed Technology or any claim of any Patent or Trademark, ICB shall have the exclusive right, but not the duty, to institute patent, trademark or other infringement actions against Third Parties. Covenant Not to Challenge.Except as otherwise may be required by law or as may be ordered by a court of competent jurisdiction or other governmental or quasi-governmental authority, Licensee covenants and agrees that during the Term, it shall not commence, maintain or cooperate in the maintenance of any action or proceeding seeking, by way of claim or defense, in whole or in part, to challenge the validity of the licensed Technology or the licensed Trademarks, any of the claims contained therein or ICB's ownership thereof. Licensee shall cooperate with ICB in any action or proceeding, in asserting on behalf of ICB the validity of the licensed Technology or the licensed Trademarks claims, or ownership thereof.ICB shall be solely responsible for any costs incurred by either party in asserting or defending the validity and/or ownership of the licensed Technology or the licensed Trademarks. Compliance with Laws.The terms of this Agreement are intended to be in compliance with all federal, state and local statutes, regulations and ordinances applicable on the date the Agreement takes effect. Should legal counsel for either party reasonably conclude that any portion of this Agreement is or may be in violation of such requirements, or subsequent enactments by federal, state or local authorities, within thirty (30) days of any such determination, the parties shall cooperate and take all necessary steps to amend and/or modify the terms of this Agreement as may be necessary to establish compliance with applicable law then in effect. 6. TERM AND TERMINATION Term.Unless earlier terminated as provided below, this Agreement shall commence as of the Effective Date and shall continue thereafter for a period of ten (10) years (the “Initial Term”). Thereafter, this Agreement shall renew for subsequent periods of one year (each a “Renewal Term”).The Initial Term and the Renewal Terms are collectively referred to herein as the “Term”.In the event either Party does not intend to renew this Agreement after the Initial Term, such Party shall notify the other of its intention not to renew at least ninety (90) days prior to the expiration of the Initial Term or any subsequent Renewal Term. Termination by ICB.ICB may terminate this Agreement upon written notice if any of the following shall occur: (i)If Licensee fails to timely and accurately report any Tissue Processing, Sublicensing or other activity that would give rise to fee payments to ICB; and (ii)If Licensee determines or attempts to determine the Technology for Tissue Processing. 6 Termination by Either Party.Either party may terminate this Agreement by written notice to the other party if any of the following shall occur: (i)in the event of a material breach or default of any duty, obligation or responsibility imposed on the defaulting party by this Agreement which has not been cured within ten (10) business days after the non-defaulting Party gives written notice to the defaulting party of such default.If the default is of such of a nature that it cannot be cured within ten (10) business days, the ten (10) business day cure period shall be extended for a further ten (10) business days (provided that the defaulting party has made diligent efforts to effect a cure during that initial cure period). (ii)If the other party makes an assignment for the benefit of creditors; is adjudicated bankrupt or insolvent; petitions or applies to any tribunal for the appointment of a trustee or receiver for such party for any substantial part of its assets; commences any proceedings seeking to take advantage of any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation law of any jurisdiction, whether now or hereafter in effect; consents to or approves or, by any conduct or action acquiesces in or to any such petition or application filed, or any such proceedings commenced against it by any other person; or failing to remove an order entered appointing any such trustee or receiver or approving the petition in any such proceedings or decreeing its dissolution or liquidation within sixty (60) days after such order is entered. Following Termination.Termination by either party shall not prejudice any remedy that either party may have, at law, in equity, or under this Agreement. Upon the termination or expiration of this Agreement, Licensee shall immediately discontinue any and all use of the Patent, Trademarks and Technology, and shall, upon ICB’s sole determination, within five (5) business days of such termination or expiration, return to ICB or destroy any and all printed material, and all signs, advertising materials, promotional material or any other documentation upon which any of the Trademarks appear in any form whatsoever and that is in Licensee's possession. In addition, each Party shall, within five (5) business days of such termination or expiration, return to the other Party any and all papers and documents or any other materials, whether originals or copies, containing Confidential Information of the other party in its possession or control, including but not limited to all copies of software, all lists of any kind, data, computer printouts, agreements, contracts, and manuals and/or any copies thereof in its possession. 7. FEES (a)License Fee.In consideration of the grant of the license provided by this Agreement, Licensee shall pay to ICB an upfront license fee for the Initial Term in the amount of One Million Dollars ($1,000,000) (the “License Fee”) to be paid as follows: 7 (i) an initial installment of One Hundred Fifty Thousand Dollars ($150,000) upon execution of this Agreement (the “Initial Installment Date”); (ii) One Hundred Thousand Dollars ($100,000) within three (3) days of the completion of the Lab Equipment having been delivered and installed (in accordance with applicable cGMP’s and cGTP’s of the US FDA) and the Lab Technician for the initial Laboratory Facility having completed training (the “Second Installment Date”); and (iii) the balance of Seven Hundred Fifty Thousand Dollars ($750,000) to be placed in escrow with counsel for ICB on the Second Installment Date, with such funds to be held in escrow for a period of ninety (90) days, with such funds to be released upon satisfaction by the parties that the Lab Equipment is in working order and the Lab Technician has been adequately trained. For purposes of this section, working order shall mean that the Lab Equipment yields good flow cytometry results and good cell counts (i.e., greater than 85% cell viability). The Parties further agree that, within one hundred and twenty (120) days before the expiration of the Initial Term, they will negotiate a License Fee for the next Renewal Term which can or cannot be executed entirely at ICB’s discretion. (b)Royalty and Other Payments.In further consideration of the grant of the license to ICB hereunder, and subject to the other terms of this Agreement (including the remainder of this Section 7), Licensee shall pay ICB the following fees: (i) a royalty equal to twelve and one-half percent (12.5%) of the fees for Tissue Processing performed by Licensee (and/or its Affiliates and/or Sublicensees) in the Territory (it being agreed that Licensee will not charge less than a minimum of $1,000 per Tissue Processing procedure, which will result in a minimum royalty of $125 per Tissue Processing procedure payable to ICB); (iii) A fee of twelve and one-half percent (12.5%) of all Sublicense Income received pursuant to any sublicenses of the Licensed Patent and Technology and Trademark rights. “Sublicensed Income” shall mean all payments received by Licensee from its Sublicensees as consideration from the grant by Licensee of a sublicense pursuant to Section 4. (c)Payment Terms.Unless otherwise expressly provided, Licensee shall pay any royalty or other required payments owed to ICB hereunder in arrear, within thirty (30) days from the end of each month in which such payment accrues. For purposes of determining when a royalty or other payment is due, the obligation shall be deemed to arise (i) in the case of Tissue Processing royalty payments, on the date that the Tissue Processing is Performed, and (ii) in the case of Sublicense fee payments, on the date that a payment is due to Licensee under a Sublicense Agreement. Each royalty or other payment shall be accompanied by a report for the calendar quarter covered by such statement, specifying: the Tissue Processing and/or other Sublicensed Income accrued and/or payable; the applicable royalty rate under this Agreement; the royalties payable in each country’s currency; the applicable exchange rate to convert from each country’s currency to United States Dollars under this Section and the royalties payable in United States Dollars. 8 (d)Accounting.All payments hereunder shall be made in the United States in United States Dollars.Conversion of foreign currency to United States Dollars shall be made at the conversion rate existing in the United States (as reported in The Wall Street Journal) on the last business day of the quarter immediately preceding the applicable calendar quarter.If The Wall Street Journal ceases to be published, then the rate of exchange to be used shall be that reported in such other business publication of national circulation in the United States as the Parties reasonably agree. (e)Tax Withholding; Restrictions on Payment.Licensee shall make any applicable withholding or other required tax or duty payments due on behalf of ICB and shall provide ICB upon request with such written documentation regarding any such payment as available to Licensee relating to an application by ICB for a foreign tax credit for such payment with the United States Internal Revenue Service. (f)No Deductions.Unless otherwise required by law, all payments made by either party under this Agreement shall be made free and clear of, and without deduction or withholding for or on account of, any present or future income, turnover, sales, value added stamp or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any tax or other governmental authority, excluding all present and future income taxes imposed on Licensee. (g)Fair Market Value. The parties hereby acknowledge that the License Fee and Fee is consistent with the fair market value for the services to be performed in the community and is the result of bona fide bargaining between well informed parties who are not otherwise in a position to generate business for each other. 8. LICENSEE’S BOOKS AND RECORDS Books of Account.Commencing as of the date of first royalty or other payments due hereunder, Licensee (and its Affiliates and Sublicensees) shall keep for at least three (3) years from the end of the calendar year to which they pertain appropriate books of account and records, of all its operations under or in connection with this Agreement all in accordance with generally accepted accounting principles consistently applied (such as sales journals, sales return journals, cash receipt books, general ledgers, purchase orders and inventory records) and shall make accurate entries concerning all transactions relevant to this Agreement. Examination by ICB.During the Term, and for three (3) years after the making of any payment or the rendering of any Fee Statement, ICB, and its employees, agents and representatives, shall have the right, at its own expense, on reasonable notice to Licensee (but in no event need such notice be more than five (5) days) and during regular business hours, to examine, photocopy, and make extracts from such books of account and other records, documents and materials (including, but not limited to, invoices, purchase orders, sales records, and reorders) at its sole cost and expense to the extent needed to confirm services, Fees, and other matters relating to compliance with this Agreement regarding such payments or statements, which shall be maintained and kept by Licensee during the period specified herein. 9 Discrepancies in Reporting. If any examination or audit by ICB for any period discloses that the actual Royalties for that period exceeded those reported by more than five percent (5%), Licensee shall pay the actual and reasonable cost of such examination or audit in addition to the amount of Fees that such examination or audit discloses is owed to Licensee together with interest on the unreported amount at a rate of 10% per annum. All payments due pursuant to this Section must be made within fifteen (15) days after Licensee receives notice thereof. 9. TRADEMARK USE Use of Trademark.Licensee shall use and display the Trademarks only in such forms as specifically approved in writing in advance by ICB, including without limitation, use of the Trademarks on advertising, promotional or publicity materials, displays, stationary or business cards and shall not use the Trademarks on any such items unless so approved. Licensee shall not use any of the Trademarks in its corporate name or file any “d/b/a” incorporating the Trademarks. Limitation.Any use of the Trademarks by Licensee is limited to the Territory and is granted solely for the ordinary business of Licensee in connection with Tissue Processing in the Territory.Except as otherwise provided for herein,none of Licensee’s rights to use the Trademarks shall be transferable, either in whole or in part. Licensee acknowledges the exclusive right, title and interest of ICB in and to the Trademarks, and shall not at any time contest or in any way impair such right, title and interest, or indicate to the public in any manner whatsoever that Licensee has or has ever had an interest in the Trademarks other than the limited right to use them as specified in this Agreement. Exclusive Property of Licensee.As between Licensee and ICB, the Trademarks, as well as any other trademarks, marks, service marks, trade names, logos, symbols, trade dress, copyrights and/or other intellectual property relating to or used in connection with the Technology and Tissue Processing are, and shall remain, the exclusive property of ICB.Licensee may not register any similar trademarks, marks, logos, trade dress, copyrights or symbols. No Reproduction.Other than expressly provided for in this Agreement, Licensee shall not directly or indirectly reproduce, copy, alter, edit or otherwise modify or make or cause to be made any imitation of the Patents, Technology, Trademarks or the Tissue Processing.Licensee shall not, during the Term hereof or thereafter, attempt to acquire any rights in connection with the Trademarks or other intellectual property of Licensee. The use by Licensee of the Trademarks shall not in any way create in Licensee any right, title or interest in or to the Trademarks or any other intellectual property of Licensee. 10 INDEMNITY AND REPRESENTATIONS Indemnification by Licensee.Licensee hereby saves and holds ICB harmless of and from and indemnifies and agrees to defend ICB against any and all losses, liability, damages and expenses (including reasonable attorneys’ fees and expenses) which ICB may incur or be obligated to pay, or for which ICB may become liable or be compelled to pay in connection with any action, claim or proceeding by third parties against ICB for or by reason of or in connection with Licensee’s negligent operation of the Laboratory Facility, negligent use of the Patent, Trademarks and/or Technology; and/or any breach of the representations and warranties of Licensee set forth in this Agreement. ICB will give Licensee notice of any action, claim, suit or proceeding in respect of which indemnification may be sought and Licensee shall defend such action, claim, suit or proceeding on behalf of ICB.In the event appropriate action is not taken by Licensee within thirty (30) days after its receipt of notice from ICB, then ICB shall have the right, but not the obligation, to defend such action, claim, suit or proceeding. ICB may, subject to Licensee's indemnity obligation under this Section 10, be represented by its own counsel in any such action, claim, suit or proceeding. In any case, the ICB and the Licensee shall keep each other fully advised of all developments and shall cooperate fully with each other in all respects in connection with any such defense as is made.Nothing contained in this Section shall be deemed to limit in any way the indemnification provisions set forth above except that in the event appropriate action is being taken by Licensee, by counsel reasonably acceptable to ICB, with respect to any not-trademark or intellectual property action, claim, suit or proceeding, ICB shall not be permitted to seek indemnification from Licensee for attorneys' fees and expenses incurred without the consent of Licensee. In connection with the aforesaid actions, claims and proceedings, the parties shall, where no conflict of interest exists, seek to be represented by common reasonably acceptable counsel.In connection with actions, claims or proceedings involving trademark or other intellectual property matters which are subject to indemnification hereunder, ICB or shall at all times be entitled to be represented by its own counsel, for whose reasonable fees and disbursements it shall be entitled to indemnification hereunder. Indemnification by ICB.ICB hereby agrees to indemnify, defend and hold harmless Licensee, its officers, owners, managers and employees ("Licensee Indemnified Parties") from and against any and all losses, liability, damages and expenses resulting from any claim by any third party that the ICB Patent, Trademarks or Technology infringe such third party’s U.S. patents issued as of the Effective Date, or infringes or misappropriates, as applicable, such third party’s copyrights or trade secret rights under applicable laws of any jurisdiction within the United States of America, provided that Licensee promptly notifies ICB in writing of the claim, cooperates with ICB, and allows ICB sole authority to control the defense and settlement of such claim.If such a claim is made or appears possible, Licensee agrees to permit ICB, at ICB’s sole discretion, to enable it to continue to use the Patent, Trademarks and/or Technology or to modify or replace any such infringing material to make it non-infringing.If ICB determines that none of these alternatives is reasonably available, Licensee shall, upon written request from ICB, cease use of, and, if applicable, return, such materials as are the subject of the infringement claim. 11 Warranties and Representations.Nothing in this Agreement shall be deemed to be a representation or warranty by ICB of the validity of the Patent, Trademarks or Technology or the accuracy, safety, efficacy or usefulness for any purpose thereof.Except as otherwise provided in this Agreement, ICB shall have no obligation, express or implied, to supervise, monitor, review or otherwise assume responsibility for any use of the Patent, Trademarks and/or Technology by Licensee in the provision of the Tissue Processing, and ICB shall have no liability whatsoever to Licensee or any Third Parties for or on account of any injury, loss or damage, of any kind or nature, sustained by, or any damage assessed or asserted against, or any other liability incurred by or imposed upon Licensee, its Affiliates or any other person or entity arising out of or in connection with or resulting from any use of the Patent, Trademarks and/or Technology by Licensee in the provision of the Tissue Processing. DISCLAIMERS. Licensee acknowledges that: ICBis not the manufacturer of the Equipment nor the manufacturer’s agent nor a dealer therein and ICBhas not made and does not make any warranty or representation whatsoever, either express or implied, as to the fitness, condition, merchantability, design or operation of the Equipment, its fitness for any particular purpose, the quality or capacity of the materials in the Equipment or workmanship in the Equipment CONFIDENTIAL INFORMATION Nondisclosure of Confidential Information.Both Parties agree not to disclose any of the other Party’s (“Disclosing Party”) Confidential Information, verbal or written, which may be conveyed to the other Party (“Recipient”) from any source before, during or subsequent to the Term of this Agreement. It is expressly understood and agreed that any such Confidential Information conveyed to Recipient is intended for the Recipient’s internal use only and shall be protected by the Recipient with the same diligence, care, and precaution (but in no event less than reasonable care) that the Recipient uses to protect its own Confidential Information.At the Disclosing Party’s request, the Recipient shall return any or all Confidential Information then in its possession, including all copies thereof. Both parties shall incorporate the substance of this section when Confidential Information is shared with third parties in conformity with the performance of its obligations under this Agreement to the extent that Confidential Information is provided to third parties. Non-Confidential Information.Both Parties shall have no obligation with respect to the disclosure and use of non-confidential information to the extent such information: (i) is or becomes generally available to the public other than as a consequence of a breach of an obligation of confidentiality by the Recipient; (ii) is made public by the Disclosing Party; (iii) is independently developed by Recipient; (iv) is received from a third party independent of either Party without breaching an obligation of confidentiality; or (v) is required to be disclosed in order to comply with applicable law or regulation (including, without limitation, compliance with any rule or regulation promulgated by the Securities and Exchange Commission) or with any requirement imposed by judicial or administrative process or any governmental or court order, provided however that the party making such disclosure must provide reasonable notice to the other party, to the extent possible. 12 LABORATORY FACILITY Ownership and Operation.The Parties acknowledge and agree that Licensee shall be the sole owner and operator of the Laboratory Facility to be operated by Licensee. Further, Licensee shall be solely responsible for providing and employing a lab technician (who will be trained and certified in Intellicell lab processing) to oversee the operations of each Laboratory Facility that is operated under or as a result of this Agreement (whether owned and operated by Licensee and/or a third party pursuant to a sublicense or other permissible arrangement), as well as for obtaining any licenses, permits or certifications necessary for operation of the Laboratory Facility. MISCELLANEOUS Relationship of Parties.In performing their respective duties under this Agreement, each of the parties shall be operating as an independent contractor. Nothing in this Agreement is intended or shall be deemed to constitute a partnership, agency, employer employee or joint venture relationship between the Parties.No Party shall make any commitments for the other. Assignment.Except as may otherwise be specifically provide for therein, neither this Agreement, nor any of the rights or interests of ICB or Licensee hereunder, may be assigned, transferred or conveyed by operation of law or otherwise without the prior written consent of the other party, which consent shall not be unreasonably withheld, provided, however, that either party (the “Selling Party”) may assign its rights and interest under this Agreement to any acquirer of such Selling Party in any transaction that constitutes a Change of Control for such Selling Party. A Change of Control shall mean the sale of substantially all of the assets of such Selling Party, the sale of substantially all of the stock of such Selling Party or the merger or consolidation of such Selling Party with a third party in which the Selling Party is not the surviving entity. Further Actions.Each Party agrees to execute, acknowledge and deliver such further instruments, and to do all such other acts, as may be necessary or appropriate in order to carry out the purposes and intent of this Agreement. Notice.Any notice or other communication required or permitted hereunder shall be in writing and shall be delivered, to the addresses set forth below, personally or by a recognized overnight courier service.Any such notice shall be deemed given when so delivered personally or, if delivered by overnight courier service, on the next business day after the date of deposit with such courier service: If to ICB: IntelliCell Biosciences Inc. 30 East 76th Street New York, New York 10021 Attn: Steven Victor, CEO Fax: (212) 249-1482 13 With a copy to: Sichenzia Ross Friedman Ference LLP 61 Broadway New York, New York 10006 Attn: Richard A. Friedman Fax: (212) 930-9725 If to Licensee: StemCells 21Co., Ltd. 7th floor the Urbis Building, the Aetas Bangkok Hotel, 53, soi Ruam Rudee, Phloenehit Road, Lumpini, Pathumwan, Bangkok, 10330, The Kingdom of Thailand Attn: Paul Collier, Managing Director Any Party may, by notice given in accordance with this section to the other Party, designate another address or person for receipt of notices hereunder. Waiver.A waiver by either Party of any of the terms and conditions of this Agreement in any instance shall not be deemed or construed to be a waiver of such term or condition for the future, or of any subsequent breach hereof.All rights, remedies, undertakings, obligations and agreements contained in this Agreement shall be cumulative and none of them shall be in limitation of any other remedy, right, undertaking, obligation or agreement of either Party. Severability.When possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be prohibited by or invalid under applicable law, such provision will be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of this Agreement, and the Parties shall negotiate in good faith to modify this Agreement to preserve (to the extent possible) their original intent. Amendment.No amendment, modification or supplement of any provisions of this Agreement or its Exhibits and Schedules shall be valid or effective unless made in writing and signed by a duly authorized officer of each Party. Ambiguities.This Agreement was the subject of preliminary drafts and review thereof by both parties and their attorneys.Accordingly, any ambiguities herein shall not be interpreted against the interest of the party that drafted the final agreement or the alleged ambiguous provision. 14 Governing Law.The construction, interpretation and enforcement of this Agreement shall be governed by the internal laws of the State of New York, excluding its conflict-of-laws principles. Each party agrees that all legal proceedings concerning the interpretations, enforcement and defense of the transactions contemplated by this Agreement (whether brought against a party hereto or its respective affiliates, directors, officers, shareholders, partners, members, employees or agents) shall be commenced exclusively in the state and federal courts sitting in the City of New York. Entire Agreement.This Agreement sets forth the entire agreement and understanding between the Parties as to the subject matter hereof and merges all prior discussions and negotiations between them, and neither of the Parties shall be bound by any conditions, definitions, warranties, understandings or representations with respect to such subject matter other than as expressly provided herein. Injunctive Relief.Each Party acknowledges that, in the event of its breach or threatened breach of any of the provisions of this Agreement, the non-breaching Party would sustain great and irreparable injury and damage.Therefore, in addition to any other remedies which the non-breaching Party may have under this Agreement or otherwise, the non-breaching Party shall be entitled to an injunction issued by any court of competent jurisdiction restraining such breach or threatened breach.This Section shall not, however, be construed as a waiver of any of the rights which the non-breaching Party may have for damages or otherwise. Force Majeure.For the period and to the extent that a party hereto is disabled from fulfilling in whole or in part its obligations hereunder, where such disability arises by reason of an event of force majeure (including, but not limited to, any law or government regulation, or any act of God, flood, war, terrorism, revolution, civil commotion, political disturbance, fire, explosion, or any other cause whatsoever over which such party has no control), such party shall be released from its obligations hereunder until the cessation of such disability. Notice of any such disability and cessation thereof shall forthwith be given by the party claiming the benefits thereof to the other. The provisions of this Article shall not be applicable to any obligation involving the payment of money. Counterparts.This Agreement may be executed in any number of counterparts, any one of which need not contain the signature of more than one Party but all such counterparts taken together shall constitute one and the same agreement.This Agreement may be executed by facsimile. Descriptive Headings.The descriptive headings of this Agreement are for convenience only and shall be of no force or effect in construing or interpreting any of the provisions of this Agreement. [signatures on following page] 15 IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be executed by its duly authorized officer as of the date first above written. IntelliCell Biosciences Inc. By: /s/ Jonathan Schwartz Name: Jonathan Schwartz Title: Vice President [Licensee] StemCells21 Co. Ltd. By: /s/ Paul Michael Collier Name: Paul Michael Collier Title:Managing Director 16 Exhibit A [Patent][Patent Application] [Ultrasonic Cavitation for the separation of Stromal Vascular Fraction from Adipose Tissue] 17 Exhibit B ICB Protocol 18 Exhibit C Territory The Territory constitutes the entire country and sovereign state of Thailand. [MAP OF TERRITORY] 19 Exhibit D Trademarks [IntelliCell] [IntelliCell BioSciences] 20 Exhibit E Lab Equipment 21 Exhibit F Disposables 22 | [
"EXHIBIT 10.1 INTELLICELL BIOSCIENCES, INC LABORATORY SERVICES LICENSE AGREEMENT This LABORATORY SERVICES LICENSE AGREEMENT (this “Agreement”), dated as of April 7, 2012 (the “Effective Date”), by and between IntelliCell Biosciences Inc. a New York corporation with offices at 30 East 76th Street, New York, New York 10021 (“ICB”) and StemCells21Co, Ltd. with offices at 7th floor the Urbis Building, the Aetas Bangkok Hote, 53, soi Ruam Rudee, Phloenehit Road, Lumpini, Pathumwan, Bangkok, 10330, The Kingdom of Thailand (“Licensee”). WHEREAS, ICB is the owner or otherwise has developed and/or controls certain pending Patents and Technology as hereinafter defined to be marketed under protected trademarks owned by ICB or its Affiliates; and WHEREAS, Licensee desires to obtain an exclusive license from ICB to utilize the Patents and Technology so that Licensee can provide Tissue Processing services for Physicians in the Territory and/or grant further sublicenses of the licensed Technology to sublicensees in the Territory; WHEREAS, ICB is willing to grant to Licensee a license, upon the terms and conditions hereinafter set forth.",
"NOW, THEREFORE, in consideration of the foregoing recitals and the mutual covenants and agreements of the Parties contained in this Agreement, the Parties agree as follows: 1. DEFINITIONS For the purposes of this Agreement, the following terms shall have the meanings set forth in this Section 1: “Affiliate” of any Person shall mean with respect to any Person (the “Initial Person”) any Person directly or indirectly controlling, controlled by, or under common control with, the Initial Person.For purposes of this definition, “control” (including with correlative meanings, the terms “controlling”, “controlled by” and under “common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.",
"“Confidential Information” shall mean information that was or will be developed, created, conveyed or discovered by or on behalf of either Party, or which became or will become known by, or was or is conveyed to it which has commercial value in its business and includes, but is not limited to, trade secrets, copyrights, patent applications, computer programs, designs, technology, ideas, know-how, processes, compositions, data improvements, inventions (whether patentable or not), works of authorship, work for hire, business and product development plans, customer or patient lists, patient information, policies and procedures, and other similar information received in confidence by or for it, or developed exclusively for it by third parties, from any other person or entity. 1 “Laboratory Facility” shall mean a facility located within the Territory that shall be owned and operated by Licensee and/or a third party to utilize and commercially exploit the Patents and Technology and/or perform Tissue Processing. “Party” shall mean ICB or Licensee, or any of their employees, consultants, affiliates, licensees or sublicensees, and, when used in the plural, shall mean ICB and Licensee, or any of their employees consultants, affiliates, licensees or sublicensees. “Patents” shall mean the patent application (or applications) set forth on Exhibit A attached hereto.",
"“Person” shall mean any natural person, corporation, firm, business trust, joint venture, association, university, organization, company, partnership or other business entity, or any government or any agency or political subdivision thereof. “Technology” shall mean the combination of technology, know-how and other intellectual property defined in the Patent and in other materials provided to Licensee by ICB and Affiliates of ICB and which facilitates, and is required for, the Tissue Processing. “Territory” shall mean solely the geographical area set forth on Exhibit B attached hereto. “Third Party” shall mean any Person who or which is neither a Party nor an Affiliate of a Party. “Trademarks” shall mean the trademarks set forth on Exhibit C attached hereto. “Tissue Processing” shall mean the separation of Adipose Stromal Vascular Fraction from fat tissue utilizing the Technology. 2.",
"REPRESENTATIONS AND WARRANTIES OF ICB ICB represents and warrants to Licensee that: (a)the execution and delivery of this Agreement and the performance of the transactions contemplated hereby have been duly authorized by all appropriate ICB corporate action; (b)this Agreement is a legal and valid obligation binding upon ICB and enforceable in accordance with its terms, and the execution, delivery and performance of this Agreement by the Parties does not conflict with any agreement, instrument or understanding to which ICB is a Party or by which it is bound; 2 (c)ICB has the full right and legal capacity to grant the rights granted to Licensee hereunder without violating the rights of any Third Party; (d)Licensed Patent Rights have been properly filed and are being diligently prosecuted and ICB and/or its affiliates is/are the sole owner and inventor of the Licensed Patent Rights and Licensed Technology. 3. REPRESENTATIONS AND WARRANTIES OF LICENSEE Licensee represents and warrants to ICB that: (a)the execution and delivery of this Agreement and the performance of the transactions contemplated hereby have been duly authorized by all appropriate Licensee corporate action; and (b)this Agreement is a legal and valid obligation binding upon Licensee and enforceable in accordance with its terms, and the execution, delivery and performance of this Agreement by the Parties does not conflict with any agreement, instrument or understanding to which Licensee is a Party of or by which it is bound.",
"(c)During the Term (as defined below), Licensee shall market and promote the Patents and Technology and Trademarks for the provision of Tissue Processing to physicians and/or other third parties interested in establishing new tissue-processing facilities within the Territory. ICB acknowledges and agrees that Licensee may market and promote the technology through the use of media within the Territory. ICB will provide Licensee all relevant marketing materials during the Term. Licensee has the right to create its own documents and marketing material related to the Technology subject to the approval of ICB.ICB will be deemed to have approved any proposed advertising, promotional material or product name or label if Licensee submits specimens thereof to ICB for review together with complete particulars about the proposed use thereof, and Licensee provides any additional information reasonably requested by ICB concerning such proposed use, and Licensor does not notify Licensee of its disapproval within ten (10) days after Licensee submits such material to ICB (extended as necessary to permit ICB the same length of time to evaluate any such additional information requested by ICB).",
"(d)Compliance with Laws.Licensee represents and warrants to ICB that it will comply with Applicable Laws, including, but not limited to, the Health Insurance Portability and Accountability Act (“HIPAA”) of 1996 and its implementing regulations. If Licensee fails to meet applicable professional standards, Licensee shall, without additional compensation from ICB, correct or revise any errors or deficiencies in items or services furnished under this Agreement. Failure by Licensee to comply with any applicable law shall be considered a material breach of this Agreement. Upon the request of ICB, Licensee shall provide ICB with a copy of all of its relevant licenses, registrations and credentials (and any renewals thereof). 3 (e)Throughout the Term, Licensee shall provide ICB with brief written reports no less frequently than monthly summarizing Licensee’s efforts to utilize and commercially exploit the Patents and Technology, and/or to grant sublicenses. 4. GRANT OF LICENSE Technology License Grant.Subject to the terms and conditions of this Agreement, ICB hereby grants to Licensee (i) an exclusive, non-assignable, non-transferable, license to utilize and commercially exploit the licensed Technology, solely for the provision of Tissue Processing and solely within the Territory, and strictly for no other purposes; (ii) the right to grant sublicenses in accordance with the provisions regarding Sublicenses set forth below; and (iii) a right of first refusal to acquire a license in respect of any other applications of the Patents and Technology in the Territory and shall not exploit or otherwise deal with any such application or grant any such license to any other person in any part of the Territory without complying with this requirement.",
"Licensee agrees that all efforts to exploit the licensed Technology (whether by Licensee or any sublicensee) shall be made under and using the name “IntelliCell Thailand” or such other similar name as may be approved by ICB. Trademark License Grant.Subject to the terms and conditions of this Agreement, ICB hereby grants to Licensee (i) an exclusive, non-assignable, non-transferable, royalty-bearing license to use the Trademarks, solely in connection with the Tissue Processing and solely within the Territory, and strictly for no other purposes; (ii) the right to grant sublicenses in accordance with the provisions regarding Sublicenses set forth below; and (iii) a right of first refusal to acquire a license in respect of any other applications of the Trademarks in the Territory and shall not exploit or otherwise deal with any such application or grant any such license to any other person in any part of the Territory without complying with this requirement.",
"Licensee agrees that all efforts to exploit the licensed Trademarks (whether by Licensee or any sublicensee) shall be made under and using the name “IntelliCell Thailand” or such other similar name as may be approved by ICB. Sublicense.Licensee shall have the right to grant sublicenses to any Sublicensee to all or any portion of its rights granted under the license granted hereunder. Exploitation.Licensee hereby accepts the rights granted to Licensee pursuant to this Agreement and agrees to use its best efforts in its use and exploitation of such rights throughout the Territory.Licensee shall not utilize the licensed Technology, nor solicit business, market, promote, advertise, distribute nor perform any Tissue Processing, outside of the Territory, either directly or indirectly, itself or through Third Parties. Notwithstanding the foregoing, the Parties agree that Licensee may market and promote the use of the licensed Technology and/or the performance of Tissue Processing through the use of media within the Territory. Licensee shall promptly refer all inquiries with respect to the Tissue Processing from any persons or entities outside the Territory to ICB. 4 Reservation of Rights. Notwithstanding any other provision of this Agreement, ICB hereby reserves the perpetual, royalty-free worldwide right to license and use the Patents and Technology, and the Trademarks licensed hereunder for any purpose, including marketing the Patent and Technology within or outside the Territory, it being the intent of the Parties that ICB shall be entitled to continue to use and enjoy the Patents and Technology, and the Trademarks to the fullest extent; provided, however, that ICB agrees not to grant any license to use the Patents and Technology, and the Trademarks for use in the Tissue Processing, to any Person within the Territory for the duration of the Term.",
"Ownership of Patent, Trademarks and Technology. The Parties expressly acknowledge and agree that the licensed Technology, and the licensed Trademarks are, and shall remain, the sole property of ICB, and that Licensee shall have no right, title or interest therein except as explicitly set forth in this Agreement. All rights, title and interest in and to any and all improvements, developments or inventions relating to the licensed Technology and the licensed Trademarks or arising from the license of the Technology and the Trademarks hereunder, that are made, arrived at or discovered by or on behalf of ICB, Licensee or their affiliates, are and shall be owned solely and exclusively by ICB; and, if intended for or applicable to the Tissue Processing, shall be automatically licensed to Licensee on the same terms hereof applicable to the licensed Technology, and the licensed Trademarks.",
"Right of First Refusal.In the event that ICB makes or develops new or additional Patents and Technology and Trademarks relating to Tissue Processing which it wishes to license and/or sell in the Territory, it shall provide written notice of the same to Licensee and offer Licensee the option (the “Option”) to license and/or purchase such intellectual property.If Licensee does not give ICB notice of its exercise of the Option before the end of the Option Period, or if Licensee indicates in writing to ICB that it does not intend to exercise the Option, then ICB shall be free to license sell and/or convey such intellectual property. If License provides ICB with written notice of its desire to exercise the Option, then the parties shall immediately engage in good faith negotiation of an appropriate license or transfer agreement. If the parties are not able, despite their good faith efforts, to agree of terms within thirty (30) days after initiation of such negotiations, then ICB shall be free to seek and negotiate and enter into agreement(s) with other third-parties. 5.",
"PATENT AND TRADEMARKS No Obligation to Prosecute or Maintain the Patents and Trademarks. ICB shall not have any obligation to prosecute or maintain the licensed Technology or the licensed Trademarks. Responsibilities for Filing, Prosecuting and Maintaining the Patent and Trademarks.ICB shall have the exclusive right, but not the duty, to file, prosecute and maintain the appropriate patent and trademark protection for the licensed Technology and the licensed Trademarks in any jurisdiction. Infringement.Licensee shall give ICB prompt written notice of any claim or allegation received by it that the use of the licensed Technology, and/or the licensed Trademarks constitutes an infringement of a Third Party patent, trademark or other intellectual property right. ICB shall have the exclusive right, at its option and expense, to undertake and control the litigation of any alleged infringement of the licensed Technology, and/or the licensed Trademarks. Licensee shall cooperate in any such actions. 5 Patent and Trademark Enforcement.With respect to any alleged infringement involving the licensed Technology or any claim of any Patent or Trademark, ICB shall have the exclusive right, but not the duty, to institute patent, trademark or other infringement actions against Third Parties. Covenant Not to Challenge.Except as otherwise may be required by law or as may be ordered by a court of competent jurisdiction or other governmental or quasi-governmental authority, Licensee covenants and agrees that during the Term, it shall not commence, maintain or cooperate in the maintenance of any action or proceeding seeking, by way of claim or defense, in whole or in part, to challenge the validity of the licensed Technology or the licensed Trademarks, any of the claims contained therein or ICB's ownership thereof.",
"Licensee shall cooperate with ICB in any action or proceeding, in asserting on behalf of ICB the validity of the licensed Technology or the licensed Trademarks claims, or ownership thereof.ICB shall be solely responsible for any costs incurred by either party in asserting or defending the validity and/or ownership of the licensed Technology or the licensed Trademarks. Compliance with Laws.The terms of this Agreement are intended to be in compliance with all federal, state and local statutes, regulations and ordinances applicable on the date the Agreement takes effect.",
"Should legal counsel for either party reasonably conclude that any portion of this Agreement is or may be in violation of such requirements, or subsequent enactments by federal, state or local authorities, within thirty (30) days of any such determination, the parties shall cooperate and take all necessary steps to amend and/or modify the terms of this Agreement as may be necessary to establish compliance with applicable law then in effect. 6. TERM AND TERMINATION Term.Unless earlier terminated as provided below, this Agreement shall commence as of the Effective Date and shall continue thereafter for a period of ten (10) years (the “Initial Term”). Thereafter, this Agreement shall renew for subsequent periods of one year (each a “Renewal Term”).The Initial Term and the Renewal Terms are collectively referred to herein as the “Term”.In the event either Party does not intend to renew this Agreement after the Initial Term, such Party shall notify the other of its intention not to renew at least ninety (90) days prior to the expiration of the Initial Term or any subsequent Renewal Term. Termination by ICB.ICB may terminate this Agreement upon written notice if any of the following shall occur: (i)If Licensee fails to timely and accurately report any Tissue Processing, Sublicensing or other activity that would give rise to fee payments to ICB; and (ii)If Licensee determines or attempts to determine the Technology for Tissue Processing.",
"6 Termination by Either Party.Either party may terminate this Agreement by written notice to the other party if any of the following shall occur: (i)in the event of a material breach or default of any duty, obligation or responsibility imposed on the defaulting party by this Agreement which has not been cured within ten (10) business days after the non-defaulting Party gives written notice to the defaulting party of such default.If the default is of such of a nature that it cannot be cured within ten (10) business days, the ten (10) business day cure period shall be extended for a further ten (10) business days (provided that the defaulting party has made diligent efforts to effect a cure during that initial cure period). (ii)If the other party makes an assignment for the benefit of creditors; is adjudicated bankrupt or insolvent; petitions or applies to any tribunal for the appointment of a trustee or receiver for such party for any substantial part of its assets; commences any proceedings seeking to take advantage of any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation law of any jurisdiction, whether now or hereafter in effect; consents to or approves or, by any conduct or action acquiesces in or to any such petition or application filed, or any such proceedings commenced against it by any other person; or failing to remove an order entered appointing any such trustee or receiver or approving the petition in any such proceedings or decreeing its dissolution or liquidation within sixty (60) days after such order is entered.",
"Following Termination.Termination by either party shall not prejudice any remedy that either party may have, at law, in equity, or under this Agreement. Upon the termination or expiration of this Agreement, Licensee shall immediately discontinue any and all use of the Patent, Trademarks and Technology, and shall, upon ICB’s sole determination, within five (5) business days of such termination or expiration, return to ICB or destroy any and all printed material, and all signs, advertising materials, promotional material or any other documentation upon which any of the Trademarks appear in any form whatsoever and that is in Licensee's possession.",
"In addition, each Party shall, within five (5) business days of such termination or expiration, return to the other Party any and all papers and documents or any other materials, whether originals or copies, containing Confidential Information of the other party in its possession or control, including but not limited to all copies of software, all lists of any kind, data, computer printouts, agreements, contracts, and manuals and/or any copies thereof in its possession. 7. FEES (a)License Fee.In consideration of the grant of the license provided by this Agreement, Licensee shall pay to ICB an upfront license fee for the Initial Term in the amount of One Million Dollars ($1,000,000) (the “License Fee”) to be paid as follows: 7 (i) an initial installment of One Hundred Fifty Thousand Dollars ($150,000) upon execution of this Agreement (the “Initial Installment Date”); (ii) One Hundred Thousand Dollars ($100,000) within three (3) days of the completion of the Lab Equipment having been delivered and installed (in accordance with applicable cGMP’s and cGTP’s of the US FDA) and the Lab Technician for the initial Laboratory Facility having completed training (the “Second Installment Date”); and (iii) the balance of Seven Hundred Fifty Thousand Dollars ($750,000) to be placed in escrow with counsel for ICB on the Second Installment Date, with such funds to be held in escrow for a period of ninety (90) days, with such funds to be released upon satisfaction by the parties that the Lab Equipment is in working order and the Lab Technician has been adequately trained.",
"For purposes of this section, working order shall mean that the Lab Equipment yields good flow cytometry results and good cell counts (i.e., greater than 85% cell viability). The Parties further agree that, within one hundred and twenty (120) days before the expiration of the Initial Term, they will negotiate a License Fee for the next Renewal Term which can or cannot be executed entirely at ICB’s discretion. (b)Royalty and Other Payments.In further consideration of the grant of the license to ICB hereunder, and subject to the other terms of this Agreement (including the remainder of this Section 7), Licensee shall pay ICB the following fees: (i) a royalty equal to twelve and one-half percent (12.5%) of the fees for Tissue Processing performed by Licensee (and/or its Affiliates and/or Sublicensees) in the Territory (it being agreed that Licensee will not charge less than a minimum of $1,000 per Tissue Processing procedure, which will result in a minimum royalty of $125 per Tissue Processing procedure payable to ICB); (iii) A fee of twelve and one-half percent (12.5%) of all Sublicense Income received pursuant to any sublicenses of the Licensed Patent and Technology and Trademark rights.",
"“Sublicensed Income” shall mean all payments received by Licensee from its Sublicensees as consideration from the grant by Licensee of a sublicense pursuant to Section 4. (c)Payment Terms.Unless otherwise expressly provided, Licensee shall pay any royalty or other required payments owed to ICB hereunder in arrear, within thirty (30) days from the end of each month in which such payment accrues. For purposes of determining when a royalty or other payment is due, the obligation shall be deemed to arise (i) in the case of Tissue Processing royalty payments, on the date that the Tissue Processing is Performed, and (ii) in the case of Sublicense fee payments, on the date that a payment is due to Licensee under a Sublicense Agreement. Each royalty or other payment shall be accompanied by a report for the calendar quarter covered by such statement, specifying: the Tissue Processing and/or other Sublicensed Income accrued and/or payable; the applicable royalty rate under this Agreement; the royalties payable in each country’s currency; the applicable exchange rate to convert from each country’s currency to United States Dollars under this Section and the royalties payable in United States Dollars.",
"8 (d)Accounting.All payments hereunder shall be made in the United States in United States Dollars.Conversion of foreign currency to United States Dollars shall be made at the conversion rate existing in the United States (as reported in The Wall Street Journal) on the last business day of the quarter immediately preceding the applicable calendar quarter.If The Wall Street Journal ceases to be published, then the rate of exchange to be used shall be that reported in such other business publication of national circulation in the United States as the Parties reasonably agree. (e)Tax Withholding; Restrictions on Payment.Licensee shall make any applicable withholding or other required tax or duty payments due on behalf of ICB and shall provide ICB upon request with such written documentation regarding any such payment as available to Licensee relating to an application by ICB for a foreign tax credit for such payment with the United States Internal Revenue Service. (f)No Deductions.Unless otherwise required by law, all payments made by either party under this Agreement shall be made free and clear of, and without deduction or withholding for or on account of, any present or future income, turnover, sales, value added stamp or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any tax or other governmental authority, excluding all present and future income taxes imposed on Licensee.",
"(g)Fair Market Value. The parties hereby acknowledge that the License Fee and Fee is consistent with the fair market value for the services to be performed in the community and is the result of bona fide bargaining between well informed parties who are not otherwise in a position to generate business for each other. 8. LICENSEE’S BOOKS AND RECORDS Books of Account.Commencing as of the date of first royalty or other payments due hereunder, Licensee (and its Affiliates and Sublicensees) shall keep for at least three (3) years from the end of the calendar year to which they pertain appropriate books of account and records, of all its operations under or in connection with this Agreement all in accordance with generally accepted accounting principles consistently applied (such as sales journals, sales return journals, cash receipt books, general ledgers, purchase orders and inventory records) and shall make accurate entries concerning all transactions relevant to this Agreement.",
"Examination by ICB.During the Term, and for three (3) years after the making of any payment or the rendering of any Fee Statement, ICB, and its employees, agents and representatives, shall have the right, at its own expense, on reasonable notice to Licensee (but in no event need such notice be more than five (5) days) and during regular business hours, to examine, photocopy, and make extracts from such books of account and other records, documents and materials (including, but not limited to, invoices, purchase orders, sales records, and reorders) at its sole cost and expense to the extent needed to confirm services, Fees, and other matters relating to compliance with this Agreement regarding such payments or statements, which shall be maintained and kept by Licensee during the period specified herein.",
"9 Discrepancies in Reporting. If any examination or audit by ICB for any period discloses that the actual Royalties for that period exceeded those reported by more than five percent (5%), Licensee shall pay the actual and reasonable cost of such examination or audit in addition to the amount of Fees that such examination or audit discloses is owed to Licensee together with interest on the unreported amount at a rate of 10% per annum. All payments due pursuant to this Section must be made within fifteen (15) days after Licensee receives notice thereof. 9. TRADEMARK USE Use of Trademark.Licensee shall use and display the Trademarks only in such forms as specifically approved in writing in advance by ICB, including without limitation, use of the Trademarks on advertising, promotional or publicity materials, displays, stationary or business cards and shall not use the Trademarks on any such items unless so approved. Licensee shall not use any of the Trademarks in its corporate name or file any “d/b/a” incorporating the Trademarks.",
"Limitation.Any use of the Trademarks by Licensee is limited to the Territory and is granted solely for the ordinary business of Licensee in connection with Tissue Processing in the Territory.Except as otherwise provided for herein,none of Licensee’s rights to use the Trademarks shall be transferable, either in whole or in part. Licensee acknowledges the exclusive right, title and interest of ICB in and to the Trademarks, and shall not at any time contest or in any way impair such right, title and interest, or indicate to the public in any manner whatsoever that Licensee has or has ever had an interest in the Trademarks other than the limited right to use them as specified in this Agreement. Exclusive Property of Licensee.As between Licensee and ICB, the Trademarks, as well as any other trademarks, marks, service marks, trade names, logos, symbols, trade dress, copyrights and/or other intellectual property relating to or used in connection with the Technology and Tissue Processing are, and shall remain, the exclusive property of ICB.Licensee may not register any similar trademarks, marks, logos, trade dress, copyrights or symbols.",
"No Reproduction.Other than expressly provided for in this Agreement, Licensee shall not directly or indirectly reproduce, copy, alter, edit or otherwise modify or make or cause to be made any imitation of the Patents, Technology, Trademarks or the Tissue Processing.Licensee shall not, during the Term hereof or thereafter, attempt to acquire any rights in connection with the Trademarks or other intellectual property of Licensee. The use by Licensee of the Trademarks shall not in any way create in Licensee any right, title or interest in or to the Trademarks or any other intellectual property of Licensee. 10 INDEMNITY AND REPRESENTATIONS Indemnification by Licensee.Licensee hereby saves and holds ICB harmless of and from and indemnifies and agrees to defend ICB against any and all losses, liability, damages and expenses (including reasonable attorneys’ fees and expenses) which ICB may incur or be obligated to pay, or for which ICB may become liable or be compelled to pay in connection with any action, claim or proceeding by third parties against ICB for or by reason of or in connection with Licensee’s negligent operation of the Laboratory Facility, negligent use of the Patent, Trademarks and/or Technology; and/or any breach of the representations and warranties of Licensee set forth in this Agreement.",
"ICB will give Licensee notice of any action, claim, suit or proceeding in respect of which indemnification may be sought and Licensee shall defend such action, claim, suit or proceeding on behalf of ICB.In the event appropriate action is not taken by Licensee within thirty (30) days after its receipt of notice from ICB, then ICB shall have the right, but not the obligation, to defend such action, claim, suit or proceeding. ICB may, subject to Licensee's indemnity obligation under this Section 10, be represented by its own counsel in any such action, claim, suit or proceeding. In any case, the ICB and the Licensee shall keep each other fully advised of all developments and shall cooperate fully with each other in all respects in connection with any such defense as is made.Nothing contained in this Section shall be deemed to limit in any way the indemnification provisions set forth above except that in the event appropriate action is being taken by Licensee, by counsel reasonably acceptable to ICB, with respect to any not-trademark or intellectual property action, claim, suit or proceeding, ICB shall not be permitted to seek indemnification from Licensee for attorneys' fees and expenses incurred without the consent of Licensee.",
"In connection with the aforesaid actions, claims and proceedings, the parties shall, where no conflict of interest exists, seek to be represented by common reasonably acceptable counsel.In connection with actions, claims or proceedings involving trademark or other intellectual property matters which are subject to indemnification hereunder, ICB or shall at all times be entitled to be represented by its own counsel, for whose reasonable fees and disbursements it shall be entitled to indemnification hereunder. Indemnification by ICB.ICB hereby agrees to indemnify, defend and hold harmless Licensee, its officers, owners, managers and employees (\"Licensee Indemnified Parties\") from and against any and all losses, liability, damages and expenses resulting from any claim by any third party that the ICB Patent, Trademarks or Technology infringe such third party’s U.S. patents issued as of the Effective Date, or infringes or misappropriates, as applicable, such third party’s copyrights or trade secret rights under applicable laws of any jurisdiction within the United States of America, provided that Licensee promptly notifies ICB in writing of the claim, cooperates with ICB, and allows ICB sole authority to control the defense and settlement of such claim.If such a claim is made or appears possible, Licensee agrees to permit ICB, at ICB’s sole discretion, to enable it to continue to use the Patent, Trademarks and/or Technology or to modify or replace any such infringing material to make it non-infringing.If ICB determines that none of these alternatives is reasonably available, Licensee shall, upon written request from ICB, cease use of, and, if applicable, return, such materials as are the subject of the infringement claim.",
"11 Warranties and Representations.Nothing in this Agreement shall be deemed to be a representation or warranty by ICB of the validity of the Patent, Trademarks or Technology or the accuracy, safety, efficacy or usefulness for any purpose thereof.Except as otherwise provided in this Agreement, ICB shall have no obligation, express or implied, to supervise, monitor, review or otherwise assume responsibility for any use of the Patent, Trademarks and/or Technology by Licensee in the provision of the Tissue Processing, and ICB shall have no liability whatsoever to Licensee or any Third Parties for or on account of any injury, loss or damage, of any kind or nature, sustained by, or any damage assessed or asserted against, or any other liability incurred by or imposed upon Licensee, its Affiliates or any other person or entity arising out of or in connection with or resulting from any use of the Patent, Trademarks and/or Technology by Licensee in the provision of the Tissue Processing. DISCLAIMERS.",
"Licensee acknowledges that: ICBis not the manufacturer of the Equipment nor the manufacturer’s agent nor a dealer therein and ICBhas not made and does not make any warranty or representation whatsoever, either express or implied, as to the fitness, condition, merchantability, design or operation of the Equipment, its fitness for any particular purpose, the quality or capacity of the materials in the Equipment or workmanship in the Equipment CONFIDENTIAL INFORMATION Nondisclosure of Confidential Information.Both Parties agree not to disclose any of the other Party’s (“Disclosing Party”) Confidential Information, verbal or written, which may be conveyed to the other Party (“Recipient”) from any source before, during or subsequent to the Term of this Agreement. It is expressly understood and agreed that any such Confidential Information conveyed to Recipient is intended for the Recipient’s internal use only and shall be protected by the Recipient with the same diligence, care, and precaution (but in no event less than reasonable care) that the Recipient uses to protect its own Confidential Information.At the Disclosing Party’s request, the Recipient shall return any or all Confidential Information then in its possession, including all copies thereof. Both parties shall incorporate the substance of this section when Confidential Information is shared with third parties in conformity with the performance of its obligations under this Agreement to the extent that Confidential Information is provided to third parties. Non-Confidential Information.Both Parties shall have no obligation with respect to the disclosure and use of non-confidential information to the extent such information: (i) is or becomes generally available to the public other than as a consequence of a breach of an obligation of confidentiality by the Recipient; (ii) is made public by the Disclosing Party; (iii) is independently developed by Recipient; (iv) is received from a third party independent of either Party without breaching an obligation of confidentiality; or (v) is required to be disclosed in order to comply with applicable law or regulation (including, without limitation, compliance with any rule or regulation promulgated by the Securities and Exchange Commission) or with any requirement imposed by judicial or administrative process or any governmental or court order, provided however that the party making such disclosure must provide reasonable notice to the other party, to the extent possible.",
"12 LABORATORY FACILITY Ownership and Operation.The Parties acknowledge and agree that Licensee shall be the sole owner and operator of the Laboratory Facility to be operated by Licensee. Further, Licensee shall be solely responsible for providing and employing a lab technician (who will be trained and certified in Intellicell lab processing) to oversee the operations of each Laboratory Facility that is operated under or as a result of this Agreement (whether owned and operated by Licensee and/or a third party pursuant to a sublicense or other permissible arrangement), as well as for obtaining any licenses, permits or certifications necessary for operation of the Laboratory Facility.",
"MISCELLANEOUS Relationship of Parties.In performing their respective duties under this Agreement, each of the parties shall be operating as an independent contractor. Nothing in this Agreement is intended or shall be deemed to constitute a partnership, agency, employer employee or joint venture relationship between the Parties.No Party shall make any commitments for the other. Assignment.Except as may otherwise be specifically provide for therein, neither this Agreement, nor any of the rights or interests of ICB or Licensee hereunder, may be assigned, transferred or conveyed by operation of law or otherwise without the prior written consent of the other party, which consent shall not be unreasonably withheld, provided, however, that either party (the “Selling Party”) may assign its rights and interest under this Agreement to any acquirer of such Selling Party in any transaction that constitutes a Change of Control for such Selling Party.",
"A Change of Control shall mean the sale of substantially all of the assets of such Selling Party, the sale of substantially all of the stock of such Selling Party or the merger or consolidation of such Selling Party with a third party in which the Selling Party is not the surviving entity. Further Actions.Each Party agrees to execute, acknowledge and deliver such further instruments, and to do all such other acts, as may be necessary or appropriate in order to carry out the purposes and intent of this Agreement.",
"Notice.Any notice or other communication required or permitted hereunder shall be in writing and shall be delivered, to the addresses set forth below, personally or by a recognized overnight courier service.Any such notice shall be deemed given when so delivered personally or, if delivered by overnight courier service, on the next business day after the date of deposit with such courier service: If to ICB: IntelliCell Biosciences Inc. 30 East 76th Street New York, New York 10021 Attn: Steven Victor, CEO Fax: (212) 249-1482 13 With a copy to: Sichenzia Ross Friedman Ference LLP 61 Broadway New York, New York 10006 Attn: Richard A. Friedman Fax: (212) 930-9725 If to Licensee: StemCells 21Co., Ltd. 7th floor the Urbis Building, the Aetas Bangkok Hotel, 53, soi Ruam Rudee, Phloenehit Road, Lumpini, Pathumwan, Bangkok, 10330, The Kingdom of Thailand Attn: Paul Collier, Managing Director Any Party may, by notice given in accordance with this section to the other Party, designate another address or person for receipt of notices hereunder. Waiver.A waiver by either Party of any of the terms and conditions of this Agreement in any instance shall not be deemed or construed to be a waiver of such term or condition for the future, or of any subsequent breach hereof.All rights, remedies, undertakings, obligations and agreements contained in this Agreement shall be cumulative and none of them shall be in limitation of any other remedy, right, undertaking, obligation or agreement of either Party.",
"Severability.When possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be prohibited by or invalid under applicable law, such provision will be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of this Agreement, and the Parties shall negotiate in good faith to modify this Agreement to preserve (to the extent possible) their original intent. Amendment.No amendment, modification or supplement of any provisions of this Agreement or its Exhibits and Schedules shall be valid or effective unless made in writing and signed by a duly authorized officer of each Party. Ambiguities.This Agreement was the subject of preliminary drafts and review thereof by both parties and their attorneys.Accordingly, any ambiguities herein shall not be interpreted against the interest of the party that drafted the final agreement or the alleged ambiguous provision. 14 Governing Law.The construction, interpretation and enforcement of this Agreement shall be governed by the internal laws of the State of New York, excluding its conflict-of-laws principles. Each party agrees that all legal proceedings concerning the interpretations, enforcement and defense of the transactions contemplated by this Agreement (whether brought against a party hereto or its respective affiliates, directors, officers, shareholders, partners, members, employees or agents) shall be commenced exclusively in the state and federal courts sitting in the City of New York. Entire Agreement.This Agreement sets forth the entire agreement and understanding between the Parties as to the subject matter hereof and merges all prior discussions and negotiations between them, and neither of the Parties shall be bound by any conditions, definitions, warranties, understandings or representations with respect to such subject matter other than as expressly provided herein.",
"Injunctive Relief.Each Party acknowledges that, in the event of its breach or threatened breach of any of the provisions of this Agreement, the non-breaching Party would sustain great and irreparable injury and damage.Therefore, in addition to any other remedies which the non-breaching Party may have under this Agreement or otherwise, the non-breaching Party shall be entitled to an injunction issued by any court of competent jurisdiction restraining such breach or threatened breach.This Section shall not, however, be construed as a waiver of any of the rights which the non-breaching Party may have for damages or otherwise. Force Majeure.For the period and to the extent that a party hereto is disabled from fulfilling in whole or in part its obligations hereunder, where such disability arises by reason of an event of force majeure (including, but not limited to, any law or government regulation, or any act of God, flood, war, terrorism, revolution, civil commotion, political disturbance, fire, explosion, or any other cause whatsoever over which such party has no control), such party shall be released from its obligations hereunder until the cessation of such disability.",
"Notice of any such disability and cessation thereof shall forthwith be given by the party claiming the benefits thereof to the other. The provisions of this Article shall not be applicable to any obligation involving the payment of money. Counterparts.This Agreement may be executed in any number of counterparts, any one of which need not contain the signature of more than one Party but all such counterparts taken together shall constitute one and the same agreement.This Agreement may be executed by facsimile. Descriptive Headings.The descriptive headings of this Agreement are for convenience only and shall be of no force or effect in construing or interpreting any of the provisions of this Agreement. [signatures on following page] 15 IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be executed by its duly authorized officer as of the date first above written. IntelliCell Biosciences Inc. By: /s/ Jonathan Schwartz Name: Jonathan Schwartz Title: Vice President [Licensee] StemCells21 Co. Ltd. By: /s/ Paul Michael Collier Name: Paul Michael Collier Title:Managing Director 16 Exhibit A [Patent][Patent Application] [Ultrasonic Cavitation for the separation of Stromal Vascular Fraction from Adipose Tissue] 17 Exhibit B ICB Protocol 18 Exhibit C Territory The Territory constitutes the entire country and sovereign state of Thailand. [MAP OF TERRITORY] 19 Exhibit D Trademarks [IntelliCell] [IntelliCell BioSciences] 20 Exhibit E Lab Equipment 21 Exhibit F Disposables 22"
] | https://applica-public.s3-eu-west-1.amazonaws.com/contract-discovery/edgar.txt.xz | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
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But the Court (Thruston, J., absent,) was of opinion that the alteration, prolonging the time of payment, being for the benefit of the defendants, did not make the note void as to them. | 10-17-2022 | [
"But the Court (Thruston, J., absent,) was of opinion that the alteration, prolonging the time of payment, being for the benefit of the defendants, did not make the note void as to them."
] | https://www.courtlistener.com/api/rest/v3/opinions/8315130/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Title: To Thomas Jefferson from J. Phillipe Reibelt, 14 November 1805 From: Reibelt, J. Phillipe To: Jefferson, Thomas
Monsieur le President! Baltimore le 14 Nov. 1805. Les 3 Caisses, qui contiennent le buste en question sont arrivès hier avec une Lettre de Mess. Gibson et Jefferson du 21 Oct. Comme Vous ne m’avez rien repondû a ma derniere concern. çet objet, je dois supposer, que Vous persistez a Vos Ordres du 3 du Courant; de renvoyer ces Caisses à Richmond. Je les ai donc executè, en invitant le Capitaine du Pacquet(*) de les reprendre avec lui et remettre aux Messieurs Gibson et Jefferson. Agreez—je Vous prie, les Assurances Sincères de la plus profonde Veneration. Reibelt. (*) Il m’a fait dire qu’il resteroit a peu près 8 a 10 jours ici. | 11-14-1805 | [
"Title: To Thomas Jefferson from J. Phillipe Reibelt, 14 November 1805 From: Reibelt, J. Phillipe To: Jefferson, Thomas Monsieur le President! Baltimore le 14 Nov. 1805. Les 3 Caisses, qui contiennent le buste en question sont arrivès hier avec une Lettre de Mess. Gibson et Jefferson du 21 Oct. Comme Vous ne m’avez rien repondû a ma derniere concern. çet objet, je dois supposer, que Vous persistez a Vos Ordres du 3 du Courant; de renvoyer ces Caisses à Richmond. Je les ai donc executè, en invitant le Capitaine du Pacquet(*) de les reprendre avec lui et remettre aux Messieurs Gibson et Jefferson. Agreez—je Vous prie, les Assurances Sincères de la plus profonde Veneration. Reibelt. (*) Il m’a fait dire qu’il resteroit a peu près 8 a 10 jours ici."
] | https://founders.archives.gov/API/docdata/Jefferson/99-01-02-2639 | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
The opinion of the court was delivered by Abbott, J.: This case involves judicial review of an agency action. In calculating William Ussery’s patient liability for Medicaid benefits, the Kansas Department of Social and Rehabilitation Services (SRS) included as part of his income a court-ordered support obligation to his former spouse. On Ussery’s petition for judicial review, the district court reversed the agency’s determination that the court-ordered support obligation was available income. The real issue before this court is whether maintenance paid to a former spouse is treated differently than voluntary support or court-ordered maintenance for a current spouse. The facts are undisputed. On January 4, 1993, William Ussery’s wife, Ruby, filed a petition for divorce. On that day, the district court with jurisdiction over the divorce proceedings ordered William Ussery to pay temporary maintenance of $500 per month. On January 17,1993, Ussery was hospitalized and then was discharged to a nursing home on March 11, 1993, where he remains. Ussery’s daughter was appointed as his guardian and conservator. On April 14, 1993, a Journal Entry of Judgment and Decree of Divorce was entered granting the divorce and ordering Ussery to pay Ruby maintenance in the amount of $495 per month. All real and personal properly (except Ussery’s personal effects), including Ussery’s pensions from Getty and Texaco, were awarded to his former *189spouse, as were the couple’s debts. Only the maintenance is at issue here; the other distribution is not. On April 16, 1993, Ussery filed an application for Medicaid benefits. On May 28, 1993, Ussery was notified that SRS had approved his Medicaid application and that his eligibility was effective as of April 1, 1993. Ussery’s only source of income is $1,060 per month from Social Security. SRS determined that Ussery’s share of his medical expenses, the “patient liability” or “patient obligation,” was $934.60 per month for April and May and thereafter $970.60 per month. Ussery’s combined monthly patient liability of $970.60 and monthly maintenance obligation of $495 exceed his monthly income of $1,060. Ussery exhausted his administrative remedies in seeking to reduce his patient liability, but his efforts failed. He then filed a petition for judicial review in the district court. The district court held that SRS had erroneously interpreted the law in failing to deduct the court-ordered support obligation from Ussery’s “available income.” The court declined to address a constitutional argument (denial of equal protection) made by Usseiy. The court ordered SRS to recalculate Ussery’s patient obligation by deducting the court-ordered support. SRS timely appealed to the Court of Appeals. In his appellate brief, Ussery asked the Court of Appeals to address the constitutional argument not addressed by the district court. Upon motion by SRS, the Court of Appeals issued an order striking Ussery’s appellate argument concerning the constitutional issue. Thereafter, the appeal was transferred to this court on this court’s own motion pursuant to K.S.A. 20-3018(c). Our standard of judicial review of an agency action under the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 et seq., is statutorily defined. Among the grounds for relief are that the agency has erroneously interpreted or applied the law or that the agency action, or the statute or rule and regulation upon which the agency action is based, is unconstitutional on its face or as applied. K.S.A. 77-621(c)(1), (4). Background on the federal Medicaid program was recently stated by the Second Circuit Court of Appeals in Himes v. Shalala, 999 F.2d 684, 686 (2d Cir. 1993): *190“The Medicaid program was enacted in 1965 as Title XIX of the Social Security Act, 42 U.S.C. §§ 1396, 1396a-u (1988) (‘Medicaid Act’ or ‘the Act’), as a cooperative federal-state program designed to provide health care to needy individuals. Although a state is not required to participate in the Medicaid program, once it chooses to do so it must develop a plan that complies with the Medicaid statute and the Secretary’s regulations. [Citation omitted.] “A state, in administering its Medicaid program, must set reasonable standards for assessing an individual’s income and resources in determining eligibility for, and the extent of, medical assistance under the program. See 42 U.S.C. §1396a(a)(17). Those standards must take into account ‘only such income and resources as are, as determined in accordance with standards prescribed by file Secretary [of Health and Human Services], available to die applicant or recipient.’ 42 U.S.C. §1396a(a)(17)(B) (emphasis added).” Kansas has elected to participate in the Medicaid program. K.S.A. 39-708c gives the Secretary of SRS the power and duty to determine general policies relating to all forms of social welfare and to adopt rules and regulations therefor. K.S.A. 39-708c(s) requires the Secretary of SRS to develop plans financed by federal funds and/or state funds for providing medical care for needy persons. Pursuant to that statute, the Secretary of SRS adopted regulations found at K.A.R. 30-6-34 et seq. SRS has also published the Kansas Public Assistance Manual (KPAM), detailing Medicaid eligibility and benefits. Both parties agree that Ussery was determined to be eligible for Medicaid benefits. The issue here is not whether Ussery is eligible for benefits, but rather the extent of his patient liability. “Patient liability” for Medicaid care is defined as “the amount that the individual is required to pay towards the cost of care which the individual receives in an institutional arrangement. Patient liability is based on the amount of applicable income that exceeds the protected income level in the eligibility base period.” K.A.R. 30-6-53(a)(3) (1993 Supp.). Ussery contends that the court-ordered support obligation to his ex-wife should reduce his patient liability. The trial court cited three statutes and regulations in its decision giving Ussery a reduction for the maintenance order. First, the court cited 42 U.S.C. §1396a(a)(17)(B) (1988) in framing the issue, the text of which is quoted here: “(a) A State plan for medical assistance must— *191(17) except as provided in subsections (1)(3), (m)(3), and (m)(4) of this section, include reasonable standards ... for determining eligibility for and the extent of medical assistance under the plan which . . . (B) provide for taking into account onltj such income and resources as are, as determined in accordance with standards prescribed by the Secretary, available to the applicant or recipient and . . . as would not be disregarded . . . in determining his eligibility for such aid, assistance, or benefits . . . .” (Emphasis added.) The trial court also cited 42 U.S.C. § 1396r-5 (1988) and K.A.R. 30-6-106(m)(2) and (3) (1993 Supp.). These provisions grant a monthly income allowance for the community spouse or family of an institutionalized spouse; the amount of that allowance shall not be considered in calculating the amount of patient liability. The trial court’s reasoning consists primarily of quotes from Emerson v. Wynia, 754 F. Supp. 705 (D. Minn. 1991). That case was reversed by the Eighth Circuit Court of Appeals in Emerson v. Steffen, 959 F.2d 119 (8th Cir. 1992). The trial court also cited Cervantez v. Sullivan, 719 F. Supp. 899 (E.D. Cal. 1989), also reversed on appeal in Cervantez v. Sullivan, 963 F.2d 229 (9th Cir. 1992). By adopting a medical assistance benefits plan pursuant to 42 U.S.C. § 1396a(a)(17)(B), the Kansas Medicaid plan must take “into account only such income and resources as are, as determined in accordance with standards prescribed by the Secretary, available to the applicant or recipient,” in determining Medicaid eligibility or the extent of benefits. (Emphasis added.) The Kansas plan must be in conformity with federal guidelines on Medicaid. See Himes v. Shalala, 999 F.2d at 686. Ussery argues for a reduction in his patient liability for the court-ordered maintenance. He does not point to, and we are unable to find, any federal statute or regulation granting an explicit exemption from available income for court-ordered maintenance payments. Usseiy’s argument, however, is that Kansas may adopt a less-restrictive definition of available income. Yet Ussery points to no Kansas statute or regulation granting the exemption he seeks. In arguing that there is no deduction from available income for court-ordered support payments such as the maintenance Ussery *192was ordered to pay to his former wife, SRS cites the following cases for support: Himes, 999 F.2d 684 (limits on extent state’s definition of “available income” can differ from federal guidelines); Peura by and through Herman v. Mala, 977 F.2d 484 (9th Cir. 1992) (Alaska permitted a deduction for a portion, but not all, of child support payments; a portion of income used to pay court-ordered child support was “available”); Cervantez v. Sullivan, 963 F.2d 229 (SSI regulation which disallowed deduction from income for garnished child support payments in computing eligibility level was valid); Emerson v. Steffen, 959 F.2d 119 (“available income” for Medicaid eligibility need not be reduced by child support payments); Clark v. Commissioner, 209 Conn. 390, 551 A.2d 729 (1988) (“available income” for determining eligibility level included amount nursing home resident was ordered to pay his at-home spouse as separate maintenance where there was no divorce sought); Crider v. State, DHRS, 555 So. 2d 408 (Fla. Dist. App. 1989) (“available income” for Medicaid eligibility included support ordered paid to spouse under temporary court order); Clark v. Iowa Department of Human Services, 513 N.W.2d 710 (Iowa 1994) (“available income” for eligibility purposes determined as of its receipt, not after reduction by spousal support payments; acknowledged purpose of the separate maintenance was to reduce income below the eligibility limit); Estate of G.E. v. Div. of Med. Assist., 271 N.J. Super. 229, 638 A.2d 833 (1994) (inclusion as “available income” for Medicaid eligibility the portion of husband’s pension that a QDRO ordered directly paid to the wife was valid). These cases primarily relate to Medicaid eligibility, rather than to determining the level of benefits or the amount of patient liability. That distinction is irrelevant for our purposes. A state could adopt one income methodology for determining eligibility and another for determining the extent of benefits (as long as both methodologies were within the overall limits of the federal scheme if the state wanted to receive full federal participation). Because Usseiy concedes that the Secretary of Health and Human Services and the federal guidelines grant no exemption from available income for court-ordered maintenance payments, the next question becomes whether Kansas has adopted a less restric*193tive definition of available income which does grant a deduction for such payments. The cases from other jurisdictions cited above by SRS provide no insight into what the Kansas regulations permit. K.A.R. 30-6-106(m)(2) (1993 Supp.) provides in pertinent part as follows: “(m) When one spouse enters an institutional living arrangement and the other spouse remains in the community, and an application for medical assistance is made on behalf of the institutionalized spouse, the following provisions apply: (2) A monthly income allowance for the community spouse shall be deducted from the income of the institutionalized spouse in determining the amount of patient liability for persons in institutional living arrangements . . . .The income allowance for the community spouse, when added to the income already available to that spouse, shall not exceed 150 percent of the official federal poverty income guideline for two persons plus the amount of any excess shelter allowance. . . . The maximum monthly income allowance which can be provided under this provision shall be $1,769.00. The $1,769.00 limitation shall be increased annually to reflect the percentage increase in the' consumer price index for all urban consumers. If a greater income allowance is provided under a court order of support or through the fair hearing process, that amount shall be used in place of the above limits.” See also KPAM § 5754.2(1) concerning the community spouse income allowance. The term “community spouse” is not defined. However, KPAM § 5754 indicates that spousal impoverishment provisions relate to a “married couple.” The term “spouse” must be given its common meaning. “Spouse” means one’s husband or wife. Black’s Law Dictionary 1402 (6th ed. 1990). “Husband” means a married man who has a lawful wife, and “wife” means “[a] woman united to a man by marriage; a woman who has a husband living and undivorced.” (Emphasis added.) Black’s Law Dictionary 741, 1598 (6th ed. 1990). It is undisputed that William and Ruby Ussery were divorced; therefore, Ruby is not William Ussery’s “community spouse.” While K.A.R. 30-6-106(m)(2) (1993 Supp.) provides an income allowance for a community spouse, it does not provide an allowance for a former spouse. In its opinion, the district court here stated: *194“The Administrative Law Judge [ALJ] rendered a decision dated August 11, 1993, that concluded that -K.A.R. 30-6-106(m)(2) defines available income such that income ordered to be paid for spouses is not considered available income, however income ordered by a Court to be paid to an ex-wife is still available income for the Appellant.” ' The ALJ’s decision is not included in the record on appeal, so this court cannot know the ALJ’s reasoning. The ALJ’s conclusion, however, is supported by the plain language of the regulation. An ex-wife is not a “community spouse”; therefore, K.A.R. 30-6-106(m)(2) (1993 Supp.) provides no reduction of available income for court-ordered maintenance paid to an ex-wife. While the courts of this state need not always accept an administrative agency’s interpretation of its own regulations, it has long been recognized that in order to insure effectiveness and uniformity an agency’s interpretation of its regulations will be given great weight and, in some cases, controlling weight. Hickey v. Kansas Corporation Comm’n, 244 Kan. 71, 76, 765 P.2d 1108 (1988). It is a fundamental rule of statutory construction that when a statute is plain and unambiguous, this court must give effect to the intention of the legislature as expressed rather than determine what the law should or should not be. Martindale v. Tenny, 250 Kan. 621, Syl. ¶ 2, 829 P.2d 561 (1992). This same rule of construction should apply to construing regulations, including the regulation at issue here. The plain language of K.A.R. 30-6-106(m)(2) (1993 Supp.) grants an allowance only to a “community spouse.” It grants no similar allowance to an ex-spouse, nor does any other provision grant a similar allowance to an ex-spouse. Ussery has not shown that SRS erroneously interpreted or applied the law in denying him an allowance for the court-ordered maintenance payments to be made to his ex-wife. The district court erred in so holding. Ussery does urge this court to find that K.A.R. 30-6-106(m)(2) (1993 Supp.) is violative of equal protection principles if it is construed to provide an allowance for a current spouse but not for an ex-spouse. As stated earlier, the district court did not reach this issue, and the Court of Appeals issued an order striking the argu*195ment from appellate consideration. This court will not address the argument as it was not considered by the trial court. The trial court erred in holding that Ussery was entitled to a reduction in his patient liability calculation based on the court-ordered maintenance to be paid to his ex-wife. The trial court may consider Ussery s equal protection argument since it was not briefed and argued at the appellate level through no fault of the parties. Reversed and remanded. | 09-08-2022 | [
"The opinion of the court was delivered by Abbott, J.: This case involves judicial review of an agency action. In calculating William Ussery’s patient liability for Medicaid benefits, the Kansas Department of Social and Rehabilitation Services (SRS) included as part of his income a court-ordered support obligation to his former spouse. On Ussery’s petition for judicial review, the district court reversed the agency’s determination that the court-ordered support obligation was available income. The real issue before this court is whether maintenance paid to a former spouse is treated differently than voluntary support or court-ordered maintenance for a current spouse. The facts are undisputed. On January 4, 1993, William Ussery’s wife, Ruby, filed a petition for divorce. On that day, the district court with jurisdiction over the divorce proceedings ordered William Ussery to pay temporary maintenance of $500 per month. On January 17,1993, Ussery was hospitalized and then was discharged to a nursing home on March 11, 1993, where he remains.",
"Ussery’s daughter was appointed as his guardian and conservator. On April 14, 1993, a Journal Entry of Judgment and Decree of Divorce was entered granting the divorce and ordering Ussery to pay Ruby maintenance in the amount of $495 per month. All real and personal properly (except Ussery’s personal effects), including Ussery’s pensions from Getty and Texaco, were awarded to his former *189spouse, as were the couple’s debts. Only the maintenance is at issue here; the other distribution is not. On April 16, 1993, Ussery filed an application for Medicaid benefits. On May 28, 1993, Ussery was notified that SRS had approved his Medicaid application and that his eligibility was effective as of April 1, 1993. Ussery’s only source of income is $1,060 per month from Social Security. SRS determined that Ussery’s share of his medical expenses, the “patient liability” or “patient obligation,” was $934.60 per month for April and May and thereafter $970.60 per month. Ussery’s combined monthly patient liability of $970.60 and monthly maintenance obligation of $495 exceed his monthly income of $1,060.",
"Ussery exhausted his administrative remedies in seeking to reduce his patient liability, but his efforts failed. He then filed a petition for judicial review in the district court. The district court held that SRS had erroneously interpreted the law in failing to deduct the court-ordered support obligation from Ussery’s “available income.” The court declined to address a constitutional argument (denial of equal protection) made by Usseiy. The court ordered SRS to recalculate Ussery’s patient obligation by deducting the court-ordered support. SRS timely appealed to the Court of Appeals.",
"In his appellate brief, Ussery asked the Court of Appeals to address the constitutional argument not addressed by the district court. Upon motion by SRS, the Court of Appeals issued an order striking Ussery’s appellate argument concerning the constitutional issue. Thereafter, the appeal was transferred to this court on this court’s own motion pursuant to K.S.A. 20-3018(c). Our standard of judicial review of an agency action under the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 et seq., is statutorily defined. Among the grounds for relief are that the agency has erroneously interpreted or applied the law or that the agency action, or the statute or rule and regulation upon which the agency action is based, is unconstitutional on its face or as applied. K.S.A. 77-621(c)(1), (4). Background on the federal Medicaid program was recently stated by the Second Circuit Court of Appeals in Himes v. Shalala, 999 F.2d 684, 686 (2d Cir. 1993): *190“The Medicaid program was enacted in 1965 as Title XIX of the Social Security Act, 42 U.S.C.",
"§§ 1396, 1396a-u (1988) (‘Medicaid Act’ or ‘the Act’), as a cooperative federal-state program designed to provide health care to needy individuals. Although a state is not required to participate in the Medicaid program, once it chooses to do so it must develop a plan that complies with the Medicaid statute and the Secretary’s regulations. [Citation omitted.] “A state, in administering its Medicaid program, must set reasonable standards for assessing an individual’s income and resources in determining eligibility for, and the extent of, medical assistance under the program. See 42 U.S.C.",
"§1396a(a)(17). Those standards must take into account ‘only such income and resources as are, as determined in accordance with standards prescribed by file Secretary [of Health and Human Services], available to die applicant or recipient.’ 42 U.S.C. §1396a(a)(17)(B) (emphasis added).” Kansas has elected to participate in the Medicaid program. K.S.A. 39-708c gives the Secretary of SRS the power and duty to determine general policies relating to all forms of social welfare and to adopt rules and regulations therefor. K.S.A. 39-708c(s) requires the Secretary of SRS to develop plans financed by federal funds and/or state funds for providing medical care for needy persons. Pursuant to that statute, the Secretary of SRS adopted regulations found at K.A.R. 30-6-34 et seq. SRS has also published the Kansas Public Assistance Manual (KPAM), detailing Medicaid eligibility and benefits.",
"Both parties agree that Ussery was determined to be eligible for Medicaid benefits. The issue here is not whether Ussery is eligible for benefits, but rather the extent of his patient liability. “Patient liability” for Medicaid care is defined as “the amount that the individual is required to pay towards the cost of care which the individual receives in an institutional arrangement. Patient liability is based on the amount of applicable income that exceeds the protected income level in the eligibility base period.” K.A.R. 30-6-53(a)(3) (1993 Supp.). Ussery contends that the court-ordered support obligation to his ex-wife should reduce his patient liability. The trial court cited three statutes and regulations in its decision giving Ussery a reduction for the maintenance order.",
"First, the court cited 42 U.S.C. §1396a(a)(17)(B) (1988) in framing the issue, the text of which is quoted here: “(a) A State plan for medical assistance must— *191(17) except as provided in subsections (1)(3), (m)(3), and (m)(4) of this section, include reasonable standards ... for determining eligibility for and the extent of medical assistance under the plan which . . . (B) provide for taking into account onltj such income and resources as are, as determined in accordance with standards prescribed by the Secretary, available to the applicant or recipient and . . . as would not be disregarded . . . in determining his eligibility for such aid, assistance, or benefits .",
". . .” (Emphasis added.) The trial court also cited 42 U.S.C. § 1396r-5 (1988) and K.A.R. 30-6-106(m)(2) and (3) (1993 Supp.). These provisions grant a monthly income allowance for the community spouse or family of an institutionalized spouse; the amount of that allowance shall not be considered in calculating the amount of patient liability. The trial court’s reasoning consists primarily of quotes from Emerson v. Wynia, 754 F. Supp. 705 (D. Minn. 1991). That case was reversed by the Eighth Circuit Court of Appeals in Emerson v. Steffen, 959 F.2d 119 (8th Cir.",
"1992). The trial court also cited Cervantez v. Sullivan, 719 F. Supp. 899 (E.D. Cal. 1989), also reversed on appeal in Cervantez v. Sullivan, 963 F.2d 229 (9th Cir. 1992). By adopting a medical assistance benefits plan pursuant to 42 U.S.C. § 1396a(a)(17)(B), the Kansas Medicaid plan must take “into account only such income and resources as are, as determined in accordance with standards prescribed by the Secretary, available to the applicant or recipient,” in determining Medicaid eligibility or the extent of benefits. (Emphasis added.) The Kansas plan must be in conformity with federal guidelines on Medicaid. See Himes v. Shalala, 999 F.2d at 686. Ussery argues for a reduction in his patient liability for the court-ordered maintenance. He does not point to, and we are unable to find, any federal statute or regulation granting an explicit exemption from available income for court-ordered maintenance payments.",
"Usseiy’s argument, however, is that Kansas may adopt a less-restrictive definition of available income. Yet Ussery points to no Kansas statute or regulation granting the exemption he seeks. In arguing that there is no deduction from available income for court-ordered support payments such as the maintenance Ussery *192was ordered to pay to his former wife, SRS cites the following cases for support: Himes, 999 F.2d 684 (limits on extent state’s definition of “available income” can differ from federal guidelines); Peura by and through Herman v. Mala, 977 F.2d 484 (9th Cir. 1992) (Alaska permitted a deduction for a portion, but not all, of child support payments; a portion of income used to pay court-ordered child support was “available”); Cervantez v. Sullivan, 963 F.2d 229 (SSI regulation which disallowed deduction from income for garnished child support payments in computing eligibility level was valid); Emerson v. Steffen, 959 F.2d 119 (“available income” for Medicaid eligibility need not be reduced by child support payments); Clark v. Commissioner, 209 Conn. 390, 551 A.2d 729 (1988) (“available income” for determining eligibility level included amount nursing home resident was ordered to pay his at-home spouse as separate maintenance where there was no divorce sought); Crider v. State, DHRS, 555 So. 2d 408 (Fla. Dist. App. 1989) (“available income” for Medicaid eligibility included support ordered paid to spouse under temporary court order); Clark v. Iowa Department of Human Services, 513 N.W.2d 710 (Iowa 1994) (“available income” for eligibility purposes determined as of its receipt, not after reduction by spousal support payments; acknowledged purpose of the separate maintenance was to reduce income below the eligibility limit); Estate of G.E.",
"v. Div. of Med. Assist., 271 N.J. Super. 229, 638 A.2d 833 (1994) (inclusion as “available income” for Medicaid eligibility the portion of husband’s pension that a QDRO ordered directly paid to the wife was valid). These cases primarily relate to Medicaid eligibility, rather than to determining the level of benefits or the amount of patient liability. That distinction is irrelevant for our purposes. A state could adopt one income methodology for determining eligibility and another for determining the extent of benefits (as long as both methodologies were within the overall limits of the federal scheme if the state wanted to receive full federal participation). Because Usseiy concedes that the Secretary of Health and Human Services and the federal guidelines grant no exemption from available income for court-ordered maintenance payments, the next question becomes whether Kansas has adopted a less restric*193tive definition of available income which does grant a deduction for such payments. The cases from other jurisdictions cited above by SRS provide no insight into what the Kansas regulations permit.",
"K.A.R. 30-6-106(m)(2) (1993 Supp.) provides in pertinent part as follows: “(m) When one spouse enters an institutional living arrangement and the other spouse remains in the community, and an application for medical assistance is made on behalf of the institutionalized spouse, the following provisions apply: (2) A monthly income allowance for the community spouse shall be deducted from the income of the institutionalized spouse in determining the amount of patient liability for persons in institutional living arrangements . . . .The income allowance for the community spouse, when added to the income already available to that spouse, shall not exceed 150 percent of the official federal poverty income guideline for two persons plus the amount of any excess shelter allowance. . .",
". The maximum monthly income allowance which can be provided under this provision shall be $1,769.00. The $1,769.00 limitation shall be increased annually to reflect the percentage increase in the' consumer price index for all urban consumers. If a greater income allowance is provided under a court order of support or through the fair hearing process, that amount shall be used in place of the above limits.” See also KPAM § 5754.2(1) concerning the community spouse income allowance. The term “community spouse” is not defined. However, KPAM § 5754 indicates that spousal impoverishment provisions relate to a “married couple.” The term “spouse” must be given its common meaning.",
"“Spouse” means one’s husband or wife. Black’s Law Dictionary 1402 (6th ed. 1990). “Husband” means a married man who has a lawful wife, and “wife” means “[a] woman united to a man by marriage; a woman who has a husband living and undivorced.” (Emphasis added.) Black’s Law Dictionary 741, 1598 (6th ed. 1990). It is undisputed that William and Ruby Ussery were divorced; therefore, Ruby is not William Ussery’s “community spouse.” While K.A.R. 30-6-106(m)(2) (1993 Supp.) provides an income allowance for a community spouse, it does not provide an allowance for a former spouse. In its opinion, the district court here stated: *194“The Administrative Law Judge [ALJ] rendered a decision dated August 11, 1993, that concluded that -K.A.R.",
"30-6-106(m)(2) defines available income such that income ordered to be paid for spouses is not considered available income, however income ordered by a Court to be paid to an ex-wife is still available income for the Appellant.” ' The ALJ’s decision is not included in the record on appeal, so this court cannot know the ALJ’s reasoning. The ALJ’s conclusion, however, is supported by the plain language of the regulation. An ex-wife is not a “community spouse”; therefore, K.A.R. 30-6-106(m)(2) (1993 Supp.) provides no reduction of available income for court-ordered maintenance paid to an ex-wife. While the courts of this state need not always accept an administrative agency’s interpretation of its own regulations, it has long been recognized that in order to insure effectiveness and uniformity an agency’s interpretation of its regulations will be given great weight and, in some cases, controlling weight.",
"Hickey v. Kansas Corporation Comm’n, 244 Kan. 71, 76, 765 P.2d 1108 (1988). It is a fundamental rule of statutory construction that when a statute is plain and unambiguous, this court must give effect to the intention of the legislature as expressed rather than determine what the law should or should not be. Martindale v. Tenny, 250 Kan. 621, Syl. ¶ 2, 829 P.2d 561 (1992). This same rule of construction should apply to construing regulations, including the regulation at issue here. The plain language of K.A.R. 30-6-106(m)(2) (1993 Supp.) grants an allowance only to a “community spouse.” It grants no similar allowance to an ex-spouse, nor does any other provision grant a similar allowance to an ex-spouse.",
"Ussery has not shown that SRS erroneously interpreted or applied the law in denying him an allowance for the court-ordered maintenance payments to be made to his ex-wife. The district court erred in so holding. Ussery does urge this court to find that K.A.R. 30-6-106(m)(2) (1993 Supp.) is violative of equal protection principles if it is construed to provide an allowance for a current spouse but not for an ex-spouse. As stated earlier, the district court did not reach this issue, and the Court of Appeals issued an order striking the argu*195ment from appellate consideration. This court will not address the argument as it was not considered by the trial court. The trial court erred in holding that Ussery was entitled to a reduction in his patient liability calculation based on the court-ordered maintenance to be paid to his ex-wife.",
"The trial court may consider Ussery s equal protection argument since it was not briefed and argued at the appellate level through no fault of the parties. Reversed and remanded."
] | https://www.courtlistener.com/api/rest/v3/opinions/7921546/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
REASONS FOR ALLOWANCE
The following is an examiner's statement of reasons for allowance: The present invention pertains to varying embodiments for a method and system of diagnosing a disease using a neural network. The closest prior art, Burckhardt (USPAP 2005/0065,421), shows a similar system, in which, a system and method of obtaining serial biochemical, anatomical or physiological in vivo measurements of disease from one or more medical images of a patient before, during and after treatment, and measuring extent and severity of the disease is provided. However, Burckhardt fails to address: “for storing a micro-neural network for receiving a first tile included in the biometric image through a first input layer, the micro-neural network including a plurality of first layers and an output layer, and a macro-neural network for receiving a macro-tile including the first tile and at least one or more second tiles adjacent to the first tile through a second input layer, the macro-neural network including a plurality of second layers and the output layer and training the micro-neural network and the macro-neural network using annotation information annotated in the first tile to correspond to the output layer, wherein the output layer includes at least one state channel indicating a state of a disease of a biological tissue corresponding to the first tile”. These distinct features have been added to each independent claim and renders them allowable. Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled "Comments on Statement of Reasons for Allowance." Any inquiry concerning this communication or earlier communications from the examiner should be directed to AMIR ALAVI whose telephone number is (571)272-7386. The examiner can normally be reached on M-F from 8:00-4:30. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Vu Le can be reached on (571)272-7332. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see https://ppair-my.uspto.gov/pair/PrivatePair.
Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/AMIR ALAVI/Primary Examiner, Art Unit 2668 Wednesday, March 31, 2021 | 2021-04-06T09:45:44 | [
"Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . REASONS FOR ALLOWANCE The following is an examiner's statement of reasons for allowance: The present invention pertains to varying embodiments for a method and system of diagnosing a disease using a neural network. The closest prior art, Burckhardt (USPAP 2005/0065,421), shows a similar system, in which, a system and method of obtaining serial biochemical, anatomical or physiological in vivo measurements of disease from one or more medical images of a patient before, during and after treatment, and measuring extent and severity of the disease is provided. However, Burckhardt fails to address: “for storing a micro-neural network for receiving a first tile included in the biometric image through a first input layer, the micro-neural network including a plurality of first layers and an output layer, and a macro-neural network for receiving a macro-tile including the first tile and at least one or more second tiles adjacent to the first tile through a second input layer, the macro-neural network including a plurality of second layers and the output layer and training the micro-neural network and the macro-neural network using annotation information annotated in the first tile to correspond to the output layer, wherein the output layer includes at least one state channel indicating a state of a disease of a biological tissue corresponding to the first tile”.",
"These distinct features have been added to each independent claim and renders them allowable. Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled \"Comments on Statement of Reasons for Allowance.\" Any inquiry concerning this communication or earlier communications from the examiner should be directed to AMIR ALAVI whose telephone number is (571)272-7386. The examiner can normally be reached on M-F from 8:00-4:30. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Vu Le can be reached on (571)272-7332.",
"The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see https://ppair-my.uspto.gov/pair/PrivatePair. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000. /AMIR ALAVI/Primary Examiner, Art Unit 2668 Wednesday, March 31, 2021"
] | https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2021-04-11.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
SECURITIES AND EXCHANGE COMMISSION Washington, D.C.20549 FORM 6-K REPORTOF FOREIGN PRIVATE ISSUER Pursuant to Rule 13a-16 or 15d-16 of the Securities Exchange Act of 1934 For the month of October 2014 Commission File Number: 001-36073 Enzymotec Ltd. (Translation of registrant’s name into English) Sagi 2000 Industrial Area P.O. Box 6 Migdal Ha’Emeq 2310001, Israel (Address of principal executive offices) Indicate by check mark whether the registrant files or will file annual reports under cover Form 20-F or Form 40-F. Form 20-FxForm 40-Fo Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1): Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(7): Indicate by check mark whether by furnishing the information contained in this Form, the registrant is also thereby furnishing the information to the Commission pursuant to Rule 12g3-2(b) under the Securities Exchange Act of 1934. YesoNo x If “Yes” is marked, indicate below the file number assigned to the registrant in connection with Rule 12g3-2(b): CONTENTS On September 29, 2014, Enzymotec Ltd. (“we,” or the “Company”) held an annual general meeting of shareholders (the “Meeting”).At the Meeting, our shareholders voted on two proposals, each of which is described in more detail in our proxy statement for the Meeting that was attached as Exhibit 99.1 to a Report of Foreign Private Issuer on Form 6-K that we furnished to the Securities and Exchange Commission on September 3, 2014. The voting results of the proposals presented at the Meeting, based on the presence in person or by proxy of holders of 18,329,470 (82.88%) of our outstanding ordinary shares on the record date of August 25, 2014, are described below. Proposal 1: To reelect Mr. Yossi Peled to serve as a Class I director of the Company for a three year term. For Against Abstain Broker Non-Votes Proposal 2: To approve the reappointment of Kesselman & Kesselman, a member of PricewaterhouseCoopers International Limited, as the Company's independent, external auditors for the year ending December 31, 2014 and until the next annual general meeting of shareholders, and to authorize the Company’s Board of Directors (with power of delegation to its Audit Committee) to set the fees to be paid to such auditors. For Against Abstain Broker Non-Votes 0 Based on the above voting results and the majority requirements for the proposals under the Israeli Companies Law 5759-1999 and the Company’s amended and restated articles of association, the above proposals were approved at the Meeting. \ SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized. EYZMOTEC LTD. By: /s/Oren Bryan Name: Oren Bryan Title: Chief Financial Officer Dated: October 1, 2014 | [
"SECURITIES AND EXCHANGE COMMISSION Washington, D.C.20549 FORM 6-K REPORTOF FOREIGN PRIVATE ISSUER Pursuant to Rule 13a-16 or 15d-16 of the Securities Exchange Act of 1934 For the month of October 2014 Commission File Number: 001-36073 Enzymotec Ltd. (Translation of registrant’s name into English) Sagi 2000 Industrial Area P.O. Box 6 Migdal Ha’Emeq 2310001, Israel (Address of principal executive offices) Indicate by check mark whether the registrant files or will file annual reports under cover Form 20-F or Form 40-F. Form 20-FxForm 40-Fo Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1): Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(7): Indicate by check mark whether by furnishing the information contained in this Form, the registrant is also thereby furnishing the information to the Commission pursuant to Rule 12g3-2(b) under the Securities Exchange Act of 1934. YesoNo x If “Yes” is marked, indicate below the file number assigned to the registrant in connection with Rule 12g3-2(b): CONTENTS On September 29, 2014, Enzymotec Ltd. (“we,” or the “Company”) held an annual general meeting of shareholders (the “Meeting”).At the Meeting, our shareholders voted on two proposals, each of which is described in more detail in our proxy statement for the Meeting that was attached as Exhibit 99.1 to a Report of Foreign Private Issuer on Form 6-K that we furnished to the Securities and Exchange Commission on September 3, 2014.",
"The voting results of the proposals presented at the Meeting, based on the presence in person or by proxy of holders of 18,329,470 (82.88%) of our outstanding ordinary shares on the record date of August 25, 2014, are described below. Proposal 1: To reelect Mr. Yossi Peled to serve as a Class I director of the Company for a three year term. For Against Abstain Broker Non-Votes Proposal 2: To approve the reappointment of Kesselman & Kesselman, a member of PricewaterhouseCoopers International Limited, as the Company's independent, external auditors for the year ending December 31, 2014 and until the next annual general meeting of shareholders, and to authorize the Company’s Board of Directors (with power of delegation to its Audit Committee) to set the fees to be paid to such auditors. For Against Abstain Broker Non-Votes 0 Based on the above voting results and the majority requirements for the proposals under the Israeli Companies Law 5759-1999 and the Company’s amended and restated articles of association, the above proposals were approved at the Meeting. \\ SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.",
"EYZMOTEC LTD. By: /s/Oren Bryan Name: Oren Bryan Title: Chief Financial Officer Dated: October 1, 2014"
] | https://applica-public.s3-eu-west-1.amazonaws.com/contract-discovery/edgar.txt.xz | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
|
440 Pa. Superior Ct. 450 (1995) 655 A.2d 1035 DiLUCENTE CORPORATION and Allegheny Surety Co., Appellants, v. PENNSYLVANIA ROOFING CO., INC., and The American Arbitration Association, Appellees. Superior Court of Pennsylvania. Argued November 15, 1994. Decided January 31, 1995. Reargument Denied April 5, 1995. *452 Timothy P. O'Reilly, Pittsburgh, for appellants. Andrew L. Horvath, Pittsburgh, for appellees. Before ROWLEY, P.J., and HUDOCK and CERCONE, JJ. HUDOCK, Judge: This is an appeal from the order of the trial court which denied DiLucente Corporation's (DiLucente) motion for a preliminary injunction which sought to enjoin an arbitration hearing. We affirm. The underlying action arose from a contract dispute between a general contractor, DiLucente, and a subcontractor, Pennsylvania Roofing Co., Inc., also known as Pennsylvania Roofing Systems, Inc. (Roofing), relative to construction work performed by the latter pursuant to a contract dated November 1, 1993. The contract included an arbitration clause, which reads in pertinent part: ARBITRATION 30. In case of any dispute or disagreement under this agreement, or with respect to any other work performed on the job site, it is agreed that such dispute shall be submitted to the American Arbitration Association under the rules then pertaining to contractors or construction disputes. No law suit or any other action at law may be *453 substituted without first complying with the terms of this arbitration provision. Should any dispute or controversy whatsoever arise between the Contractor and Subcontractor, . . . then Subcontractor shall follow all of the provisions of the contract documents with respect to conditions precedent to the making of claims and shall give twenty (20) days written notice to Contractor of Subcontractor's intent to resort to legal action; in which case Contractor, by mailing a notice within said twenty (20) day period, may elect to require the said Subcontractor or parties who contract with him to proceed pursuant to the American Arbitration Association Construction Industry Rules, in which case the judgment and award rendered by the arbitrators may be entered in any court having jurisdiction thereof; and should Contractor not elect to proceed through American Arbitration Association Rules, the Subcontractor and parties who contract with him shall then be limited to an action at law initiated in either Allegheny County or the site where the project is to be constructed, at the election of the contractor. In any event, regardless of any election, Contractor may at any time demand that Subcontractor be limited to the type of action to which the Contractor is limited, whether legal or by arbitration, if the contractor avers that another party is liable over to him for claims by this Subcontractor. Contractor may initiate an action against the Subcontractor in arbitration, law, or equity, at its option, and Subcontractor agrees that the various courts located in Allegheny County, Pennsylvania, or the site where the project is located, at the election of the Contractor, shall have jurisdiction of both the person and matter alleged in any complaint, and any arbitration shall be within the Pittsburgh district, unless Contractor desires to file elsewhere. The Subcontractor shall carry on the work and maintain the progress scheduled during any arbitration proceedings, unless otherwise agreed by Subcontractor and Contractor in writing. Subcontract Agreement, 11/1/93, ¶ 30 (emphasis added). Pursuant to this clause, Roofing gave DiLucente written notice on February 2, 1994 of its intention to proceed to *454 arbitration if their dispute remained unresolved. On March 15, 1994, Roofing filed a Demand for Arbitration with the American Arbitration Association (AAA). By letter dated March 21, 1994, DiLucente raised a qualified objection to arbitration of the underlying dispute. By letter dated April 1, 1994, the AAA set a hearing date of May 25, 1994 on the underlying contractual dispute. On May 2, 1994, DiLucente filed a Complaint in Equity in the Court of Common Pleas of Allegheny County, at GD94-7283, seeking to stay the scheduled AAA arbitration proceeding. On May 6, 1994, Roofing filed preliminary objections to DiLucente's complaint. On May 13, 1994, DiLucente filed a motion for injunction seeking to enjoin arbitration proceedings. On that same day, oral argument was held before the trial court on Roofing's preliminary objections and DiLucente's motion for injunction, after which the trial judge denied DiLucente's motion. On May 19, 1994, DiLucente filed an appeal to this Court.[1] Before reaching the merits of DiLucente's appeal we must determine whether it is interlocutory. Roofing claims that the May 13, 1994 order appealed from was interlocutory since DiLucente's motion for preliminary injunction was more in the nature of a petition requesting a stay of arbitration. Roofing relies on prior case law which held that an order compelling arbitration and staying court action is interlocutory since it "forces the parties into, rather than out of, court." Gardner v. *455 Prudential Insurance Co., 332 Pa.Super. 358, 359, 481 A.2d 654, 655 (1984). We cannot agree with Roofing's analysis. DiLucente followed proper procedure when filing a motion for injunctive relief. This Court has previously held that a trial court possesses subject matter jurisdiction to issue injunctive relief enjoining arbitration, prior to a determination of whether the underlying dispute is arbitrable. Langston v. National Media Corporation, 420 Pa.Super. 611, 616-19, 617 A.2d 354, 357-58 (1992).[2] Having concluded that DiLucente could properly seek injunctive relief to enjoin the arbitration, we refer to Pa.R.A.P., Rule 311(a)(4), 42 Pa.C.S., which states that an appeal may be taken as of right from an order refusing an injunction. Accordingly, DiLucente's appeal is not interlocutory and we may now address whether the trial court properly denied the preliminary injunction. A preliminary injunction is an interim measure designed to preserve the status quo and protect the parties until a final hearing is held. Soja v. Factoryville Sportsmen's Club, 361 Pa.Super. 473, 477, 522 A.2d 1129, 1131 (1987). Injunctive relief is considered an extraordinary equitable remedy and may only be granted if the plaintiff has established a clear right to the relief requested. Id. The party seeking the injunction must establish that "there is an urgent necessity for interim relief before the case can be heard on the merits" and that immediate and irreparable harm, which cannot be compensated by damages, will result if the injunction is denied. *456 Id. Furthermore, the plaintiff must demonstrate that greater injury would result by refusing the preliminary injunction than by granting it. John G. Bryant Company, Inc. v. Sling Testing and Repair, Inc., 471 Pa. 1, 7, 369 A.2d 1164, 1167 (1977) (citation omitted). When reviewing the denial of a preliminary injunction, this Court will not inquire into the merits of a controversy, but will examine the record to determine if any apparently reasonable grounds exist for the trial court's action. S.D. Bowers, Inc. v. National Bank of the Commonwealth, 404 Pa.Super. 512, 513, 591 A.2d 324, 325 (1991). We will not reverse the trial court's order denying a preliminary injunction unless there has been a clear abuse of discretion or an error of law. Id. DiLucente must prove that it has a clear right to enjoin the arbitration proceeding before it is entitled to injunctive relief. Absent an express agreement between the parties to submit their disputes to arbitration, a court may not compel arbitration. Hoffman v. Gekoski, 250 Pa.Super. 49, 53, 378 A.2d 447, 448 (1977). Furthermore: When one party to an agreement to arbitrate seeks to enjoin the other from proceeding to arbitration, judicial inquiry is limited to the questions of whether an agreement to arbitrate was entered into and whether the dispute involved falls within the scope of the arbitration provision. In accordance with the general policy favoring the arbitration of contractual differences, an order enjoining arbitration of a particular grievance should not be granted unless it can be said with positive assurance that the agreement involved is not susceptible of an interpretation that covers the asserted dispute. Sanitary Sewer Authority of the Borough of Shickshinny v. Dial Associates Construction Group, Inc., 367 Pa.Super. 207, 210-11, 532 A.2d 862, 863-64 (1987) (citations omitted). In addition, when parties agree to arbitration in a clear and *457 unmistakable manner, the court will make every reasonable effort to favor such agreements. Hassler v. Columbia Gas Transmission Corporation, 318 Pa.Super. 302, 307, 464 A.2d 1354, 1357 (1983). In order to resolve whether DiLucente had a clear right to enjoin arbitration, we must examine the express language of the contract to ascertain the parties' intent. "Arbitrability of an issue is to be determined by the intention of the parties as ascertained in accordance with the rules governing contracts generally." PBS Coal, Inc. v. Hardhat Mining, Inc., 429 Pa.Super. 372, 377-78, 632 A.2d 903, 905 (1993). Moreover, "[t]o ascertain the intent of the parties, a court must first look to the four corners of the document the express language of the contract." Id. Paragraph 30 of the parties' contract provides that in case of any dispute between DiLucente and Roofing, the parties agree that "such dispute shall be submitted to the American Arbitration Association." (emphasis added). According to the plain meaning of this clause, DiLucente agreed that all claims arising out of the contract would be subject to arbitration. The remainder of the arbitration clause gives Roofing the option to file a lawsuit in the Court of Common Pleas of Allegheny County which DiLucente could accept or reject. In the event that Roofing chooses to file a legal action in court and it notifies DiLucente of its choice, DiLucente may disapprove of Roofing's choice and force Roofing to proceed in arbitration. We disagree with DiLucente's interpretation of the arbitration clause that "[t]he case goes to Court unless DiLucente elects otherwise." DiLucente's Brief, at p. 7. Our interpretation of the clause is that Roofing must submit its claim to arbitration unless it notifies and receives DiLucente's approval to pursue the claim in court. In the present case, Roofing did not choose the option of filing a lawsuit in court. Rather, it notified DiLucente that it *458 intended to file a demand for arbitration. According to the terms of the contract, DiLucente could not object to this choice. Only when Roofing sought to file a suit in court could DiLucente overrule its decision and force Roofing into arbitration. Based on the plain meaning of the arbitration clause, DiLucente agreed that Roofing must submit its contractual disputes to arbitration unless it first received DiLucente's approval to proceed in court. Therefore, we conclude that DiLucente is bound by the terms of the arbitration clause which it willingly entered. We conclude that the trial court was correct in denying DiLucente's request for injunctive relief since it was not clearly entitled to enjoin arbitration.[3] Order affirmed. NOTES [1] On May 25, 1994, and June 28, 1994, hearings were conducted by the AAA on the underlying contract dispute. An award in favor of Roofing and against DiLucente in the amount of $30,000 was entered on July 14, 1994. On August 15, 1994, DiLucente filed an application to vacate the arbitration award in the Court of Common Pleas of Allegheny County at GD94-13141. The next day, Roofing filed a petition to confirm the arbitration award and enter judgment in the Court of Common Pleas of Allegheny County at GD94-13141. On September 2, 1994, an order was entered consolidating the two actions and scheduling oral argument on both the application and petition for September 27, 1994. Thereafter, an order was entered staying all matters until the present appeal is determined. We note that these additional facts are not of record and cannot affect our decision on appeal. An appellate court may not consider any material submitted in a party's brief which has not been duly certified in the record. Starr v. Zdrok & Zdrok, P.C., 419 Pa.Super. 60, 64-65, 614 A.2d 1209, 1212 (1992). [2] We recognize that the contract in dispute in Langston was governed by the Uniform Arbitration Act, 42 Pa.C.S. § 7301 et seq. The contractual dispute in the present appeal, however, is governed by rules of common law arbitration since the parties' contract does not expressly provide for arbitration under the Uniform Act. See Dearry v. Aetna Life & Casualty Insurance Company, 415 Pa.Super. 634, 637, 610 A.2d 469, 471 (1992). We do not find that this distinction changes the decision in Langston. The trial court could properly grant DiLucente's motion for injunctive relief provided it established the prerequisites for such equitable relief. [3] Although we affirm the trial court's order denying DiLucente's motion for an injunction, we do so for a different reason. An appellate court is permitted to affirm the actions of a trial court for reasons other than those proffered by the trial court hearing such matter. Soloski v. Hetrick, 396 Pa.Super. 140, 154, n. 8, 578 A.2d 445, 453, n. 8 (1990). According to the trial court's interpretation of the arbitration clause, DiLucente had twenty days from the date it received Roofing's notice of intent to file a claim in arbitration to object to such forum. Since DiLucente failed to object to Roofing's decision to file a claim in arbitration within twenty days, it waived its right to challenge arbitration. Although we disagree with this interpretation, we reach the same result that DiLucente may not challenge Roofing's decision to file a claim in arbitration. | 10-30-2013 | [
"440 Pa. Superior Ct. 450 (1995) 655 A.2d 1035 DiLUCENTE CORPORATION and Allegheny Surety Co., Appellants, v. PENNSYLVANIA ROOFING CO., INC., and The American Arbitration Association, Appellees. Superior Court of Pennsylvania. Argued November 15, 1994. Decided January 31, 1995. Reargument Denied April 5, 1995. *452 Timothy P. O'Reilly, Pittsburgh, for appellants. Andrew L. Horvath, Pittsburgh, for appellees. Before ROWLEY, P.J., and HUDOCK and CERCONE, JJ. HUDOCK, Judge: This is an appeal from the order of the trial court which denied DiLucente Corporation's (DiLucente) motion for a preliminary injunction which sought to enjoin an arbitration hearing. We affirm.",
"The underlying action arose from a contract dispute between a general contractor, DiLucente, and a subcontractor, Pennsylvania Roofing Co., Inc., also known as Pennsylvania Roofing Systems, Inc. (Roofing), relative to construction work performed by the latter pursuant to a contract dated November 1, 1993. The contract included an arbitration clause, which reads in pertinent part: ARBITRATION 30. In case of any dispute or disagreement under this agreement, or with respect to any other work performed on the job site, it is agreed that such dispute shall be submitted to the American Arbitration Association under the rules then pertaining to contractors or construction disputes. No law suit or any other action at law may be *453 substituted without first complying with the terms of this arbitration provision. Should any dispute or controversy whatsoever arise between the Contractor and Subcontractor, . .",
". then Subcontractor shall follow all of the provisions of the contract documents with respect to conditions precedent to the making of claims and shall give twenty (20) days written notice to Contractor of Subcontractor's intent to resort to legal action; in which case Contractor, by mailing a notice within said twenty (20) day period, may elect to require the said Subcontractor or parties who contract with him to proceed pursuant to the American Arbitration Association Construction Industry Rules, in which case the judgment and award rendered by the arbitrators may be entered in any court having jurisdiction thereof; and should Contractor not elect to proceed through American Arbitration Association Rules, the Subcontractor and parties who contract with him shall then be limited to an action at law initiated in either Allegheny County or the site where the project is to be constructed, at the election of the contractor.",
"In any event, regardless of any election, Contractor may at any time demand that Subcontractor be limited to the type of action to which the Contractor is limited, whether legal or by arbitration, if the contractor avers that another party is liable over to him for claims by this Subcontractor. Contractor may initiate an action against the Subcontractor in arbitration, law, or equity, at its option, and Subcontractor agrees that the various courts located in Allegheny County, Pennsylvania, or the site where the project is located, at the election of the Contractor, shall have jurisdiction of both the person and matter alleged in any complaint, and any arbitration shall be within the Pittsburgh district, unless Contractor desires to file elsewhere. The Subcontractor shall carry on the work and maintain the progress scheduled during any arbitration proceedings, unless otherwise agreed by Subcontractor and Contractor in writing.",
"Subcontract Agreement, 11/1/93, ¶ 30 (emphasis added). Pursuant to this clause, Roofing gave DiLucente written notice on February 2, 1994 of its intention to proceed to *454 arbitration if their dispute remained unresolved. On March 15, 1994, Roofing filed a Demand for Arbitration with the American Arbitration Association (AAA). By letter dated March 21, 1994, DiLucente raised a qualified objection to arbitration of the underlying dispute. By letter dated April 1, 1994, the AAA set a hearing date of May 25, 1994 on the underlying contractual dispute. On May 2, 1994, DiLucente filed a Complaint in Equity in the Court of Common Pleas of Allegheny County, at GD94-7283, seeking to stay the scheduled AAA arbitration proceeding. On May 6, 1994, Roofing filed preliminary objections to DiLucente's complaint. On May 13, 1994, DiLucente filed a motion for injunction seeking to enjoin arbitration proceedings. On that same day, oral argument was held before the trial court on Roofing's preliminary objections and DiLucente's motion for injunction, after which the trial judge denied DiLucente's motion. On May 19, 1994, DiLucente filed an appeal to this Court.",
"[1] Before reaching the merits of DiLucente's appeal we must determine whether it is interlocutory. Roofing claims that the May 13, 1994 order appealed from was interlocutory since DiLucente's motion for preliminary injunction was more in the nature of a petition requesting a stay of arbitration. Roofing relies on prior case law which held that an order compelling arbitration and staying court action is interlocutory since it \"forces the parties into, rather than out of, court.\" Gardner v. *455 Prudential Insurance Co., 332 Pa.Super. 358, 359, 481 A.2d 654, 655 (1984). We cannot agree with Roofing's analysis. DiLucente followed proper procedure when filing a motion for injunctive relief. This Court has previously held that a trial court possesses subject matter jurisdiction to issue injunctive relief enjoining arbitration, prior to a determination of whether the underlying dispute is arbitrable. Langston v. National Media Corporation, 420 Pa.Super.",
"611, 616-19, 617 A.2d 354, 357-58 (1992). [2] Having concluded that DiLucente could properly seek injunctive relief to enjoin the arbitration, we refer to Pa.R.A.P., Rule 311(a)(4), 42 Pa.C.S., which states that an appeal may be taken as of right from an order refusing an injunction. Accordingly, DiLucente's appeal is not interlocutory and we may now address whether the trial court properly denied the preliminary injunction. A preliminary injunction is an interim measure designed to preserve the status quo and protect the parties until a final hearing is held. Soja v. Factoryville Sportsmen's Club, 361 Pa.Super. 473, 477, 522 A.2d 1129, 1131 (1987). Injunctive relief is considered an extraordinary equitable remedy and may only be granted if the plaintiff has established a clear right to the relief requested.",
"Id. The party seeking the injunction must establish that \"there is an urgent necessity for interim relief before the case can be heard on the merits\" and that immediate and irreparable harm, which cannot be compensated by damages, will result if the injunction is denied. *456 Id. Furthermore, the plaintiff must demonstrate that greater injury would result by refusing the preliminary injunction than by granting it. John G. Bryant Company, Inc. v. Sling Testing and Repair, Inc., 471 Pa. 1, 7, 369 A.2d 1164, 1167 (1977) (citation omitted). When reviewing the denial of a preliminary injunction, this Court will not inquire into the merits of a controversy, but will examine the record to determine if any apparently reasonable grounds exist for the trial court's action.",
"S.D. Bowers, Inc. v. National Bank of the Commonwealth, 404 Pa.Super. 512, 513, 591 A.2d 324, 325 (1991). We will not reverse the trial court's order denying a preliminary injunction unless there has been a clear abuse of discretion or an error of law. Id. DiLucente must prove that it has a clear right to enjoin the arbitration proceeding before it is entitled to injunctive relief. Absent an express agreement between the parties to submit their disputes to arbitration, a court may not compel arbitration. Hoffman v. Gekoski, 250 Pa.Super. 49, 53, 378 A.2d 447, 448 (1977). Furthermore: When one party to an agreement to arbitrate seeks to enjoin the other from proceeding to arbitration, judicial inquiry is limited to the questions of whether an agreement to arbitrate was entered into and whether the dispute involved falls within the scope of the arbitration provision. In accordance with the general policy favoring the arbitration of contractual differences, an order enjoining arbitration of a particular grievance should not be granted unless it can be said with positive assurance that the agreement involved is not susceptible of an interpretation that covers the asserted dispute.",
"Sanitary Sewer Authority of the Borough of Shickshinny v. Dial Associates Construction Group, Inc., 367 Pa.Super. 207, 210-11, 532 A.2d 862, 863-64 (1987) (citations omitted). In addition, when parties agree to arbitration in a clear and *457 unmistakable manner, the court will make every reasonable effort to favor such agreements. Hassler v. Columbia Gas Transmission Corporation, 318 Pa.Super. 302, 307, 464 A.2d 1354, 1357 (1983). In order to resolve whether DiLucente had a clear right to enjoin arbitration, we must examine the express language of the contract to ascertain the parties' intent. \"Arbitrability of an issue is to be determined by the intention of the parties as ascertained in accordance with the rules governing contracts generally.\" PBS Coal, Inc. v. Hardhat Mining, Inc., 429 Pa.Super. 372, 377-78, 632 A.2d 903, 905 (1993). Moreover, \"[t]o ascertain the intent of the parties, a court must first look to the four corners of the document the express language of the contract.\"",
"Id. Paragraph 30 of the parties' contract provides that in case of any dispute between DiLucente and Roofing, the parties agree that \"such dispute shall be submitted to the American Arbitration Association.\" (emphasis added). According to the plain meaning of this clause, DiLucente agreed that all claims arising out of the contract would be subject to arbitration. The remainder of the arbitration clause gives Roofing the option to file a lawsuit in the Court of Common Pleas of Allegheny County which DiLucente could accept or reject.",
"In the event that Roofing chooses to file a legal action in court and it notifies DiLucente of its choice, DiLucente may disapprove of Roofing's choice and force Roofing to proceed in arbitration. We disagree with DiLucente's interpretation of the arbitration clause that \"[t]he case goes to Court unless DiLucente elects otherwise.\" DiLucente's Brief, at p. 7. Our interpretation of the clause is that Roofing must submit its claim to arbitration unless it notifies and receives DiLucente's approval to pursue the claim in court.",
"In the present case, Roofing did not choose the option of filing a lawsuit in court. Rather, it notified DiLucente that it *458 intended to file a demand for arbitration. According to the terms of the contract, DiLucente could not object to this choice. Only when Roofing sought to file a suit in court could DiLucente overrule its decision and force Roofing into arbitration.",
"Based on the plain meaning of the arbitration clause, DiLucente agreed that Roofing must submit its contractual disputes to arbitration unless it first received DiLucente's approval to proceed in court. Therefore, we conclude that DiLucente is bound by the terms of the arbitration clause which it willingly entered. We conclude that the trial court was correct in denying DiLucente's request for injunctive relief since it was not clearly entitled to enjoin arbitration. [3] Order affirmed. NOTES [1] On May 25, 1994, and June 28, 1994, hearings were conducted by the AAA on the underlying contract dispute. An award in favor of Roofing and against DiLucente in the amount of $30,000 was entered on July 14, 1994. On August 15, 1994, DiLucente filed an application to vacate the arbitration award in the Court of Common Pleas of Allegheny County at GD94-13141. The next day, Roofing filed a petition to confirm the arbitration award and enter judgment in the Court of Common Pleas of Allegheny County at GD94-13141. On September 2, 1994, an order was entered consolidating the two actions and scheduling oral argument on both the application and petition for September 27, 1994. Thereafter, an order was entered staying all matters until the present appeal is determined.",
"We note that these additional facts are not of record and cannot affect our decision on appeal. An appellate court may not consider any material submitted in a party's brief which has not been duly certified in the record. Starr v. Zdrok & Zdrok, P.C., 419 Pa.Super. 60, 64-65, 614 A.2d 1209, 1212 (1992). [2] We recognize that the contract in dispute in Langston was governed by the Uniform Arbitration Act, 42 Pa.C.S. § 7301 et seq. The contractual dispute in the present appeal, however, is governed by rules of common law arbitration since the parties' contract does not expressly provide for arbitration under the Uniform Act. See Dearry v. Aetna Life & Casualty Insurance Company, 415 Pa.Super. 634, 637, 610 A.2d 469, 471 (1992). We do not find that this distinction changes the decision in Langston. The trial court could properly grant DiLucente's motion for injunctive relief provided it established the prerequisites for such equitable relief. [3] Although we affirm the trial court's order denying DiLucente's motion for an injunction, we do so for a different reason.",
"An appellate court is permitted to affirm the actions of a trial court for reasons other than those proffered by the trial court hearing such matter. Soloski v. Hetrick, 396 Pa.Super. 140, 154, n. 8, 578 A.2d 445, 453, n. 8 (1990). According to the trial court's interpretation of the arbitration clause, DiLucente had twenty days from the date it received Roofing's notice of intent to file a claim in arbitration to object to such forum. Since DiLucente failed to object to Roofing's decision to file a claim in arbitration within twenty days, it waived its right to challenge arbitration.",
"Although we disagree with this interpretation, we reach the same result that DiLucente may not challenge Roofing's decision to file a claim in arbitration."
] | https://www.courtlistener.com/api/rest/v3/opinions/1512537/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Name: Commission Regulation (EU) Noà 814/2010 of 15à September 2010 fixing the import duties in the cereals sector applicable from 16à September 2010 Type: Regulation Subject Matter: plant product; EU finance; trade Date Published: nan
16.9.2010 EN Official Journal of the European Union L 243/61 COMMISSION REGULATION (EU) No 814/2010 of 15 September 2010 fixing the import duties in the cereals sector applicable from 16 September 2010 THE EUROPEAN COMMISSION, Having regard to the Treaty on the Functioning of the European Union, Having regard to Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation) (1), Having regard to Commission Regulation (EU) No 642/2010 of 20 July 2010 laying down detailed rules for the application of Council Regulation (EC) No 1234/2007 in respect of import duties in the cereals sector (2), and in particular Article 2(1) thereof, Whereas: (1) Article 136(1) of Regulation (EC) No 1234/2007 states that the import duty on products falling within CN codes 1001 10 00, 1001 90 91, ex 1001 90 99 (high quality common wheat), 1002, ex 1005 other than hybrid seed, and ex 1007 other than hybrids for sowing, is to be equal to the intervention price valid for such products on importation increased by 55 %, minus the cif import price applicable to the consignment in question. However, that duty may not exceed the rate of duty in the Common Customs Tariff. (2) Article 136(2) of Regulation (EC) No 1234/2007 lays down that, for the purposes of calculating the import duty referred to in paragraph 1 of that Article, representative cif import prices are to be established on a regular basis for the products in question. (3) Under Article 2(2) of Regulation (EU) No 642/2010, the price to be used for the calculation of the import duty on products of CN codes 1001 10 00, 1001 90 91, ex 1001 90 99 (high quality common wheat), 1002 00, 1005 10 90, 1005 90 00 and 1007 00 90 is the daily cif representative import price determined as specified in Article 5 of that Regulation. (4) Import duties should be fixed for the period from 16 September 2010 and should apply until new import duties are fixed and enter into force, HAS ADOPTED THIS REGULATION: Article 1 From 16 September 2010, the import duties in the cereals sector referred to in Article 136(1) of Regulation (EC) No 1234/2007 shall be those fixed in Annex I to this Regulation on the basis of the information contained in Annex II. Article 2 This Regulation shall enter into force on 16 September 2010. This Regulation shall be binding in its entirety and directly applicable in all Member States. Done at Brussels, 15 September 2010. For the Commission, On behalf of the President, Jean-Luc DEMARTY Director-General for Agriculture and Rural Development (1) OJ L 299, 16.11.2007, p. 1. (2) OJ L 187, 21.7.2010, p. 5. ANNEX I Import duties on the products referred to in Article 136(1) of Regulation (EC) No 1234/2007 applicable from 16 September 2010 CN code Description Import duties (1) (EUR/t) 1001 10 00 Durum wheat, high quality 0,00 medium quality 0,00 low quality 0,00 1001 90 91 Common wheat seed 0,00 ex 1001 90 99 High quality common wheat, other than for sowing 0,00 1002 00 00 Rye 7,00 1005 10 90 Maize seed other than hybrid 0,00 1005 90 00 Maize, other than seed (2) 0,00 1007 00 90 Grain sorghum other than hybrids for sowing 7,00 (1) For goods arriving in the Union via the Atlantic Ocean or via the Suez Canal the importer may benefit, under Article 2(4) of Regulation (EU) No 642/2010, from a reduction in the duty of: 3 EUR/t, where the port of unloading is on the Mediterranean Sea, or on the Black Sea, 2 EUR/t, where the port of unloading is in Denmark, Estonia, Ireland, Latvia, Lithuania, Poland, Finland, Sweden, the United Kingdom or the Atlantic coast of the Iberian peninsula. (2) The importer may benefit from a flatrate reduction of EUR 24 per tonne where the conditions laid down in Article 3 of Regulation (EU) No 642/2010 are met. ANNEX II Factors for calculating the duties laid down in Annex I 31.8.2010-14.9.2010 1. Averages over the reference period referred to in Article 2(2) of Regulation (EU) No 642/2010: (EUR/t) Common wheat (1) Maize Durum wheat, high quality Durum wheat, medium quality (2) Durum wheat, low quality (3) Barley Exchange Minnà ©apolis Chicago Quotation 228,63 143,93 Fob price USA 170,33 160,33 140,33 96,18 Gulf of Mexico premium 15,71 Great Lakes premium 22,06 2. Averages over the reference period referred to in Article 2(2) of Regulation (EU) No 642/2010: Freight costs: Gulf of Mexico Rotterdam: 23,62 EUR/t Freight costs: Great Lakes Rotterdam: 53,85 EUR/t (1) Premium of 14 EUR/t incorporated (Article 5(3) of Regulation (EU) No 642/2010). (2) Discount of 10 EUR/t (Article 5(3) of Regulation (EU) No 642/2010). (3) Discount of 30 EUR/t (Article 5(3) of Regulation (EU) No 642/2010). | nan | [
"Name: Commission Regulation (EU) Noà 814/2010 of 15à September 2010 fixing the import duties in the cereals sector applicable from 16à September 2010 Type: Regulation Subject Matter: plant product; EU finance; trade Date Published: nan 16.9.2010 EN Official Journal of the European Union L 243/61 COMMISSION REGULATION (EU) No 814/2010 of 15 September 2010 fixing the import duties in the cereals sector applicable from 16 September 2010 THE EUROPEAN COMMISSION, Having regard to the Treaty on the Functioning of the European Union, Having regard to Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation) (1), Having regard to Commission Regulation (EU) No 642/2010 of 20 July 2010 laying down detailed rules for the application of Council Regulation (EC) No 1234/2007 in respect of import duties in the cereals sector (2), and in particular Article 2(1) thereof, Whereas: (1) Article 136(1) of Regulation (EC) No 1234/2007 states that the import duty on products falling within CN codes 1001 10 00, 1001 90 91, ex 1001 90 99 (high quality common wheat), 1002, ex 1005 other than hybrid seed, and ex 1007 other than hybrids for sowing, is to be equal to the intervention price valid for such products on importation increased by 55 %, minus the cif import price applicable to the consignment in question.",
"However, that duty may not exceed the rate of duty in the Common Customs Tariff. (2) Article 136(2) of Regulation (EC) No 1234/2007 lays down that, for the purposes of calculating the import duty referred to in paragraph 1 of that Article, representative cif import prices are to be established on a regular basis for the products in question. (3) Under Article 2(2) of Regulation (EU) No 642/2010, the price to be used for the calculation of the import duty on products of CN codes 1001 10 00, 1001 90 91, ex 1001 90 99 (high quality common wheat), 1002 00, 1005 10 90, 1005 90 00 and 1007 00 90 is the daily cif representative import price determined as specified in Article 5 of that Regulation.",
"(4) Import duties should be fixed for the period from 16 September 2010 and should apply until new import duties are fixed and enter into force, HAS ADOPTED THIS REGULATION: Article 1 From 16 September 2010, the import duties in the cereals sector referred to in Article 136(1) of Regulation (EC) No 1234/2007 shall be those fixed in Annex I to this Regulation on the basis of the information contained in Annex II. Article 2 This Regulation shall enter into force on 16 September 2010. This Regulation shall be binding in its entirety and directly applicable in all Member States. Done at Brussels, 15 September 2010. For the Commission, On behalf of the President, Jean-Luc DEMARTY Director-General for Agriculture and Rural Development (1) OJ L 299, 16.11.2007, p. 1. (2) OJ L 187, 21.7.2010, p. 5. ANNEX I Import duties on the products referred to in Article 136(1) of Regulation (EC) No 1234/2007 applicable from 16 September 2010 CN code Description Import duties (1) (EUR/t) 1001 10 00 Durum wheat, high quality 0,00 medium quality 0,00 low quality 0,00 1001 90 91 Common wheat seed 0,00 ex 1001 90 99 High quality common wheat, other than for sowing 0,00 1002 00 00 Rye 7,00 1005 10 90 Maize seed other than hybrid 0,00 1005 90 00 Maize, other than seed (2) 0,00 1007 00 90 Grain sorghum other than hybrids for sowing 7,00 (1) For goods arriving in the Union via the Atlantic Ocean or via the Suez Canal the importer may benefit, under Article 2(4) of Regulation (EU) No 642/2010, from a reduction in the duty of: 3 EUR/t, where the port of unloading is on the Mediterranean Sea, or on the Black Sea, 2 EUR/t, where the port of unloading is in Denmark, Estonia, Ireland, Latvia, Lithuania, Poland, Finland, Sweden, the United Kingdom or the Atlantic coast of the Iberian peninsula.",
"(2) The importer may benefit from a flatrate reduction of EUR 24 per tonne where the conditions laid down in Article 3 of Regulation (EU) No 642/2010 are met. ANNEX II Factors for calculating the duties laid down in Annex I 31.8.2010-14.9.2010 1. Averages over the reference period referred to in Article 2(2) of Regulation (EU) No 642/2010: (EUR/t) Common wheat (1) Maize Durum wheat, high quality Durum wheat, medium quality (2) Durum wheat, low quality (3) Barley Exchange Minnà ©apolis Chicago Quotation 228,63 143,93 Fob price USA 170,33 160,33 140,33 96,18 Gulf of Mexico premium 15,71 Great Lakes premium 22,06 2. Averages over the reference period referred to in Article 2(2) of Regulation (EU) No 642/2010: Freight costs: Gulf of Mexico Rotterdam: 23,62 EUR/t Freight costs: Great Lakes Rotterdam: 53,85 EUR/t (1) Premium of 14 EUR/t incorporated (Article 5(3) of Regulation (EU) No 642/2010). (2) Discount of 10 EUR/t (Article 5(3) of Regulation (EU) No 642/2010). (3) Discount of 30 EUR/t (Article 5(3) of Regulation (EU) No 642/2010)."
] | https://dataverse.harvard.edu/dataset.xhtml?persistentId=doi:10.7910/DVN/0EGYWY | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
CALHOUN, J. The offense, possessing equipment for the manufacture of intoxicating liquor; the punishment, three years in the penitentiary. The record is before us without a statement of facts or bills of exception. No defect either in the indictment or procedure has been pointed out or has been perceived. No question is presented for review. The judgment is affirmed. PER CURIAM. The foregoing opinion of the- Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court. | 10-01-2021 | [
"CALHOUN, J. The offense, possessing equipment for the manufacture of intoxicating liquor; the punishment, three years in the penitentiary. The record is before us without a statement of facts or bills of exception. No defect either in the indictment or procedure has been pointed out or has been perceived. No question is presented for review. The judgment is affirmed. PER CURIAM. The foregoing opinion of the- Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court."
] | https://www.courtlistener.com/api/rest/v3/opinions/5004056/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
PALMIERI, District Judge. Libelants seek to recover for soiling damage to a shipment of bales of wool tops carried on respondent’s SS “American Defender,” from Antwerp to Boston in August 1948. Of the 46 bales involved in the shipment, 15 were eventually sold as sound, and the remaining 31 bales are the subject matter of this action. When the bales were delivered to respondent at the port of Antwerp, they were receipted for by respondent as in apparent good order and condition. The vessel arrived at Boston on August 16, 1948. On August 23, 1948, respondent delivered 45 of the bales to libelants’ truckman, and respondent’s employee noted the following in its delivery book: “Wrappers more or less torn.” The respondent subsequently made a “Final Damage Report” relating to the 46 bales and it , noted “all wrappers more or less torn.” These wrappers were of burlap with a paper lining and were designed to protect the white wool tops from the soiling damage here involved. A professional cargo surveyor acting in libel-ants’ behalf, examined the bales of wool tops on August 31, 1948 at a warehouse in Boston. He found as a general condition that the wrappers were torn, that the wool tops protruded, and that they were soiled by dirt. He further testified that this condition made them unsound and ■ depreciated them in value. It was established at the trial that 31 of the 46 bales could not be sold as sound. No evidence was adduced as to how the wrappers were torn, or where the wool tops sustained the soil dam*335age. Respondent’s principal contention is that libelants have failed to sustain -their burden of proof; first, because it has not been shown that the damage was caused by respondent; and second, because libelants have failed to establish a causal relationship between the tom wrappers and the soiling damage to the contents of the bales. With respect to the first contention, I think it is enough to point out that the respondent’s own records establish good order and condition of the merchandise at the time it was accepted for shipment, and the torn condition of the wrappers at the time of delivery to the truckman of libelant. There is no evidence of what the condition of the contents of the bales may have been at the moment of loading on the truck after arrival at Boston, but I think their damaged condition follows as a reasonable inference to be drawn from all the surrounding circumstances. The respondent called no witnesses but seeks to draw contrary inferences from the testimony of libelants’ witnesses. I do not believe respondent’s position is sound. It was clearly established by libelants’ proof that the burlap covering and paper lining were intended to protect the white wool tops from soiling damage. These wrappers were torn and hook holed while in respondent’s custody; and eight days after leaving respondent’s custody, the wool tops were found soiled by dirt at the places of the wrapper tears or holes and were thereby depreciated in value. It would be unreasonable to come to any conclusion other than that the wool tops were damaged and depreciated at the time the respondent delivered them to libel-ant’s truckman. The damage to the contents may be inferred from the damage to the wrappers. See The Carso, 2 Cir., 1931, 53 F.2d 374, certiorari denied, Navigazione Libera Triestina v. Molinelli, Giannusa & Rao, Inc., 1931, 284 U.S. 679, 52 S.Ct. 140, 76 L.Ed. 574; Higgins v. Anglo-Algerian S. S. Co., 2 Cir., 1918, 248 F. 386. But even assuming that the soiling occurred only after delivery to the truckman as a result of damage to the wrappers caused while in respondent’s custody, the respondent is nevertheless liable. The damage by dirt, whether on the truck or at the warehouse, was a direct result of the damage to the protective covering of the wool tops while in respondent’s custody. It was a direct result of the violation of respondent’s obligation of proper delivery in a safe condition. See Carriage of Goods by Sea Act, 46 U.S.C. § 1303(2); United States v. Standard Oil Co. of California, 9 Cir., 1946, 156 F.2d 312. In Armco International Corp. v. Rederi A/B Disa, 2 Cir., 1945, 151 F.2d 5, steel plates damaged by acetic acid were intermingled upon discharge with steel plates which were sound and which had been carried in separate holds. The carrier was nevertheless held liable for the damage to the entire shipment on the ground that the damage which occurred ashore was the direct result of the negligence of the ship while the plates were on board. Accordingly, I make the following findings of fact and conclusions of law: Findings of Fact 1. About August 3, 1948 at Antwerp, Gondrand Freres, S.A., delivered to respondent 46 bales Australian dry combed tops for carriage to Boston on the SS "American Defender”; a bill of lading was duly issued by respondent therefor reciting that the bales were in apparent good order and condition; and freight was paid by the shipper. 2. The 46 bales of wool tops were sold to libelants upon shipment against letter of credit of the Manufacturers Trust Company. 3. The SS “American Defender” carried the 46 bales of wool tops from Antwerp to Boston, arriving about August 16, 1948. 4. On August 23, 1948, at Boston, 45 of the 46 bales of wool tops were delivered by the respondent to Rapid Transit Co., a trucking company acting in be*336half of the libelants. Respondent delivered the remaining bale to a Public Stores truckman on August 28, 1948. 5. At the time of delivery of the 45 bales of wool tops to Rapid Transit Co., exception to the order and condition of the shipment was noted by respondent’s employee as “wrappers more - or less torn.” 6. A report entitled “Final Damage Report,” relating to the shipment of 46 bales of wool tops, and made by the respondent’s employee on or about September 13, 1948, stated the nature and cause of damage to be “all wrappers more or less tom.” 7. The shipment was trucked' to Atlas Terminal Stores, a public warehouse, situated in Boston. 8. On August 31, 1948, the shipment was examined at Atlas Terminal Stores by a cargo surveyor, Robert S. Gale. 9. At the time of Gale’s examination, the wool tops at the places of the torn and holed wrappers were soiled and depreciated in value. 10. The notation made on delivery to the truckman, “wrappers more or less tom,” indicated damage to the contents of the nature claimed and it is inferred that some damage then existed.' 11. Any increase in the soiling of the wool tops occurring between the point of delivery to the truckman and arrival in the warehouse was caused or contributed to by the torn and holed wrappings. Conclusions of Law 1. This Court has jurisdiction of the cause. 2. Libelants have legal status as alleged in the libel and were the owners of the 46 bales Australian dry combed tops at the time the shipment arrived at Boston. 3. Respondent was a common carrier and the owner of the SS “American Defender.” 4., The wool tops were in good order and condition at the time of delivery to respondent at Antwerp. 5. At the time of re-delivery by respondent at Boston the said merchandise was damaged or, if not then damaged, became damaged by reason of a condition created by respondent. 6. Libelants have made out a prima facie case of liability on the part of respondent and respondent has not established a defense. 7. An interlocutory decree may be submitted with the usual reference to a Commissioner. | 11-26-2022 | [
"PALMIERI, District Judge. Libelants seek to recover for soiling damage to a shipment of bales of wool tops carried on respondent’s SS “American Defender,” from Antwerp to Boston in August 1948. Of the 46 bales involved in the shipment, 15 were eventually sold as sound, and the remaining 31 bales are the subject matter of this action. When the bales were delivered to respondent at the port of Antwerp, they were receipted for by respondent as in apparent good order and condition. The vessel arrived at Boston on August 16, 1948. On August 23, 1948, respondent delivered 45 of the bales to libelants’ truckman, and respondent’s employee noted the following in its delivery book: “Wrappers more or less torn.” The respondent subsequently made a “Final Damage Report” relating to the 46 bales and it , noted “all wrappers more or less torn.” These wrappers were of burlap with a paper lining and were designed to protect the white wool tops from the soiling damage here involved.",
"A professional cargo surveyor acting in libel-ants’ behalf, examined the bales of wool tops on August 31, 1948 at a warehouse in Boston. He found as a general condition that the wrappers were torn, that the wool tops protruded, and that they were soiled by dirt. He further testified that this condition made them unsound and ■ depreciated them in value. It was established at the trial that 31 of the 46 bales could not be sold as sound. No evidence was adduced as to how the wrappers were torn, or where the wool tops sustained the soil dam*335age. Respondent’s principal contention is that libelants have failed to sustain -their burden of proof; first, because it has not been shown that the damage was caused by respondent; and second, because libelants have failed to establish a causal relationship between the tom wrappers and the soiling damage to the contents of the bales. With respect to the first contention, I think it is enough to point out that the respondent’s own records establish good order and condition of the merchandise at the time it was accepted for shipment, and the torn condition of the wrappers at the time of delivery to the truckman of libelant.",
"There is no evidence of what the condition of the contents of the bales may have been at the moment of loading on the truck after arrival at Boston, but I think their damaged condition follows as a reasonable inference to be drawn from all the surrounding circumstances. The respondent called no witnesses but seeks to draw contrary inferences from the testimony of libelants’ witnesses. I do not believe respondent’s position is sound. It was clearly established by libelants’ proof that the burlap covering and paper lining were intended to protect the white wool tops from soiling damage. These wrappers were torn and hook holed while in respondent’s custody; and eight days after leaving respondent’s custody, the wool tops were found soiled by dirt at the places of the wrapper tears or holes and were thereby depreciated in value.",
"It would be unreasonable to come to any conclusion other than that the wool tops were damaged and depreciated at the time the respondent delivered them to libel-ant’s truckman. The damage to the contents may be inferred from the damage to the wrappers. See The Carso, 2 Cir., 1931, 53 F.2d 374, certiorari denied, Navigazione Libera Triestina v. Molinelli, Giannusa & Rao, Inc., 1931, 284 U.S. 679, 52 S.Ct. 140, 76 L.Ed. 574; Higgins v. Anglo-Algerian S. S. Co., 2 Cir., 1918, 248 F. 386. But even assuming that the soiling occurred only after delivery to the truckman as a result of damage to the wrappers caused while in respondent’s custody, the respondent is nevertheless liable. The damage by dirt, whether on the truck or at the warehouse, was a direct result of the damage to the protective covering of the wool tops while in respondent’s custody.",
"It was a direct result of the violation of respondent’s obligation of proper delivery in a safe condition. See Carriage of Goods by Sea Act, 46 U.S.C. § 1303(2); United States v. Standard Oil Co. of California, 9 Cir., 1946, 156 F.2d 312. In Armco International Corp. v. Rederi A/B Disa, 2 Cir., 1945, 151 F.2d 5, steel plates damaged by acetic acid were intermingled upon discharge with steel plates which were sound and which had been carried in separate holds. The carrier was nevertheless held liable for the damage to the entire shipment on the ground that the damage which occurred ashore was the direct result of the negligence of the ship while the plates were on board. Accordingly, I make the following findings of fact and conclusions of law: Findings of Fact 1.",
"About August 3, 1948 at Antwerp, Gondrand Freres, S.A., delivered to respondent 46 bales Australian dry combed tops for carriage to Boston on the SS \"American Defender”; a bill of lading was duly issued by respondent therefor reciting that the bales were in apparent good order and condition; and freight was paid by the shipper. 2. The 46 bales of wool tops were sold to libelants upon shipment against letter of credit of the Manufacturers Trust Company. 3. The SS “American Defender” carried the 46 bales of wool tops from Antwerp to Boston, arriving about August 16, 1948.",
"4. On August 23, 1948, at Boston, 45 of the 46 bales of wool tops were delivered by the respondent to Rapid Transit Co., a trucking company acting in be*336half of the libelants. Respondent delivered the remaining bale to a Public Stores truckman on August 28, 1948. 5. At the time of delivery of the 45 bales of wool tops to Rapid Transit Co., exception to the order and condition of the shipment was noted by respondent’s employee as “wrappers more - or less torn.” 6. A report entitled “Final Damage Report,” relating to the shipment of 46 bales of wool tops, and made by the respondent’s employee on or about September 13, 1948, stated the nature and cause of damage to be “all wrappers more or less tom.” 7. The shipment was trucked' to Atlas Terminal Stores, a public warehouse, situated in Boston. 8. On August 31, 1948, the shipment was examined at Atlas Terminal Stores by a cargo surveyor, Robert S. Gale.",
"9. At the time of Gale’s examination, the wool tops at the places of the torn and holed wrappers were soiled and depreciated in value. 10. The notation made on delivery to the truckman, “wrappers more or less tom,” indicated damage to the contents of the nature claimed and it is inferred that some damage then existed.' 11. Any increase in the soiling of the wool tops occurring between the point of delivery to the truckman and arrival in the warehouse was caused or contributed to by the torn and holed wrappings. Conclusions of Law 1. This Court has jurisdiction of the cause. 2. Libelants have legal status as alleged in the libel and were the owners of the 46 bales Australian dry combed tops at the time the shipment arrived at Boston. 3. Respondent was a common carrier and the owner of the SS “American Defender.” 4., The wool tops were in good order and condition at the time of delivery to respondent at Antwerp.",
"5. At the time of re-delivery by respondent at Boston the said merchandise was damaged or, if not then damaged, became damaged by reason of a condition created by respondent. 6. Libelants have made out a prima facie case of liability on the part of respondent and respondent has not established a defense. 7. An interlocutory decree may be submitted with the usual reference to a Commissioner."
] | https://www.courtlistener.com/api/rest/v3/opinions/8721258/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
DETAILED ACTION
Notice of Pre-AIA or AIA Status The present application is being examined under the pre-AIA first to invent provisions.
Claim Status The amendment of 03/24/2021 has been entered. Claims 16-17, 20-21, and 26-40 are currently pending in this US patent application and were examined on their merits.
Withdrawn Rejections The rejection of claims 38-40 under 35 U.S.C. 112(b) as being indefinite as set forth in the previous Office action is withdrawn in light of the amendment of 03/24/2021, which removed the phrases “such as” and “or the like” from the claims. All rejections of the claims under 35 U.S.C. 103(a) set forth in the previous Office action are withdrawn in light of the amendment of 03/24/2021, which added specific values for the thickness of the culture layer and the height of the frame layer to the independent claims. Applicant’s arguments that the previously cited references do not teach or suggest these heights and that culture sheets with the instantly claimed characteristics demonstrate unexpected improvements in suppressed leakage of test liquids and suppressed drying of the culture medium set forth in the remarks of 03/24/2021 have been found persuasive. withdrawn in light of the terminal disclaimer filed on 08/30/2016 disclaiming the terminal portion of any patent granted on this application which would extend beyond the expiration date of application no. 13/575906, now US Patent No. 10563167.
EXAMINER’S AMENDMENT An Examiner’s amendment to the record appears below. Should the changes and/or additions be unacceptable to Applicant, an amendment may be filed as provided by 37 CFR 1.312. To ensure consideration of such an amendment, it MUST be submitted no later than the payment of the issue fee. Authorization for this Examiner’s amendment was given in an interview with James E. Armstrong on 05/20/2021.
IN THE CLAIMS:
In claim 16, line 6, please omit ‘sheet is formed at an outer boundary’ and replace with –sheet, is formed at an outer boundary--.
In claim 32, line 1, please omit ‘according to claim 16’ and replace with –according to claim 33--.
REASONS FOR ALLOWANCE The following is an Examiner’s statement of reasons for allowance:
The closest prior art to the claimed invention is found in the teachings of Kayoko, Janik, and Mathus, as discussed in the previous Office action. However, these references do not teach or suggest the specific thicknesses of the culture layer and the frame layer as recited in the independent instant claims of 03/24/2021. As noted above, Applicant has provided evidence in the remarks of 03/24/2021 that culture sheets with the instantly claimed characteristics demonstrate unexpected improvements in suppressed leakage of test liquids and suppressed drying of the culture medium, which have been found persuasive. As such, the claims are free of the prior art.
Any comments considered necessary by Applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.”
Conclusion Claims 16-17, 20-21, and 26-40 are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Erin M. Bowers, whose telephone number is (571)272-2897. The examiner can normally be reached on Monday-Friday, 7:30-5:00.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Sharmila Landau, can be reached at (571)272-0614. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see https://ppair-my.uspto.gov/pair/PrivatePair. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/Erin M. Bowers/Primary Examiner, Art Unit 1653 05/20/2021 | 2021-06-09T14:53:44 | [
"DETAILED ACTION Notice of Pre-AIA or AIA Status The present application is being examined under the pre-AIA first to invent provisions. Claim Status The amendment of 03/24/2021 has been entered. Claims 16-17, 20-21, and 26-40 are currently pending in this US patent application and were examined on their merits. Withdrawn Rejections The rejection of claims 38-40 under 35 U.S.C. 112(b) as being indefinite as set forth in the previous Office action is withdrawn in light of the amendment of 03/24/2021, which removed the phrases “such as” and “or the like” from the claims. All rejections of the claims under 35 U.S.C. 103(a) set forth in the previous Office action are withdrawn in light of the amendment of 03/24/2021, which added specific values for the thickness of the culture layer and the height of the frame layer to the independent claims. Applicant’s arguments that the previously cited references do not teach or suggest these heights and that culture sheets with the instantly claimed characteristics demonstrate unexpected improvements in suppressed leakage of test liquids and suppressed drying of the culture medium set forth in the remarks of 03/24/2021 have been found persuasive.",
"withdrawn in light of the terminal disclaimer filed on 08/30/2016 disclaiming the terminal portion of any patent granted on this application which would extend beyond the expiration date of application no. 13/575906, now US Patent No. 10563167. EXAMINER’S AMENDMENT An Examiner’s amendment to the record appears below. Should the changes and/or additions be unacceptable to Applicant, an amendment may be filed as provided by 37 CFR 1.312. To ensure consideration of such an amendment, it MUST be submitted no later than the payment of the issue fee. Authorization for this Examiner’s amendment was given in an interview with James E. Armstrong on 05/20/2021. IN THE CLAIMS: In claim 16, line 6, please omit ‘sheet is formed at an outer boundary’ and replace with –sheet, is formed at an outer boundary--.",
"In claim 32, line 1, please omit ‘according to claim 16’ and replace with –according to claim 33--. REASONS FOR ALLOWANCE The following is an Examiner’s statement of reasons for allowance: The closest prior art to the claimed invention is found in the teachings of Kayoko, Janik, and Mathus, as discussed in the previous Office action. However, these references do not teach or suggest the specific thicknesses of the culture layer and the frame layer as recited in the independent instant claims of 03/24/2021. As noted above, Applicant has provided evidence in the remarks of 03/24/2021 that culture sheets with the instantly claimed characteristics demonstrate unexpected improvements in suppressed leakage of test liquids and suppressed drying of the culture medium, which have been found persuasive.",
"As such, the claims are free of the prior art. Any comments considered necessary by Applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.” Conclusion Claims 16-17, 20-21, and 26-40 are allowed. Any inquiry concerning this communication or earlier communications from the examiner should be directed to Erin M. Bowers, whose telephone number is (571)272-2897. The examiner can normally be reached on Monday-Friday, 7:30-5:00. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Sharmila Landau, can be reached at (571)272-0614. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.",
"Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see https://ppair-my.uspto.gov/pair/PrivatePair. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000. /Erin M. Bowers/Primary Examiner, Art Unit 1653 05/20/2021"
] | https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2021-05-30.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
OPINION {¶ 1} Appellant, Tott Enterprises, appeals from a judgment of the Franklin County Court of Common Pleas that affirmed an order of the Ohio Liquor Control Commission ("commission") revoking appellant's liquor permit. For the following reasons, we affirm. {¶ 2} According to the record, on the evening of August 26, 1998, an employee of Tott Enterprises, d.b.a. Old Town Tavern, sold and furnished beer to Joseph Davis and Justin Rippeth, who were both teenagers at the time. Shortly after leaving Old Town Tavern, Davis, Rippeth, and another passenger were involved in a single car accident, resulting in the death of Davis who was the driver of the car. According to the coroner's investigation, a severe open head injury related to the auto accident caused Davis's death with ethanol intoxication and blunt chest trauma as contributory factors. {¶ 3} The Ohio Department of Public Safety served notice on appellant informing it that an administrative hearing would be held to determine whether appellant's liquor permit should be suspended, revoked, or whether a forfeiture should be ordered for four violations of R.C. 4301.69 related to the selling and furnishing of alcohol to Davis and Rippeth. On October 17, 2000, the commission held a hearing to consider the matter. At this hearing, the commission heard testimony from several witnesses, including testimony from Rippeth. Rippeth testified that during the evening of August 26, 1998, a tavern employee brought many rounds of drinks to the table where Rippeth and Davis were sitting along with others.1 According to Rippeth, he drank about one and one-half beers while Davis drank about five to six beers.2 Rippeth testified, "I know for a fact we did pay for more than half of the beer we were drinking. * * * [W]e pretty much just all laid [money] on the table, and it was picked up as beer was delivered."3 {¶ 4} Finding appellant had committed all four violations, the commission revoked appellant's liquor permit. Appellant appealed to the Franklin County Court of Common Pleas. {¶ 5} Before the common pleas court, appellant moved to admit newly discovered evidence, namely the testimony of Gary LeMaster. After conducting a hearing wherein LeMaster testified, the common pleas court found LeMaster's testimony relevant as to the credibility of Rippeth. The common pleas court granted appellant's motion to admit newly discovered evidence and remanded the matter to the commission. In its order, the common pleas court instructed that "[t]he transcript [of the hearing before the common pleas court] is made a part of the record; however, it is the expectation of the Court that both [Rippeth and LeMaster] will be presented in the same hearing before the Commissioners."4 {¶ 6} Upon remand, the commission held another hearing. Despite the common pleas court's expectation, LeMaster was not presented as a witness at the rehearing. Rather, at the rehearing a transcript of LeMaster's testimony before the common pleas court was submitted as a mutual exhibit. The record from the prior court case was also submitted as a mutual exhibit. Rippeth, who had testified at the earlier hearing before the commission, was present at the rehearing but was not called to testify. Finding Rippeth was more credible than LeMaster, the commission issued another order wherein it again revoked appellant's liquor permit. {¶ 7} Thereafter, appellant appealed to the Franklin County Court of Common Pleas. Pursuant to Civ.R 53 and local court rule, the matter was referred to a magistrate for an oral hearing. Following the hearing, the magistrate affirmed the commission's order. Appellant objected to the magistrate's decision. On January 23, 2004, the common pleas court overruled appellant's objections and adopted the magistrate's decision. {¶ 8} From the common pleas court's judgment of January 23, 2004, appellant appeals and assigns a single assignment of error: The Trial Court erred in affirming the Liquor Control Commission's Order revoking Appellant's permits wherein assessing the evidence before it, the Commission applied the wrong legal standard. That is, it applied the criminal standard of certainty when the proceeding before it was civil in nature. {¶ 9} Pursuant to R.C. 119.12, when a common pleas court reviews an order of an administrative agency, it must consider the entire record to determine whether the agency's order is supported by reliable, probative, and substantial evidence and is in accordance with law. Univ.of Cincinnati v. Conrad (1980), 63 Ohio St.2d 108, 110-111; see, also,Andrews v. Bd. of Liquor Control (1955), 164 Ohio St. 275, 280. The common pleas court's "review of the administrative record is neither a trial de novo nor an appeal on questions of law only, but a hybrid review in which the court `must appraise all the evidence as to the credibility of the witnesses, the probative character of the evidence, and the weight thereof.'" Lies v. Ohio Veterinary Med. Bd. (1981), 2 Ohio App.3d 204,207, quoting Andrews, at 280. In its review, the common pleas court must give due deference to the administrative agency's resolution of evidentiary conflicts, but the findings of the agency are not conclusive. Conrad, at 111. {¶ 10} An appellate court's review of an administrative decision is more limited than that of a common pleas court. Pons v. Ohio State Med.Bd. (1993), 66 Ohio St.3d 619, rehearing denied, 67 Ohio St.3d 1439. InPons, the Supreme Court of Ohio explained: * * * While it is incumbent on the trial court to examine the evidence, this is not a function of the appellate court. The appellate court is to determine only if the trial court has abused its discretion, i.e., being not merely an error of judgment, but perversity of will, passion, prejudice, partiality, or moral delinquency. Absent an abuse of discretion on the part of the trial court, a court of appeals may not substitute its judgment for [that of an administrative agency] or a trial court. Instead, the appellate court must affirm the trial court's judgment. * * * Id. at 621. {¶ 11} An appellate court does, however, have plenary review of questions of law. Chirila v. Ohio State Chiropractic Bd. (2001),145 Ohio App.3d 589, 592, citing Steinfels v. Ohio Dept. ofCommerce, Div. of Securities (1998), 129 Ohio App.3d 800, 803, appeal not allowed (1999), 84 Ohio St.3d 1488. {¶ 12} Despite appellant's contention to the contrary, we find the commission did not apply a criminal standard of certainty to the proceedings before it. See, generally, FOE AERIE 2347 v. Ohio State LiquorControl Comm. (Dec. 27, 2001), Franklin App. No. 01AP-675, citing Dept.of Liquor Control v. Santucci (1969), 17 Ohio St.2d 69 (observing that "[liquor control] commission proceedings have traditionally been deemed civil"). Rather than applying a criminal standard of certainty, in its order the commission set forth the indicia it used to assess witness credibility. Appellant's contention that the commission applied an incorrect legal standard is therefore unconvincing. {¶ 13} Former R.C. 4301.69,5 in relevant part, provided: (A) Except as otherwise provided in this chapter, no person shall sell beer or intoxicating liquor to an underage person, shall buy beer or intoxicating liquor for an underage person, or shall furnish it to an underage person, unless given by a physician in the regular line of the physician's practice or given for established religious purposes or unless the underage person is accompanied by a parent, spouse who is not an underage person, or legal guardian. * * * * * * (H) As used in this section: * * * (5) "Underage person" means a person under the age of twenty-one years. {¶ 14} Before the commission, Rippeth testified that on August 26, 1998, appellant's employee furnished and sold beer to himself and Joseph Davis. According to evidence in the record, on August 26, 1998, both Rippeth and Davis were 17 years old. There was no evidence presented that suggested Rippeth or Davis was accompanied at Old Town Tavern by a parent, legal guardian, or spouse who was not an underage person. Therefore, evidence in the record supports the commission's finding that appellant through the acts of its employee violated former R.C. 4301.69. See, also, VFW Post 8586 v. Ohio Liquor Control Comm. (1998),83 Ohio St.3d 79, 82 (observing that the commission may draw reasonable inferences based upon evidence before it). {¶ 15} Additionally, pursuant to the applicable version of R.C. 4301.25(A),6 the commission had the authority to suspend or revoke a liquor permit for violations of R.C. Chapter 4301. Accordingly, having concluded that appellant violated former R.C. 4301.69, the commission had authority to revoke appellant's liquor permit for violations of former R.C. 4301.69. {¶ 16} Appellant suggests, however, that the commission erred when it found Rippeth's testimony was more credible than LeMaster's testimony, and, as a consequence, the common pleas court erred when it found the commission's order was supported by reliable, probative, and substantial evidence. {¶ 17} When reviewing an administrative record under R.C. 119.12, "the trial court may, to a limited extent, substitute its judgment for that of the administrative agency; however, the trial court must give due deference to the administrative resolution of evidentiary conflicts and, if the evidence before the court consists of conflicting testimony of approximately equal weight, the court should defer to the administrative body which had the opportunity to observe the demeanor of the witnesses and weigh their credibility." Suso v. Ohio Dept. of Dev. (1993),93 Ohio App.3d 493, 500 (Bryant, J., dissenting), dismissed, jurisdictional motion overruled (1994), 69 Ohio St.3d 1449. Upon appellate review, "[t]he appellate court is to determine only if the trial court has abused its discretion, i.e., being not merely an error of judgment, but perversity of will, passion, prejudice, partiality, or moral delinquency. * * * [A] court of appeals may not substitute its judgment for [that of an administrative agency] or a trial court." Pons, supra, at 621. {¶ 18} In LeMaster's testimony before the common pleas court that was submitted as a mutual exhibit at the commission's rehearing, LeMaster testified that on August 26, 1998, he had observed Davis at another bar prior to the events at Old Town Tavern. LeMaster's testimony contradicted Rippeth's testimony about Davis's whereabouts prior to the events at Old Town Tavern, thereby casting doubt upon Rippeth's credibility as a witness. {¶ 19} After considering the evidence before it, the commission found LeMaster's testimony was not credible "in that he says he is `reasonably sure' of the date and the time in August, and applying the tests of credibility we find Justin Rippeth to be the more credible witness."7 We find ample evidence to support the commission's finding concerning LeMaster's degree of certitude. (Feb. 28, 2001 hearing, Tr. 10, 13, 19, 20.) {¶ 20} Therefore, having found that there is ample evidence to support the commission's finding concerning LeMaster's degree of certitude and even assuming arguendo that the conflicting testimony of LeMaster and Rippeth was of equal weight, we conclude the common pleas court did not abuse its discretion by finding that the commission's order was supported by reliable, probative, and substantial evidence. See, generally, OurPlace, Inc. v. Ohio Liquor Control Comm. (1992), 63 Ohio St.3d 570, 571 (defining reliable, probative, and substantial evidence). {¶ 21} Having found that the common pleas court did not abuse its discretion when it affirmed the commission's order, we therefore overrule appellant's sole assignment of error. Having overruled appellant's assignment of error, we therefore affirm the judgment of the Franklin County Court of Common Pleas. Judgment affirmed. Lazarus and Sadler, JJ., concur. 1 Tr. of Oct. 17, 2000, hearing, at 22. 2 Id. at 23-24. 3 Id. at 25-26; 39-40. 4 "Order Granting Appellant's Motion To Admit Newly Discovered Evidence; Making That Evidence Part of the Record; And Remanding This Case To The Liquor Control Commission For Rehearing," dated July 11, 2001. 5 Since August 26, 1998, when the alleged violations of R.C.4301.69 occurred, R.C. 4301.69 has been amended. See Am.Sub.H.B. No. 17, effective October 11, 2002. 6 Since the alleged violations of August 26, 1998, R.C. 4301.25 has been amended. See Am.Sub.H.B. No. 402, effective March 30, 1999; Sub.S.B. No. 23, effective April 7, 2004. 7 Order of commission, mailed June 21, 2002, at 2. | 07-06-2016 | [
"OPINION {¶ 1} Appellant, Tott Enterprises, appeals from a judgment of the Franklin County Court of Common Pleas that affirmed an order of the Ohio Liquor Control Commission (\"commission\") revoking appellant's liquor permit. For the following reasons, we affirm. {¶ 2} According to the record, on the evening of August 26, 1998, an employee of Tott Enterprises, d.b.a. Old Town Tavern, sold and furnished beer to Joseph Davis and Justin Rippeth, who were both teenagers at the time. Shortly after leaving Old Town Tavern, Davis, Rippeth, and another passenger were involved in a single car accident, resulting in the death of Davis who was the driver of the car. According to the coroner's investigation, a severe open head injury related to the auto accident caused Davis's death with ethanol intoxication and blunt chest trauma as contributory factors. {¶ 3} The Ohio Department of Public Safety served notice on appellant informing it that an administrative hearing would be held to determine whether appellant's liquor permit should be suspended, revoked, or whether a forfeiture should be ordered for four violations of R.C.",
"4301.69 related to the selling and furnishing of alcohol to Davis and Rippeth. On October 17, 2000, the commission held a hearing to consider the matter. At this hearing, the commission heard testimony from several witnesses, including testimony from Rippeth. Rippeth testified that during the evening of August 26, 1998, a tavern employee brought many rounds of drinks to the table where Rippeth and Davis were sitting along with others.1 According to Rippeth, he drank about one and one-half beers while Davis drank about five to six beers.2 Rippeth testified, \"I know for a fact we did pay for more than half of the beer we were drinking. * * * [W]e pretty much just all laid [money] on the table, and it was picked up as beer was delivered. \"3 {¶ 4} Finding appellant had committed all four violations, the commission revoked appellant's liquor permit. Appellant appealed to the Franklin County Court of Common Pleas. {¶ 5} Before the common pleas court, appellant moved to admit newly discovered evidence, namely the testimony of Gary LeMaster.",
"After conducting a hearing wherein LeMaster testified, the common pleas court found LeMaster's testimony relevant as to the credibility of Rippeth. The common pleas court granted appellant's motion to admit newly discovered evidence and remanded the matter to the commission. In its order, the common pleas court instructed that \"[t]he transcript [of the hearing before the common pleas court] is made a part of the record; however, it is the expectation of the Court that both [Rippeth and LeMaster] will be presented in the same hearing before the Commissioners.",
"\"4 {¶ 6} Upon remand, the commission held another hearing. Despite the common pleas court's expectation, LeMaster was not presented as a witness at the rehearing. Rather, at the rehearing a transcript of LeMaster's testimony before the common pleas court was submitted as a mutual exhibit. The record from the prior court case was also submitted as a mutual exhibit. Rippeth, who had testified at the earlier hearing before the commission, was present at the rehearing but was not called to testify. Finding Rippeth was more credible than LeMaster, the commission issued another order wherein it again revoked appellant's liquor permit. {¶ 7} Thereafter, appellant appealed to the Franklin County Court of Common Pleas. Pursuant to Civ.R 53 and local court rule, the matter was referred to a magistrate for an oral hearing. Following the hearing, the magistrate affirmed the commission's order. Appellant objected to the magistrate's decision.",
"On January 23, 2004, the common pleas court overruled appellant's objections and adopted the magistrate's decision. {¶ 8} From the common pleas court's judgment of January 23, 2004, appellant appeals and assigns a single assignment of error: The Trial Court erred in affirming the Liquor Control Commission's Order revoking Appellant's permits wherein assessing the evidence before it, the Commission applied the wrong legal standard. That is, it applied the criminal standard of certainty when the proceeding before it was civil in nature.",
"{¶ 9} Pursuant to R.C. 119.12, when a common pleas court reviews an order of an administrative agency, it must consider the entire record to determine whether the agency's order is supported by reliable, probative, and substantial evidence and is in accordance with law. Univ.of Cincinnati v. Conrad (1980), 63 Ohio St.2d 108, 110-111; see, also,Andrews v. Bd. of Liquor Control (1955), 164 Ohio St. 275, 280. The common pleas court's \"review of the administrative record is neither a trial de novo nor an appeal on questions of law only, but a hybrid review in which the court `must appraise all the evidence as to the credibility of the witnesses, the probative character of the evidence, and the weight thereof.'\" Lies v. Ohio Veterinary Med. Bd. (1981), 2 Ohio App.3d 204,207, quoting Andrews, at 280. In its review, the common pleas court must give due deference to the administrative agency's resolution of evidentiary conflicts, but the findings of the agency are not conclusive. Conrad, at 111. {¶ 10} An appellate court's review of an administrative decision is more limited than that of a common pleas court. Pons v. Ohio State Med.Bd. (1993), 66 Ohio St.3d 619, rehearing denied, 67 Ohio St.3d 1439.",
"InPons, the Supreme Court of Ohio explained: * * * While it is incumbent on the trial court to examine the evidence, this is not a function of the appellate court. The appellate court is to determine only if the trial court has abused its discretion, i.e., being not merely an error of judgment, but perversity of will, passion, prejudice, partiality, or moral delinquency. Absent an abuse of discretion on the part of the trial court, a court of appeals may not substitute its judgment for [that of an administrative agency] or a trial court. Instead, the appellate court must affirm the trial court's judgment. * * * Id. at 621. {¶ 11} An appellate court does, however, have plenary review of questions of law. Chirila v. Ohio State Chiropractic Bd. (2001),145 Ohio App.3d 589, 592, citing Steinfels v. Ohio Dept. ofCommerce, Div.",
"of Securities (1998), 129 Ohio App.3d 800, 803, appeal not allowed (1999), 84 Ohio St.3d 1488. {¶ 12} Despite appellant's contention to the contrary, we find the commission did not apply a criminal standard of certainty to the proceedings before it. See, generally, FOE AERIE 2347 v. Ohio State LiquorControl Comm. (Dec. 27, 2001), Franklin App. No. 01AP-675, citing Dept.of Liquor Control v. Santucci (1969), 17 Ohio St.2d 69 (observing that \"[liquor control] commission proceedings have traditionally been deemed civil\"). Rather than applying a criminal standard of certainty, in its order the commission set forth the indicia it used to assess witness credibility. Appellant's contention that the commission applied an incorrect legal standard is therefore unconvincing. {¶ 13} Former R.C.",
"4301.69,5 in relevant part, provided: (A) Except as otherwise provided in this chapter, no person shall sell beer or intoxicating liquor to an underage person, shall buy beer or intoxicating liquor for an underage person, or shall furnish it to an underage person, unless given by a physician in the regular line of the physician's practice or given for established religious purposes or unless the underage person is accompanied by a parent, spouse who is not an underage person, or legal guardian. * * * * * * (H) As used in this section: * * * (5) \"Underage person\" means a person under the age of twenty-one years. {¶ 14} Before the commission, Rippeth testified that on August 26, 1998, appellant's employee furnished and sold beer to himself and Joseph Davis. According to evidence in the record, on August 26, 1998, both Rippeth and Davis were 17 years old. There was no evidence presented that suggested Rippeth or Davis was accompanied at Old Town Tavern by a parent, legal guardian, or spouse who was not an underage person. Therefore, evidence in the record supports the commission's finding that appellant through the acts of its employee violated former R.C.",
"4301.69. See, also, VFW Post 8586 v. Ohio Liquor Control Comm. (1998),83 Ohio St.3d 79, 82 (observing that the commission may draw reasonable inferences based upon evidence before it). {¶ 15} Additionally, pursuant to the applicable version of R.C. 4301.25(A),6 the commission had the authority to suspend or revoke a liquor permit for violations of R.C. Chapter 4301. Accordingly, having concluded that appellant violated former R.C. 4301.69, the commission had authority to revoke appellant's liquor permit for violations of former R.C. 4301.69. {¶ 16} Appellant suggests, however, that the commission erred when it found Rippeth's testimony was more credible than LeMaster's testimony, and, as a consequence, the common pleas court erred when it found the commission's order was supported by reliable, probative, and substantial evidence. {¶ 17} When reviewing an administrative record under R.C. 119.12, \"the trial court may, to a limited extent, substitute its judgment for that of the administrative agency; however, the trial court must give due deference to the administrative resolution of evidentiary conflicts and, if the evidence before the court consists of conflicting testimony of approximately equal weight, the court should defer to the administrative body which had the opportunity to observe the demeanor of the witnesses and weigh their credibility.\" Suso v. Ohio Dept.",
"of Dev. (1993),93 Ohio App.3d 493, 500 (Bryant, J., dissenting), dismissed, jurisdictional motion overruled (1994), 69 Ohio St.3d 1449. Upon appellate review, \"[t]he appellate court is to determine only if the trial court has abused its discretion, i.e., being not merely an error of judgment, but perversity of will, passion, prejudice, partiality, or moral delinquency. * * * [A] court of appeals may not substitute its judgment for [that of an administrative agency] or a trial court.\" Pons, supra, at 621. {¶ 18} In LeMaster's testimony before the common pleas court that was submitted as a mutual exhibit at the commission's rehearing, LeMaster testified that on August 26, 1998, he had observed Davis at another bar prior to the events at Old Town Tavern.",
"LeMaster's testimony contradicted Rippeth's testimony about Davis's whereabouts prior to the events at Old Town Tavern, thereby casting doubt upon Rippeth's credibility as a witness. {¶ 19} After considering the evidence before it, the commission found LeMaster's testimony was not credible \"in that he says he is `reasonably sure' of the date and the time in August, and applying the tests of credibility we find Justin Rippeth to be the more credible witness.",
"\"7 We find ample evidence to support the commission's finding concerning LeMaster's degree of certitude. (Feb. 28, 2001 hearing, Tr. 10, 13, 19, 20.) {¶ 20} Therefore, having found that there is ample evidence to support the commission's finding concerning LeMaster's degree of certitude and even assuming arguendo that the conflicting testimony of LeMaster and Rippeth was of equal weight, we conclude the common pleas court did not abuse its discretion by finding that the commission's order was supported by reliable, probative, and substantial evidence.",
"See, generally, OurPlace, Inc. v. Ohio Liquor Control Comm. (1992), 63 Ohio St.3d 570, 571 (defining reliable, probative, and substantial evidence). {¶ 21} Having found that the common pleas court did not abuse its discretion when it affirmed the commission's order, we therefore overrule appellant's sole assignment of error. Having overruled appellant's assignment of error, we therefore affirm the judgment of the Franklin County Court of Common Pleas. Judgment affirmed. Lazarus and Sadler, JJ., concur.",
"1 Tr. of Oct. 17, 2000, hearing, at 22. 2 Id. at 23-24. 3 Id. at 25-26; 39-40. 4 \"Order Granting Appellant's Motion To Admit Newly Discovered Evidence; Making That Evidence Part of the Record; And Remanding This Case To The Liquor Control Commission For Rehearing,\" dated July 11, 2001. 5 Since August 26, 1998, when the alleged violations of R.C.4301.69 occurred, R.C. 4301.69 has been amended. See Am.Sub.H.B.",
"No. 17, effective October 11, 2002. 6 Since the alleged violations of August 26, 1998, R.C. 4301.25 has been amended. See Am.Sub.H.B. No. 402, effective March 30, 1999; Sub.S.B. No. 23, effective April 7, 2004. 7 Order of commission, mailed June 21, 2002, at 2."
] | https://www.courtlistener.com/api/rest/v3/opinions/3776129/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Case 8:19-md-02879-PWG Document 870 Filed 07/23/21 Page 1 of 1
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND SOUTHERN DIVISION
IN RE MARRIOTT INTERNATIONAL INC. CUSTOMER DATA SECURITY BREACH LITIGATION MDL NO. 19-MD-2879 (JUDGE GRIMM)
THIS DOCUMENT RELATES TO THE CONSUMER TRACT
REPORT AND RECOMMENDATION
In our weekly conference, counsel for the parties have expressed the desire to seek reconsideration or clarification of my most recent Report and Recommendation, ECF No. 867. Counsel have convinced me that it would be in the interest of the expeditious resolution of the controversy resolved in my Report and Recommendation for their obligation to take an appeal from my Report and Recommendation be stayed pending the resolution of any motions for reconsideration or clarification. I, therefore, recommend that the deadlines for taking any appeal from ECF No. 867 be stayed pending resolution by the Special Master ofany motions for reconsideration or clarification the parties will file.
SO ORDERED, on July 22, 2021. /S/ . Paul W. Grimm United States District Judge | 2021-07-23 | [
"Case 8:19-md-02879-PWG Document 870 Filed 07/23/21 Page 1 of 1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND SOUTHERN DIVISION IN RE MARRIOTT INTERNATIONAL INC. CUSTOMER DATA SECURITY BREACH LITIGATION MDL NO. 19-MD-2879 (JUDGE GRIMM) THIS DOCUMENT RELATES TO THE CONSUMER TRACT REPORT AND RECOMMENDATION In our weekly conference, counsel for the parties have expressed the desire to seek reconsideration or clarification of my most recent Report and Recommendation, ECF No.",
"867. Counsel have convinced me that it would be in the interest of the expeditious resolution of the controversy resolved in my Report and Recommendation for their obligation to take an appeal from my Report and Recommendation be stayed pending the resolution of any motions for reconsideration or clarification. I, therefore, recommend that the deadlines for taking any appeal from ECF No. 867 be stayed pending resolution by the Special Master ofany motions for reconsideration or clarification the parties will file. SO ORDERED, on July 22, 2021. /S/ . Paul W. Grimm United States District Judge"
] | https://www.courtlistener.com/api/rest/v3/recap-documents/175933014/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Exhibit 23.2 THE LAW OFFICE OF CONRAD C. LYSIAK, P.S. 601 West First Avenue, Suite 903 Spokane, Washington 99201 (509) 624-1475 FAX: (509) 747-1770 EMAIL: cclysiak@lysiaklaw.com CONSENT I HEREBY CONSENT to the inclusion of my name in connection with the Form S-1/A Registration Statement filed with the Securities and Exchange Commission as attorney for the registrant, HDS International Corp. DATED this 16th day of January, 2013. Yours truly, The Law Office of Conrad C. Lysiak, P.S. BY: CONRAD C. LYSIAK Conrad C. Lysiak | [
"Exhibit 23.2 THE LAW OFFICE OF CONRAD C. LYSIAK, P.S. 601 West First Avenue, Suite 903 Spokane, Washington 99201 (509) 624-1475 FAX: (509) 747-1770 EMAIL: cclysiak@lysiaklaw.com CONSENT I HEREBY CONSENT to the inclusion of my name in connection with the Form S-1/A Registration Statement filed with the Securities and Exchange Commission as attorney for the registrant, HDS International Corp. DATED this 16th day of January, 2013. Yours truly, The Law Office of Conrad C. Lysiak, P.S. BY: CONRAD C. LYSIAK Conrad C. Lysiak"
] | https://applica-public.s3-eu-west-1.amazonaws.com/contract-discovery/edgar.txt.xz | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
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BREITENSTEIN, Circuit Judge. This action under the Miller Act1 is here for the second time. In the first appeal 2 a judgment in favor of D. W. Falls Construction Company and Ace Construction Company3 was reversed and the case remanded to the trial court for additional findings of fact. After adopting certain additional findings of fact the trial court again entered judgment for Falls and Ace and dismissed a counterclaim asserted by Barnard-Curtiss Company4 against Falls. Barnard and its surety appeal from that adverse judgment and contend that the additional findings are without support in the record. On November 27, 1953, Barnard entered into a contract with the United States to do certain construction and repair work on a federal Bureau of Reclamation irrigation system in New Mexico *567known as the Vermejo Project. The contract completion date was June 15, 1955. By agreement, dated January 28, 1954, Barnard subcontracted to Falls certain work on all the major structures of the project.5 This subcontract required completion on December 31, 1954. On June 7, 1954, Falls entered into two subcontracts with Ace covering a portion but not all of the work subcontracted by Barnard to Falls.6 The Ace subcontracts called for completion on December 12, 1954. Without going into the maze of arrangements which are difficult to ascertain from a thoroughly unsatisfactory record, it appears that Barnard subcontracted to Falls the general excavation, the concrete work, and the backfilling. Barnard retained for itself two general types of work. The first of these concerned only the Willow Creek Wasteway structure and pertained to the excavation for pipe, the laying of pipe, and the backfilling about pipe. This work had to be done before Falls could do the work which it was required to do in connection with the Willow Creek Wasteway. The second related to the installation on various structures of certain riprap and gravel bedding for riprap. This could be done only after Falls had completed its subcontract. For the performance of this retained work Barnard entered into subcontracts with C. E. Caldwell and with Charles Denton. Ace and Falls both failed to complete within the time required by their subcontracts. Work was continuing when, on May 17-18, 1955, an unprecedented storm caused a flood which severely damaged the project structures. Barnard requested an extension of time on its contract completion date and it was extended to August 31, 1955.7 Work on the project was completed on October 22, 1955. This was also the date of the corn-pletion of the work under the Falls subcontract. Falls sued and recovered judgment for $17,053.76 which represented the balance due on its subcontract plus an item of $1,905.54 for rehabilitation work done by Falls on the Curtis Creek Wasteway structure after the flood. As to this item the court found that there Was an agreement between Barnard and Falls whereby Barnard was to pay Falls for this work. The judgment for Falls is sustained by the record. The claim of Ace was for work done after the flood on the Eagle Tail Headworks and the Willow Creek Waste-way which Ace asserted was within the provisions of its contract relating to “Changed Condition.” Ace sued for $12,455.27.8 The trial court held that there was “an implied or constructive contract” obligating Barnard to pay Ace the reasonable value of its services and materials furnished for such work and, after properly eliminating two overhead items which totalled $4,000, gave judgment for Ace in the sum of $8,455.27. While the record as to the arrangements between Barnard and Ace for this work is unsatisfactory and confused, the finding of the trial court in regard thereto is not questioned on this appeal. Under the circumstances the judgment for Ace may not be set aside. The counterclaim of Barnard against Falls remains to be considered. The basis for this is that Barnard was al*568legedly subjected to additional expense because of the failure of Falls to complete its subcontract on the agreed date, December 31, 1954. The counterclaim is in the sum of $15,680.92. This is made up of two major items, $14,285.17 shown due from Falls by Barnard’s Exhibit 12 and $1,395.75 which was added thereto without objection at the start of the trial. As to the $1,395.75 item the record is completely devoid of any showing as to what it represents other than the statement of Barnard’s attorney that it “was overlooked on our books.” Exhibit 12, and the sketchy explanations thereof, disclosed that Barnard asserted a claim for additional costs in connection with the Willow Creek Waste-way, the Eagle Tail Canal and the Curtis Creek Wasteway. The total amount shown due is $29,662.59. Unexplained credits are allowed to bring the amount down to $14,285.17. As the record stands, the items covered by Exhibit 12 may be placed into three general groups, viz.: costs incurred on account of the flood, costs incurred after December 31, 1954, but not on account of the flood,9 and expenses on account of the provision of the prime contract for liquidated damages due to failure to complete on time. In defense of the counterclaim, Falls asserts that it is not liable for additional expense caused by the flood and is not liable for any additional expense so far as the Willow Creek Wasteway is concerned because the delay there was that of Barnard. The only basis for the counterclaim is the failure of Falls to complete on time. This failure did not ipso facto terminate the contract but subjected Falls to damages for the delay.10 The May 17-18 flood was an unprecedented and extraordinary occurrence of unusual proportions and could not reasonably have been foreseen by the parties. The trial court properly found that it was an “Act of God.” No recovery may be had from the consequences of the action of natural causes in connection with a breach of contract unless such consequences can be said to have been within the contemplation of the parties at the time of the making of the contract as a probable result of the breach.11 The damages arising from the flood did not arise in the usual course of things from the failure to complete on time and were not in the contemplation of the parties at the time they made their contract. As they were not foreseeable consequences of the breach, no recovery can be had on account of damages caused by the flood.12 There was no provision in either the prime or subcontracts relating to the consequences of an occurrence such as the flood. Accordingly, Barnard cannot recover in its counterclaim for any additional expense to which it was put because of the flood.13 The findings of the trial court in regard to the Barnard counterclaim are not entirely clear but it appears that the court considered the counterclaim to *569be based entirely on additional expense caused by the flood. If such be the intended effect of the findings, they are clearly erroneous in this regard. Barnard’s Exhibit 12 shows on its face that a number of the claimed items of additional expense were incurred before the flood and after the December 31, 1954, completion date of the Barnard-Falls subcontract. After the remand the court found: “Solely due to delay in performance by defendant of its work required to be furnished before use plaintiffs could perform under their sub-contract, it was impossible for use plaintiffs to have performed the sub-contract prior to the flash flood of May 17, 1955.” On the record presented this finding is clearly erroneous. The only work retained by Barnard which had to be done before Falls and Ace could perform was the pipe work on the Willow Creek Wasteway. This pipe was laid a day or two prior to the flood. There is no claim that Falls and Ace could have completed their work on this structure between the time when the pipe was laid and the flood. As the delay on the Willow Creek Wasteway was due to the failure of Barnard to complete the preliminary work which it was required to do, Barnard is not entitled to recover any damages for delay in connection with that structure.14 To the extent that the counterclaim seeks recovery for items not related to the flood or to the Willow Creek Wasteway, Falls is liable for additional expense to Barnard caused by Falls’ failure to complete on December 31, 1954. Such liability of Falls may be diminished by two matters of possible applicability. Barnard requested and obtained from the Bureau of Reclamation an extension of the completion date of the prime contract from June 15, 1955, to August 31, 1955. Also Barnard filed a claim with the Bureau of Reclamation in the amount of $38,335.53 for additional expense. Attached to Barnard’s motion for a new trial is an incomplete copy of the decision on this claim. From the record we are unable to ascertain what effect, if any, these two matters have on Barnard’s counterclaim. One matter remains to be considered. Under the prime contract Barnard was obligated to pay liquidated damages, at the amount set forth in the specifications, for failure to complete on the required date. The specifications do not appear in the record. There is no evidence as to what Barnard was required to pay by way of liquidated damages.15 It may be that this liquidated damage item should be apportioned between Barnard and Falls. We are unable to say one way or the other because of the condition of the record before us. The judgment for Falls in the sum of $17,053.76 is affirmed. The judgment for Ace in the sum of $8,455.27 is affirmed. The judgment dismissing the counterclaim of Barnard is reversed and the cause is remanded to the trial court with instructions to ascertain, and allow recovery of, the additional expense, if any, to Barnard properly chargeable to Falls because of its failure to complete on December 31, 1954, and not arising from the flood or from any work done on the Willow Creek Wasteway. The trial court shall also ascertain, and allow recovery of, any portion of the liquidated damage delay penalty properly chargeable to Falls. Costs will be assessed against Falls.
. 40 U.S.C.A. §§ 270a-270e.
. Barnard-Curtiss Company v. United States, 10 Cir., 244 F.2d 565.
. Hereinafter referred to as Falls and Ace " respectively.
. Hereinafter referred to as Barnard.
. There were eight major structures, viz.: Saltpeter Creek Siphon, Vermejo Canal, Eagle Tail Canal Headworks, Willow Creek Wasteway, Crow Creek Drop, Crow Creek Siphon, Curtis Creek Wasteway, and Curtis Creek Check.
. The Barnard-Falls subcontract covered 18 items. The two Falls-Ace subcontracts covered a total of 15 items.
. The extension was requested May 14, 1955, prior to the flood, and was granted because of “overrun in quantities.”
. This was broken down as follows: repairing upper end of Eagle Tail Head-works to condition prior to flood, $774.-14; pumping and cleaning lower end of Eagle Tail Headworks as demanded by Bureau of Reclamation for inspection purposes, $7,800.26; similar work on Willow Creek Wasteway, $3,880.87.
. Ex. 12 covers numerous items which bear a date before that of the flood and other items which cover the whole period January 1 — October 22, 1955.
. Federal Surety Co. v. A. Bentley & Sons Co., 6 Cir., 51 F.2d 24, 26; Murphy v. No. 1 Wall Street Corporation, 142 App.Div. 835; 127 N.Y.S. 735, 736; 9 Am.Jur. Building Contracts § 48, p. 36; 17 C.J.S. Contracts § 502, p. 1061.
. 25 C.J.S. Damages § 24, p. 487 and particularly notes 61 and 62. Carnegie, Phipps & Co. Limited v. Holt, 99 Mich. 606, 58 N.W. 623, 624.
. 15 Am.Jur. Damages § 52, p. 451, note 9 and cases there cited; Restatement of the Law of Contracts, Vol. 1, § 330, p. 509. This follows the rule in Had-ley v. Baxendale, 156 Eng.Reprint 145, 5 Eng.Rul.Cas. 502 which has gained general recognition.
. While additional recovery was allowed to Falls and Ace because of work made necessary by the flood, that recovery was based on specific agreements between Barnard and Falls and Barnard and Ace pertaining to such work.
. Cf. United States, for Use of Gillioz v. John Kerns Const. Co., 8 Cir., 140 F.2d 792, 795 et seq.
. The trial court found that the liquidated damage penalty for delay assessed against Barnard was $3,900. The basis of this finding is not apparent. Barnard’s Exhibit 16 states that Barnard deducted $2,250 from an amount claimed due by Ealls as “liquidated damages that the bureau have withheld from us because of your failure to complete your contract by December 31, 1954.” | 07-23-2022 | [
"BREITENSTEIN, Circuit Judge. This action under the Miller Act1 is here for the second time. In the first appeal 2 a judgment in favor of D. W. Falls Construction Company and Ace Construction Company3 was reversed and the case remanded to the trial court for additional findings of fact. After adopting certain additional findings of fact the trial court again entered judgment for Falls and Ace and dismissed a counterclaim asserted by Barnard-Curtiss Company4 against Falls. Barnard and its surety appeal from that adverse judgment and contend that the additional findings are without support in the record. On November 27, 1953, Barnard entered into a contract with the United States to do certain construction and repair work on a federal Bureau of Reclamation irrigation system in New Mexico *567known as the Vermejo Project. The contract completion date was June 15, 1955.",
"By agreement, dated January 28, 1954, Barnard subcontracted to Falls certain work on all the major structures of the project.5 This subcontract required completion on December 31, 1954. On June 7, 1954, Falls entered into two subcontracts with Ace covering a portion but not all of the work subcontracted by Barnard to Falls.6 The Ace subcontracts called for completion on December 12, 1954. Without going into the maze of arrangements which are difficult to ascertain from a thoroughly unsatisfactory record, it appears that Barnard subcontracted to Falls the general excavation, the concrete work, and the backfilling. Barnard retained for itself two general types of work. The first of these concerned only the Willow Creek Wasteway structure and pertained to the excavation for pipe, the laying of pipe, and the backfilling about pipe. This work had to be done before Falls could do the work which it was required to do in connection with the Willow Creek Wasteway. The second related to the installation on various structures of certain riprap and gravel bedding for riprap.",
"This could be done only after Falls had completed its subcontract. For the performance of this retained work Barnard entered into subcontracts with C. E. Caldwell and with Charles Denton. Ace and Falls both failed to complete within the time required by their subcontracts. Work was continuing when, on May 17-18, 1955, an unprecedented storm caused a flood which severely damaged the project structures. Barnard requested an extension of time on its contract completion date and it was extended to August 31, 1955.7 Work on the project was completed on October 22, 1955. This was also the date of the corn-pletion of the work under the Falls subcontract. Falls sued and recovered judgment for $17,053.76 which represented the balance due on its subcontract plus an item of $1,905.54 for rehabilitation work done by Falls on the Curtis Creek Wasteway structure after the flood.",
"As to this item the court found that there Was an agreement between Barnard and Falls whereby Barnard was to pay Falls for this work. The judgment for Falls is sustained by the record. The claim of Ace was for work done after the flood on the Eagle Tail Headworks and the Willow Creek Waste-way which Ace asserted was within the provisions of its contract relating to “Changed Condition.” Ace sued for $12,455.27.8 The trial court held that there was “an implied or constructive contract” obligating Barnard to pay Ace the reasonable value of its services and materials furnished for such work and, after properly eliminating two overhead items which totalled $4,000, gave judgment for Ace in the sum of $8,455.27. While the record as to the arrangements between Barnard and Ace for this work is unsatisfactory and confused, the finding of the trial court in regard thereto is not questioned on this appeal.",
"Under the circumstances the judgment for Ace may not be set aside. The counterclaim of Barnard against Falls remains to be considered. The basis for this is that Barnard was al*568legedly subjected to additional expense because of the failure of Falls to complete its subcontract on the agreed date, December 31, 1954. The counterclaim is in the sum of $15,680.92. This is made up of two major items, $14,285.17 shown due from Falls by Barnard’s Exhibit 12 and $1,395.75 which was added thereto without objection at the start of the trial. As to the $1,395.75 item the record is completely devoid of any showing as to what it represents other than the statement of Barnard’s attorney that it “was overlooked on our books.” Exhibit 12, and the sketchy explanations thereof, disclosed that Barnard asserted a claim for additional costs in connection with the Willow Creek Waste-way, the Eagle Tail Canal and the Curtis Creek Wasteway.",
"The total amount shown due is $29,662.59. Unexplained credits are allowed to bring the amount down to $14,285.17. As the record stands, the items covered by Exhibit 12 may be placed into three general groups, viz. : costs incurred on account of the flood, costs incurred after December 31, 1954, but not on account of the flood,9 and expenses on account of the provision of the prime contract for liquidated damages due to failure to complete on time. In defense of the counterclaim, Falls asserts that it is not liable for additional expense caused by the flood and is not liable for any additional expense so far as the Willow Creek Wasteway is concerned because the delay there was that of Barnard. The only basis for the counterclaim is the failure of Falls to complete on time. This failure did not ipso facto terminate the contract but subjected Falls to damages for the delay.10 The May 17-18 flood was an unprecedented and extraordinary occurrence of unusual proportions and could not reasonably have been foreseen by the parties. The trial court properly found that it was an “Act of God.” No recovery may be had from the consequences of the action of natural causes in connection with a breach of contract unless such consequences can be said to have been within the contemplation of the parties at the time of the making of the contract as a probable result of the breach.11 The damages arising from the flood did not arise in the usual course of things from the failure to complete on time and were not in the contemplation of the parties at the time they made their contract. As they were not foreseeable consequences of the breach, no recovery can be had on account of damages caused by the flood.12 There was no provision in either the prime or subcontracts relating to the consequences of an occurrence such as the flood.",
"Accordingly, Barnard cannot recover in its counterclaim for any additional expense to which it was put because of the flood.13 The findings of the trial court in regard to the Barnard counterclaim are not entirely clear but it appears that the court considered the counterclaim to *569be based entirely on additional expense caused by the flood. If such be the intended effect of the findings, they are clearly erroneous in this regard. Barnard’s Exhibit 12 shows on its face that a number of the claimed items of additional expense were incurred before the flood and after the December 31, 1954, completion date of the Barnard-Falls subcontract. After the remand the court found: “Solely due to delay in performance by defendant of its work required to be furnished before use plaintiffs could perform under their sub-contract, it was impossible for use plaintiffs to have performed the sub-contract prior to the flash flood of May 17, 1955.” On the record presented this finding is clearly erroneous.",
"The only work retained by Barnard which had to be done before Falls and Ace could perform was the pipe work on the Willow Creek Wasteway. This pipe was laid a day or two prior to the flood. There is no claim that Falls and Ace could have completed their work on this structure between the time when the pipe was laid and the flood. As the delay on the Willow Creek Wasteway was due to the failure of Barnard to complete the preliminary work which it was required to do, Barnard is not entitled to recover any damages for delay in connection with that structure.14 To the extent that the counterclaim seeks recovery for items not related to the flood or to the Willow Creek Wasteway, Falls is liable for additional expense to Barnard caused by Falls’ failure to complete on December 31, 1954.",
"Such liability of Falls may be diminished by two matters of possible applicability. Barnard requested and obtained from the Bureau of Reclamation an extension of the completion date of the prime contract from June 15, 1955, to August 31, 1955. Also Barnard filed a claim with the Bureau of Reclamation in the amount of $38,335.53 for additional expense. Attached to Barnard’s motion for a new trial is an incomplete copy of the decision on this claim. From the record we are unable to ascertain what effect, if any, these two matters have on Barnard’s counterclaim. One matter remains to be considered.",
"Under the prime contract Barnard was obligated to pay liquidated damages, at the amount set forth in the specifications, for failure to complete on the required date. The specifications do not appear in the record. There is no evidence as to what Barnard was required to pay by way of liquidated damages.15 It may be that this liquidated damage item should be apportioned between Barnard and Falls. We are unable to say one way or the other because of the condition of the record before us. The judgment for Falls in the sum of $17,053.76 is affirmed. The judgment for Ace in the sum of $8,455.27 is affirmed. The judgment dismissing the counterclaim of Barnard is reversed and the cause is remanded to the trial court with instructions to ascertain, and allow recovery of, the additional expense, if any, to Barnard properly chargeable to Falls because of its failure to complete on December 31, 1954, and not arising from the flood or from any work done on the Willow Creek Wasteway. The trial court shall also ascertain, and allow recovery of, any portion of the liquidated damage delay penalty properly chargeable to Falls. Costs will be assessed against Falls. . 40 U.S.C.A. §§ 270a-270e. .",
"Barnard-Curtiss Company v. United States, 10 Cir., 244 F.2d 565. . Hereinafter referred to as Falls and Ace \" respectively. . Hereinafter referred to as Barnard. . There were eight major structures, viz. : Saltpeter Creek Siphon, Vermejo Canal, Eagle Tail Canal Headworks, Willow Creek Wasteway, Crow Creek Drop, Crow Creek Siphon, Curtis Creek Wasteway, and Curtis Creek Check. . The Barnard-Falls subcontract covered 18 items. The two Falls-Ace subcontracts covered a total of 15 items. . The extension was requested May 14, 1955, prior to the flood, and was granted because of “overrun in quantities.” .",
"This was broken down as follows: repairing upper end of Eagle Tail Head-works to condition prior to flood, $774.-14; pumping and cleaning lower end of Eagle Tail Headworks as demanded by Bureau of Reclamation for inspection purposes, $7,800.26; similar work on Willow Creek Wasteway, $3,880.87. . Ex. 12 covers numerous items which bear a date before that of the flood and other items which cover the whole period January 1 — October 22, 1955. . Federal Surety Co. v. A. Bentley & Sons Co., 6 Cir., 51 F.2d 24, 26; Murphy v. No. 1 Wall Street Corporation, 142 App.Div.",
"835; 127 N.Y.S. 735, 736; 9 Am.Jur. Building Contracts § 48, p. 36; 17 C.J.S. Contracts § 502, p. 1061. . 25 C.J.S. Damages § 24, p. 487 and particularly notes 61 and 62. Carnegie, Phipps & Co. Limited v. Holt, 99 Mich. 606, 58 N.W. 623, 624. . 15 Am.Jur. Damages § 52, p. 451, note 9 and cases there cited; Restatement of the Law of Contracts, Vol. 1, § 330, p. 509. This follows the rule in Had-ley v. Baxendale, 156 Eng.Reprint 145, 5 Eng.Rul.Cas. 502 which has gained general recognition. . While additional recovery was allowed to Falls and Ace because of work made necessary by the flood, that recovery was based on specific agreements between Barnard and Falls and Barnard and Ace pertaining to such work. .",
"Cf. United States, for Use of Gillioz v. John Kerns Const. Co., 8 Cir., 140 F.2d 792, 795 et seq. . The trial court found that the liquidated damage penalty for delay assessed against Barnard was $3,900. The basis of this finding is not apparent. Barnard’s Exhibit 16 states that Barnard deducted $2,250 from an amount claimed due by Ealls as “liquidated damages that the bureau have withheld from us because of your failure to complete your contract by December 31, 1954.”"
] | https://www.courtlistener.com/api/rest/v3/opinions/6916789/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Appeal reinstated and the order of this court, entered September 27, 1960, is amended by extending the time of appellant to file and serve record, brief and note of issue to April 17, 1961 and be ready for argument at the term to commence May 15, 1961. | 01-12-2022 | [
"Appeal reinstated and the order of this court, entered September 27, 1960, is amended by extending the time of appellant to file and serve record, brief and note of issue to April 17, 1961 and be ready for argument at the term to commence May 15, 1961."
] | https://www.courtlistener.com/api/rest/v3/opinions/5726273/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Case: 1:18-cv-00207-HEA Doc. #: 28 Filed: 06/17/20 Page: 1 of 3 PageID #: 86
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI SOUTHEASTERN DIVISION
RICHARD MATTHEW TRICE, ) ) Plaintiff, ) ) v. ) No. 1:18CV207 HEA ) ELI RODGERS AND TOM WILKERSON, ) ) Defendants. )
OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff’s Second Motion to Reopen Case
Against Tom Wilkerson, [Doc. No.25]. In the Motion, Plaintiff asks the Court to
allow him to proceed against Defendant Wilkerson. In the Opinion,
Memorandum and Order entered on June 14, 2019 the Court detailed its reasoning
for dismissing Plaintiff’s claims against Defendant Wilkerson:
To state a claim for medical mistreatment, plaintiff must plead facts sufficient to indicate a deliberate indifference to serious medical needs. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Camberos v. Branstad, 73 F.3d 174, 175 (8th Cir. 1995). Allegations of mere negligence in giving or failing to supply medical treatment will not suffice. Estelle, 429 U.S. at 106. In order to show deliberate indifference, plaintiff must allege that he suffered objectively serious medical needs and that defendants actually knew of but deliberately disregarded those needs. Dulany v. Carnahan, 132 F.3d 1234, 1239 (8th Cir. 1997). Furthermore, “[b]ecause a § 1983 action is a type of tort claim, general principles of tort law require that a plaintiff suffer some actual injury before he can receive compensation.” Irving v. Dormire, 519 F.3d 441, 448 (8th Cir. 2008). Case: 1:18-cv-00207-HEA Doc. #: 28 Filed: 06/17/20 Page: 2 of 3 PageID #: 87
Plaintiff alleges he was arrested on a weekend and told officers at the jail that he needed his blood thinner medication. A nurse called defendant Wilkinson, and Wilkinson said, “wait until Monday.” Also, and it is unclear whether this was on the same date as his arrest, plaintiff alleges he was assaulted by defendant Rodgers on a weekend and was denied medical attention. He suffered bruises and a cut on his wrist for which he was given a bandage.
First, as to plaintiff’s allegation regarding his blood thinner medication, assuming plaintiff could state facts to establish a serious medical need for this medication, plaintiff has not alleged he suffered any injury arising out of Wilkinson’s decision to wait one or two days (until Monday) to provide the medication. As stated above, a § 1983 action requires that a plaintiff suffer some actual injury before he can receive compensation. See Irving, 519 F.3d at 448. Plaintiff fails to plead any plausible injury arising out of this 24- to 48-hour delay in receiving medication.
Second, as to plaintiff’s allegations that defendant Wilkinson did not treat plaintiff’s bruises and cut after his alleged assault by Rodgers, plaintiff has not pled sufficient facts to establish he suffered an objectively serious medical need. “To be objectively serious, a medical need must have been diagnosed by a physician as requiring treatment or must be so obvious that even a layperson would easily recognize the necessity for a doctor’s attention.” Jackson v. Buckman, 756 F.3d 1060, 1065 (8th Cir. 2014) (internal quotations omitted). Plaintiff alleges he suffered a cut on his writ from the handcuffs. Correctional Officer Fibbs loosened the cuffs and provided plaintiff with a bandage. Plaintiff also alleges he suffered bruising on his stomach and neck and headaches after the alleged assault. These injuries were not diagnosed by a physician as requiring treatment, and giving plaintiff the benefit of liberal construction, the Court cannot find that the bruising, cut, and headache were so obvious that even a layperson would easily recognize the need for treatment. Id. Plaintiff has offered no facts regarding any bleeding or infection from his cut, and he has offered no alternative course of treatment. Id. On initial review, the Court finds plaintiff has not alleged an objectively serious medical need sufficient to state a plausible claim for deliberate indifference against defendant Wilkinson. The Court will dismiss without prejudice all claims brought against defendant Wilkinson. 2 Case: 1:18-cv-00207-HEA Doc. #: 28 Filed: 06/17/20 Page: 3 of 3 PageID #: 88
In the Opinion, Memorandum and Order entered on March 20, 2020 denying
Plaintiff’s first motion to reopen, the Court found that “Plaintiff’s Motion to
Reopen merely states that Defendant Wilkinson “knows” his medical condition
and that he made numerous requests for a nurse. These statements do not fulfill
Plaintiff’s requirements to allege an objectively serious medical need and that
Defendant was deliberately indifferent to that serious medical need, as detailed in
the Court’s June 14, 2019 Opinion.”
For the reasons set forth in the June 14, 2019 and March 20, 2020 Opinions,
Plaintiff’s second Motion to Reopen will be denied.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s second Motion to Reopen,
[Doc. No. 25], is DENIED.
Dated this 17th day of June, 2020.
________________________________ HENRY EDWARD AUTREY UNITED STATES DISTRICT JUDGE
3 | 2020-06-17 | [
"Case: 1:18-cv-00207-HEA Doc. #: 28 Filed: 06/17/20 Page: 1 of 3 PageID #: 86 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI SOUTHEASTERN DIVISION RICHARD MATTHEW TRICE, ) ) Plaintiff, ) ) v. ) No. 1:18CV207 HEA ) ELI RODGERS AND TOM WILKERSON, ) ) Defendants. ) OPINION, MEMORANDUM AND ORDER This matter is before the Court on Plaintiff’s Second Motion to Reopen Case Against Tom Wilkerson, [Doc.",
"No.25]. In the Motion, Plaintiff asks the Court to allow him to proceed against Defendant Wilkerson. In the Opinion, Memorandum and Order entered on June 14, 2019 the Court detailed its reasoning for dismissing Plaintiff’s claims against Defendant Wilkerson: To state a claim for medical mistreatment, plaintiff must plead facts sufficient to indicate a deliberate indifference to serious medical needs. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Camberos v. Branstad, 73 F.3d 174, 175 (8th Cir. 1995). Allegations of mere negligence in giving or failing to supply medical treatment will not suffice. Estelle, 429 U.S. at 106. In order to show deliberate indifference, plaintiff must allege that he suffered objectively serious medical needs and that defendants actually knew of but deliberately disregarded those needs. Dulany v. Carnahan, 132 F.3d 1234, 1239 (8th Cir.",
"1997). Furthermore, “[b]ecause a § 1983 action is a type of tort claim, general principles of tort law require that a plaintiff suffer some actual injury before he can receive compensation.” Irving v. Dormire, 519 F.3d 441, 448 (8th Cir. 2008). Case: 1:18-cv-00207-HEA Doc. #: 28 Filed: 06/17/20 Page: 2 of 3 PageID #: 87 Plaintiff alleges he was arrested on a weekend and told officers at the jail that he needed his blood thinner medication. A nurse called defendant Wilkinson, and Wilkinson said, “wait until Monday.” Also, and it is unclear whether this was on the same date as his arrest, plaintiff alleges he was assaulted by defendant Rodgers on a weekend and was denied medical attention. He suffered bruises and a cut on his wrist for which he was given a bandage. First, as to plaintiff’s allegation regarding his blood thinner medication, assuming plaintiff could state facts to establish a serious medical need for this medication, plaintiff has not alleged he suffered any injury arising out of Wilkinson’s decision to wait one or two days (until Monday) to provide the medication.",
"As stated above, a § 1983 action requires that a plaintiff suffer some actual injury before he can receive compensation. See Irving, 519 F.3d at 448. Plaintiff fails to plead any plausible injury arising out of this 24- to 48-hour delay in receiving medication. Second, as to plaintiff’s allegations that defendant Wilkinson did not treat plaintiff’s bruises and cut after his alleged assault by Rodgers, plaintiff has not pled sufficient facts to establish he suffered an objectively serious medical need. “To be objectively serious, a medical need must have been diagnosed by a physician as requiring treatment or must be so obvious that even a layperson would easily recognize the necessity for a doctor’s attention.” Jackson v. Buckman, 756 F.3d 1060, 1065 (8th Cir.",
"2014) (internal quotations omitted). Plaintiff alleges he suffered a cut on his writ from the handcuffs. Correctional Officer Fibbs loosened the cuffs and provided plaintiff with a bandage. Plaintiff also alleges he suffered bruising on his stomach and neck and headaches after the alleged assault. These injuries were not diagnosed by a physician as requiring treatment, and giving plaintiff the benefit of liberal construction, the Court cannot find that the bruising, cut, and headache were so obvious that even a layperson would easily recognize the need for treatment. Id. Plaintiff has offered no facts regarding any bleeding or infection from his cut, and he has offered no alternative course of treatment. Id. On initial review, the Court finds plaintiff has not alleged an objectively serious medical need sufficient to state a plausible claim for deliberate indifference against defendant Wilkinson.",
"The Court will dismiss without prejudice all claims brought against defendant Wilkinson. 2 Case: 1:18-cv-00207-HEA Doc. #: 28 Filed: 06/17/20 Page: 3 of 3 PageID #: 88 In the Opinion, Memorandum and Order entered on March 20, 2020 denying Plaintiff’s first motion to reopen, the Court found that “Plaintiff’s Motion to Reopen merely states that Defendant Wilkinson “knows” his medical condition and that he made numerous requests for a nurse. These statements do not fulfill Plaintiff’s requirements to allege an objectively serious medical need and that Defendant was deliberately indifferent to that serious medical need, as detailed in the Court’s June 14, 2019 Opinion.” For the reasons set forth in the June 14, 2019 and March 20, 2020 Opinions, Plaintiff’s second Motion to Reopen will be denied. Accordingly, IT IS HEREBY ORDERED that Plaintiff’s second Motion to Reopen, [Doc. No. 25], is DENIED.",
"Dated this 17th day of June, 2020. ________________________________ HENRY EDWARD AUTREY UNITED STATES DISTRICT JUDGE 3"
] | https://www.courtlistener.com/api/rest/v3/recap-documents/136701739/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
The defendants appeal from a judgment in favor of plaintiff. The object of plaintiff's suit was to enjoin the defendants from enlarging Old Live Oak Slough and from constructing or maintaining a certain proposed ditch, and from doing any other act or thing whereby any of the waters falling upon the lands northeasterly of a certain alleged ridge, some six miles northerly of plaintiff's lands, might be precipitated, or the flow thereof accelerated, to or upon the plaintiff's lands. He also asks for a mandatory injunction requiring defendants to fill up so much of said ditch as had been dug before the suit was begun. The plaintiff's lands consist of one hundred and eighty acres. He alleges that about six miles north thereof there is a high ridge of ground which, unless interfered with by the defendants, does and will effectually prevent the water falling upon the land northerly and easterly thereof from flowing down to and upon his own land. He further alleges *Page 443 that south of said ridge there extends from said ridge, in a southerly direction, for a part of the distance to his land a slough known as Old Live Oak Slough, with which is connected an artificial ditch extending therefrom to and through his land, by means whereof the waters of the slough are drained and carried away to lower lands. With respect to the acts of the defendants complained of, he alleges that they are engaged in digging a ditch through said ridge of land, which will cut through the same and drain the waters falling upon the lands northerly and easterly thereof into the slough and through the ditch leading therefrom to and upon the lands of the plaintiff, and that they also threaten to, and, unless restrained, will deepen, widen, and extend the slough from the point where the defendants' proposed ditch enters the same in a northeasterly direction, thereby bringing into said slough and down to and upon the lands of the plaintiff a vast body of water which falls and accumulates upon lands northeasterly of section 8, in which section said ridge is situated, which water would not at all reach plaintiff's lands without the doing of said threatened work by the defendants, and that by reason of said additional water coming into said ditch crossing plaintiff's lands it will be caused to overflow plaintiff's lands and render them unfit for cultivation, to his great damage. The answer to the complaint consisted of denials and affirmative defenses. The court on motion of the plaintiff struck out the affirmative defenses and a part of the denials and thereupon it sustained a general demurrer to the answer without leave to amend, and rendered the judgment appealed from. This judgment enjoins the defendants from digging the proposed new ditch or from deepening, widening, or extending the slough or doing any other act or thing which will cause the waters from the lands northerly and northeasterly of said ridge to flow down to and upon the plaintiff's lands. It also commands the defendants to refill with earth the lower thirty feet of the ditch which they have dug northerly from Old Live Oak Slough. The defendants, in support of their appeal urge that the court erred in striking out the portions of the answers and in sustaining the demurrer to the remainder thereof. The gist of the threatened injury alleged in the complaint is the making of the new ditch and the alteration of the slough *Page 444 in such a manner that the water falling on the land north of the alleged ridge, and which did not before reach plaintiff's lands, will be carried to and upon said lands through said proposed ditch across the ridge. Every landowner must bear the burden of receiving upon his land the surface water naturally falling upon land above it and naturally flowing to it therefrom, and he has the corresponding right to have the surface water naturally falling upon his land or naturally coming upon it, flow freely therefrom upon the lower land adjoining, as it would flow under natural conditions. From these rights and burdens, the principle follows that he has a lawful right to complain of others, who, by interfering with natural conditions, cause such surface water to be discharged in greater quantity or in a different manner upon his land, than would occur under natural conditions. This is the settled law of this state. (Conniff v. San Francisco, 67 Cal. 49, [7 P. 41]; Ogburn v. Connor, 46 Cal. 351, [13 Am. Rep. 213];McDaniel v. Cummings, 83 Cal. 519, [8 L.R.A. 575, 23 P. 795];Gray v. McWilliams, 98 Cal. 162, [35 Am. St. Rep. 163, 21 L.R.A. 593, 32 P. 976]; Stanford v. San Francisco, 111 Cal. 198, [43 P. 605]; Hicks v. Drew, 117 Cal. 305, [49 P. 189]; Rudel v.Los Angeles Co., 118 Cal. 288, [50 P. 400]; Cushing v. Pires,124 Cal. 665, [57 P. 572]; Cloverdale v. Smith, 128 Cal. 233, [60 P. 851]; Larrabee v. Cloverdale, 131 Cal. 99, [93 P. 143]; Wood v. Moulton, 146 Cal. 317, [80 P. 92].) The fifth paragraph of the answer was stricken out. In it the defendants deny that they are now or ever have been engaged in digging a ditch through said ridge of land or that any ditch as planned or now in course of construction by them will cut through said ridge. These allegations merely refer to the construction of a ditch cutting through the ridge. This act is not the essential part of plaintiff's action. It is the making of excavations which will so alter natural conditions that additional surface water will be discharged upon plaintiff's lands that constitutes the ground of his complaint. This paragraph, however, also contains the following: "Defendants deny that any ditch or canal now being dug or constructed by them or which they have, previous to the commencement of this action, been engaged in digging and constructing, will connect the territory lying north of said alleged ridge with *Page 445 said Old Live Oak Slough, or that it will effectually drain all or any water falling upon said lands to the north and northeast of said alleged ridge into said slough, and through said artificial ditch or canal mentioned in plaintiff's complaint to and upon the lands of plaintiff or any part thereof in any greater volume or in any different manner than that in which they have heretofore since the year 1896, been accustomed to flow and drain." It appears from other allegations in the answer which were also stricken out, that in the year 1896 the ditch running through the plaintiff's lands was constructed by the defendants for the purpose of draining the waters from Old Live Oak Slough, and that it has ever since that time been maintained for that purpose. This explains the allusion to the accustomed flow of water since 1896, in the part of the answer above quoted. The effect of this denial is to raise an issue upon the allegations of the complaint that the waters falling upon lands northerly and easterly of the alleged ridge will be carried upon the plaintiff's lands, by reason of the alleged excavations of the defendants, in greater quantities than would occur under natural conditions. This is the gist of the plaintiff's cause of action and without it he would not be entitled to the judgment he obtained. The denial raised a material issue upon which the defendants were entitled to a trial. For this reason the court erred in striking out this portion of the answer. In paragraph VI of the answer there is an allegation that none of the work as planned or in process of construction by the defendants, when completed, will cause any additional surface water to flow through said slough and ditch to the injury of the plaintiff in any manner or at all. This is but a repetition of the matter above quoted from paragraph V and it is perhaps more in the nature of a conclusion than a statement of fact. It might well have been stricken out as unnecessary because it is, at most, but a repetition of a previous denial. Other allegations, in connection with the part of the answer which was stricken out, were to the effect that a drainage district was formed in the year 1895 for the purpose of draining lands in the vicinity of plaintiff's lands; that this drainage district, under proper proceedings for that purpose, constructed the ditch over the plaintiff's land for the purpose of *Page 446 draining the waters of said slough, and that the district purchased and now owns a right of way over the plaintiff's lands for that purpose. These matters were wholly immaterial to the case. Granting that the drainage district had procured a right of way to construct the ditch now existing across the plaintiff's lands, it would not at all follow that it, or any other person, would have the right to cause additional surface water to flow therein sufficient to make it overflow its banks and injure the plaintiff's lands. It is not alleged that said district has ever obtained, or now has, the right to cause such overflow. These matters were properly stricken from the answer. The order striking out paragraph five of the answer and the giving of judgment for the plaintiff, under these circumstances, deprived the defendants of the substantial right of having a trial upon the material issue of fact which they had tendered, and for that reason the judgment is erroneous. The judgment is reversed. Angellotti, J., and Sloss, J., concurred. | 07-05-2016 | [
"The defendants appeal from a judgment in favor of plaintiff. The object of plaintiff's suit was to enjoin the defendants from enlarging Old Live Oak Slough and from constructing or maintaining a certain proposed ditch, and from doing any other act or thing whereby any of the waters falling upon the lands northeasterly of a certain alleged ridge, some six miles northerly of plaintiff's lands, might be precipitated, or the flow thereof accelerated, to or upon the plaintiff's lands. He also asks for a mandatory injunction requiring defendants to fill up so much of said ditch as had been dug before the suit was begun. The plaintiff's lands consist of one hundred and eighty acres. He alleges that about six miles north thereof there is a high ridge of ground which, unless interfered with by the defendants, does and will effectually prevent the water falling upon the land northerly and easterly thereof from flowing down to and upon his own land.",
"He further alleges *Page 443 that south of said ridge there extends from said ridge, in a southerly direction, for a part of the distance to his land a slough known as Old Live Oak Slough, with which is connected an artificial ditch extending therefrom to and through his land, by means whereof the waters of the slough are drained and carried away to lower lands. With respect to the acts of the defendants complained of, he alleges that they are engaged in digging a ditch through said ridge of land, which will cut through the same and drain the waters falling upon the lands northerly and easterly thereof into the slough and through the ditch leading therefrom to and upon the lands of the plaintiff, and that they also threaten to, and, unless restrained, will deepen, widen, and extend the slough from the point where the defendants' proposed ditch enters the same in a northeasterly direction, thereby bringing into said slough and down to and upon the lands of the plaintiff a vast body of water which falls and accumulates upon lands northeasterly of section 8, in which section said ridge is situated, which water would not at all reach plaintiff's lands without the doing of said threatened work by the defendants, and that by reason of said additional water coming into said ditch crossing plaintiff's lands it will be caused to overflow plaintiff's lands and render them unfit for cultivation, to his great damage. The answer to the complaint consisted of denials and affirmative defenses.",
"The court on motion of the plaintiff struck out the affirmative defenses and a part of the denials and thereupon it sustained a general demurrer to the answer without leave to amend, and rendered the judgment appealed from. This judgment enjoins the defendants from digging the proposed new ditch or from deepening, widening, or extending the slough or doing any other act or thing which will cause the waters from the lands northerly and northeasterly of said ridge to flow down to and upon the plaintiff's lands. It also commands the defendants to refill with earth the lower thirty feet of the ditch which they have dug northerly from Old Live Oak Slough. The defendants, in support of their appeal urge that the court erred in striking out the portions of the answers and in sustaining the demurrer to the remainder thereof. The gist of the threatened injury alleged in the complaint is the making of the new ditch and the alteration of the slough *Page 444 in such a manner that the water falling on the land north of the alleged ridge, and which did not before reach plaintiff's lands, will be carried to and upon said lands through said proposed ditch across the ridge. Every landowner must bear the burden of receiving upon his land the surface water naturally falling upon land above it and naturally flowing to it therefrom, and he has the corresponding right to have the surface water naturally falling upon his land or naturally coming upon it, flow freely therefrom upon the lower land adjoining, as it would flow under natural conditions. From these rights and burdens, the principle follows that he has a lawful right to complain of others, who, by interfering with natural conditions, cause such surface water to be discharged in greater quantity or in a different manner upon his land, than would occur under natural conditions.",
"This is the settled law of this state. (Conniff v. San Francisco, 67 Cal. 49, [7 P. 41]; Ogburn v. Connor, 46 Cal. 351, [13 Am. Rep. 213];McDaniel v. Cummings, 83 Cal. 519, [8 L.R.A. 575, 23 P. 795];Gray v. McWilliams, 98 Cal. 162, [35 Am. St. Rep. 163, 21 L.R.A. 593, 32 P. 976]; Stanford v. San Francisco, 111 Cal. 198, [43 P. 605]; Hicks v. Drew, 117 Cal. 305, [49 P. 189]; Rudel v.Los Angeles Co., 118 Cal. 288, [50 P. 400]; Cushing v. Pires,124 Cal. 665, [57 P. 572]; Cloverdale v. Smith, 128 Cal. 233, [60 P. 851]; Larrabee v. Cloverdale, 131 Cal. 99, [93 P. 143]; Wood v. Moulton, 146 Cal. 317, [80 P. 92].) The fifth paragraph of the answer was stricken out. In it the defendants deny that they are now or ever have been engaged in digging a ditch through said ridge of land or that any ditch as planned or now in course of construction by them will cut through said ridge.",
"These allegations merely refer to the construction of a ditch cutting through the ridge. This act is not the essential part of plaintiff's action. It is the making of excavations which will so alter natural conditions that additional surface water will be discharged upon plaintiff's lands that constitutes the ground of his complaint. This paragraph, however, also contains the following: \"Defendants deny that any ditch or canal now being dug or constructed by them or which they have, previous to the commencement of this action, been engaged in digging and constructing, will connect the territory lying north of said alleged ridge with *Page 445 said Old Live Oak Slough, or that it will effectually drain all or any water falling upon said lands to the north and northeast of said alleged ridge into said slough, and through said artificial ditch or canal mentioned in plaintiff's complaint to and upon the lands of plaintiff or any part thereof in any greater volume or in any different manner than that in which they have heretofore since the year 1896, been accustomed to flow and drain.\"",
"It appears from other allegations in the answer which were also stricken out, that in the year 1896 the ditch running through the plaintiff's lands was constructed by the defendants for the purpose of draining the waters from Old Live Oak Slough, and that it has ever since that time been maintained for that purpose. This explains the allusion to the accustomed flow of water since 1896, in the part of the answer above quoted. The effect of this denial is to raise an issue upon the allegations of the complaint that the waters falling upon lands northerly and easterly of the alleged ridge will be carried upon the plaintiff's lands, by reason of the alleged excavations of the defendants, in greater quantities than would occur under natural conditions. This is the gist of the plaintiff's cause of action and without it he would not be entitled to the judgment he obtained. The denial raised a material issue upon which the defendants were entitled to a trial. For this reason the court erred in striking out this portion of the answer. In paragraph VI of the answer there is an allegation that none of the work as planned or in process of construction by the defendants, when completed, will cause any additional surface water to flow through said slough and ditch to the injury of the plaintiff in any manner or at all.",
"This is but a repetition of the matter above quoted from paragraph V and it is perhaps more in the nature of a conclusion than a statement of fact. It might well have been stricken out as unnecessary because it is, at most, but a repetition of a previous denial. Other allegations, in connection with the part of the answer which was stricken out, were to the effect that a drainage district was formed in the year 1895 for the purpose of draining lands in the vicinity of plaintiff's lands; that this drainage district, under proper proceedings for that purpose, constructed the ditch over the plaintiff's land for the purpose of *Page 446 draining the waters of said slough, and that the district purchased and now owns a right of way over the plaintiff's lands for that purpose.",
"These matters were wholly immaterial to the case. Granting that the drainage district had procured a right of way to construct the ditch now existing across the plaintiff's lands, it would not at all follow that it, or any other person, would have the right to cause additional surface water to flow therein sufficient to make it overflow its banks and injure the plaintiff's lands. It is not alleged that said district has ever obtained, or now has, the right to cause such overflow. These matters were properly stricken from the answer. The order striking out paragraph five of the answer and the giving of judgment for the plaintiff, under these circumstances, deprived the defendants of the substantial right of having a trial upon the material issue of fact which they had tendered, and for that reason the judgment is erroneous. The judgment is reversed. Angellotti, J., and Sloss, J., concurred."
] | https://www.courtlistener.com/api/rest/v3/opinions/3309202/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
DETAILED ACTION Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . Continued Examination Under 37 CFR 1.114 A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after allowance or after an Office action under Ex Parte Quayle, 25 USPQ 74, 453 O.G. 213 (Comm'r Pat. 1935). Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, prosecution in this application has been reopened pursuant to 37 CFR 1.114. Applicant's submission filed on 17 May 2021 has been entered. Information Disclosure Statement Applicant should note that the large number of references in the attached IDS documents have been considered by the examiner in the same manner as other documents in Office search files are considered by the examiner while conducting a search of the prior art in a proper field of search. See MPEP 609.05(b). Applicant is invited to point out any particular references in the submitted IDS documents which they believe may be of particular relevance to the instant claimed invention in response to this Office action. The information disclosure statement filed 28 May 2021 fails to comply with the provisions of 37 CFR 1.97, 1.98 and MPEP § 609 because each non-patent literature has been provided a publication date. It has been placed in the application file, but the Allowable Subject Matter Claims 33-62 are allowed for the reasons given in the Office action mailed 25 November 2020. Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to Carrie R Dorna whose telephone number is (571)270-7483. The examiner can normally be reached on 8am-5pm. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Charles Marmor, II can be reached on 571-272-4730. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for
/CARRIE R DORNA/Primary Examiner, Art Unit 3791 | 2021-10-06T08:30:43 | [
"DETAILED ACTION Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . Continued Examination Under 37 CFR 1.114 A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after allowance or after an Office action under Ex Parte Quayle, 25 USPQ 74, 453 O.G. 213 (Comm'r Pat. 1935). Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, prosecution in this application has been reopened pursuant to 37 CFR 1.114. Applicant's submission filed on 17 May 2021 has been entered. Information Disclosure Statement Applicant should note that the large number of references in the attached IDS documents have been considered by the examiner in the same manner as other documents in Office search files are considered by the examiner while conducting a search of the prior art in a proper field of search. See MPEP 609.05(b).",
"Applicant is invited to point out any particular references in the submitted IDS documents which they believe may be of particular relevance to the instant claimed invention in response to this Office action. The information disclosure statement filed 28 May 2021 fails to comply with the provisions of 37 CFR 1.97, 1.98 and MPEP § 609 because each non-patent literature has been provided a publication date. It has been placed in the application file, but the Allowable Subject Matter Claims 33-62 are allowed for the reasons given in the Office action mailed 25 November 2020. Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to Carrie R Dorna whose telephone number is (571)270-7483. The examiner can normally be reached on 8am-5pm.",
"Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Charles Marmor, II can be reached on 571-272-4730. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for /CARRIE R DORNA/Primary Examiner, Art Unit 3791"
] | https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2021-09-26.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Citation Nr: 1700408
Decision Date: 01/09/17 Archive Date: 01/18/17
DOCKET NO. 12-00 506 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia
THE ISSUES
1. Entitlement to an initial rating greater than 40 percent for the orthopedic manifestations of thoracolumbar spine intervertebral disc syndrome (IVDS).
2. Entitlement to an initial rating greater than 20 percent for sciatic nerve involvement of the left leg as a neurologic manifestation of thoracolumbar spine IVDS.
3. Entitlement to a compensable rating for sciatic nerve involvement of the right leg as a neurologic manifestation of thoracolumbar spine IVDS for the time period prior to November 26, 2014.
4. Entitlement to an initial rating greater than 20 percent for sciatic nerve involvement of the right leg as a neurologic manifestation of thoracolumbar spine IVDS since November 26, 2014.
5. Entitlement to individual unemployability (TDIU) due to service-connected disability for the time period prior to November 26, 2014.
6. Entitlement to Special Monthly Compensation (SMC) based on aid and attendance and/or housebound.
REPRESENTATION
Appellant represented by: Virginia Department of Veterans Services
WITNESSES AT HEARING ON APPEAL
Appellant and his wife
ATTORNEY FOR THE BOARD
T. S. Willie, Counsel
INTRODUCTION
The Veteran served on active duty in the U.S. Army from July 1983 to September 1989.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veteran Affairs (VA) Regional Office in Roanoke, Virginia.
In August 2016, the Veteran appeared at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record.
As the Veteran has expressed that his service-connected disability impacts his ability to maintain employment, a claim of entitlement to a total disability evaluation based on individual unemployability due to service-connected disorders appears to have been raised and thus is a component of the increased rating claim on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board is mindful that in February 2015 the RO granted TDIU, effective November 26, 2014. As this was not a complete grant of benefits, the Board is still presented with the issue of entitlement to TDIU prior to November 26, 2014 which is addressed in the decision below.
The Board also notes that, at the hearing, the Veteran alleged being bedridden for long periods of time with the need for aid and attendance due to his thoracolumbar spine disability. His testimony reasonably raises the issue of entitlement to aid and attendance and/or housebound which must be deemed part of the initial rating claim on appeal. Thus, the Board finds that SMC issue is a component of the increased rating claims on appeal. See Buie v. Shinseki, 24 Vet. App. 242, 251 (2011); see also Bradley v. Peake, 22 Vet. App. 280, 293 (2008). The Board has listed the SMC issue as a separate "claim" for administrative purposes only.
The issues of entitlement to an initial rating greater than 40 percent for the orthopedic manifestations of thoracolumbar spine IVDS, an initial rating greater than 20 percent for sciatic nerve involvement of the left leg as a neurologic manifestation of thoracolumbar spine IVDS, an initial rating greater than 20 percent for sciatic nerve involvement of the right leg as a neurologic manifestation of thoracolumbar spine IVDS and entitlement to SMC based on aid and attendance and/or housebound are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).
FINDINGS OF FACT
1. Sciatic nerve involvement of the right leg, manifested by pain and decreased sensation along the sciatic nerve root, as a neurologic manifestation of thoracolumbar spine IVDS has been present for the entire appeal period.
2. For the entire appeal period, the Veteran has been unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities.
CONCLUSIONS OF LAW
1. The criteria for a 20 percent rating for sciatic nerve involvement of the right leg as a neurologic manifestation of thoracolumbar spine IVDS has been met for the entire appeal period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.21, 4.120, 4.123, 4.124a, Diagnostic Code 8520 (2016).
2. The criteria for entitlement to TDIU have been met as of May 24, 2010. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.321 , 3.340, 3.341, 4.15, 4.16, 4.19 (2016).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2016). As shown below, no adverse determination is being made. Therefore, there is no need to discuss VCAA compliance at this time.
The Veteran seeks a higher initial rating for his sciatic nerve involvement of the right leg as a neurologic manifestation of thoracolumbar spine IVDS, and asserts that his service-connected disabilities render him unable to obtain and maintain substantially gainful employment.
The Veteran filed a claim for service connection for a lumbar spine disability on May 24, 2010. In February 2011, the RO granted the claim for service connection for IVDS with scar from past surgery, effective May 24, 2010. At that time, service connection for sciatic nerve involvement of the left leg was established as related to the service-connected disability of IVDS with scar from past surgery, effective May 24, 2010.
In a December 2014 rating decision, service connection was granted for sciatic nerve involvement of the right leg. The Veteran was granted an evaluation of 20 percent, effective November 26, 2014. The RO assigned an evaluation of 20 percent from November 26, 2014, as they found that this was the earliest date on which the evidence of record showed sciatic nerve involvement of the right leg.
The Board notes, however, that prior to November 26, 2014 there is evidence of nerve involvement of the right leg that was shown to be attributable to the service-connected IVDS. To that end, in the October 2010 VA examination, IVDS and "the most likely involved peripheral nerve is the sciatic nerve which affects the right side of the body" was diagnosed. The Board notes that while this examination largely documented findings for the left leg, the VA examiner documented sciatic nerve problems which affected the right side of the body. Overall, the examination report is inadequate as it pertains to the clinical findings provided.
Additional evidence includes a September 2011 treatment record, wherein it was noted that the Veteran was seen by a neurosurgeon Dr. M a day before and that it was felt that the Veteran sustained a right sciatic nerve injury during his previous lumbar surgery but no surgery was recommended at that time. Furthermore, a November 2014 Disability Benefits Questionairre (DBQ) noted that the Veteran's radiculopathy, left greater than right, existed prior to a diagnosis in February 2013. The clinic findings included right lower extremity pain and decreased sensation along the sciatic nerve root.
In light of the lay and medical evidence above, and the inadequate VA examination in October 2010, the Board finds that sciatic nerve involvement of the right leg, manifested by pain and decreased sensation along the sciatic nerve root, as a neurologic manifestation of thoracolumbar spine IVDS has been present for the entire appeal period.
Under the general rating formula for diseases and injuries of the spine, Note (1) to the rating formula specifies that any associated objective neurologic abnormalities of the spine, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. The evidence shows that neurological manifestations of the right lower extremity attributable to thoracolumbar spine IVDS was present as of May 24, 2010, the date of claim for service connection for the lumbar spine. Accordingly, the Board finds that a compensable rating for sciatic nerve involvement of the right leg as a neurologic manifestation of thoracolumbar spine IVDS is warranted as of May 24, 2010.
In light of the above, the Board finds in favor of the claim for TDIU as of May 24, 2010. To that end, total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Where these percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service- connected disabilities. 38 C.F.R. § 4.16(b).
In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims held that a claim for individual unemployability is part of an increased rating claim when such claim is raised by the record. In light of the Veteran's lay statements of record and the VA examinations showing that the Veteran's disability impact his ability to work, a TDIU claim is considered to have been raised by the record and thus is a component of the increased rating claim on appeal before the Board.
As of May 24, 2010, the Veteran was service-connected for orthopedic manifestations of thoracolumbar spine IVDS and sciatic nerve involvement of the left leg as a neurologic manifestation of thoracolumbar spine IVDS. As discussed above, service connection has been established for sciatic nerve involvement of the right leg as a neurologic manifestation of thoracolumbar spine IVDS as of May 24, 2010. The Board notes that the Veteran's lumbar spine disability and resulting sciatic nerve involvement of the left and right leg arise out of common etiology and for TDIU purposes they may be treated as one single disability rated as 60 percent disabling. 38 C.F.R. §§ 4.16(a), 4.25. Accordingly, the percentage requirement for TDIU, i.e. a single service-connected disability ratable at 60 percent or more, are met as of May 24, 2010.
As a result of the 60 percent rating, the Veteran meets the eligibility criteria for schedular consideration of TDIU for the entire appeal period. Notably, Social Security Administration has determined the Veteran to be permanently disabled, effective May 1, 2009, due in part to failed back syndrome with functional limitations which included needing a sit/stand option every 10 to 15 minutes, standing limited to a total of 4 hours per day, being unable to crouch, crawl, squat or climb, being unable to push/pull with his lower extremities and, due to severe pain, being limited to simple, routine and repetitive tasks with only occasional interaction with the public. The evidence discussed in the VA compensation examinations, VA treatment records and the Veteran's statements are entirely consistent with a finding of unemployability due to service-connected IVDS with neurologic complications effective to the date of award of service connection for lumbar spine and sciatic nerve involvement of the left and right leg as a neurologic manifestation of thoracolumbar spine IVDS - May 24, 2010. Thus, the Board finds that, for the entire appeal period, the Veteran has been unable to obtain and maintain substantially gainful employment due to his lumbar spine and sciatic nerve involvement of the left and right leg.
In sum, the Board finds that, effective May 24, 2010, the Veteran met the criteria for a 20 percent rating for sciatic nerve involvement of the right leg under DC 8620 and entitlement to TDIU. The Board defers consideration of whether a rating higher than 20 percent is warranted for sciatic nerve involvement of the right leg under DC 8620 pending additional development addressed in the REMAND following this decision.
ORDER
Entitlement to a 20 percent rating for sciatic nerve involvement of the right leg as a neurologic manifestation of thoracolumbar spine IVDS as of May 24, 2010 is granted.
Entitlement to individual unemployability due to service-connected disability as of May 24, 2010 is granted.
REMAND
The Veteran appeals the denial of an initial evaluation greater than 40 percent for the orthopedic manifestations of thoracolumbar spine IVDS, entitlement to an initial rating greater than 20 percent for sciatic nerve involvement of the left leg as a neurologic manifestation of thoracolumbar spine IVDS and entitlement to an initial rating greater than 20 percent for sciatic nerve involvement of the right leg as a neurologic manifestation of thoracolumbar spine IVDS.
The Veteran was last afforded a VA examination in relation to his claims in December 2014. During this examination, the VA examiner found that there was no showing of ankylosis of the spine and/or muscle atrophy of the legs. Since the December 2014 VA examination, however, the Veteran reported that he hardly has any muscles in his legs and that he is bedridden 18 to 20 hours a day. He reports that he only leaves his bed to eat and toilet. He also testified that he now has bladder problems which have been linked to his lumbar spine disability. In October 2016, an assessment was given of urinary hesitancy and nighttime incontinence likely due to neurogenic bladder from previous lower back problems.
In light of the Veterans statements, his current complaints and treatment records, the Board finds that another VA examination is warranted to determine the current severity of the Veteran's disability and any complications resulting therefrom. Furthermore, as it has been noted that the issue of entitlement to SMC based on aid and attendance or housebound status has been reasonably raised by the record, the Board finds that a VA examination is necessary to resolve this issue as well.
Accordingly, the case is REMANDED for the following action:
1. Associate with the claims folder records of the Veteran's VA treatment since April 2014.
2. Thereafter, schedule the Veteran for a VA compensation examination to determine the nature and severity of his orthopedic manifestations of the thoracolumbar spine IVDS. The examiner must be provided access to the Veterans Benefits Management System (VBMS) and Virtual VA files. As the Veteran has indicated that range of motion testing is limited due to pain and he is already receiving an evaluation of 40 percent for his lumbar spine disability, the examiner should test only, to the extent possible, for ankylosis. If present, the VA examiner must state whether there is the functional equivalent of unfavorable ankylosis of the entire thoracolumbar spine or unfavorable ankylosis of the entire spine. In doing so, the examiner must address the Veteran's reports of being bedridden 18 to 20 hours per day. The examiner should also identify any neurological problems associated with the thoracolumbar spine IVDS to include any bladder complications. The VA examiner must address the October 2016 assessment of urinary hesitancy and nighttime incontinence likely due to neurogenic bladder from previous lower back problems. With regard to the left and right lower extremity radiculopathy, in accordance with the latest worksheets for rating the sciatic nerve, the examiner is to provide a detailed review of the Veteran's pertinent medical history, current complaints and the nature and extent of his left and right lower extremity radiculopathy. A complete rationale should be provided for any opinion expressed.
3. Schedule the Veteran for a VA SMC aid and attendance/housebound examination. The examiner must be provided access to VBMS and Virtual VA. All findings should be reported in detail. The VA examiner should comment as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran has a permanent need for regular aid and attendance due to his service-connected disabilities. The examiner should opine whether, as a result of the service connected disabilities, the Veteran requires assistance on a regular basis to: dress or undress herself, or keep herself ordinarily clean and presentable; adjust frequently any special prosthetic or orthopedic appliances; feed herself due to loss of coordination of upper extremities or through extreme weakness; attend to the wants of nature; or to protect himself from the hazards or dangers incident to his daily environment. That is, all functional impairments caused by the service connected disorders should be set out.
The VA examiner should also comment as to whether it appears that the Veteran is housebound, due to his service-connected disorders. Specifically, provide information concerning whether the Veteran is substantially confined to his dwelling or the immediate premises as a direct result of his service-connected disabilities. A complete rationale is required for all opinions rendered.
4. Upon completion of the above requested development and any additional development deemed appropriate, the AOJ should readjudicate the remanded issues. If any benefit sought on appeal remains denied, the appellant and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response.
The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
______________________________________________
T. MAINELLI
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs | 01-09-2017 | [
"Citation Nr: 1700408 Decision Date: 01/09/17 Archive Date: 01/18/17 DOCKET NO. 12-00 506 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an initial rating greater than 40 percent for the orthopedic manifestations of thoracolumbar spine intervertebral disc syndrome (IVDS). 2. Entitlement to an initial rating greater than 20 percent for sciatic nerve involvement of the left leg as a neurologic manifestation of thoracolumbar spine IVDS. 3. Entitlement to a compensable rating for sciatic nerve involvement of the right leg as a neurologic manifestation of thoracolumbar spine IVDS for the time period prior to November 26, 2014. 4. Entitlement to an initial rating greater than 20 percent for sciatic nerve involvement of the right leg as a neurologic manifestation of thoracolumbar spine IVDS since November 26, 2014.",
"5. Entitlement to individual unemployability (TDIU) due to service-connected disability for the time period prior to November 26, 2014. 6. Entitlement to Special Monthly Compensation (SMC) based on aid and attendance and/or housebound. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD T. S. Willie, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from July 1983 to September 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veteran Affairs (VA) Regional Office in Roanoke, Virginia. In August 2016, the Veteran appeared at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. As the Veteran has expressed that his service-connected disability impacts his ability to maintain employment, a claim of entitlement to a total disability evaluation based on individual unemployability due to service-connected disorders appears to have been raised and thus is a component of the increased rating claim on appeal.",
"See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board is mindful that in February 2015 the RO granted TDIU, effective November 26, 2014. As this was not a complete grant of benefits, the Board is still presented with the issue of entitlement to TDIU prior to November 26, 2014 which is addressed in the decision below. The Board also notes that, at the hearing, the Veteran alleged being bedridden for long periods of time with the need for aid and attendance due to his thoracolumbar spine disability. His testimony reasonably raises the issue of entitlement to aid and attendance and/or housebound which must be deemed part of the initial rating claim on appeal. Thus, the Board finds that SMC issue is a component of the increased rating claims on appeal. See Buie v. Shinseki, 24 Vet. App. 242, 251 (2011); see also Bradley v. Peake, 22 Vet. App. 280, 293 (2008).",
"The Board has listed the SMC issue as a separate \"claim\" for administrative purposes only. The issues of entitlement to an initial rating greater than 40 percent for the orthopedic manifestations of thoracolumbar spine IVDS, an initial rating greater than 20 percent for sciatic nerve involvement of the left leg as a neurologic manifestation of thoracolumbar spine IVDS, an initial rating greater than 20 percent for sciatic nerve involvement of the right leg as a neurologic manifestation of thoracolumbar spine IVDS and entitlement to SMC based on aid and attendance and/or housebound are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1.",
"Sciatic nerve involvement of the right leg, manifested by pain and decreased sensation along the sciatic nerve root, as a neurologic manifestation of thoracolumbar spine IVDS has been present for the entire appeal period. 2. For the entire appeal period, the Veteran has been unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a 20 percent rating for sciatic nerve involvement of the right leg as a neurologic manifestation of thoracolumbar spine IVDS has been met for the entire appeal period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.21, 4.120, 4.123, 4.124a, Diagnostic Code 8520 (2016). 2. The criteria for entitlement to TDIU have been met as of May 24, 2010. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R.",
"§§ 3.321 , 3.340, 3.341, 4.15, 4.16, 4.19 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2016).",
"As shown below, no adverse determination is being made. Therefore, there is no need to discuss VCAA compliance at this time. The Veteran seeks a higher initial rating for his sciatic nerve involvement of the right leg as a neurologic manifestation of thoracolumbar spine IVDS, and asserts that his service-connected disabilities render him unable to obtain and maintain substantially gainful employment. The Veteran filed a claim for service connection for a lumbar spine disability on May 24, 2010. In February 2011, the RO granted the claim for service connection for IVDS with scar from past surgery, effective May 24, 2010. At that time, service connection for sciatic nerve involvement of the left leg was established as related to the service-connected disability of IVDS with scar from past surgery, effective May 24, 2010. In a December 2014 rating decision, service connection was granted for sciatic nerve involvement of the right leg. The Veteran was granted an evaluation of 20 percent, effective November 26, 2014. The RO assigned an evaluation of 20 percent from November 26, 2014, as they found that this was the earliest date on which the evidence of record showed sciatic nerve involvement of the right leg.",
"The Board notes, however, that prior to November 26, 2014 there is evidence of nerve involvement of the right leg that was shown to be attributable to the service-connected IVDS. To that end, in the October 2010 VA examination, IVDS and \"the most likely involved peripheral nerve is the sciatic nerve which affects the right side of the body\" was diagnosed. The Board notes that while this examination largely documented findings for the left leg, the VA examiner documented sciatic nerve problems which affected the right side of the body. Overall, the examination report is inadequate as it pertains to the clinical findings provided. Additional evidence includes a September 2011 treatment record, wherein it was noted that the Veteran was seen by a neurosurgeon Dr. M a day before and that it was felt that the Veteran sustained a right sciatic nerve injury during his previous lumbar surgery but no surgery was recommended at that time. Furthermore, a November 2014 Disability Benefits Questionairre (DBQ) noted that the Veteran's radiculopathy, left greater than right, existed prior to a diagnosis in February 2013. The clinic findings included right lower extremity pain and decreased sensation along the sciatic nerve root.",
"In light of the lay and medical evidence above, and the inadequate VA examination in October 2010, the Board finds that sciatic nerve involvement of the right leg, manifested by pain and decreased sensation along the sciatic nerve root, as a neurologic manifestation of thoracolumbar spine IVDS has been present for the entire appeal period. Under the general rating formula for diseases and injuries of the spine, Note (1) to the rating formula specifies that any associated objective neurologic abnormalities of the spine, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. The evidence shows that neurological manifestations of the right lower extremity attributable to thoracolumbar spine IVDS was present as of May 24, 2010, the date of claim for service connection for the lumbar spine. Accordingly, the Board finds that a compensable rating for sciatic nerve involvement of the right leg as a neurologic manifestation of thoracolumbar spine IVDS is warranted as of May 24, 2010. In light of the above, the Board finds in favor of the claim for TDIU as of May 24, 2010.",
"To that end, total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Where these percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service- connected disabilities. 38 C.F.R.",
"§ 4.16(b). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims held that a claim for individual unemployability is part of an increased rating claim when such claim is raised by the record. In light of the Veteran's lay statements of record and the VA examinations showing that the Veteran's disability impact his ability to work, a TDIU claim is considered to have been raised by the record and thus is a component of the increased rating claim on appeal before the Board. As of May 24, 2010, the Veteran was service-connected for orthopedic manifestations of thoracolumbar spine IVDS and sciatic nerve involvement of the left leg as a neurologic manifestation of thoracolumbar spine IVDS. As discussed above, service connection has been established for sciatic nerve involvement of the right leg as a neurologic manifestation of thoracolumbar spine IVDS as of May 24, 2010.",
"The Board notes that the Veteran's lumbar spine disability and resulting sciatic nerve involvement of the left and right leg arise out of common etiology and for TDIU purposes they may be treated as one single disability rated as 60 percent disabling. 38 C.F.R. §§ 4.16(a), 4.25. Accordingly, the percentage requirement for TDIU, i.e. a single service-connected disability ratable at 60 percent or more, are met as of May 24, 2010. As a result of the 60 percent rating, the Veteran meets the eligibility criteria for schedular consideration of TDIU for the entire appeal period. Notably, Social Security Administration has determined the Veteran to be permanently disabled, effective May 1, 2009, due in part to failed back syndrome with functional limitations which included needing a sit/stand option every 10 to 15 minutes, standing limited to a total of 4 hours per day, being unable to crouch, crawl, squat or climb, being unable to push/pull with his lower extremities and, due to severe pain, being limited to simple, routine and repetitive tasks with only occasional interaction with the public. The evidence discussed in the VA compensation examinations, VA treatment records and the Veteran's statements are entirely consistent with a finding of unemployability due to service-connected IVDS with neurologic complications effective to the date of award of service connection for lumbar spine and sciatic nerve involvement of the left and right leg as a neurologic manifestation of thoracolumbar spine IVDS - May 24, 2010.",
"Thus, the Board finds that, for the entire appeal period, the Veteran has been unable to obtain and maintain substantially gainful employment due to his lumbar spine and sciatic nerve involvement of the left and right leg. In sum, the Board finds that, effective May 24, 2010, the Veteran met the criteria for a 20 percent rating for sciatic nerve involvement of the right leg under DC 8620 and entitlement to TDIU. The Board defers consideration of whether a rating higher than 20 percent is warranted for sciatic nerve involvement of the right leg under DC 8620 pending additional development addressed in the REMAND following this decision.",
"ORDER Entitlement to a 20 percent rating for sciatic nerve involvement of the right leg as a neurologic manifestation of thoracolumbar spine IVDS as of May 24, 2010 is granted. Entitlement to individual unemployability due to service-connected disability as of May 24, 2010 is granted. REMAND The Veteran appeals the denial of an initial evaluation greater than 40 percent for the orthopedic manifestations of thoracolumbar spine IVDS, entitlement to an initial rating greater than 20 percent for sciatic nerve involvement of the left leg as a neurologic manifestation of thoracolumbar spine IVDS and entitlement to an initial rating greater than 20 percent for sciatic nerve involvement of the right leg as a neurologic manifestation of thoracolumbar spine IVDS.",
"The Veteran was last afforded a VA examination in relation to his claims in December 2014. During this examination, the VA examiner found that there was no showing of ankylosis of the spine and/or muscle atrophy of the legs. Since the December 2014 VA examination, however, the Veteran reported that he hardly has any muscles in his legs and that he is bedridden 18 to 20 hours a day. He reports that he only leaves his bed to eat and toilet. He also testified that he now has bladder problems which have been linked to his lumbar spine disability. In October 2016, an assessment was given of urinary hesitancy and nighttime incontinence likely due to neurogenic bladder from previous lower back problems. In light of the Veterans statements, his current complaints and treatment records, the Board finds that another VA examination is warranted to determine the current severity of the Veteran's disability and any complications resulting therefrom. Furthermore, as it has been noted that the issue of entitlement to SMC based on aid and attendance or housebound status has been reasonably raised by the record, the Board finds that a VA examination is necessary to resolve this issue as well. Accordingly, the case is REMANDED for the following action: 1.",
"Associate with the claims folder records of the Veteran's VA treatment since April 2014. 2. Thereafter, schedule the Veteran for a VA compensation examination to determine the nature and severity of his orthopedic manifestations of the thoracolumbar spine IVDS. The examiner must be provided access to the Veterans Benefits Management System (VBMS) and Virtual VA files. As the Veteran has indicated that range of motion testing is limited due to pain and he is already receiving an evaluation of 40 percent for his lumbar spine disability, the examiner should test only, to the extent possible, for ankylosis.",
"If present, the VA examiner must state whether there is the functional equivalent of unfavorable ankylosis of the entire thoracolumbar spine or unfavorable ankylosis of the entire spine. In doing so, the examiner must address the Veteran's reports of being bedridden 18 to 20 hours per day. The examiner should also identify any neurological problems associated with the thoracolumbar spine IVDS to include any bladder complications. The VA examiner must address the October 2016 assessment of urinary hesitancy and nighttime incontinence likely due to neurogenic bladder from previous lower back problems. With regard to the left and right lower extremity radiculopathy, in accordance with the latest worksheets for rating the sciatic nerve, the examiner is to provide a detailed review of the Veteran's pertinent medical history, current complaints and the nature and extent of his left and right lower extremity radiculopathy. A complete rationale should be provided for any opinion expressed.",
"3. Schedule the Veteran for a VA SMC aid and attendance/housebound examination. The examiner must be provided access to VBMS and Virtual VA. All findings should be reported in detail. The VA examiner should comment as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran has a permanent need for regular aid and attendance due to his service-connected disabilities. The examiner should opine whether, as a result of the service connected disabilities, the Veteran requires assistance on a regular basis to: dress or undress herself, or keep herself ordinarily clean and presentable; adjust frequently any special prosthetic or orthopedic appliances; feed herself due to loss of coordination of upper extremities or through extreme weakness; attend to the wants of nature; or to protect himself from the hazards or dangers incident to his daily environment. That is, all functional impairments caused by the service connected disorders should be set out. The VA examiner should also comment as to whether it appears that the Veteran is housebound, due to his service-connected disorders.",
"Specifically, provide information concerning whether the Veteran is substantially confined to his dwelling or the immediate premises as a direct result of his service-connected disabilities. A complete rationale is required for all opinions rendered. 4. Upon completion of the above requested development and any additional development deemed appropriate, the AOJ should readjudicate the remanded issues. If any benefit sought on appeal remains denied, the appellant and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.",
"Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ T. MAINELLI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs"
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182 F.2d 322 AMERICAN MUT. LIABILITY INS. CO.v.MATTHEWS et al. No. 200, Docket 21613 United States Court of Appeals Second Circuit. Argued April 12, 1950.Decided May 16, 1950.
Galli & Locker, New York City, Patrick E. Gibbons, New York City, Advocate, Frederic J. Locker and Raymong J. Scully, New York City, of counsel, Proctors for appellants. Alexander & Ash, New York City, Edward Ash and Sidney A. Schwartz, New York City, Advocates, Proctors for appellee. Before L. HAND, Chief Judge, and SWAN and CHASE, Circuit Judges. SWAN, Circuit Judge.
1 This is a libel for contribution brought by an insurance company on behalf of its insured against a firm of stevedores. The facts are not in dispute and may be summarized as follows: Modesto Veloz, a stevedore employed by the stevedoring firm which was engaged in loading a steamship in New York Harbor, was injured by the breaking of a guy rope furnished by the ship. Instead of seeking compensation from his employer under the Longshoremen's and Harbor Workers' Compensation Act, he elected to bring an action against the shipowner, as he may under the Act, 33 U.S.C.A. § 933. His action was brought in the Supreme Court of New York for New York County. In such action Veloz recovered judgment, and the shipowner's insurer paid $15,000 in satisfaction thereof. The insurer then filed its libel for contribution to recover one-half of such payment plus one-half of its expenses in defending the state court action. From a decree in favor of the libellant for $7,500 and interest from date of payment, the firm of stevedores has appealed. The libellant has filed a cross-assignment of error based on disallowance of its claim for expenses.
2 The right of contribution is asserted on the theory that the shipowner and the firm of stevedores were joint tort-feasors in causing the injuries suffered by Veloz, the shipowner having been negligent in supplying a defective guy rope and the stevedoring firm having been negligent in using the guy rope, since the defect therein was patent. The primary question presented by the appeal is whether the Longshoremen's and Harbor Workers' Act is a valid defense to the asserted right of contribution.
3 The Act confers upon an injured employee within its coverage a right to compensation regardless of negligence or fault on the part of his employer. 33 U.S.C.A. § 904. And Sec. 905 provides that 'The liability of an employer prescribed in section 904 of this title shall be exclusive and in place of all other liability of such employer to the employee * * * and any one otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury * * * '- with an exception not here relevant. Thus the statute exempts the employer from any duty to pay damages for negligently injuring his employee and substitutes therefor an absolute duty to pay the prescribed compensation. For a right of contribution to exist between tort-feasors, they must be joint wrongdoers in the sense that their tort or torts have imposed a common liability upon them to the party injured.1 In the case at bar the shipowner and the stevedoring firm were not under a common liability to the injured employee, nor were they joint wrongdoers. His claim against his employer was not for damages, as was his claim against the shipowner, nor was it dependent upon any tort committed by his employer. Consequently the shipowner can have no right to contribution based on the theory that they were joint tort-feasors.
4 By contract an employer may become bound to indemnify his promisee against liability resulting from improper performance of the work undertaken by the employer. Such a case is Westchester Lighting Co. v. Westchester Estates, 278 N.Y. 175, 15 N.E.2d 567, involving the New York Workmen's Compensation Act, Consol. Laws, c. 77, upon which the Longshoremen's and Harbor Workers' Act was modeled. There an employee of the contractor was killed by gas escaping from a pipe which the contractor was engaged to repair upon premises of Westchester Estates. The decedent's widow having recovered a judgment against the land owner, the latter sued the employer for indemnity and the employer pleaded that a provision of the state statute almost identical with 33 U.S.C.A. § 905 exempted it from tort liability to the widow. But the court held that the plaintiff could recover, not by virtue of the widow's right but on the employer's promise to do the work properly. A similar decision under the Longshoremen's Act is Rich v. United States, 2 Cir., 177 F.2d 688. In both of those cases, the primary cause of injury to the employee was breach of a contractual duty owed to the promisee to do the work properly. In the case at bar no promise by the employer can be implied that he will not use equipment furnished him by the shipowner to be used for the very purpose to which it was put. Nor can a promise be implied that he will use care to detect any defect in the equipment which patently existed when the equipment was delivered for use by the employer. To imply such a promise would mean that the employer agreed to protect the shipowner against liability arising out of the shipowner's own negligence. In the absence of an express promise, such an implication would be utterly unreasonable. Hence we can find no contractual basis for indemnity or contribution. To impose a noncontractual duty of contribution on the employer is pro tanto to deprive him of the immunity which the statute grants him in exchange for his absolute, though limited, liability to secure compensation to his employees.
5 It must be conceded, however, that a majority of district court cases which have dealt with the question hold contrary to the views above expressed.2 They rely primarily on The Chattahoochee, 173 U.S. 540, 19 S.Ct. 491, 43 L.Ed. 801. That was a case of collision between a schooner and a steamship, both vessels being guilty of faulty navigation. It resulted in the total loss of the schooner and all her cargo; the steamship was uninjured. Damages were awarded to the libellants as owners of the schooner and as bailees of her cargo but the steamer was allowed to recoup one-half of the value of the cargo, despite the fact that the schooner was exempt from liability to owners of her cargo by reason of section 3 of the Harter Act.3 At first blush it may seem that there is no difference between a statute which exonerates the carrying vessel from liability to its cargo, and one which exonerates an employer from liability to his employees for the negligent conduct of his business; and that, if the non-carrying ship which has been obliged to pay the cargo owners can recoup one-half from the carrying vessel, a shipowner who has been compelled to pay the damages sustained by the injured employee should similarly be able to recoup one-half from the employer. However, we think there is a valid distinction. The Harter Act was not intended to affect the liability of one vessel to the other in a collision case; 'the relations of the two colliding vessels * * * remain unaffected by this act.' The Chattahoochee, 173 U.S.,AT page 540, 19 S.Ct.at page 497. Each vessel owed the other a duty of careful navigation. A breach of that duty by the carrying vessel is a contributory cause, together with the non-carrying vessel's own negligence, in producing the damage which the non-carrying vessel suffers, namely, liability to owners of the cargo.4 Such liability is one element of the total damages which under the admiralty rule both vessels are to bear equally when the faults of both contribute to the collision. In the case at bar the stevedoring firm never owed the shipowner a duty to discover defects in equipment which the shipowner furnished for its use in loading the ship. Its duty to discover patent defects in such equipment was owed only to its employees and that duty the Longshoremen's Act abolished, substituting therefor an absolute duty to pay compensation. Hence the attempted analogy between the Harter Act and the Act now before us cannot withstand analysis.
6 For the foregoing reasons we conclude that the libellants have no right to contribution from the respondents. Accordingly the judgment must be reversed and the libel dismissed.
7 This conclusion renders unnecessary a discussion of any other points presented in argument and briefs.
8 L. HAND, Chief Judge (concurring).
9 I should not add anything to what my brothers say, were it not that I cannot agree with the distinction they make between The Chattahoochee, 173 U.S. 540, 9 S.Ct. 491, 43 L.Ed. 801, and the case at bar. The sunken schooner in that case caused injuries to the steamer for which she would have been liable, had she survived, and which went in reduction of her owner's damages; but the damages which the steamer had to pay to the cargo were of course no part of the injuries done to the steamer. Like the injuries to the steamer, they were indeed caused by the joint act of both the steamer and the schooner; but except for Sec. 3 of the Harter Act each wrongdoer would have been liable in solido to the cargo, whose claim against each would have been independent of the steamer's claim against the schooner for her injuries. The question was whether the steamer could compel the schooner to contribute to the compensation for this independent wrong done to the cargo by the faults of both. I cannot understand how it serves to answer that question that the same acts which caused damage to the cargo, also caused damage to the steamer. If that were so, it would follow that if the breaking of the guy wire in the case at bar had injured not only Veloz but some part of the ship, the ship would have been able to exact contribution for Veloz's injuries. I should certainly regard that as an altogether irrelevant circumstance, and I fancy that my brothers would agree. But, if it would be irrelevant, the absence of any injury to the ship cannot be a ground for distinguishing The Chattahoochee, supra.
10 I agree that the Longshoremen's and Harbor Workers' Compensation Act need not inevitably be construed to include a release, not only from direct claims by employees, but from contribution to third persons from whom employees have recovered; and the reason why I think it should be so construed is that it has imposed upon employers an absolute, though limited, liability, in exchange for a release from the preceding unlimited liability, conditional upon negligence. The release should, I submit, have the same scope as the imposed liability, which extends as well to injuries caused by a joint wrong, as to those caused by the wrong of the employer alone.
11 The release from liability to her cargo for faults of navigation which Sec. 3 of the Harter Act grants to a ship, was also conditioned upon an imposed liability, for it depended upon the ship's due diligence in making herself seaworthy cap-a-pie.1 It can therefore be argued that, since The Chattahoochee, supra, decided that release did not extend to joint faults, we should hold that the act at bar does not release an employer for a joint fault; and a number of district courts have so held. However, although it is true that Sec. 3 did impose a new liability upon the ship, the burden of it was very slight. Before the Harter Act the owner, as a common carrier, had not been free to release himself by contract from his liability for negligence,2 and under Sec. 2, 46 U.S.C.A. § 191, he obtained the power to do so, if he used due diligence to man and equip the ship. That was a privilege; and, although he had had power to contract himself out of his duty of furnishing a seaworthy ship, which Sec. 2 took away, that disability extended only to cases where he had not used diligence to make her seaworthy. Thus, so far as concerned Sec. 2, there was a balance of advantage and disadvantage. And while, as I have said, Sec. 3 did make it a condition upon the release that due diligence should be used to make the ship seaworthy even in respects not relevant to the carriage, in practice that has not added a heavy burden.
12 Thus, the effect of the doctrine of The Chattahoochee, supra, was that the sum of these changes in the owner's duties was not enough to justify extending the release beyond direct claims of shippers. Whether, as res integra, that was right, is not important here; what is important is that the balance between the changes made there as a condition of the release, was very different from a similar balance in the case at bar. It is for these reasons that I do not think The Chattahoochee, supra, a precedent.
1 A.L.I. Restitution Sec. 86; Erie R. Co. v. Erie Transportation Co., 204 U.S. 220, 27 S.Ct. 246, 51 L.Ed. 450; Lehigh Valley R. Co. v. Cornell Steamboat Co., 218 U.S. 264, 31 S.Ct. 17, 54 L.Ed. 1039, 20 Ann.Cas. 1235; The Wonder, 2 Cir., 79 F.2d 312; Porello v. United States, 2 Cir., 153 F.2d 605, 607 (dictum)
2 Rederii v. Jarka Corp. D.C. Me., 26 F.Supp. 304; The Tampico, D.C. N.Y., 45 F.Supp. 174; The S. S. Samovar, D.C. Cal., 72 F.Supp. 574, 588; Portel v. United States, D.C. N.Y., 85 F.Supp. 458, 462; Contra: Johnson v. United States, D.C. Or., 79 F.Supp. 448; Frusteri v. United States, D.C. N.Y., 76 F.Supp. 667; Calvino v. Pan-Atlantic S.S. Corp., D.C. N.Y., 29 F.Supp. 1022
3 46 U.S.C.A. § 192
4 Erie R. Co. v. Erie N.W. Trans. Co., 204 U.S. 220, 226, 27 S.Ct. 246, 51 L.Ed. 450; Cuzco v. The Sucarsco, 249 U.S. 394, 400, 55 S.Ct. 467, 79 L.Ed. 942
1 May v. Hamburg-Amerikanische, etc. Gesellschaft, 290 U.S. 333, 54 S.Ct. 162, 78 L.Ed. 348
2 Liverpool & G. W. Steam Co. v. Phenix Ins. Co., 129 U.S. 397, 9 S.Ct. 469, 32 L.Ed. 788 | 08-23-2011 | [
"182 F.2d 322 AMERICAN MUT. LIABILITY INS. CO.v.MATTHEWS et al. No. 200, Docket 21613 United States Court of Appeals Second Circuit. Argued April 12, 1950.Decided May 16, 1950. Galli & Locker, New York City, Patrick E. Gibbons, New York City, Advocate, Frederic J. Locker and Raymong J. Scully, New York City, of counsel, Proctors for appellants. Alexander & Ash, New York City, Edward Ash and Sidney A. Schwartz, New York City, Advocates, Proctors for appellee. Before L. HAND, Chief Judge, and SWAN and CHASE, Circuit Judges. SWAN, Circuit Judge. 1 This is a libel for contribution brought by an insurance company on behalf of its insured against a firm of stevedores. The facts are not in dispute and may be summarized as follows: Modesto Veloz, a stevedore employed by the stevedoring firm which was engaged in loading a steamship in New York Harbor, was injured by the breaking of a guy rope furnished by the ship. Instead of seeking compensation from his employer under the Longshoremen's and Harbor Workers' Compensation Act, he elected to bring an action against the shipowner, as he may under the Act, 33 U.S.C.A. § 933.",
"His action was brought in the Supreme Court of New York for New York County. In such action Veloz recovered judgment, and the shipowner's insurer paid $15,000 in satisfaction thereof. The insurer then filed its libel for contribution to recover one-half of such payment plus one-half of its expenses in defending the state court action. From a decree in favor of the libellant for $7,500 and interest from date of payment, the firm of stevedores has appealed. The libellant has filed a cross-assignment of error based on disallowance of its claim for expenses. 2 The right of contribution is asserted on the theory that the shipowner and the firm of stevedores were joint tort-feasors in causing the injuries suffered by Veloz, the shipowner having been negligent in supplying a defective guy rope and the stevedoring firm having been negligent in using the guy rope, since the defect therein was patent. The primary question presented by the appeal is whether the Longshoremen's and Harbor Workers' Act is a valid defense to the asserted right of contribution.",
"3 The Act confers upon an injured employee within its coverage a right to compensation regardless of negligence or fault on the part of his employer. 33 U.S.C.A. § 904. And Sec. 905 provides that 'The liability of an employer prescribed in section 904 of this title shall be exclusive and in place of all other liability of such employer to the employee * * * and any one otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury * * * '- with an exception not here relevant. Thus the statute exempts the employer from any duty to pay damages for negligently injuring his employee and substitutes therefor an absolute duty to pay the prescribed compensation.",
"For a right of contribution to exist between tort-feasors, they must be joint wrongdoers in the sense that their tort or torts have imposed a common liability upon them to the party injured.1 In the case at bar the shipowner and the stevedoring firm were not under a common liability to the injured employee, nor were they joint wrongdoers. His claim against his employer was not for damages, as was his claim against the shipowner, nor was it dependent upon any tort committed by his employer. Consequently the shipowner can have no right to contribution based on the theory that they were joint tort-feasors.",
"4 By contract an employer may become bound to indemnify his promisee against liability resulting from improper performance of the work undertaken by the employer. Such a case is Westchester Lighting Co. v. Westchester Estates, 278 N.Y. 175, 15 N.E.2d 567, involving the New York Workmen's Compensation Act, Consol. Laws, c. 77, upon which the Longshoremen's and Harbor Workers' Act was modeled. There an employee of the contractor was killed by gas escaping from a pipe which the contractor was engaged to repair upon premises of Westchester Estates. The decedent's widow having recovered a judgment against the land owner, the latter sued the employer for indemnity and the employer pleaded that a provision of the state statute almost identical with 33 U.S.C.A. § 905 exempted it from tort liability to the widow. But the court held that the plaintiff could recover, not by virtue of the widow's right but on the employer's promise to do the work properly.",
"A similar decision under the Longshoremen's Act is Rich v. United States, 2 Cir., 177 F.2d 688. In both of those cases, the primary cause of injury to the employee was breach of a contractual duty owed to the promisee to do the work properly. In the case at bar no promise by the employer can be implied that he will not use equipment furnished him by the shipowner to be used for the very purpose to which it was put. Nor can a promise be implied that he will use care to detect any defect in the equipment which patently existed when the equipment was delivered for use by the employer. To imply such a promise would mean that the employer agreed to protect the shipowner against liability arising out of the shipowner's own negligence. In the absence of an express promise, such an implication would be utterly unreasonable. Hence we can find no contractual basis for indemnity or contribution. To impose a noncontractual duty of contribution on the employer is pro tanto to deprive him of the immunity which the statute grants him in exchange for his absolute, though limited, liability to secure compensation to his employees.",
"5 It must be conceded, however, that a majority of district court cases which have dealt with the question hold contrary to the views above expressed.2 They rely primarily on The Chattahoochee, 173 U.S. 540, 19 S.Ct. 491, 43 L.Ed. 801. That was a case of collision between a schooner and a steamship, both vessels being guilty of faulty navigation. It resulted in the total loss of the schooner and all her cargo; the steamship was uninjured. Damages were awarded to the libellants as owners of the schooner and as bailees of her cargo but the steamer was allowed to recoup one-half of the value of the cargo, despite the fact that the schooner was exempt from liability to owners of her cargo by reason of section 3 of the Harter Act.3 At first blush it may seem that there is no difference between a statute which exonerates the carrying vessel from liability to its cargo, and one which exonerates an employer from liability to his employees for the negligent conduct of his business; and that, if the non-carrying ship which has been obliged to pay the cargo owners can recoup one-half from the carrying vessel, a shipowner who has been compelled to pay the damages sustained by the injured employee should similarly be able to recoup one-half from the employer.",
"However, we think there is a valid distinction. The Harter Act was not intended to affect the liability of one vessel to the other in a collision case; 'the relations of the two colliding vessels * * * remain unaffected by this act.' The Chattahoochee, 173 U.S.,AT page 540, 19 S.Ct.at page 497. Each vessel owed the other a duty of careful navigation. A breach of that duty by the carrying vessel is a contributory cause, together with the non-carrying vessel's own negligence, in producing the damage which the non-carrying vessel suffers, namely, liability to owners of the cargo.4 Such liability is one element of the total damages which under the admiralty rule both vessels are to bear equally when the faults of both contribute to the collision. In the case at bar the stevedoring firm never owed the shipowner a duty to discover defects in equipment which the shipowner furnished for its use in loading the ship. Its duty to discover patent defects in such equipment was owed only to its employees and that duty the Longshoremen's Act abolished, substituting therefor an absolute duty to pay compensation. Hence the attempted analogy between the Harter Act and the Act now before us cannot withstand analysis. 6 For the foregoing reasons we conclude that the libellants have no right to contribution from the respondents.",
"Accordingly the judgment must be reversed and the libel dismissed. 7 This conclusion renders unnecessary a discussion of any other points presented in argument and briefs. 8 L. HAND, Chief Judge (concurring). 9 I should not add anything to what my brothers say, were it not that I cannot agree with the distinction they make between The Chattahoochee, 173 U.S. 540, 9 S.Ct. 491, 43 L.Ed. 801, and the case at bar.",
"The sunken schooner in that case caused injuries to the steamer for which she would have been liable, had she survived, and which went in reduction of her owner's damages; but the damages which the steamer had to pay to the cargo were of course no part of the injuries done to the steamer. Like the injuries to the steamer, they were indeed caused by the joint act of both the steamer and the schooner; but except for Sec. 3 of the Harter Act each wrongdoer would have been liable in solido to the cargo, whose claim against each would have been independent of the steamer's claim against the schooner for her injuries.",
"The question was whether the steamer could compel the schooner to contribute to the compensation for this independent wrong done to the cargo by the faults of both. I cannot understand how it serves to answer that question that the same acts which caused damage to the cargo, also caused damage to the steamer. If that were so, it would follow that if the breaking of the guy wire in the case at bar had injured not only Veloz but some part of the ship, the ship would have been able to exact contribution for Veloz's injuries. I should certainly regard that as an altogether irrelevant circumstance, and I fancy that my brothers would agree. But, if it would be irrelevant, the absence of any injury to the ship cannot be a ground for distinguishing The Chattahoochee, supra. 10 I agree that the Longshoremen's and Harbor Workers' Compensation Act need not inevitably be construed to include a release, not only from direct claims by employees, but from contribution to third persons from whom employees have recovered; and the reason why I think it should be so construed is that it has imposed upon employers an absolute, though limited, liability, in exchange for a release from the preceding unlimited liability, conditional upon negligence.",
"The release should, I submit, have the same scope as the imposed liability, which extends as well to injuries caused by a joint wrong, as to those caused by the wrong of the employer alone. 11 The release from liability to her cargo for faults of navigation which Sec. 3 of the Harter Act grants to a ship, was also conditioned upon an imposed liability, for it depended upon the ship's due diligence in making herself seaworthy cap-a-pie.1 It can therefore be argued that, since The Chattahoochee, supra, decided that release did not extend to joint faults, we should hold that the act at bar does not release an employer for a joint fault; and a number of district courts have so held. However, although it is true that Sec. 3 did impose a new liability upon the ship, the burden of it was very slight.",
"Before the Harter Act the owner, as a common carrier, had not been free to release himself by contract from his liability for negligence,2 and under Sec. 2, 46 U.S.C.A. § 191, he obtained the power to do so, if he used due diligence to man and equip the ship. That was a privilege; and, although he had had power to contract himself out of his duty of furnishing a seaworthy ship, which Sec. 2 took away, that disability extended only to cases where he had not used diligence to make her seaworthy. Thus, so far as concerned Sec. 2, there was a balance of advantage and disadvantage. And while, as I have said, Sec. 3 did make it a condition upon the release that due diligence should be used to make the ship seaworthy even in respects not relevant to the carriage, in practice that has not added a heavy burden.",
"12 Thus, the effect of the doctrine of The Chattahoochee, supra, was that the sum of these changes in the owner's duties was not enough to justify extending the release beyond direct claims of shippers. Whether, as res integra, that was right, is not important here; what is important is that the balance between the changes made there as a condition of the release, was very different from a similar balance in the case at bar. It is for these reasons that I do not think The Chattahoochee, supra, a precedent. 1 A.L.I. Restitution Sec. 86; Erie R. Co. v. Erie Transportation Co., 204 U.S. 220, 27 S.Ct. 246, 51 L.Ed. 450; Lehigh Valley R. Co. v. Cornell Steamboat Co., 218 U.S. 264, 31 S.Ct. 17, 54 L.Ed.",
"1039, 20 Ann.Cas. 1235; The Wonder, 2 Cir., 79 F.2d 312; Porello v. United States, 2 Cir., 153 F.2d 605, 607 (dictum) 2 Rederii v. Jarka Corp. D.C. Me., 26 F.Supp. 304; The Tampico, D.C. N.Y., 45 F.Supp. 174; The S. S. Samovar, D.C. Cal., 72 F.Supp. 574, 588; Portel v. United States, D.C. N.Y., 85 F.Supp. 458, 462; Contra: Johnson v. United States, D.C. Or., 79 F.Supp. 448; Frusteri v. United States, D.C. N.Y., 76 F.Supp. 667; Calvino v. Pan-Atlantic S.S. Corp., D.C. N.Y., 29 F.Supp. 1022 3 46 U.S.C.A. § 192 4 Erie R. Co. v. Erie N.W. Trans. Co., 204 U.S. 220, 226, 27 S.Ct. 246, 51 L.Ed. 450; Cuzco v. The Sucarsco, 249 U.S. 394, 400, 55 S.Ct. 467, 79 L.Ed. 942 1 May v. Hamburg-Amerikanische, etc. Gesellschaft, 290 U.S. 333, 54 S.Ct. 162, 78 L.Ed. 348 2 Liverpool & G. W. Steam Co. v. Phenix Ins.",
"Co., 129 U.S. 397, 9 S.Ct. 469, 32 L.Ed. 788"
] | https://www.courtlistener.com/api/rest/v3/opinions/225126/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN ______________________________________________________________________________
UNITED STATES OF AMERICA,
Plaintiff, Case No. 06-cr-273-pp v.
ANDREW R. SPENGLER,
Defendant. ______________________________________________________________________________
ORDER DENYING DEFENDANT’S REQUEST FOR THE COURT TO COMPEL THE BUREAU OF PRISONS TO ISSUE MANDATORY “FIRST STEP ACT” GOOD-TIME CREDITS (DKT. NO. 294) ______________________________________________________________________________
On August 26, 2019, the defendant filed a motion, asking the court to
compel the Bureau of Prisons to issue him “good-time” credits authorized by
the First Step Act of 2018. Dkt. No. 294. The court asked the government to
respond, dkt. no. 295; it did so promptly, correctly noting that it is the Attorney
General, not the court, who has the authority to determine sentence credit, and
that the Attorney General has delegated that authority to the Director of the
Bureau of Prisons, dkt. no. 296 (citing 29 C.F.R. §0.96). On September 12,
2019, the court received the defendant’s response. Dkt. No. 298. The defendant
responded that that he wasn’t asking the court to give him sentencing credit;
he was asking the court to issue an order requiring the Bureau of Prisons to
give him sentencing credit, because he believed the BOP was not doing what
the First Step Act required it to do. Id. at 5. He cited 28 U.S.C. §1361 in
asserting that this court had the authority to do what he asked. Id. He also
1
Case 2:06-cr-00273-PP Filed 04/21/20 Page 1 of 4 Document 301 argued that he was not required to exhaust his administrative remedies,
because to do so would be pointless. Id. at 6-8.
This court then dropped the ball. It did not act promptly on the
defendant’s request. Consequently, it now appears that the defendant’s request
is moot. The Bureau of Prisons’ inmate locator web site indicates that the
defendant is at a residential reentry center. https://www.bop.gov (last visited
April 20, 2020).
Even if the defendant was not now in the process of transitioning into the
community, however, the court would have denied his motion. Whether the
defendant was right or wrong in his opinion that it would have been futile for
him to make his request to the Bureau of Prisons, that is what the law required
him to do. See, e.g., United States v. Earls, 755 F. App’x 581, 582 (7th Cir.
2019) (quoting Romandine v. United States, 206 F.3d 731, 736 (7th Cir. 2000)
(“[r]equests for sentence credit, or for recalculation of time yet to serve . . .
must be presented to the Attorney General (or [his] delegate, the Bureau of
Prisons), and adverse decisions may be reviewed by an action under 28 U.S.C.
§ 2241.”). The First Step Act did not change that.
As for the defendant’s argument that this court has the authority to
compel the Bureau of Prisons to calculate and give him sentence credit—
whether for good time under the First Step Act or for any other reason—28
U.S.C. §1361 is the Mandamus Act. The appropriate procedure for filing a
mandamus action is to file a petition for mandamus, which the defendant did
2
Case 2:06-cr-00273-PP Filed 04/21/20 Page 2 of 4 Document 301 not so (nor did he pay the $400 filing fee for such a petition). Nor did the
defendant show that he was entitled to mandamus relief.
The Supreme Court has emphasized that “[t]he common-law writ of mandamus, as codified in 28 U.S.C. § 1361, is intended to provide a remedy for a plaintiff only if he has exhausted all other avenues of relief and only if the defendant owes him a clear nondiscretionary duty.” Heckler v. Ringer, 466 U.S. 602, 616 . . . (1984). If a plaintiff’s allegations survive Ringer’s jurisdictional threshold, three elements must be met in order for the court to issue a writ: “1) a clear right in the plaintiff to the relief sought; (2) a plainly defined and peremptory duty on the part of the defendant to do the act in question; (3) no other adequate remedy available.” Burnett v. Bowen, 830 F.2d 731, 739 (7th Cir. 1987).
Center for Dermatology and Skin Cancer, Ltd. v. Burwell, 770 F.3d 586, 590
(7th Cir. 2014).
As the court has noted, the defendant has provided no proof that he
exhausted his administrative remedies. He attached documentation which he
says shows that the BOP took longer than he believes it should have in
addressing previous requests. Dkt. No. 298-1 at 6-36. But he provided no
evidence that he had asked the BOP to calculate and give him his good-time
credit. He also attached three short orders—two from courts in Texas, one from
a court in Oregon—in which courts ordered the Bureau of Prisons to calculate
a defendant’s good-time credit. Id. at 1-5. The court has no idea whether the
defendants in these cases approached the BOP first, whether the BOP acted
promptly on their requests or whether there were other circumstances that
prompted these orders.
The defendant did not exhaust his administrative remedies under the
law. He did not follow the appropriate procedure for requesting mandamus. He
3
Case 2:06-cr-00273-PP Filed 04/21/20 Page 3 of 4 Document 301 did not demonstrate that the BOP was not addressing his request. And it
appears that the BOP now has done so.
The court DENIES the defendant’s request to compel the Bureau of
Prisons to issue mandatory First Step Act good-time credits. Dkt. No. 294.
Dated in Milwaukee, Wisconsin this 21st day of April, 2020.
BY THE COURT:
_________________________________________ HON. PAMELA PEPPER Chief United States District Judge
4
Case 2:06-cr-00273-PP Filed 04/21/20 Page 4 of 4 Document 301 | 2020-04-21 | [
"UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN ______________________________________________________________________________ UNITED STATES OF AMERICA, Plaintiff, Case No. 06-cr-273-pp v. ANDREW R. SPENGLER, Defendant. ______________________________________________________________________________ ORDER DENYING DEFENDANT’S REQUEST FOR THE COURT TO COMPEL THE BUREAU OF PRISONS TO ISSUE MANDATORY “FIRST STEP ACT” GOOD-TIME CREDITS (DKT. NO. 294) ______________________________________________________________________________ On August 26, 2019, the defendant filed a motion, asking the court to compel the Bureau of Prisons to issue him “good-time” credits authorized by the First Step Act of 2018.",
"Dkt. No. 294. The court asked the government to respond, dkt. no. 295; it did so promptly, correctly noting that it is the Attorney General, not the court, who has the authority to determine sentence credit, and that the Attorney General has delegated that authority to the Director of the Bureau of Prisons, dkt. no. 296 (citing 29 C.F.R. §0.96). On September 12, 2019, the court received the defendant’s response. Dkt. No. 298. The defendant responded that that he wasn’t asking the court to give him sentencing credit; he was asking the court to issue an order requiring the Bureau of Prisons to give him sentencing credit, because he believed the BOP was not doing what the First Step Act required it to do. Id.",
"at 5. He cited 28 U.S.C. §1361 in asserting that this court had the authority to do what he asked. Id. He also 1 Case 2:06-cr-00273-PP Filed 04/21/20 Page 1 of 4 Document 301 argued that he was not required to exhaust his administrative remedies, because to do so would be pointless. Id. at 6-8. This court then dropped the ball. It did not act promptly on the defendant’s request. Consequently, it now appears that the defendant’s request is moot. The Bureau of Prisons’ inmate locator web site indicates that the defendant is at a residential reentry center. https://www.bop.gov (last visited April 20, 2020). Even if the defendant was not now in the process of transitioning into the community, however, the court would have denied his motion.",
"Whether the defendant was right or wrong in his opinion that it would have been futile for him to make his request to the Bureau of Prisons, that is what the law required him to do. See, e.g., United States v. Earls, 755 F. App’x 581, 582 (7th Cir. 2019) (quoting Romandine v. United States, 206 F.3d 731, 736 (7th Cir. 2000) (“[r]equests for sentence credit, or for recalculation of time yet to serve . . . must be presented to the Attorney General (or [his] delegate, the Bureau of Prisons), and adverse decisions may be reviewed by an action under 28 U.S.C.",
"§ 2241.”). The First Step Act did not change that. As for the defendant’s argument that this court has the authority to compel the Bureau of Prisons to calculate and give him sentence credit— whether for good time under the First Step Act or for any other reason—28 U.S.C. §1361 is the Mandamus Act. The appropriate procedure for filing a mandamus action is to file a petition for mandamus, which the defendant did 2 Case 2:06-cr-00273-PP Filed 04/21/20 Page 2 of 4 Document 301 not so (nor did he pay the $400 filing fee for such a petition). Nor did the defendant show that he was entitled to mandamus relief. The Supreme Court has emphasized that “[t]he common-law writ of mandamus, as codified in 28 U.S.C. § 1361, is intended to provide a remedy for a plaintiff only if he has exhausted all other avenues of relief and only if the defendant owes him a clear nondiscretionary duty.” Heckler v. Ringer, 466 U.S. 602, 616 . .",
". (1984). If a plaintiff’s allegations survive Ringer’s jurisdictional threshold, three elements must be met in order for the court to issue a writ: “1) a clear right in the plaintiff to the relief sought; (2) a plainly defined and peremptory duty on the part of the defendant to do the act in question; (3) no other adequate remedy available.” Burnett v. Bowen, 830 F.2d 731, 739 (7th Cir. 1987). Center for Dermatology and Skin Cancer, Ltd. v. Burwell, 770 F.3d 586, 590 (7th Cir. 2014). As the court has noted, the defendant has provided no proof that he exhausted his administrative remedies. He attached documentation which he says shows that the BOP took longer than he believes it should have in addressing previous requests. Dkt. No.",
"298-1 at 6-36. But he provided no evidence that he had asked the BOP to calculate and give him his good-time credit. He also attached three short orders—two from courts in Texas, one from a court in Oregon—in which courts ordered the Bureau of Prisons to calculate a defendant’s good-time credit. Id. at 1-5. The court has no idea whether the defendants in these cases approached the BOP first, whether the BOP acted promptly on their requests or whether there were other circumstances that prompted these orders. The defendant did not exhaust his administrative remedies under the law. He did not follow the appropriate procedure for requesting mandamus. He 3 Case 2:06-cr-00273-PP Filed 04/21/20 Page 3 of 4 Document 301 did not demonstrate that the BOP was not addressing his request. And it appears that the BOP now has done so. The court DENIES the defendant’s request to compel the Bureau of Prisons to issue mandatory First Step Act good-time credits.",
"Dkt. No. 294. Dated in Milwaukee, Wisconsin this 21st day of April, 2020. BY THE COURT: _________________________________________ HON. PAMELA PEPPER Chief United States District Judge 4 Case 2:06-cr-00273-PP Filed 04/21/20 Page 4 of 4 Document 301"
] | https://www.courtlistener.com/api/rest/v3/recap-documents/131203454/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Allowable Subject Matter
In view of further search, arguments presented by Applicant (5MAR2021), claims amended by Applicant (5MAR2021) consistent with 28DEC2020 interview, Claims 1 – 3, 5 – 18, and 20 are allowed. Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.”
Conclusion
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, Applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Kathy WANG-HURST can be reached on 571-270-5371. The fax phone number for the organization where this application or proceeding is assigned is 571- 273-8300. Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see http://pair-direct.uspto.gov. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000. | 2021-05-07T09:54:41 | [
"DETAILED ACTION Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . Allowable Subject Matter In view of further search, arguments presented by Applicant (5MAR2021), claims amended by Applicant (5MAR2021) consistent with 28DEC2020 interview, Claims 1 – 3, 5 – 18, and 20 are allowed. Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.” Conclusion Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, Applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Kathy WANG-HURST can be reached on 571-270-5371.",
"The fax phone number for the organization where this application or proceeding is assigned is 571- 273-8300. Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see http://pair-direct.uspto.gov. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000."
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665 S.E.2d 674 (2008) STATE of West Virginia, Plaintiff Below, Appellee, v. Joshua Lee SLATER, Defendant Below, Appellant. No. 33659. Supreme Court of Appeals of West Virginia. Submitted April 15, 2008. Decided June 9, 2008. Dissenting Opinion of Justice Starcher July 23, 2008. Concurring Opinion of Justice Benjamin July 30, 2008. *677 Darrell V. McGraw, Jr., Esq., Attorney General, Dawn E. Warfield, Esq., Deputy Attorney General, R. Christopher Smith, Esq., Assistant Attorney General, Charleston, WV, for the State. Ira Mickenberg, Esq., Gregory L. Ayers, Esq., Public Defender Corporation, Charleston, WV, for Joshua Lee Slater. MAYNARD, Chief Justice: The appellant, Joshua Lee Slater, appeals his convictions for kidnaping, domestic battery, wanton endangerment, and daytime burglary by breaking and entering. He also appeals his sentence for these crimes which amounts to life with mercy plus twenty-one years. For the reasons that follow, we affirm.
I.
FACTS Joshua Lee Slater, the appellant, lived with his long-time girlfriend, Angela Walls, and their two small children in a trailer in Sissonville. On November 29, 2005, the appellant and Ms. Walls got into an argument. At some point, the appellant hit Ms. Walls on the side of her head and threw a hammer, hitting her in the leg and causing minor bruising. When Ms. Walls indicated that she was taking the children to her mother's house, the appellant ordered her to stay at gunpoint. He also threatened to kill Ms. Walls' entire family. The appellant then ordered Ms. Walls into the bedroom where he pointed a twelve-gauge shotgun at her and threatened to shoot her. While they were in the bedroom, the appellant ordered Ms. Walls to change into camouflage clothing. After she did so, he informed her that she had 14 hours to live, and then he was going to take her into the woods, tie her to a tree, "buckshot" her in both her knees, knock her teeth out so there would be no dental records, and set her body on fire so she could not be found. Shortly thereafter, Ms. Walls and the children escaped through the bedroom window, and Ms. Walls drove to her mother's house. Subsequently, the appellant went to Ms. Walls' mother's house. By that time, Ms. Walls, her mother Lori Walls, and the children had fled to Ms. Walls' grandmother's house. The appellant attempted to open the door to the Walls' house with a key but was unable to do so. He then broke the window in the back door with the barrel of a gun and kicked in the back door. A short time later, a police officer arrived at the Walls' house. *678 Although the appellant fled the house, he was arrested later that day. The appellant was found guilty by a jury of kidnaping, for which he was sentenced to life with mercy; domestic battery, for which he received a determinate term of one year; wanton endangerment, for which he was sentenced to a determinate term of five years; and daytime burglary by breaking and entering, for which the trial court sentenced him to an indeterminate term of not less than one nor more than fifteen years. These sentences are to run consecutively. The appellant now appeals his convictions and sentence.
II.
DISCUSSION
1. Sufficiency of Evidence to Support Burglary Conviction First, the appellant argues that the evidence was legally insufficient to sustain the burglary conviction because the evidence failed to show that his entry into Lori Walls' house was unauthorized. In considering this issue, we are guided by the following standard of review: A criminal defendant challenging the sufficiency of the evidence to support a conviction takes on a heavy burden. An appellate court must review all the evidence, whether direct or circumstantial, in the light most favorable to the prosecution and must credit all inferences and credibility assessments that the jury might have drawn in favor of the prosecution. The evidence need not be inconsistent with every conclusion save that of guilt so long as the jury can find guilt beyond a reasonable doubt. Credibility determinations are for a jury and not an appellate court. Finally, a jury verdict should be set aside only when the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt. To the extent that our prior cases are inconsistent, they are expressly overruled. Syllabus Point 3, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995). Lori Walls, the owner of the house the appellant was convicted of burglarizing, testified that the appellant previously had lived in her house for many years, had a key to the house, was considered a member of the family, and had full access to her house. It is the appellant's contention that because he was authorized to enter the Walls' home, the elements of burglary are not present in this case. According to the appellant, unauthorized entry is an essential element of daytime burglary by breaking and entering. To support this assertion, the appellant cites State v. Plumley, 181 W.Va. 685, 384 S.E.2d 130 (1989), and State v. Louk, 169 W.Va. 24, 285 S.E.2d 432 (1981), in which this Court stated that "burglary is complete once there has been an unauthorized entry[.]" 169 W.Va. at 26, 285 S.E.2d at 434. We find that an unauthorized entry is not an element of daytime burglary by breaking and entering. First, neither the statutory language nor this Court's holding defining the crime of burglary indicate that an unauthorized entry is an element of daytime burglary by breaking and entering. According to W.Va.Code § 61-3-11(a) (1993), in pertinent part, the elements of burglary by breaking and entering are: "If any person shall ... in the daytime, break and enter, the dwelling house ... of another, with intent to commit a crime therein, he shall be deemed guilty of burglary." Further, in Syllabus Point 2 of State v. Louk, 169 W.Va. 24, 285 S.E.2d 432 (1981), we held, with regard to the elements of burglary: The crime of burglary is defined in W.Va.Code, 61-3-11(a), as: "Burglary shall be a felony and any person convicted thereof shall be confined in the penitentiary not less than one nor more than fifteen years. If any person shall, in the nighttime, break and enter, or enter without breaking, or shall, in the daytime, break and enter, the dwelling house, or an outhouse adjoining thereto or occupied therewith, of another, with intent to commit [a crime] therein, he shall be deemed guilty of burglary." There simply is nothing in the statutory language and in our holding in Louk to indicate *679 that unauthorized entry is an element of daytime burglary by breaking and entering.[1] In addition, we find that the appellant's reliance on State v. Plumley is misplaced. In Plumley, the defendant was convicted of burglary in the nighttime in addition to other crimes. The defendant had gained entry into the victim's home for the ostensible purpose of using the victim's telephone. The issue for this Court was whether the victim's consent to enter was an absolute defense to the crime of burglary because the consent meant that there could be no unauthorized entry. In discussing this issue, we explained: Thus, under W.Va.Code, 61-3-11(a) [1973], the essential requirement of burglary committed in the nighttime is that the defendant "enter ... with intent to commit a felony or any larceny."[2] It is the intent and acts of the accused that the statute makes controlling. There is no language in the statute that the entry must be by force or that it must be against the will of the occupant. The plain language of the statute indicates that the consent of the occupant obtained through fraud or threat of force is not a defense to the crime of burglary. Under statutes that define burglary as an entry without breaking with intent to commit a criminal offense, it is uniformly held that consent to enter is not a defense when the accused is shown to have entered through fraud or threat of force with the requisite criminal intent. 181 W.Va. at 688-689, 384 S.E.2d at 133-134 (footnote added and footnotes omitted). We further indicated, In State v. Louk, 169 W.Va. 24, 26, 285 S.E.2d 432, 434 (1981), we noted the burglary statute had expanded to some degree the common law crime of burglary. However, this expansion was not material to the Louk decision. The West Virginia burglary statute's departure from the traditional common law requirement of "breaking" is significant because breaking was a concept designed to keep out intruders, or to prevent trespass into the building, and a person with authority to enter could not be said to have committed a breaking. However, the common law requirement of "entry" was a physical concept, and even the slightest entry by any part of the perpetrator's body was sufficient to satisfy the requirement. 181 W.Va. at 689, 384 S.E.2d at 134 (citations omitted). Moreover, we stated, Because the legislature has deleted the "breaking" requirement with regard to entry in the nighttime, the statutory offense of burglary of the dwelling house of another involves no unlawfulness of entry except as the entry becomes unlawful by reason of the criminal intent of the person entering.[3] Id. (Footnote added and footnotes omitted.). We ultimately determined that consent to enter is not an absolute defense to a charge of burglary in the nighttime, and we held in Syllabus Point 1, Under W.Va.Code, 61-3-11(a) [1973], the essential requirement of burglary committed in the nighttime is that the defendant "enter ... with intent to commit a felony or any larceny." The intent and the acts of the defendant are controlling, and the consent of the occupant to enter is not a defense when the defendant is shown to have entered through fraud or threat of force with the requisite criminal intent. The statutory requirement of entry is also fulfilled when a person with consent to enter exceeds the scope of the consent granted. At first blush, one may infer from our discussion in Plumley above that the crime *680 of daytime burglary by breaking and entering requires an unauthorized entry. However, that inference is contradicted by our holding in State v. Ocheltree, 170 W.Va. 68, 289 S.E.2d 742 (1982). The issue in Ocheltree was whether criminal trespass is a lesser included offense of burglary. In considering this issue, we reasoned as follows: The elements necessary to prove burglary under W.Va.Code, 61-3-11(a) [1973], therefore, are: (1) in the daytime, (2) breaking and entering, (3) the dwelling house of another, (4) with the intent to commit a felony or any larceny therein. The elements necessary to the proof of criminal trespass under W.Va.Code, 61-3B-2 [1978], are: (1) a knowing entry, (2) in a structure or conveyance, (3) without being authorized, licensed or invited. .... To prove the crime of trespass, under W.Va.Code, 61-3B-2 [1978], the State must show.... that the entry was without authorization, license or invitation.... [T]here is no similar requirement under W. Va.Code, 61-3-11(a) [1973]. 170 W.Va. at 71, 289 S.E.2d at 745. We further quoted with approval language from Estep v. State, 271 Ind. 525, 394 N.E.2d 111, 113 (1979), overruled on other grounds, Jones v. State, 438 N.E.2d 972 (Ind.1982), as follows: Although the entry incidental to a burglary may be a trespass ... it does not follow, that it must be. One may never have been denied entry to his neighbor's house, he may even have been expressly authorized to enter it at any time. Yet, if he enters by "breaking," as that term has been employed in defining burglary, with the intent to commit a felony therein, he commits a burglary although not a trespass, because the entry was authorized. 170 W.Va. at 71 fn. 4, 289 S.E.2d at 745 fn. 4. In Syllabus Point 2 of Ocheltree, we held that "[c]riminal trespass, as defined by W.Va. Code, 61-3B-2 [1978], is not a lesser included offense of burglary by breaking and entering as defined by W.Va.Code, 61-3-11(a) [1973]." It is clear from both our discussion and holding in Ocheltree that an unauthorized entry is not a required element of burglary by breaking and entering. Therefore, we hold that an unauthorized entry is not a required element of the crime of daytime burglary by breaking and entering as defined in W.Va.Code § 61-3-11(a). In light of our holding, it is not relevant whether the appellant's entry in Lori Walls' house was authorized. Rather, the evidence had to show that the appellant committed a breaking and entering with the intent to commit a crime therein. In the instant case, there was sufficient evidence for a jury to find beyond a reasonable doubt that the appellant broke a window and entered Lori Walls' house with the intent to harm Angela and/or Lori Walls. Therefore, we affirm the appellant's conviction for daytime burglary by breaking and entering.
2. Sufficiency of the Evidence to Support Kidnaping Conviction Second, the appellant contends that the evidence was legally insufficient to sustain his kidnaping conviction.[4]
*681 The record reveals that the appellant requested to be sentenced under W.Va.Code § 61-2-14a(a)(4), which provides that the defendant's sentence shall be a definite term of not less than ten nor more than thirty years where the court finds that the victim was returned, or was permitted to return alive without bodily harm, and without any concession having been paid or yielded. The trial court found, however, that a concession was paid or yielded in that the appellant "was able to gain control over [the victim] and kept her from leaving[.]." Thus, the court found that subsection (4) of the statute did not apply, and sentenced the appellant to life with mercy as recommended by the jury. The appellant first notes that under our kidnaping statute, the State must prove two distinct elements to establish the crime of kidnaping the act of confining the victim and the intent to use that confinement to obtain some sort of concession. He then claims that the trial court's finding that a concession was paid or yielded was error. This is due to the fact that the concession element, as found by the trial court, is the same as the element of confining the victim. According to the appellant, this is insufficient because the concession must be something different from, and in addition to, the act of confinement. Moreover, the appellant avers that this Court is bound by the trial court's finding of fact on the element of a concession being paid or yielded.[5] We find the appellant's argument to be without merit. This Court previously has explained that W.Va.Code § 61-2-14a provides a maximum sentence of life with or without mercy, based on the jury's findings, and that any additional findings of fact made by the trial court operates to reduce the defendant's sentence from the maximum sentence as found by the jury. See State v. Haught, 218 W.Va. 462, 624 S.E.2d 899 (2005). We have also held: The provisions of the statute relating to the various punishments to be imposed upon a person convicted of the crime of kidnaping, and which punishments depend upon and are governed by the evidence introduced at the trial, do not state or prescribe any element of the offense created by the statute. Syllabus Point 2, Pyles v. Boles, 148 W.Va. 465, 135 S.E.2d 692 (1964). Clearly, the trial court's finding of fact that there was a concession gained was made with regard to sentencing and had nothing to do with the elements of the crime of kidnaping as found by the jury. Our review of the evidence indicates that the jury could have found beyond a reasonable doubt that the appellant confined Ms. Walls for one of the purposes enumerated in the statute. For example, the jury could have found that the appellant confined Ms. Walls for the purpose of keeping his children with him. The jury also could have found that the appellant confined Ms. Walls for the purpose of killing her that evening in the woods, under cover of darkness with the intent "of evading capture or arrest." W.Va. Code § 61-2-14a(a). Accordingly, we reject the appellant's contention of insufficient evidence to sustain his kidnaping conviction, and we affirm the conviction.[6]
*682 3. The Constitutionality of the Appellant's Sentence
The appellant also assigns as error his sentence of life with mercy plus sixteen years as excessive and violative of the proportionality and cruel and unusual punishment clauses of the constitution.[7] The appellant bases his argument on the fact that he is 23 years old and has no prior criminal record. In addition, he says that the only injuries he caused were minor bruises to Ms. Walls' face and leg which required no medical treatment, and the only damage he caused was a broken window in the back door of Lori Walls' house. Moreover, the appellant notes that both Ms. Walls and her mother, Lori Walls, spoke on his behalf at sentencing and asked the court for mercy. Finally, the appellant opines that the facts of this case are much less egregious than those in State v. Richardson, 214 W.Va. 410, 589 S.E.2d 552 (2003), in which this Court found that sentences of thirty years for kidnaping and five for wanton endangerment were unconstitutionally harsh. Our standard of reviewing sentencing orders is as follows: "The Supreme Court of Appeals reviews sentencing orders, including orders of restitution made in connection with a defendant's sentencing, under a deferential abuse of discretion standard, unless the order violates statutory or constitutional commands." Syllabus Point 1, State v. Lucas, 201 W.Va. 271, 496 S.E.2d 221 (1997). We have also held, however, that "[s]entences imposed by the trial court, if within statutory limits and if not based on some unpermissible factor, are not subject to appellate review." Syllabus Point 4, State v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504 (1982).[8] We conclude that the appellant's sentence is not subject to our review because the sentence imposed for each conviction is within the statutory limit and the appellant has identified no impermissible factor[9] upon which his sentence is based.[10] While the *683 appellant cites our per curiam opinion of State v. Richardson for support, Richardson is a deviation from our established law. While the defendant's sentence in Richardson was within statutory limits and no impermissible sentencing factors were indicated, the Court in Richardson nevertheless conducted a proportionality analysis.[11] We deem it generally to be the better practice to decline to review sentences that are within statutory limits and where no impermissible sentence factor is indicated in accord with Syllabus Point 4 of State v. Goodnight. Therefore, we find no merit to the appellant's alleged sentencing error, and we affirm his sentence.
4. Alleged Instructional Error Regarding the Law of Wanton Endangerment The appellant's next assignment of error is that the trial court failed to give additional instructions to the jury concerning the law on wanton endangerment. During deliberations, Jurors sent a note to the trial judge asking two questions: (1) "Under `wanton endangerment' does it matter if the gun is loaded?" and (2) "Does `wanton endangerment' lie on the one with the gun or the perception of [the] person it is pointed at?" After reading the questions into the record, the trial court informed the parties, "And I'm going to bring them in and tell them that they have all of the legal instructions that I can give them in order to find their verdict," to which the appellant's counsel responded, "Yes, ma'am." The trial court then brought the jury into the courtroom and advised them that "I instruct you that you have the Court's instructions. That's the only law that I can provide for you upon which you can base your verdicts." The appellant now contends that it was reversible error for the trial court not to answer the jury's questions because both questions concerned essential elements of wanton endangerment. Also, the questions indicated that the jurors were confused about the proper law to apply. The State responds that the appellant forfeited this alleged error by failing to raise it below, and that the trial court's decision not to answer the questions does not amount to plain error. Because the appellant failed to preserve the alleged error, we will review it under our plain error analysis. We have held that "[t]o trigger application of the `plain error' doctrine, there must be (1) an error; (2) that is plain; (3) that affects substantial rights; and (4) seriously affects the fairness, integrity, or public reputation of the judicial proceedings." Syllabus Point 7, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995). An unpreserved error is deemed plain and affects substantial rights only if the reviewing court finds the lower court skewed the fundamental fairness or basic integrity of the proceedings in some major respect. In clear terms, the plain error rule should be exercised only to avoid a miscarriage of justice. The discretionary authority of this Court invoked by lesser errors should be exercised sparingly and should be reserved for the correction of those few errors that seriously affect the fairness, integrity, or public reputation of the judicial proceedings. *684 Syllabus Point 7, State v. LaRock, 196 W.Va. 294, 470 S.E.2d 613 (1996). Regarding the trial court's duty to reinstruct the jury, this Court has held that Where it clearly and objectively appears in a criminal case from statements of the jurors that the jury has failed to comprehend an instruction on a critical element of the crime or a constitutionally protected right, the trial court must, on request of defense counsel, reinstruct the jury. Syllabus Point 2, State v. McClure, 163 W.Va. 33, 253 S.E.2d 555 (1979). We find that the trial court did not err in declining to answer the jury's questions. The jury instruction defining the crime of wanton endangerment was as follows: "The Court instructs the jury that any person who wantonly performs any act with a firearm which creates a substantial risk of death or serious bodily injury to another shall be guilty of a felony." According to our wanton endangerment statute in pertinent part: "Any person who wantonly performs any act with a firearm which creates a substantial risk of death or serious bodily injury to another shall be guilty of a felony[.]" W.Va.Code § 61-7-12. The trial court's instruction to the jury on wanton endangerment is identical to the statutory language. This Court has held that "[a]n instruction for a statutory offense is sufficient if it adopts and follows the language of the statute, or uses substantially equivalent language and plainly informs the jury of the particular offense for which the defendant is charged." Syllabus Point 8, State v. Slie, 158 W.Va. 672, 213 S.E.2d 109 (1975). Because the trial court's instruction was identical to the statutory language, we conclude that it was sufficient. If the appellant's counsel had moved for the trial court to re-instruct or re-read the jury on the law of wanton endangerment in light of the jury's confusion over the law, the court would have had a duty to do so. See State v. Lutz, 183 W.Va. 234, 395 S.E.2d 478 (1988) (finding reversible error for the judge to deny defendant's motion to orally re-instruct the jury in light of the jury's evident confusion over the law).[12] However, counsel did not request that the instruction be re-read. Instead, the jury requested that the trial court discuss factors that are not set forth as elements of wanton endangerment in the statute. The trial court simply had no duty to do this. As explained by the trial court, the jury had been instructed on the only law upon which it could base its verdict. Therefore, we find no error in the trial court's failure to answer the jury's questions.
5. Alleged Instruction Error Regarding Jury Inferences The appellant's final ground for error is the trial court's instruction that it would be reasonable for the jury to infer that the appellant intended his acts and the natural and probable consequences of those acts. According to the appellant, this instruction violates the United States Supreme Court case of Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979), and this Court's holding in State v. O'Connell, 163 W.Va. 366, 256 S.E.2d 429 (1979), by placing the burden on the defense to rebut the inference, by stating an opinion by the court regarding whether the jury should adopt the inference, and by instructing the jury that it must adopt the inference. The State asserts that this alleged error is not reviewable by this Court because the appellant waived the error at trial. We agree with the State. The record reveals that when the trial court was discussing its charge to the jury, the following conversation occurred between the trial court and the appellant's counsel: [Appellant's counsel]: .... I believe I'm entitled to or I'm going to ask you for an *685 instruction that relates to the incidental nature of this kidnaping. The Court: Uh-huh. [Appellant's counsel]: That would be my only comment. In all other respects, I have no objections. I would just ask you to give an instruction that to the extent that the alleged kidnaping was incidental to other crimes. After discussing the appellant's counsel's requested instruction on the incidental nature of the kidnaping, the following exchange occurred: The Court: All right. I want to take some time during the luncheon recess and plod about this incidental issue, because as I understand it, there are no other objections to the charge. Is that correct? [Appellant's counsel]: I have none, your Honor. It is clear from this portion of the trial transcript that the appellant's counsel affirmatively waived any alleged error regarding the instruction now complained of. This Court has held that when a deviation from the law is waived, there is no error. In Syllabus Point 8 of State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995), we explained: Under the "plain error" doctrine, "waiver" of error must be distinguished from "forfeiture" of a right. A deviation from a rule of law is error unless there is a waiver. When there has been a knowing and intentional relinquishment or abandonment of a known right, there is no error and the inquiry as to the effect of a deviation from the rule of law need not be determined. By contrast, mere forfeiture of a right the failure to make timely assertion of the right does not extinguish the error. In such a circumstance, it is necessary to continue the inquiry and to determine whether the error is "plain." To be "plain," the error must be "clear" or "obvious." Based on this rule, we find that the appellant waived any error in the allegedly improper instruction. As a result, there is no error, and this Court need not consider the issue.
III.
CONCLUSION For the reasons set forth above, we affirm the appellant's convictions for kidnaping, domestic battery, wanton endangerment, and daytime burglary by breaking and entering. We also affirm the appellant's sentence of life with mercy plus twenty-one years for these crimes. Affirmed. Justice STARCHER dissents and files a dissenting opinion. Justice BENJAMIN concurs and files a concurring opinion. STARCHER, Justice, dissenting:
(Filed July 23, 2008) The facts of this case alone are such that it gives one pause to dissent to the majority opinion; however, I am compelled to dissent because I believe it is clear that this case falls within the parameters of the facts discussed in an earlier separate opinion, State v. Haught, 218 W.Va. 462, 624 S.E.2d 899 (2005). I continue to be concerned that this Court is not complying with the decisions in two important United States Supreme Court Cases. Therefore, I dissent from the majority opinion because it has again failed to follow the U.S. Supreme Court rulings of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). West Virginia law remains inconsistent with federal law. In Apprendi, the U.S. Supreme Court stated that, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-63. In Blakely, the Court further defined statutory maximum as "the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." Blakely, 542 U.S. at 303, 124 S.Ct. at 2537. The holdings of these two cases require the *686 jury, not a trial judge, to make all findings of fact related to sentencing. The current state of law in West Virginia seems to be in direct opposition, as expressed in Syllabus Point 1 of State v. Farmer, 193 W.Va. 84, 454 S.E.2d 378 (1994): Pursuant to West Virginia's kidnapping statute set forth in W. Va.Code, 61-2-14a [1965], a trial judge, for purposes of imposing a sentence on a defendant ... has the discretion to make findings ... as to whether ransom, money, or any other concession has been paid or yielded for the return of the victim. Because the findings by the trial judge are made solely for the purpose of determining the sentence to be imposed on a defendant and are not elements of the crime of kidnapping, West Virginia Constitution art. III, secs. 10 and 14, relating to a defendant's due process rights and right to a trial by jury, are not violated. As I stated previously, "Our Court should, in accordance with Blakely, have clarified that W. Va.Code, 61-2-14a(a) does not violate a defendant's 6th Amendment jury trial rights so long as a jury finds the facts necessary for determining the sentence, not a judge...." Haught, 218 W.Va. at 468, 624 S.E.2d at 905 (2005) (Starcher, J., dissenting and concurring). Otherwise, sentences based on trial judge findings of fact and the underlying convictions face the possibility of reversal by a federal court. Id. at 467, 624 S.E.2d at 904. The majority in Haught failed to conform our case law with federal law, and has repeated this error in the instant case. The trial judge found that a concession had been gained, and used this finding to sentence the appellant to life with mercy. The majority states that since the trial court made the finding of fact in relation to sentencing and not the elements of kidnaping, there was no error. It then implies that because a jury could have found any of the enumerated purposes, there was no harm in the trial judge's determination. However, that is not the rule stated in Apprendi and Blakely. It does not give discretion as to whether a jury could have made the same finding as a trial judge, but only that it did make such a finding. If the jury does not find beyond a reasonable doubt that the appellant gained a concession, Blakely dictates that the trial judge cannot make such a finding when sentencing without violating the appellant's Sixth Amendment trial by jury rights. The trial judge in the instant case, by determining a concession was gained, has done just that. The judge's role in a trial is to make determinations of law; the jury's role is to make determinations of fact. West Virginia's law as it now stands allows a trial judge to invade the province of a jury and make factual determinations. This is in direct violation of the United States Constitution as articulated in Apprendi and Blakely and the majority opinion has simply overlooked this issue. I respectfully dissent. BENJAMIN, Justice, concurring:
(Filed July 30, 2008) I agree with the majority opinion but write separately to address the issue raised in the dissenting opinion. According to the dissent, the majority opinion is inconsistent with the United States Supreme Court's rulings in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). This simply is not true. As this Court explained in State v. Haught, 218 W.Va. 462, 624 S.E.2d 899 (2005), Apprendi and Blakely stand for the principle that any fact other than a prior conviction that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. In contrast, our kidnaping statute does not provide for the enhancement of a defendant's sentence beyond the statutory maximum based on additional facts found by the trial judge, but rather provides for the possible reduction of a defendant's sentence based on the trial judge's additional findings. Because Apprendi and Blakely are not applicable to the instant facts, those cases were properly omitted from the discussion in the majority opinion. *687 Thus, for the reason stated above, I concur with the majority opinion. NOTES [1] We find the statement in Louk upon which the appellant relies, that "burglary is complete once there has been an unauthorized entry[,]" to be dicta. Significantly, this language from Louk, which applied to both nighttime and daytime burglary, was later criticized by the Court in State v. Wallace, 205 W.Va. 155, 517 S.E.2d 20 (1999), in which we opined that "[i]t is by no means clear that [the] nighttime burglary statute requires an unauthorized entry." 205 W.Va. at 161 n. 10, 517 S.E.2d at 26 n. 10. [2] The current version of the statute says "with intent to commit a crime therein[.]" [3] We also recognized that "[e]ven under statutes that require an unlawful entry, most jurisdictions have held that entry, made with the necessary criminal intent, is unlawful." 181 W.Va. at 689 fn. 7, 384 S.E.2d at 134 fn. 7 (citations omitted). [4] W.Va.Code § 61-2-14a provides, in applicable part:
Any person who, by force, threat, duress, fraud or enticement take, confine, conceal, or decoy, inveigle or entice away, or transport into or out of this state or within this state, or otherwise kidnap any other person, or hold hostage any other person for the purpose or with the intent of taking, receiving, demanding or extorting from such person, or from any other person or persons, any ransom, money or other thing, or any concession or advantage of any sort, or for the purpose or with the intent of shielding or protecting himself, herself or others from bodily harm or of evading capture or arrest after he or she or they have committed a crime shall be guilty of a felony and, upon conviction, shall be punished by confinement by the division of corrections for life, and, notwithstanding the provisions of article twelve [§§ 62-12-11 et seq.], chapter sixty-two of this code, shall not be eligible for parole: Provided, That the following exceptions shall apply: (1) A jury may, in their discretion, recommend mercy, and if such recommendation is added to their verdict, such person shall be eligible for parole in accordance with the provisions of said article twelve; (2) if such person pleads guilty, the court may, in its discretion, provide that such person shall be eligible for parole in accordance with the provisions of said article twelve, and, if the court so provides, such person should be eligible for parole in accordance with the provisions of said article twelve in the same manner and with like effect as if such person had been found guilty by the verdict of a jury and the jury had recommended mercy; (3) in all cases where the person against whom the offense is committed is returned, or is permitted to return, alive, without bodily harm having been inflicted upon him, but after ransom, money or other thing, or any concession or advantage of any sort has been paid or yielded, the punishment shall be confinement by the division of corrections for a definite term of years not less than twenty nor more than fifty; (4) in all cases where the person against whom the offense is committed is returned, or is permitted to return, alive, without bodily harm having been inflicted upon him or her, but without ransom, money or other thing, or any concession or advantage of any sort having been paid or yielded, the punishment shall be confinement by the division of corrections for a definite term of years not less than ten nor more than thirty. [5] The State claims that the appellant failed to preserve this assignment of error by failing to raise it until a post-trial motion for a new trial. The appellant counters that because the trial court made its finding of fact after the trial, it was impossible for the appellant to raise the alleged error earlier. We deem it preferable in this instance to address the substantive merits of the appellant's assignment of error. [6] Even if the trial court's finding of fact regarding the concession is error, it is harmless with regard to the appellant's sentence. In order to receive a reduction in sentence pursuant to either W.Va.Code § 61-2-14a(a)(3) or (4), the trial court must find that the victim was returned, or permitted to return, alive, without bodily harm. The trial court properly found that Ms. Walls was not returned or permitted to return but rather she escaped. [7] The parties to this case agree that the appellant is eligible for parole after thirteen years, one month and eleven days, or thirteen years and three months, depending on whether he is granted good time on the domestic battery conviction. [8] In State v. Houston, 166 W.Va. 202, 209, 273 S.E.2d 375, 379 (1980), this Court opined that "[w]ith the exception of the life recidivist statute discussed in State v. Vance, [164 W.Va. 216, 262 S.E.2d 423 (1980)], we do not believe that the disproportionality principle can have any significant application other than to [an open-ended] sentencing statute. Such a statute provides for no maximum sentence. The Court in Houston considered the constitutionality of a sentence under the robbery by violence statute which provided for a sentence of "not less than ten years." While the Court in Houston referred to the kidnaping statute as an open-ended sentencing statute, that reference was to the 1965 version which indicated a term of years not less than twenty or a term of years not less than ten if the trial court made a finding that the victim was returned or permitted to be returned and depending upon the court's finding with respect to whether the defendant inflicted bodily harm on the victim and whether ransom, money, or other concession was made. The current version of the statute does not provide for open-ended sentencing. [9] At the appellant's sentencing, Angela Walls urged the court to be lenient. The trial court rejected Ms. Walls' plea, and stated that Ms. Walls exhibited the behavior of an abused woman. In his reply brief, the appellant cites the trial court's statement as an impermissible factor in sentencing the appellant. We disagree. While the trial court's belief that Ms. Walls was an abused woman may have been a reason for the court to reject her plea for leniency, it was not stated by the court as a factor in the appellant's sentencing. [10] The kidnaping statute, W.Va.Code § 61-2-14a, provides for a sentence of life with or without mercy, dependant upon the jury's recommendation, in the absence of certain findings of fact made by the trial court. Because the trial court in the instant case was unable to make these findings, it had no discretion but to sentence the appellant to life with mercy as recommended by the jury. The trial court sentenced the appellant to twelve months for domestic battery in accord with W.Va.Code § 61-2-28(a) (2004), which provides for a sentence of not more than twelve months. The appellant's sentence for wanton endangerment of five years is in accord with W.Va.Code § 61-7-12 (1994), which provides for confinement in the penitentiary "for a definite term of years of not less than one year nor more than five years, or ... confined in the county jail for not more than one year, or fined not less than two hundred fifty dollars nor more than two thousand five hundred dollars, or both." Finally, the appellant's sentence of one to fifteen years for daytime burglary is within the statutory limits of W.Va.Code § 61-3-11(a) (1993). With regard to the fact that the appellant's sentences run consecutively, this is consistent with the statutory presumption. According to W.Va.Code § 61-11-21 (1923),
When any person is convicted of two or more offenses, before sentence is pronounced for either, the confinement to which he may be sentenced upon the second, or any subsequent conviction, shall commence at the termination of the previous term or terms of confinement, unless, in the discretion of the trial court, the second or any subsequent conviction is ordered by the court to run concurrently with the first term of imprisonment imposed. See also State ex rel. Cobb v. Boles, 149 W.Va. 365, 368, 141 S.E.2d 59, 61 (1965) ("This judgment order makes no provision that the two sentences thus purportedly imposed upon the petitioner shall run concurrently, therefore, under the provisions of Code, 61-11-21, they must run consecutively."). [11] See also State v. David D. W., 214 W.Va. 167, 588 S.E.2d 156 (2003), another per curiam opinion in which established law was disregarded in order to find that a sentence with statutory limits was unconstitutional. [12] The Court in Lutz explained,
Although the trial judge in the case before us granted defendant's request for an instruction on the consequences of an insanity verdict, the jury apparently remained confused on the issue. The instruction, which faithfully reflects the statutory provisions on commitment, was necessarily long and complex. Although a re-reading of the charge may well not have answered all the questions in the minds of the jury, it was the judge's duty, on defendant's motion, to attempt to alleviate the obvious confusion of the jury on this issue critical to their verdict. 183 W.Va. at 237, 395 S.E.2d at 481. | 10-30-2013 | [
"665 S.E.2d 674 (2008) STATE of West Virginia, Plaintiff Below, Appellee, v. Joshua Lee SLATER, Defendant Below, Appellant. No. 33659. Supreme Court of Appeals of West Virginia. Submitted April 15, 2008. Decided June 9, 2008. Dissenting Opinion of Justice Starcher July 23, 2008. Concurring Opinion of Justice Benjamin July 30, 2008. *677 Darrell V. McGraw, Jr., Esq., Attorney General, Dawn E. Warfield, Esq., Deputy Attorney General, R. Christopher Smith, Esq., Assistant Attorney General, Charleston, WV, for the State. Ira Mickenberg, Esq., Gregory L. Ayers, Esq., Public Defender Corporation, Charleston, WV, for Joshua Lee Slater.",
"MAYNARD, Chief Justice: The appellant, Joshua Lee Slater, appeals his convictions for kidnaping, domestic battery, wanton endangerment, and daytime burglary by breaking and entering. He also appeals his sentence for these crimes which amounts to life with mercy plus twenty-one years. For the reasons that follow, we affirm. I. FACTS Joshua Lee Slater, the appellant, lived with his long-time girlfriend, Angela Walls, and their two small children in a trailer in Sissonville. On November 29, 2005, the appellant and Ms. Walls got into an argument. At some point, the appellant hit Ms. Walls on the side of her head and threw a hammer, hitting her in the leg and causing minor bruising. When Ms. Walls indicated that she was taking the children to her mother's house, the appellant ordered her to stay at gunpoint. He also threatened to kill Ms. Walls' entire family.",
"The appellant then ordered Ms. Walls into the bedroom where he pointed a twelve-gauge shotgun at her and threatened to shoot her. While they were in the bedroom, the appellant ordered Ms. Walls to change into camouflage clothing. After she did so, he informed her that she had 14 hours to live, and then he was going to take her into the woods, tie her to a tree, \"buckshot\" her in both her knees, knock her teeth out so there would be no dental records, and set her body on fire so she could not be found. Shortly thereafter, Ms. Walls and the children escaped through the bedroom window, and Ms. Walls drove to her mother's house.",
"Subsequently, the appellant went to Ms. Walls' mother's house. By that time, Ms. Walls, her mother Lori Walls, and the children had fled to Ms. Walls' grandmother's house. The appellant attempted to open the door to the Walls' house with a key but was unable to do so. He then broke the window in the back door with the barrel of a gun and kicked in the back door. A short time later, a police officer arrived at the Walls' house. *678 Although the appellant fled the house, he was arrested later that day. The appellant was found guilty by a jury of kidnaping, for which he was sentenced to life with mercy; domestic battery, for which he received a determinate term of one year; wanton endangerment, for which he was sentenced to a determinate term of five years; and daytime burglary by breaking and entering, for which the trial court sentenced him to an indeterminate term of not less than one nor more than fifteen years. These sentences are to run consecutively.",
"The appellant now appeals his convictions and sentence. II. DISCUSSION 1. Sufficiency of Evidence to Support Burglary Conviction First, the appellant argues that the evidence was legally insufficient to sustain the burglary conviction because the evidence failed to show that his entry into Lori Walls' house was unauthorized. In considering this issue, we are guided by the following standard of review: A criminal defendant challenging the sufficiency of the evidence to support a conviction takes on a heavy burden. An appellate court must review all the evidence, whether direct or circumstantial, in the light most favorable to the prosecution and must credit all inferences and credibility assessments that the jury might have drawn in favor of the prosecution. The evidence need not be inconsistent with every conclusion save that of guilt so long as the jury can find guilt beyond a reasonable doubt. Credibility determinations are for a jury and not an appellate court. Finally, a jury verdict should be set aside only when the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt. To the extent that our prior cases are inconsistent, they are expressly overruled. Syllabus Point 3, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995). Lori Walls, the owner of the house the appellant was convicted of burglarizing, testified that the appellant previously had lived in her house for many years, had a key to the house, was considered a member of the family, and had full access to her house. It is the appellant's contention that because he was authorized to enter the Walls' home, the elements of burglary are not present in this case.",
"According to the appellant, unauthorized entry is an essential element of daytime burglary by breaking and entering. To support this assertion, the appellant cites State v. Plumley, 181 W.Va. 685, 384 S.E.2d 130 (1989), and State v. Louk, 169 W.Va. 24, 285 S.E.2d 432 (1981), in which this Court stated that \"burglary is complete once there has been an unauthorized entry[.]\" 169 W.Va. at 26, 285 S.E.2d at 434. We find that an unauthorized entry is not an element of daytime burglary by breaking and entering. First, neither the statutory language nor this Court's holding defining the crime of burglary indicate that an unauthorized entry is an element of daytime burglary by breaking and entering. According to W.Va.Code § 61-3-11(a) (1993), in pertinent part, the elements of burglary by breaking and entering are: \"If any person shall ... in the daytime, break and enter, the dwelling house ... of another, with intent to commit a crime therein, he shall be deemed guilty of burglary.\" Further, in Syllabus Point 2 of State v. Louk, 169 W.Va. 24, 285 S.E.2d 432 (1981), we held, with regard to the elements of burglary: The crime of burglary is defined in W.Va.Code, 61-3-11(a), as: \"Burglary shall be a felony and any person convicted thereof shall be confined in the penitentiary not less than one nor more than fifteen years. If any person shall, in the nighttime, break and enter, or enter without breaking, or shall, in the daytime, break and enter, the dwelling house, or an outhouse adjoining thereto or occupied therewith, of another, with intent to commit [a crime] therein, he shall be deemed guilty of burglary.\"",
"There simply is nothing in the statutory language and in our holding in Louk to indicate *679 that unauthorized entry is an element of daytime burglary by breaking and entering. [1] In addition, we find that the appellant's reliance on State v. Plumley is misplaced. In Plumley, the defendant was convicted of burglary in the nighttime in addition to other crimes. The defendant had gained entry into the victim's home for the ostensible purpose of using the victim's telephone. The issue for this Court was whether the victim's consent to enter was an absolute defense to the crime of burglary because the consent meant that there could be no unauthorized entry. In discussing this issue, we explained: Thus, under W.Va.Code, 61-3-11(a) [1973], the essential requirement of burglary committed in the nighttime is that the defendant \"enter ... with intent to commit a felony or any larceny. \"[2] It is the intent and acts of the accused that the statute makes controlling. There is no language in the statute that the entry must be by force or that it must be against the will of the occupant.",
"The plain language of the statute indicates that the consent of the occupant obtained through fraud or threat of force is not a defense to the crime of burglary. Under statutes that define burglary as an entry without breaking with intent to commit a criminal offense, it is uniformly held that consent to enter is not a defense when the accused is shown to have entered through fraud or threat of force with the requisite criminal intent. 181 W.Va. at 688-689, 384 S.E.2d at 133-134 (footnote added and footnotes omitted).",
"We further indicated, In State v. Louk, 169 W.Va. 24, 26, 285 S.E.2d 432, 434 (1981), we noted the burglary statute had expanded to some degree the common law crime of burglary. However, this expansion was not material to the Louk decision. The West Virginia burglary statute's departure from the traditional common law requirement of \"breaking\" is significant because breaking was a concept designed to keep out intruders, or to prevent trespass into the building, and a person with authority to enter could not be said to have committed a breaking. However, the common law requirement of \"entry\" was a physical concept, and even the slightest entry by any part of the perpetrator's body was sufficient to satisfy the requirement. 181 W.Va. at 689, 384 S.E.2d at 134 (citations omitted). Moreover, we stated, Because the legislature has deleted the \"breaking\" requirement with regard to entry in the nighttime, the statutory offense of burglary of the dwelling house of another involves no unlawfulness of entry except as the entry becomes unlawful by reason of the criminal intent of the person entering. [3] Id.",
"(Footnote added and footnotes omitted.). We ultimately determined that consent to enter is not an absolute defense to a charge of burglary in the nighttime, and we held in Syllabus Point 1, Under W.Va.Code, 61-3-11(a) [1973], the essential requirement of burglary committed in the nighttime is that the defendant \"enter ... with intent to commit a felony or any larceny.\" The intent and the acts of the defendant are controlling, and the consent of the occupant to enter is not a defense when the defendant is shown to have entered through fraud or threat of force with the requisite criminal intent. The statutory requirement of entry is also fulfilled when a person with consent to enter exceeds the scope of the consent granted. At first blush, one may infer from our discussion in Plumley above that the crime *680 of daytime burglary by breaking and entering requires an unauthorized entry. However, that inference is contradicted by our holding in State v. Ocheltree, 170 W.Va. 68, 289 S.E.2d 742 (1982).",
"The issue in Ocheltree was whether criminal trespass is a lesser included offense of burglary. In considering this issue, we reasoned as follows: The elements necessary to prove burglary under W.Va.Code, 61-3-11(a) [1973], therefore, are: (1) in the daytime, (2) breaking and entering, (3) the dwelling house of another, (4) with the intent to commit a felony or any larceny therein. The elements necessary to the proof of criminal trespass under W.Va.Code, 61-3B-2 [1978], are: (1) a knowing entry, (2) in a structure or conveyance, (3) without being authorized, licensed or invited. .... To prove the crime of trespass, under W.Va.Code, 61-3B-2 [1978], the State must show.... that the entry was without authorization, license or invitation.... [T]here is no similar requirement under W. Va.Code, 61-3-11(a) [1973]. 170 W.Va. at 71, 289 S.E.2d at 745. We further quoted with approval language from Estep v. State, 271 Ind. 525, 394 N.E.2d 111, 113 (1979), overruled on other grounds, Jones v. State, 438 N.E.2d 972 (Ind.1982), as follows: Although the entry incidental to a burglary may be a trespass ... it does not follow, that it must be.",
"One may never have been denied entry to his neighbor's house, he may even have been expressly authorized to enter it at any time. Yet, if he enters by \"breaking,\" as that term has been employed in defining burglary, with the intent to commit a felony therein, he commits a burglary although not a trespass, because the entry was authorized. 170 W.Va. at 71 fn. 4, 289 S.E.2d at 745 fn. 4. In Syllabus Point 2 of Ocheltree, we held that \"[c]riminal trespass, as defined by W.Va. Code, 61-3B-2 [1978], is not a lesser included offense of burglary by breaking and entering as defined by W.Va.Code, 61-3-11(a) [1973].\" It is clear from both our discussion and holding in Ocheltree that an unauthorized entry is not a required element of burglary by breaking and entering. Therefore, we hold that an unauthorized entry is not a required element of the crime of daytime burglary by breaking and entering as defined in W.Va.Code § 61-3-11(a).",
"In light of our holding, it is not relevant whether the appellant's entry in Lori Walls' house was authorized. Rather, the evidence had to show that the appellant committed a breaking and entering with the intent to commit a crime therein. In the instant case, there was sufficient evidence for a jury to find beyond a reasonable doubt that the appellant broke a window and entered Lori Walls' house with the intent to harm Angela and/or Lori Walls. Therefore, we affirm the appellant's conviction for daytime burglary by breaking and entering.",
"2. Sufficiency of the Evidence to Support Kidnaping Conviction Second, the appellant contends that the evidence was legally insufficient to sustain his kidnaping conviction. [4] *681 The record reveals that the appellant requested to be sentenced under W.Va.Code § 61-2-14a(a)(4), which provides that the defendant's sentence shall be a definite term of not less than ten nor more than thirty years where the court finds that the victim was returned, or was permitted to return alive without bodily harm, and without any concession having been paid or yielded. The trial court found, however, that a concession was paid or yielded in that the appellant \"was able to gain control over [the victim] and kept her from leaving[.].\"",
"Thus, the court found that subsection (4) of the statute did not apply, and sentenced the appellant to life with mercy as recommended by the jury. The appellant first notes that under our kidnaping statute, the State must prove two distinct elements to establish the crime of kidnaping the act of confining the victim and the intent to use that confinement to obtain some sort of concession. He then claims that the trial court's finding that a concession was paid or yielded was error. This is due to the fact that the concession element, as found by the trial court, is the same as the element of confining the victim. According to the appellant, this is insufficient because the concession must be something different from, and in addition to, the act of confinement.",
"Moreover, the appellant avers that this Court is bound by the trial court's finding of fact on the element of a concession being paid or yielded. [5] We find the appellant's argument to be without merit. This Court previously has explained that W.Va.Code § 61-2-14a provides a maximum sentence of life with or without mercy, based on the jury's findings, and that any additional findings of fact made by the trial court operates to reduce the defendant's sentence from the maximum sentence as found by the jury. See State v. Haught, 218 W.Va. 462, 624 S.E.2d 899 (2005). We have also held: The provisions of the statute relating to the various punishments to be imposed upon a person convicted of the crime of kidnaping, and which punishments depend upon and are governed by the evidence introduced at the trial, do not state or prescribe any element of the offense created by the statute. Syllabus Point 2, Pyles v. Boles, 148 W.Va. 465, 135 S.E.2d 692 (1964). Clearly, the trial court's finding of fact that there was a concession gained was made with regard to sentencing and had nothing to do with the elements of the crime of kidnaping as found by the jury.",
"Our review of the evidence indicates that the jury could have found beyond a reasonable doubt that the appellant confined Ms. Walls for one of the purposes enumerated in the statute. For example, the jury could have found that the appellant confined Ms. Walls for the purpose of keeping his children with him. The jury also could have found that the appellant confined Ms. Walls for the purpose of killing her that evening in the woods, under cover of darkness with the intent \"of evading capture or arrest.\" W.Va. Code § 61-2-14a(a). Accordingly, we reject the appellant's contention of insufficient evidence to sustain his kidnaping conviction, and we affirm the conviction. [6] *682 3. The Constitutionality of the Appellant's Sentence The appellant also assigns as error his sentence of life with mercy plus sixteen years as excessive and violative of the proportionality and cruel and unusual punishment clauses of the constitution. [7] The appellant bases his argument on the fact that he is 23 years old and has no prior criminal record. In addition, he says that the only injuries he caused were minor bruises to Ms.",
"Walls' face and leg which required no medical treatment, and the only damage he caused was a broken window in the back door of Lori Walls' house. Moreover, the appellant notes that both Ms. Walls and her mother, Lori Walls, spoke on his behalf at sentencing and asked the court for mercy. Finally, the appellant opines that the facts of this case are much less egregious than those in State v. Richardson, 214 W.Va. 410, 589 S.E.2d 552 (2003), in which this Court found that sentences of thirty years for kidnaping and five for wanton endangerment were unconstitutionally harsh. Our standard of reviewing sentencing orders is as follows: \"The Supreme Court of Appeals reviews sentencing orders, including orders of restitution made in connection with a defendant's sentencing, under a deferential abuse of discretion standard, unless the order violates statutory or constitutional commands.\" Syllabus Point 1, State v. Lucas, 201 W.Va. 271, 496 S.E.2d 221 (1997).",
"We have also held, however, that \"[s]entences imposed by the trial court, if within statutory limits and if not based on some unpermissible factor, are not subject to appellate review.\" Syllabus Point 4, State v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504 (1982). [8] We conclude that the appellant's sentence is not subject to our review because the sentence imposed for each conviction is within the statutory limit and the appellant has identified no impermissible factor[9] upon which his sentence is based.",
"[10] While the *683 appellant cites our per curiam opinion of State v. Richardson for support, Richardson is a deviation from our established law. While the defendant's sentence in Richardson was within statutory limits and no impermissible sentencing factors were indicated, the Court in Richardson nevertheless conducted a proportionality analysis. [11] We deem it generally to be the better practice to decline to review sentences that are within statutory limits and where no impermissible sentence factor is indicated in accord with Syllabus Point 4 of State v. Goodnight. Therefore, we find no merit to the appellant's alleged sentencing error, and we affirm his sentence.",
"4. Alleged Instructional Error Regarding the Law of Wanton Endangerment The appellant's next assignment of error is that the trial court failed to give additional instructions to the jury concerning the law on wanton endangerment. During deliberations, Jurors sent a note to the trial judge asking two questions: (1) \"Under `wanton endangerment' does it matter if the gun is loaded?\" and (2) \"Does `wanton endangerment' lie on the one with the gun or the perception of [the] person it is pointed at?\" After reading the questions into the record, the trial court informed the parties, \"And I'm going to bring them in and tell them that they have all of the legal instructions that I can give them in order to find their verdict,\" to which the appellant's counsel responded, \"Yes, ma'am.\"",
"The trial court then brought the jury into the courtroom and advised them that \"I instruct you that you have the Court's instructions. That's the only law that I can provide for you upon which you can base your verdicts.\" The appellant now contends that it was reversible error for the trial court not to answer the jury's questions because both questions concerned essential elements of wanton endangerment. Also, the questions indicated that the jurors were confused about the proper law to apply. The State responds that the appellant forfeited this alleged error by failing to raise it below, and that the trial court's decision not to answer the questions does not amount to plain error. Because the appellant failed to preserve the alleged error, we will review it under our plain error analysis. We have held that \"[t]o trigger application of the `plain error' doctrine, there must be (1) an error; (2) that is plain; (3) that affects substantial rights; and (4) seriously affects the fairness, integrity, or public reputation of the judicial proceedings.\" Syllabus Point 7, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).",
"An unpreserved error is deemed plain and affects substantial rights only if the reviewing court finds the lower court skewed the fundamental fairness or basic integrity of the proceedings in some major respect. In clear terms, the plain error rule should be exercised only to avoid a miscarriage of justice. The discretionary authority of this Court invoked by lesser errors should be exercised sparingly and should be reserved for the correction of those few errors that seriously affect the fairness, integrity, or public reputation of the judicial proceedings. *684 Syllabus Point 7, State v. LaRock, 196 W.Va. 294, 470 S.E.2d 613 (1996).",
"Regarding the trial court's duty to reinstruct the jury, this Court has held that Where it clearly and objectively appears in a criminal case from statements of the jurors that the jury has failed to comprehend an instruction on a critical element of the crime or a constitutionally protected right, the trial court must, on request of defense counsel, reinstruct the jury. Syllabus Point 2, State v. McClure, 163 W.Va. 33, 253 S.E.2d 555 (1979). We find that the trial court did not err in declining to answer the jury's questions. The jury instruction defining the crime of wanton endangerment was as follows: \"The Court instructs the jury that any person who wantonly performs any act with a firearm which creates a substantial risk of death or serious bodily injury to another shall be guilty of a felony.\" According to our wanton endangerment statute in pertinent part: \"Any person who wantonly performs any act with a firearm which creates a substantial risk of death or serious bodily injury to another shall be guilty of a felony[.]\"",
"W.Va.Code § 61-7-12. The trial court's instruction to the jury on wanton endangerment is identical to the statutory language. This Court has held that \"[a]n instruction for a statutory offense is sufficient if it adopts and follows the language of the statute, or uses substantially equivalent language and plainly informs the jury of the particular offense for which the defendant is charged.\" Syllabus Point 8, State v. Slie, 158 W.Va. 672, 213 S.E.2d 109 (1975). Because the trial court's instruction was identical to the statutory language, we conclude that it was sufficient. If the appellant's counsel had moved for the trial court to re-instruct or re-read the jury on the law of wanton endangerment in light of the jury's confusion over the law, the court would have had a duty to do so.",
"See State v. Lutz, 183 W.Va. 234, 395 S.E.2d 478 (1988) (finding reversible error for the judge to deny defendant's motion to orally re-instruct the jury in light of the jury's evident confusion over the law). [12] However, counsel did not request that the instruction be re-read. Instead, the jury requested that the trial court discuss factors that are not set forth as elements of wanton endangerment in the statute. The trial court simply had no duty to do this. As explained by the trial court, the jury had been instructed on the only law upon which it could base its verdict. Therefore, we find no error in the trial court's failure to answer the jury's questions. 5. Alleged Instruction Error Regarding Jury Inferences The appellant's final ground for error is the trial court's instruction that it would be reasonable for the jury to infer that the appellant intended his acts and the natural and probable consequences of those acts.",
"According to the appellant, this instruction violates the United States Supreme Court case of Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979), and this Court's holding in State v. O'Connell, 163 W.Va. 366, 256 S.E.2d 429 (1979), by placing the burden on the defense to rebut the inference, by stating an opinion by the court regarding whether the jury should adopt the inference, and by instructing the jury that it must adopt the inference. The State asserts that this alleged error is not reviewable by this Court because the appellant waived the error at trial.",
"We agree with the State. The record reveals that when the trial court was discussing its charge to the jury, the following conversation occurred between the trial court and the appellant's counsel: [Appellant's counsel]: .... I believe I'm entitled to or I'm going to ask you for an *685 instruction that relates to the incidental nature of this kidnaping. The Court: Uh-huh. [Appellant's counsel]: That would be my only comment. In all other respects, I have no objections. I would just ask you to give an instruction that to the extent that the alleged kidnaping was incidental to other crimes. After discussing the appellant's counsel's requested instruction on the incidental nature of the kidnaping, the following exchange occurred: The Court: All right. I want to take some time during the luncheon recess and plod about this incidental issue, because as I understand it, there are no other objections to the charge. Is that correct? [Appellant's counsel]: I have none, your Honor. It is clear from this portion of the trial transcript that the appellant's counsel affirmatively waived any alleged error regarding the instruction now complained of. This Court has held that when a deviation from the law is waived, there is no error.",
"In Syllabus Point 8 of State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995), we explained: Under the \"plain error\" doctrine, \"waiver\" of error must be distinguished from \"forfeiture\" of a right. A deviation from a rule of law is error unless there is a waiver. When there has been a knowing and intentional relinquishment or abandonment of a known right, there is no error and the inquiry as to the effect of a deviation from the rule of law need not be determined. By contrast, mere forfeiture of a right the failure to make timely assertion of the right does not extinguish the error. In such a circumstance, it is necessary to continue the inquiry and to determine whether the error is \"plain.\" To be \"plain,\" the error must be \"clear\" or \"obvious.\" Based on this rule, we find that the appellant waived any error in the allegedly improper instruction. As a result, there is no error, and this Court need not consider the issue.",
"III. CONCLUSION For the reasons set forth above, we affirm the appellant's convictions for kidnaping, domestic battery, wanton endangerment, and daytime burglary by breaking and entering. We also affirm the appellant's sentence of life with mercy plus twenty-one years for these crimes. Affirmed. Justice STARCHER dissents and files a dissenting opinion. Justice BENJAMIN concurs and files a concurring opinion. STARCHER, Justice, dissenting: (Filed July 23, 2008) The facts of this case alone are such that it gives one pause to dissent to the majority opinion; however, I am compelled to dissent because I believe it is clear that this case falls within the parameters of the facts discussed in an earlier separate opinion, State v. Haught, 218 W.Va. 462, 624 S.E.2d 899 (2005). I continue to be concerned that this Court is not complying with the decisions in two important United States Supreme Court Cases.",
"Therefore, I dissent from the majority opinion because it has again failed to follow the U.S. Supreme Court rulings of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). West Virginia law remains inconsistent with federal law. In Apprendi, the U.S. Supreme Court stated that, \"[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.\" Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-63. In Blakely, the Court further defined statutory maximum as \"the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.\" Blakely, 542 U.S. at 303, 124 S.Ct.",
"at 2537. The holdings of these two cases require the *686 jury, not a trial judge, to make all findings of fact related to sentencing. The current state of law in West Virginia seems to be in direct opposition, as expressed in Syllabus Point 1 of State v. Farmer, 193 W.Va. 84, 454 S.E.2d 378 (1994): Pursuant to West Virginia's kidnapping statute set forth in W. Va.Code, 61-2-14a [1965], a trial judge, for purposes of imposing a sentence on a defendant ... has the discretion to make findings ... as to whether ransom, money, or any other concession has been paid or yielded for the return of the victim. Because the findings by the trial judge are made solely for the purpose of determining the sentence to be imposed on a defendant and are not elements of the crime of kidnapping, West Virginia Constitution art. III, secs. 10 and 14, relating to a defendant's due process rights and right to a trial by jury, are not violated. As I stated previously, \"Our Court should, in accordance with Blakely, have clarified that W. Va.Code, 61-2-14a(a) does not violate a defendant's 6th Amendment jury trial rights so long as a jury finds the facts necessary for determining the sentence, not a judge....\" Haught, 218 W.Va. at 468, 624 S.E.2d at 905 (2005) (Starcher, J., dissenting and concurring). Otherwise, sentences based on trial judge findings of fact and the underlying convictions face the possibility of reversal by a federal court.",
"Id. at 467, 624 S.E.2d at 904. The majority in Haught failed to conform our case law with federal law, and has repeated this error in the instant case. The trial judge found that a concession had been gained, and used this finding to sentence the appellant to life with mercy. The majority states that since the trial court made the finding of fact in relation to sentencing and not the elements of kidnaping, there was no error. It then implies that because a jury could have found any of the enumerated purposes, there was no harm in the trial judge's determination. However, that is not the rule stated in Apprendi and Blakely. It does not give discretion as to whether a jury could have made the same finding as a trial judge, but only that it did make such a finding. If the jury does not find beyond a reasonable doubt that the appellant gained a concession, Blakely dictates that the trial judge cannot make such a finding when sentencing without violating the appellant's Sixth Amendment trial by jury rights. The trial judge in the instant case, by determining a concession was gained, has done just that. The judge's role in a trial is to make determinations of law; the jury's role is to make determinations of fact.",
"West Virginia's law as it now stands allows a trial judge to invade the province of a jury and make factual determinations. This is in direct violation of the United States Constitution as articulated in Apprendi and Blakely and the majority opinion has simply overlooked this issue. I respectfully dissent. BENJAMIN, Justice, concurring: (Filed July 30, 2008) I agree with the majority opinion but write separately to address the issue raised in the dissenting opinion. According to the dissent, the majority opinion is inconsistent with the United States Supreme Court's rulings in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed.",
"2d 403 (2004). This simply is not true. As this Court explained in State v. Haught, 218 W.Va. 462, 624 S.E.2d 899 (2005), Apprendi and Blakely stand for the principle that any fact other than a prior conviction that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. In contrast, our kidnaping statute does not provide for the enhancement of a defendant's sentence beyond the statutory maximum based on additional facts found by the trial judge, but rather provides for the possible reduction of a defendant's sentence based on the trial judge's additional findings. Because Apprendi and Blakely are not applicable to the instant facts, those cases were properly omitted from the discussion in the majority opinion. *687 Thus, for the reason stated above, I concur with the majority opinion.",
"NOTES [1] We find the statement in Louk upon which the appellant relies, that \"burglary is complete once there has been an unauthorized entry[,]\" to be dicta. Significantly, this language from Louk, which applied to both nighttime and daytime burglary, was later criticized by the Court in State v. Wallace, 205 W.Va. 155, 517 S.E.2d 20 (1999), in which we opined that \"[i]t is by no means clear that [the] nighttime burglary statute requires an unauthorized entry.\" 205 W.Va. at 161 n. 10, 517 S.E.2d at 26 n. 10.",
"[2] The current version of the statute says \"with intent to commit a crime therein[.]\" [3] We also recognized that \"[e]ven under statutes that require an unlawful entry, most jurisdictions have held that entry, made with the necessary criminal intent, is unlawful.\" 181 W.Va. at 689 fn. 7, 384 S.E.2d at 134 fn. 7 (citations omitted). [4] W.Va.Code § 61-2-14a provides, in applicable part: Any person who, by force, threat, duress, fraud or enticement take, confine, conceal, or decoy, inveigle or entice away, or transport into or out of this state or within this state, or otherwise kidnap any other person, or hold hostage any other person for the purpose or with the intent of taking, receiving, demanding or extorting from such person, or from any other person or persons, any ransom, money or other thing, or any concession or advantage of any sort, or for the purpose or with the intent of shielding or protecting himself, herself or others from bodily harm or of evading capture or arrest after he or she or they have committed a crime shall be guilty of a felony and, upon conviction, shall be punished by confinement by the division of corrections for life, and, notwithstanding the provisions of article twelve [§§ 62-12-11 et seq.",
"], chapter sixty-two of this code, shall not be eligible for parole: Provided, That the following exceptions shall apply: (1) A jury may, in their discretion, recommend mercy, and if such recommendation is added to their verdict, such person shall be eligible for parole in accordance with the provisions of said article twelve; (2) if such person pleads guilty, the court may, in its discretion, provide that such person shall be eligible for parole in accordance with the provisions of said article twelve, and, if the court so provides, such person should be eligible for parole in accordance with the provisions of said article twelve in the same manner and with like effect as if such person had been found guilty by the verdict of a jury and the jury had recommended mercy; (3) in all cases where the person against whom the offense is committed is returned, or is permitted to return, alive, without bodily harm having been inflicted upon him, but after ransom, money or other thing, or any concession or advantage of any sort has been paid or yielded, the punishment shall be confinement by the division of corrections for a definite term of years not less than twenty nor more than fifty; (4) in all cases where the person against whom the offense is committed is returned, or is permitted to return, alive, without bodily harm having been inflicted upon him or her, but without ransom, money or other thing, or any concession or advantage of any sort having been paid or yielded, the punishment shall be confinement by the division of corrections for a definite term of years not less than ten nor more than thirty.",
"[5] The State claims that the appellant failed to preserve this assignment of error by failing to raise it until a post-trial motion for a new trial. The appellant counters that because the trial court made its finding of fact after the trial, it was impossible for the appellant to raise the alleged error earlier. We deem it preferable in this instance to address the substantive merits of the appellant's assignment of error. [6] Even if the trial court's finding of fact regarding the concession is error, it is harmless with regard to the appellant's sentence. In order to receive a reduction in sentence pursuant to either W.Va.Code § 61-2-14a(a)(3) or (4), the trial court must find that the victim was returned, or permitted to return, alive, without bodily harm.",
"The trial court properly found that Ms. Walls was not returned or permitted to return but rather she escaped. [7] The parties to this case agree that the appellant is eligible for parole after thirteen years, one month and eleven days, or thirteen years and three months, depending on whether he is granted good time on the domestic battery conviction. [8] In State v. Houston, 166 W.Va. 202, 209, 273 S.E.2d 375, 379 (1980), this Court opined that \"[w]ith the exception of the life recidivist statute discussed in State v. Vance, [164 W.Va. 216, 262 S.E.2d 423 (1980)], we do not believe that the disproportionality principle can have any significant application other than to [an open-ended] sentencing statute.",
"Such a statute provides for no maximum sentence. The Court in Houston considered the constitutionality of a sentence under the robbery by violence statute which provided for a sentence of \"not less than ten years.\" While the Court in Houston referred to the kidnaping statute as an open-ended sentencing statute, that reference was to the 1965 version which indicated a term of years not less than twenty or a term of years not less than ten if the trial court made a finding that the victim was returned or permitted to be returned and depending upon the court's finding with respect to whether the defendant inflicted bodily harm on the victim and whether ransom, money, or other concession was made. The current version of the statute does not provide for open-ended sentencing. [9] At the appellant's sentencing, Angela Walls urged the court to be lenient. The trial court rejected Ms. Walls' plea, and stated that Ms.",
"Walls exhibited the behavior of an abused woman. In his reply brief, the appellant cites the trial court's statement as an impermissible factor in sentencing the appellant. We disagree. While the trial court's belief that Ms. Walls was an abused woman may have been a reason for the court to reject her plea for leniency, it was not stated by the court as a factor in the appellant's sentencing. [10] The kidnaping statute, W.Va.Code § 61-2-14a, provides for a sentence of life with or without mercy, dependant upon the jury's recommendation, in the absence of certain findings of fact made by the trial court. Because the trial court in the instant case was unable to make these findings, it had no discretion but to sentence the appellant to life with mercy as recommended by the jury. The trial court sentenced the appellant to twelve months for domestic battery in accord with W.Va.Code § 61-2-28(a) (2004), which provides for a sentence of not more than twelve months.",
"The appellant's sentence for wanton endangerment of five years is in accord with W.Va.Code § 61-7-12 (1994), which provides for confinement in the penitentiary \"for a definite term of years of not less than one year nor more than five years, or ... confined in the county jail for not more than one year, or fined not less than two hundred fifty dollars nor more than two thousand five hundred dollars, or both.\" Finally, the appellant's sentence of one to fifteen years for daytime burglary is within the statutory limits of W.Va.Code § 61-3-11(a) (1993).",
"With regard to the fact that the appellant's sentences run consecutively, this is consistent with the statutory presumption. According to W.Va.Code § 61-11-21 (1923), When any person is convicted of two or more offenses, before sentence is pronounced for either, the confinement to which he may be sentenced upon the second, or any subsequent conviction, shall commence at the termination of the previous term or terms of confinement, unless, in the discretion of the trial court, the second or any subsequent conviction is ordered by the court to run concurrently with the first term of imprisonment imposed. See also State ex rel. Cobb v. Boles, 149 W.Va. 365, 368, 141 S.E.2d 59, 61 (1965) (\"This judgment order makes no provision that the two sentences thus purportedly imposed upon the petitioner shall run concurrently, therefore, under the provisions of Code, 61-11-21, they must run consecutively.\").",
"[11] See also State v. David D. W., 214 W.Va. 167, 588 S.E.2d 156 (2003), another per curiam opinion in which established law was disregarded in order to find that a sentence with statutory limits was unconstitutional. [12] The Court in Lutz explained, Although the trial judge in the case before us granted defendant's request for an instruction on the consequences of an insanity verdict, the jury apparently remained confused on the issue. The instruction, which faithfully reflects the statutory provisions on commitment, was necessarily long and complex. Although a re-reading of the charge may well not have answered all the questions in the minds of the jury, it was the judge's duty, on defendant's motion, to attempt to alleviate the obvious confusion of the jury on this issue critical to their verdict.",
"183 W.Va. at 237, 395 S.E.2d at 481."
] | https://www.courtlistener.com/api/rest/v3/opinions/1258785/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA , and claims 1-12 are pending.
Specification The disclosure is objected to because of the following informalities: (a) para [0002], the word “linier” should be changed to “linear” for accuracy. Appropriate correction is required.
Claim Rejections - 35 USC § 112 The following is a quotation of 35 U.S.C. 112(d): (d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph: Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claims 9-11 are rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. (a) Claim 9 is directed to a “recording medium cartridge” and does not further limit the “cartridge memory” as set forth in claim 1; (b) claim 10 is directed to a “recording and reproducing system” which does not further limit the “cartridge memory” as set forth in claim 1. Claim 11 is rejected as being dependent upon a rejected claim. Applicant may cancel the
Claim Rejections - 35 USC § 103 The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action: A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim 1-3, 6-12 is/are rejected under 35 U.S.C. 103 as being unpatentable over Toshiya et al. (JP2002150742)(hereinafter “Toshiya”)(see enclosed English translation) in view of Onozuka et al. (USPGPUB 2009/0273454)(hereinafter “Onozuka”). Toshiya discloses, as shown in at least FIGs. 1, 11 & 14, a cartridge memory (MIC31) used in a recording medium cartridge 1, the cartridge memory (MIC31) comprising: an antenna section 34 (“antenna unit”); The memory unit 33 includes, as a semiconductor IC, a power circuit 40, an RF processing unit 41, a controller 42, and an EEP-ROM 43 (see para [0036]). Regarding the memory unit 33, it is possible to supply power to the memory unit 33 of the MIC31, and read and write a variety of management information by wireless communication between the antenna Further, while Toshiya remains expressly silent as to the antenna unit 34 “induces an induced voltage by means of electromagnetic induction,” if not inherent to an antenna, would have been obvious to one having ordinary skill in the art, that such induced voltage by electromagnetic induction is a notoriously old and well known characteristic of an antenna of this sort, and providing such induced voltage would have been readily apparent to a skilled artisan. Toshiya, however, does not disclose “a load modulation section including a load whose magnitude is variable,” and a “control section that measures the induced voltage and controls the load modulation section on a basis of the measured induced voltage.” However, Onozuka, in the same field of endeavor of non-contact communication using an antenna, discloses performing load modulation of performing modulation on the carrier wave by changing the load of the antenna according to transmission data (see para [0004]). More specifically, Onozuka discloses an antenna 102 of a communication apparatus 100, a voltage detection unit 104 and a control unit 108 wherein a load modulation section, i.e., “resistance addition unit” 106 performs switching of the load or increases/decreases the load for changing the characteristics of the antenna 102 by load modulation and a control section, i.e., “characteristics control unit” 112 that measures the induced voltage and controls the load modulation section on a basis of the measured induced voltage (FIG. 1; para [0052]-[0061]). From this teaching, it would have been obvious to one having ordinary skill in the art at the time of the effective filing date of the claimed invention to have provided the load modulation section including a load whose magnitude is variable,” and a “control section that measures the induced voltage and controls the load modulation section on a basis of the measured induced voltage, to As for claim 2, while Toshiya is silent as to the load modulation section includes a resistance variable section, Onozuka further teaches an increasing/reducing a load resistance 160 by turning the resistor on/off, which is the load of the antenna 102, in order to prevent the occurrence of non-communication or null regions, for the same rationale as in claim 1, supra (see also para [0056]-[0057], [0088], [0130]; FIG. 7. Additionally, with respect to claim 3, Onozuka further teaches (see para [0088], [0130] and FIG. 7, that when it is detected that the voltage “Va” at the end of the antenna has decreased and reached a second threshold, a resister 160 among the plurality of resistors connected in parallel to the antenna 102 is disabled. From this teaching, it would follow and would have been obvious to one having ordinary skill in the art at the time of the effective filing date of the claimed invention to have provided the device of Toshiya to have incorporated wherein the smaller the induced voltage is, the larger the control section makes the resistance, in order to prevent the occurrence of non-communication or null regions, for the same rationale as in claim 1, supra, as suggested by Onozuka. With respect to claim 6, Toshiya further describes that wireless communication between the memory MIC31 and remote interface 81 is performed when the tape cartridge 1 has been loaded into the magnetic recording/playback device 51 (para [0032]), and while Toshiya does not expressly state “wherein the control section retains a magnitude of an initially controlled load until the recording medium cartridge is unloaded after having been loaded,” it would have been considered obvious to one having ordinary skill in the art at the effective filing of the invention, to have configured the controller 42 so as to perform control such that the setting of the With respect to claim 7 and to “wherein the control section repeatedly measures the induced voltage and controls the load modulation section every time the induced voltage is measured,” it would have been obvious to one having ordinary skill in the art at the time of the effective filing date of the claimed invention to have measured the voltage at the end of the antenna, and to continuously perform an operation for switching the impedance load connected in parallel to the antenna in accordance with the result of this measurement in order to prevent non-communication (or null) regions), during operation of the system, as would have been readily apparent and obvious to a skilled artisan, through routine engineering optimization for the proper operation thereof. As for claims 8 & 9, Toshiya is further considered to show the cartridge memory MIC31 is utilized in a magnetic tape cartridge 1, as shown. As for claim 10, Toshiya is further considered to show a recording and reproducing system including a recording and reproducing apparatus 51 that performs recording and reproducing into and from the recording medium cartridge 1 (see at least para [0008]). As for claim 11, Toshiya is further considered to show a tape cartridge 1, a magnetic recording playback device 51, and a library apparatus 71, i.e., “cartridge changer” wherein a plurality of tape cartridges 1 inside a magazine 72 can be automatically replaced (see para [0033] and FIG. 12). The method of claim 12 is encompassed by the system as disclosed and described with respect to Toshiya in view of Onozuka, as set forth in claim 1, supra.
Claims 4-5 is/are rejected under 35 U.S.C. 103 as being unpatentable over Toshiya in view of Onozuka as applied to claim 1 above, and further in view of Kanjiro et al. (JP2006-238398)(hereinafter “Kanjiro”). For a description of Toshiya in view of Onozuka, see the rejection, supra. With respect to claim 4, and “wherein the load modulation section includes a capacitance variable section whose capacitance is variable,” Kanjiro, in the same field of non-contact communication, further discloses an antenna 11, a memory 45, a capacitor 41, a variable capacitance diode 42 in parallel with a tuning capacitor 12, wherein a voltage for controlling the capacitance is supplied from the control unit 44 (para [0054-0062]; FIGs 7-8)). From this teaching, it would have been obvious to one having ordinary skill in the art at the time of the effective filing date of the claimed invention to have incorporated a variable capacitance section to the load modulation section of Toshiya in view of Onozuka, for the purpose of preventing the occurrence of non-communication or null regions as suggested by Kanjiro (para [0061]). Further, with respect to claim 5, Kanjiro is considered to encompass wherein in a case in which the induced voltage is smaller than a predetermined value, the control section controls the load modulation section to correct an amount of a shift of a resonance frequency, e.g., “A tuning capacitor 12 and a rectification diode 13 are connected, and a resonance frequency of a signal from a reader / writer is resonated at a tuning frequency f 0 set by a loop antenna 11 and a tuning capacitor 12.” (para [0054]) and “By changing the tuning frequency in this manner, even if the terminal device approaches the reader / writer, it is possible to prevent the resonance frequency f 0 from being brought closer to the null region and causing a state in which the communication cannot be performed due to the null state.” (para [0061]). .
Conclusion The prior art made of record and not relied upon is considered pertinent to applicant's disclosure including USP 9,991,937 to Kim et al. which is cited to teach detecting and adjusting an induced voltage of an antenna. Any inquiry concerning this communication or earlier communications from the examiner should be directed to BRIAN E MILLER whose telephone number is (571)272-7578. The examiner can normally be reached M-F, 8:15-5:15, FF OFF. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Steven Lim can be reached on 571-270-1210. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/BRIAN E MILLER/Primary Examiner, Art Unit 2688
BEM December 1, 2021 | 2021-12-10T07:33:28 | [
"Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA , and claims 1-12 are pending. Specification The disclosure is objected to because of the following informalities: (a) para [0002], the word “linier” should be changed to “linear” for accuracy. Appropriate correction is required. Claim Rejections - 35 USC § 112 The following is a quotation of 35 U.S.C. 112(d): (d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers. The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph: Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.",
"Claims 9-11 are rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. (a) Claim 9 is directed to a “recording medium cartridge” and does not further limit the “cartridge memory” as set forth in claim 1; (b) claim 10 is directed to a “recording and reproducing system” which does not further limit the “cartridge memory” as set forth in claim 1. Claim 11 is rejected as being dependent upon a rejected claim. Applicant may cancel the Claim Rejections - 35 USC § 103 The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action: A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains.",
"Patentability shall not be negated by the manner in which the invention was made. This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.",
"Claim 1-3, 6-12 is/are rejected under 35 U.S.C. 103 as being unpatentable over Toshiya et al. (JP2002150742)(hereinafter “Toshiya”)(see enclosed English translation) in view of Onozuka et al. (USPGPUB 2009/0273454)(hereinafter “Onozuka”). Toshiya discloses, as shown in at least FIGs. 1, 11 & 14, a cartridge memory (MIC31) used in a recording medium cartridge 1, the cartridge memory (MIC31) comprising: an antenna section 34 (“antenna unit”); The memory unit 33 includes, as a semiconductor IC, a power circuit 40, an RF processing unit 41, a controller 42, and an EEP-ROM 43 (see para [0036]).",
"Regarding the memory unit 33, it is possible to supply power to the memory unit 33 of the MIC31, and read and write a variety of management information by wireless communication between the antenna Further, while Toshiya remains expressly silent as to the antenna unit 34 “induces an induced voltage by means of electromagnetic induction,” if not inherent to an antenna, would have been obvious to one having ordinary skill in the art, that such induced voltage by electromagnetic induction is a notoriously old and well known characteristic of an antenna of this sort, and providing such induced voltage would have been readily apparent to a skilled artisan.",
"Toshiya, however, does not disclose “a load modulation section including a load whose magnitude is variable,” and a “control section that measures the induced voltage and controls the load modulation section on a basis of the measured induced voltage.” However, Onozuka, in the same field of endeavor of non-contact communication using an antenna, discloses performing load modulation of performing modulation on the carrier wave by changing the load of the antenna according to transmission data (see para [0004]). More specifically, Onozuka discloses an antenna 102 of a communication apparatus 100, a voltage detection unit 104 and a control unit 108 wherein a load modulation section, i.e., “resistance addition unit” 106 performs switching of the load or increases/decreases the load for changing the characteristics of the antenna 102 by load modulation and a control section, i.e., “characteristics control unit” 112 that measures the induced voltage and controls the load modulation section on a basis of the measured induced voltage (FIG.",
"1; para [0052]-[0061]). From this teaching, it would have been obvious to one having ordinary skill in the art at the time of the effective filing date of the claimed invention to have provided the load modulation section including a load whose magnitude is variable,” and a “control section that measures the induced voltage and controls the load modulation section on a basis of the measured induced voltage, to As for claim 2, while Toshiya is silent as to the load modulation section includes a resistance variable section, Onozuka further teaches an increasing/reducing a load resistance 160 by turning the resistor on/off, which is the load of the antenna 102, in order to prevent the occurrence of non-communication or null regions, for the same rationale as in claim 1, supra (see also para [0056]-[0057], [0088], [0130]; FIG.",
"7. Additionally, with respect to claim 3, Onozuka further teaches (see para [0088], [0130] and FIG. 7, that when it is detected that the voltage “Va” at the end of the antenna has decreased and reached a second threshold, a resister 160 among the plurality of resistors connected in parallel to the antenna 102 is disabled. From this teaching, it would follow and would have been obvious to one having ordinary skill in the art at the time of the effective filing date of the claimed invention to have provided the device of Toshiya to have incorporated wherein the smaller the induced voltage is, the larger the control section makes the resistance, in order to prevent the occurrence of non-communication or null regions, for the same rationale as in claim 1, supra, as suggested by Onozuka. With respect to claim 6, Toshiya further describes that wireless communication between the memory MIC31 and remote interface 81 is performed when the tape cartridge 1 has been loaded into the magnetic recording/playback device 51 (para [0032]), and while Toshiya does not expressly state “wherein the control section retains a magnitude of an initially controlled load until the recording medium cartridge is unloaded after having been loaded,” it would have been considered obvious to one having ordinary skill in the art at the effective filing of the invention, to have configured the controller 42 so as to perform control such that the setting of the With respect to claim 7 and to “wherein the control section repeatedly measures the induced voltage and controls the load modulation section every time the induced voltage is measured,” it would have been obvious to one having ordinary skill in the art at the time of the effective filing date of the claimed invention to have measured the voltage at the end of the antenna, and to continuously perform an operation for switching the impedance load connected in parallel to the antenna in accordance with the result of this measurement in order to prevent non-communication (or null) regions), during operation of the system, as would have been readily apparent and obvious to a skilled artisan, through routine engineering optimization for the proper operation thereof.",
"As for claims 8 & 9, Toshiya is further considered to show the cartridge memory MIC31 is utilized in a magnetic tape cartridge 1, as shown. As for claim 10, Toshiya is further considered to show a recording and reproducing system including a recording and reproducing apparatus 51 that performs recording and reproducing into and from the recording medium cartridge 1 (see at least para [0008]). As for claim 11, Toshiya is further considered to show a tape cartridge 1, a magnetic recording playback device 51, and a library apparatus 71, i.e., “cartridge changer” wherein a plurality of tape cartridges 1 inside a magazine 72 can be automatically replaced (see para [0033] and FIG. 12). The method of claim 12 is encompassed by the system as disclosed and described with respect to Toshiya in view of Onozuka, as set forth in claim 1, supra. Claims 4-5 is/are rejected under 35 U.S.C.",
"103 as being unpatentable over Toshiya in view of Onozuka as applied to claim 1 above, and further in view of Kanjiro et al. (JP2006-238398)(hereinafter “Kanjiro”). For a description of Toshiya in view of Onozuka, see the rejection, supra. With respect to claim 4, and “wherein the load modulation section includes a capacitance variable section whose capacitance is variable,” Kanjiro, in the same field of non-contact communication, further discloses an antenna 11, a memory 45, a capacitor 41, a variable capacitance diode 42 in parallel with a tuning capacitor 12, wherein a voltage for controlling the capacitance is supplied from the control unit 44 (para [0054-0062]; FIGs 7-8)). From this teaching, it would have been obvious to one having ordinary skill in the art at the time of the effective filing date of the claimed invention to have incorporated a variable capacitance section to the load modulation section of Toshiya in view of Onozuka, for the purpose of preventing the occurrence of non-communication or null regions as suggested by Kanjiro (para [0061]).",
"Further, with respect to claim 5, Kanjiro is considered to encompass wherein in a case in which the induced voltage is smaller than a predetermined value, the control section controls the load modulation section to correct an amount of a shift of a resonance frequency, e.g., “A tuning capacitor 12 and a rectification diode 13 are connected, and a resonance frequency of a signal from a reader / writer is resonated at a tuning frequency f 0 set by a loop antenna 11 and a tuning capacitor 12.” (para [0054]) and “By changing the tuning frequency in this manner, even if the terminal device approaches the reader / writer, it is possible to prevent the resonance frequency f 0 from being brought closer to the null region and causing a state in which the communication cannot be performed due to the null state.” (para [0061]). . Conclusion The prior art made of record and not relied upon is considered pertinent to applicant's disclosure including USP 9,991,937 to Kim et al.",
"which is cited to teach detecting and adjusting an induced voltage of an antenna. Any inquiry concerning this communication or earlier communications from the examiner should be directed to BRIAN E MILLER whose telephone number is (571)272-7578. The examiner can normally be reached M-F, 8:15-5:15, FF OFF. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Steven Lim can be reached on 571-270-1210. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of published or unpublished applications may be obtained from Patent Center.",
"Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000. /BRIAN E MILLER/Primary Examiner, Art Unit 2688 BEM December 1, 2021"
] | https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2021-12-12.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
374 S.E.2d 488 (1988) 92 N.C. App. 446 Paul Jeffrey NEWTON, d/b/a Newton Brothers v. CITY OF WINSTON-SALEM. No. 8821SC188. Court of Appeals of North Carolina. December 30, 1988. *489 Horton & Kummer by Hamilton C. Horton, Jr., Winston-Salem, for plaintiff-appellant. Hutchins, Tyndall, Doughton & Moore by Richard Tyndall and Laurie H. Woltz, Winston-Salem, for defendant-appellee. COZORT, Judge. The question presented in this appeal is whether defendant city is liable in damages to plaintiff for demolishing plaintiff's building without complying with the procedural requirements of N.C.Gen.Stat. §§ 160A-441 through -450. The trial court held as a matter of law that defendant had not served plaintiff with complaints and orders in accordance with § 160A-445. Nevertheless, the trial court instructed the jury that, if it found that defendant "use[d] reasonable diligence to provide actual notice to Plaintiff ... so that Plaintiff had timely notice to protect his rights," then plaintiff was not entitled to recover the lost value of his building. We find the trial court erred in submitting that issue to the jury. In February of 1982 the Housing Inspection Division of defendant City of Winston-Salem (the City) received a complaint about a building located at 219 E. 10th Street in Winston-Salem. The building was owned by plaintiff, who at that time rented the building to a tenant as a residential dwelling. As a result of the complaint, the city housing inspector inspected the residence. He found eighteen violations of the City's housing code. Thereafter, the City mailed to plaintiff's business address a certified letter containing a Complaint and Notice of Hearing to show cause why the City should not declare the building an unfit building and order plaintiff to take corrective action. A return receipt signed by plaintiff's secretary showed that the letter was received. At a hearing held on 24 February 1982, the City determined that the building was unfit for human habitation. Plaintiff did not appear at the hearing. Following the hearing, a certified letter containing an order to take corrective action was mailed to plaintiff at his business address. A return receipt showed that this letter was received on 1 March 1982. During the next months, the City inspected the building and determined that plaintiff had not taken corrective action. Sometime prior to October of 1983, the City relocated the tenant to other housing. On 30 May 1984, more than two years after its initial order for repair had been served, the City mailed a certified letter to plaintiff at his business address informing plaintiff that the building had been found standing open and asking plaintiff to secure the property. The letter was returned "unclaimed." The housing inspector supervisor unsuccessfully attempted to contact plaintiff by telephone and in person and asked plaintiff's secretary to tell plaintiff *490 to call him. Plaintiff did not respond to these messages. On 11 December 1984, the city inspector found that the building had been vandalized and left standing open and "that the condition of the property had changed." Thereafter, on 13 December 1984, the inspector sent by certified mail an order to repair or demolish the dwelling. The letter was returned "unclaimed." In January of 1985, the inspector again inspected the building and determined that it had not been repaired or demolished as ordered, and that more vandalism had taken place. On 31 January 1985, the City mailed to plaintiff at his business address a certified letter notifying plaintiff that the Board of Aldermen would consider the property and take action against it. The letter was returned "unclaimed." At its meeting, the Board of Aldermen adopted an ordinance ordering plaintiff to demolish the building or the City would demolish it. A copy of the ordinance was mailed to plaintiff, at his business address, but this letter too was returned "unclaimed." A sign concerning the impending demolition was posted on the building. The demolition took place on 26 and 27 March 1985, and a lien for the cost of the demolition was placed on the property. On 1 August 1986, plaintiff brought an action in trespass against the City for the demolition of his building. He sought damages in excess of $100,000 for the loss of the building and its contents and an "appropriate sum" for the loss of use of the building as a storage and carpentry facility. At trial, plaintiff maintained that he knew nothing about the City's demolition plans until after the building was destroyed. He contended that the City did not comply with the service of process provision of N.C.Gen.Stat. § 160A-445 and, therefore, that defendant's act in demolishing his building was unlawful, entitling him to damages. Defendant contended that it had substantially complied with the provision on service of process, and that plaintiff had notice of the impending demolition but failed to take steps to protect his rights, thus precluding recovery. After presentation of the evidence, the trial court directed a verdict for plaintiff on the issue of service. However, the court then instructed the jury that if it found that the City had exercised reasonable diligence to provide plaintiff with actual notice and that plaintiff had timely notice to protect his rights, then the jury was not to consider the question of damages for the value of the building. The court further instructed the jury that the City was liable to plaintiff for its failure to salvage materials that plaintiff proved were salvageable. The jury answered the following questions as indicated: 1. Did Defendant, City of Winston-Salem, use reasonable diligence to provide actual notice to Plaintiff of the impending demolition of his building at 219 E. Tenth Street, so that Plaintiff had timely notice to protect his rights? (If the answer to No. 1 is yes, go to issue No. 3.) ANSWER: Yes. 2. If not, what was the value of the building at 219 E. Tenth Street? (If you answer No. 2, return to the Courtroom.) ANSWER: ____ 3. Were there salvagable [sic] materials in the building at 219 E. Tenth Street? (If the answer to No. 3 is no, return to the Courtroom.) ANSWER: Yes. 4. If so, what was the salvage value of those materials? ANSWER: $1845. On appeal, plaintiff contends that the trial court erred in submitting the first issue to the jury and thus precluding recovery of the value of his building based on a finding of reasonable diligence to provide actual notice. We agree. N.C.Gen.Stat. § 160A-441 confers upon cities and counties the power to exercise their police powers by adopting and enforcing ordinances ordering a property owner to repair, close, or demolish dwellings that are determined to be unfit for human habitation and therefore dangerous and injurious to the health and safety of the public. N.C.Gen.Stat. § 160A-441 *491 (1988). The statute specifically states that cities and counties may exercise such powers only "in the manner herein provided." Id. Furthermore, "[i]t is well established that a municipal corporation has no inherent police power, but may exercise such power only to the extent that it has been conferred upon the city by statute." Horton v. Gulledge, 277 N.C. 353, 359, 177 S.E.2d 885, 889 (1970), overruled on other grounds, State v. Jones, 305 N.C. 520, 290 S.E.2d 675 (1982). Finally, the power of the State itself is subject to the limitations imposed by the Constitution, which forbids arbitrary interference with the rights of property owners. See Zopfi v. City of Wilmington, 273 N.C. 430, 434, 160 S.E.2d 325, 330 (1968). Therefore, the authority of the City of Winston-Salem to order the demolition of a building is limited both by the Constitution and by the enabling legislation. Id. The enabling legislation provides that an ordinance adopted by a city to regulate buildings unfit for human habitation "shall contain" certain provisions, including the following: (3) That if, after notice and hearing, the public officer determines that the dwelling under consideration is unfit for human habitation, he shall state in writing his findings of fact in support of that determination and shall issue and cause to be served upon the owner thereof an order, a. If the repair, alteration or improvement of the dwelling can be made at a reasonable cost in relation to the value of the dwelling (the ordinance of the city may fix a certain percentage of his value as being reasonable), requiring the owner, within the time specified, to repair, alter or improve the dwelling in order to render it fit for human habitation or to vacate and close the dwelling as a human habitation; or
b. If the repair, alteration or improvement of the dwelling cannot be made at a reasonable cost in relation to the value of the dwelling (the ordinance of the city may fix a certain percentage of this value as being reasonable), requiring the owner, within the time specified in the order, to remove or demolish such dwelling. N.C.Gen.Stat. § 160A-443 (1988) (emphasis added). Subsections (4) and (5) enable the City to make repairs or demolish property if the owner fails to do so, but no repair or demolition may take place until an ordinance authorizing such action is enacted by the governing body. N.C.Gen.Stat. § 160A-443(5) (1988). However, "[n]o such ordinance shall be adopted to require demolition of a dwelling until the owner has first been given a reasonable opportunity to bring it into conformity with the housing code." Id. The statute further provides the method of service of complaints and orders issued by the City: Complaints or orders issued by a public officer pursuant to an ordinance adopted under this Part shall be served upon persons either personally or by registered or certified mail. If the identities of any owners or the whereabouts of persons are unknown and cannot be ascertained by the public officer in the exercise of reasonable diligence, and the public officer makes an affidavit to that effect, then the serving of the complaint or order upon the unknown owners or other persons may be made by publication in a newspaper having general circulation in the city.... When service is made by publication, a notice of the pending proceedings shall be posted in a conspicuous place on the premises thereby affected. N.C.Gen.Stat. § 160A-445 (1988) (emphasis added). Finally, if a dwelling is demolished by the City, the City shall sell the materials, any personal property, fixtures or appurtenances and credit the proceeds of the sale against the cost of demolition. N.C.Gen. Stat. § 160A-443(6) (1988). In ordering and carrying out the demolition of plaintiff's property, none of these statutory requirements was followed. The order to repair received by plaintiff on 1 March 1982 was issued following a *492 properly noticed hearing which plaintiff did not attend. However, when the order to demolish was issued almost three years later, plaintiff had not been served with a notice of hearing at which the City would determine the appropriateness of such an order. As set out above, section (3) of § 160A-443 authorizes the City, after notice and hearing, to "issue and cause to be served upon the owner," an order to repair or an order to demolish. An order to repair is issued after a determination that repairs can be made at a reasonable cost in relation to the value of the dwelling. An order to demolish involves a different determination, namely, that the repairs cannot be made at a reasonable cost in relation to the value of the dwelling. These are clearly two distinct factual determinations supporting two distinct kinds of orders. In this case, the City's demolition order was issued almost three years after the City held a hearing and issued its order to repair. The demolition order was based on the building inspector's determination that "the condition of the property had changed" due to vandalism. Plaintiff was given no opportunity to be heard on this determination as required by § 160A-443(3). As the trial court found, the City failed to comply with the service of process provision of § 160A-445. The City made no attempt to serve plaintiff personally with the demolition order, nor did the City seek to avail itself of service by publication after exercising reasonable diligence in attempting to ascertain plaintiff's whereabouts. Statutes authorizing service by mail or publication are strictly construed and must be followed with particularity. Hassell v. Wilson, 301 N.C. 307, 314, 272 S.E.2d 77, 82 (1980). Furthermore, no inference of notice may be drawn from the fact that the City's letters were returned "unclaimed." Cf. Casey v. Barker, 219 N.C. 465, 14 S.E.2d 429 (1941), holding that failure to accept or claim mail did not import notice where the statute authorized service predicated on the refusal to accept or claim such mail. "Actual notice, given in any manner other than that prescribed by statute cannot supply constitutional validity to the statute or to service under it." Distributors, Inc. v. McAndrews, 270 N.C. 91, 94, 153 S.E.2d 770, 772 (1967). Finally, the City failed to sell any salvageable materials as required by § 160A-443(6). The jury awarded plaintiff $1,845.00 for salvage value. Plaintiff is not, however, limited to recovery for the lost value of these materials. The City acted without authority in ordering the demolition of plaintiff's building without affording plaintiff notice and an opportunity to be heard as required by statute. "A municipal corporation is liable for the destruction or demolition of a building as a public nuisance ... where the City did not observe due process requirements." McQuillin, Municipal Corporations, § 24-561 (footnotes omitted). The City acted at its peril in failing to exercise its powers in the manner prescribed by the statute, and thus it is liable to plaintiff for any provable damages. A jury finding of "reasonable diligence to provide actual notice ... so that plaintiff had timely notice to protect his rights" does not insulate the city's liability or limit plaintiff's recovery. Other jurisdictions considering similar circumstances have ruled that a property owner has no duty to take affirmative steps to halt a city's threatened wrongful conduct. See Geftos v. City of Lincoln Park, 39 Mich.App. 644, 198 N.W.2d 169, 175 (1972); Leppo v. City of Petaluma, 20 Cal.App.3d 711, 97 Cal. Rptr. 840, 842-43 (1971); Solly v. City of Toledo, 7 Ohio St.2d 16, 218 N.E.2d 463, 467 (1966); Moll Co. v. Holstner, 252 Ky. 249, 67 S.W.2d 1 (1934). Thus, proof of actual notice is irrelevant to plaintiff's right to recover damages. The trial court erred in instructing the jury that it could find that the defendant used reasonable diligence to provide actual notice and thus absolve the defendant of its liability for damages to plaintiff, even though the defendant failed to serve the plaintiff as required by law before demolishing the building. At the conclusion of the evidence, the trial court granted plaintiff's motion for directed verdict on the issue of service. *493 Defendant did not appeal from this ruling. Thus, defendant's failure to comply with the statutory requirement of service of the complaint and order has been conclusively established. The only issue left to be resolved is whether the plaintiff is entitled to damages for the loss of the value of the building as a result of the demolition. The cause must be remanded for the jury to determine the value of the building at the time of demolition. Any value so found by the jury which exceeds the $1,845.00 value of salvageable materials already found by the jury and awarded to the plaintiff as damages is to be reduced by $1,845.00. The judgment of the trial court is vacated and the cause remanded for a new trial solely on the issue of damages. Judgment vacated; new trial on damages. JOHNSON and PARKER, JJ., concur. | 10-30-2013 | [
"374 S.E.2d 488 (1988) 92 N.C. App. 446 Paul Jeffrey NEWTON, d/b/a Newton Brothers v. CITY OF WINSTON-SALEM. No. 8821SC188. Court of Appeals of North Carolina. December 30, 1988. *489 Horton & Kummer by Hamilton C. Horton, Jr., Winston-Salem, for plaintiff-appellant. Hutchins, Tyndall, Doughton & Moore by Richard Tyndall and Laurie H. Woltz, Winston-Salem, for defendant-appellee. COZORT, Judge. The question presented in this appeal is whether defendant city is liable in damages to plaintiff for demolishing plaintiff's building without complying with the procedural requirements of N.C.Gen.Stat. §§ 160A-441 through -450. The trial court held as a matter of law that defendant had not served plaintiff with complaints and orders in accordance with § 160A-445. Nevertheless, the trial court instructed the jury that, if it found that defendant \"use[d] reasonable diligence to provide actual notice to Plaintiff ... so that Plaintiff had timely notice to protect his rights,\" then plaintiff was not entitled to recover the lost value of his building.",
"We find the trial court erred in submitting that issue to the jury. In February of 1982 the Housing Inspection Division of defendant City of Winston-Salem (the City) received a complaint about a building located at 219 E. 10th Street in Winston-Salem. The building was owned by plaintiff, who at that time rented the building to a tenant as a residential dwelling. As a result of the complaint, the city housing inspector inspected the residence. He found eighteen violations of the City's housing code. Thereafter, the City mailed to plaintiff's business address a certified letter containing a Complaint and Notice of Hearing to show cause why the City should not declare the building an unfit building and order plaintiff to take corrective action. A return receipt signed by plaintiff's secretary showed that the letter was received.",
"At a hearing held on 24 February 1982, the City determined that the building was unfit for human habitation. Plaintiff did not appear at the hearing. Following the hearing, a certified letter containing an order to take corrective action was mailed to plaintiff at his business address. A return receipt showed that this letter was received on 1 March 1982. During the next months, the City inspected the building and determined that plaintiff had not taken corrective action. Sometime prior to October of 1983, the City relocated the tenant to other housing. On 30 May 1984, more than two years after its initial order for repair had been served, the City mailed a certified letter to plaintiff at his business address informing plaintiff that the building had been found standing open and asking plaintiff to secure the property. The letter was returned \"unclaimed.\" The housing inspector supervisor unsuccessfully attempted to contact plaintiff by telephone and in person and asked plaintiff's secretary to tell plaintiff *490 to call him. Plaintiff did not respond to these messages.",
"On 11 December 1984, the city inspector found that the building had been vandalized and left standing open and \"that the condition of the property had changed.\" Thereafter, on 13 December 1984, the inspector sent by certified mail an order to repair or demolish the dwelling. The letter was returned \"unclaimed.\" In January of 1985, the inspector again inspected the building and determined that it had not been repaired or demolished as ordered, and that more vandalism had taken place. On 31 January 1985, the City mailed to plaintiff at his business address a certified letter notifying plaintiff that the Board of Aldermen would consider the property and take action against it. The letter was returned \"unclaimed.\" At its meeting, the Board of Aldermen adopted an ordinance ordering plaintiff to demolish the building or the City would demolish it.",
"A copy of the ordinance was mailed to plaintiff, at his business address, but this letter too was returned \"unclaimed.\" A sign concerning the impending demolition was posted on the building. The demolition took place on 26 and 27 March 1985, and a lien for the cost of the demolition was placed on the property. On 1 August 1986, plaintiff brought an action in trespass against the City for the demolition of his building. He sought damages in excess of $100,000 for the loss of the building and its contents and an \"appropriate sum\" for the loss of use of the building as a storage and carpentry facility. At trial, plaintiff maintained that he knew nothing about the City's demolition plans until after the building was destroyed. He contended that the City did not comply with the service of process provision of N.C.Gen.Stat. § 160A-445 and, therefore, that defendant's act in demolishing his building was unlawful, entitling him to damages.",
"Defendant contended that it had substantially complied with the provision on service of process, and that plaintiff had notice of the impending demolition but failed to take steps to protect his rights, thus precluding recovery. After presentation of the evidence, the trial court directed a verdict for plaintiff on the issue of service. However, the court then instructed the jury that if it found that the City had exercised reasonable diligence to provide plaintiff with actual notice and that plaintiff had timely notice to protect his rights, then the jury was not to consider the question of damages for the value of the building. The court further instructed the jury that the City was liable to plaintiff for its failure to salvage materials that plaintiff proved were salvageable.",
"The jury answered the following questions as indicated: 1. Did Defendant, City of Winston-Salem, use reasonable diligence to provide actual notice to Plaintiff of the impending demolition of his building at 219 E. Tenth Street, so that Plaintiff had timely notice to protect his rights? (If the answer to No. 1 is yes, go to issue No. 3.) ANSWER: Yes. 2. If not, what was the value of the building at 219 E. Tenth Street? (If you answer No. 2, return to the Courtroom.) ANSWER: ____ 3.",
"Were there salvagable [sic] materials in the building at 219 E. Tenth Street? (If the answer to No. 3 is no, return to the Courtroom.) ANSWER: Yes. 4. If so, what was the salvage value of those materials? ANSWER: $1845. On appeal, plaintiff contends that the trial court erred in submitting the first issue to the jury and thus precluding recovery of the value of his building based on a finding of reasonable diligence to provide actual notice. We agree.",
"N.C.Gen.Stat. § 160A-441 confers upon cities and counties the power to exercise their police powers by adopting and enforcing ordinances ordering a property owner to repair, close, or demolish dwellings that are determined to be unfit for human habitation and therefore dangerous and injurious to the health and safety of the public. N.C.Gen.Stat. § 160A-441 *491 (1988). The statute specifically states that cities and counties may exercise such powers only \"in the manner herein provided.\" Id. Furthermore, \"[i]t is well established that a municipal corporation has no inherent police power, but may exercise such power only to the extent that it has been conferred upon the city by statute.\" Horton v. Gulledge, 277 N.C. 353, 359, 177 S.E.2d 885, 889 (1970), overruled on other grounds, State v. Jones, 305 N.C. 520, 290 S.E.2d 675 (1982). Finally, the power of the State itself is subject to the limitations imposed by the Constitution, which forbids arbitrary interference with the rights of property owners.",
"See Zopfi v. City of Wilmington, 273 N.C. 430, 434, 160 S.E.2d 325, 330 (1968). Therefore, the authority of the City of Winston-Salem to order the demolition of a building is limited both by the Constitution and by the enabling legislation. Id. The enabling legislation provides that an ordinance adopted by a city to regulate buildings unfit for human habitation \"shall contain\" certain provisions, including the following: (3) That if, after notice and hearing, the public officer determines that the dwelling under consideration is unfit for human habitation, he shall state in writing his findings of fact in support of that determination and shall issue and cause to be served upon the owner thereof an order, a. If the repair, alteration or improvement of the dwelling can be made at a reasonable cost in relation to the value of the dwelling (the ordinance of the city may fix a certain percentage of his value as being reasonable), requiring the owner, within the time specified, to repair, alter or improve the dwelling in order to render it fit for human habitation or to vacate and close the dwelling as a human habitation; or b.",
"If the repair, alteration or improvement of the dwelling cannot be made at a reasonable cost in relation to the value of the dwelling (the ordinance of the city may fix a certain percentage of this value as being reasonable), requiring the owner, within the time specified in the order, to remove or demolish such dwelling. N.C.Gen.Stat. § 160A-443 (1988) (emphasis added). Subsections (4) and (5) enable the City to make repairs or demolish property if the owner fails to do so, but no repair or demolition may take place until an ordinance authorizing such action is enacted by the governing body.",
"N.C.Gen.Stat. § 160A-443(5) (1988). However, \"[n]o such ordinance shall be adopted to require demolition of a dwelling until the owner has first been given a reasonable opportunity to bring it into conformity with the housing code.\" Id. The statute further provides the method of service of complaints and orders issued by the City: Complaints or orders issued by a public officer pursuant to an ordinance adopted under this Part shall be served upon persons either personally or by registered or certified mail. If the identities of any owners or the whereabouts of persons are unknown and cannot be ascertained by the public officer in the exercise of reasonable diligence, and the public officer makes an affidavit to that effect, then the serving of the complaint or order upon the unknown owners or other persons may be made by publication in a newspaper having general circulation in the city....",
"When service is made by publication, a notice of the pending proceedings shall be posted in a conspicuous place on the premises thereby affected. N.C.Gen.Stat. § 160A-445 (1988) (emphasis added). Finally, if a dwelling is demolished by the City, the City shall sell the materials, any personal property, fixtures or appurtenances and credit the proceeds of the sale against the cost of demolition. N.C.Gen. Stat. § 160A-443(6) (1988). In ordering and carrying out the demolition of plaintiff's property, none of these statutory requirements was followed. The order to repair received by plaintiff on 1 March 1982 was issued following a *492 properly noticed hearing which plaintiff did not attend. However, when the order to demolish was issued almost three years later, plaintiff had not been served with a notice of hearing at which the City would determine the appropriateness of such an order. As set out above, section (3) of § 160A-443 authorizes the City, after notice and hearing, to \"issue and cause to be served upon the owner,\" an order to repair or an order to demolish.",
"An order to repair is issued after a determination that repairs can be made at a reasonable cost in relation to the value of the dwelling. An order to demolish involves a different determination, namely, that the repairs cannot be made at a reasonable cost in relation to the value of the dwelling. These are clearly two distinct factual determinations supporting two distinct kinds of orders. In this case, the City's demolition order was issued almost three years after the City held a hearing and issued its order to repair. The demolition order was based on the building inspector's determination that \"the condition of the property had changed\" due to vandalism. Plaintiff was given no opportunity to be heard on this determination as required by § 160A-443(3). As the trial court found, the City failed to comply with the service of process provision of § 160A-445. The City made no attempt to serve plaintiff personally with the demolition order, nor did the City seek to avail itself of service by publication after exercising reasonable diligence in attempting to ascertain plaintiff's whereabouts.",
"Statutes authorizing service by mail or publication are strictly construed and must be followed with particularity. Hassell v. Wilson, 301 N.C. 307, 314, 272 S.E.2d 77, 82 (1980). Furthermore, no inference of notice may be drawn from the fact that the City's letters were returned \"unclaimed.\" Cf. Casey v. Barker, 219 N.C. 465, 14 S.E.2d 429 (1941), holding that failure to accept or claim mail did not import notice where the statute authorized service predicated on the refusal to accept or claim such mail. \"Actual notice, given in any manner other than that prescribed by statute cannot supply constitutional validity to the statute or to service under it.\" Distributors, Inc. v. McAndrews, 270 N.C. 91, 94, 153 S.E.2d 770, 772 (1967). Finally, the City failed to sell any salvageable materials as required by § 160A-443(6). The jury awarded plaintiff $1,845.00 for salvage value.",
"Plaintiff is not, however, limited to recovery for the lost value of these materials. The City acted without authority in ordering the demolition of plaintiff's building without affording plaintiff notice and an opportunity to be heard as required by statute. \"A municipal corporation is liable for the destruction or demolition of a building as a public nuisance ... where the City did not observe due process requirements.\" McQuillin, Municipal Corporations, § 24-561 (footnotes omitted). The City acted at its peril in failing to exercise its powers in the manner prescribed by the statute, and thus it is liable to plaintiff for any provable damages. A jury finding of \"reasonable diligence to provide actual notice ... so that plaintiff had timely notice to protect his rights\" does not insulate the city's liability or limit plaintiff's recovery. Other jurisdictions considering similar circumstances have ruled that a property owner has no duty to take affirmative steps to halt a city's threatened wrongful conduct. See Geftos v. City of Lincoln Park, 39 Mich.App.",
"644, 198 N.W.2d 169, 175 (1972); Leppo v. City of Petaluma, 20 Cal.App.3d 711, 97 Cal. Rptr. 840, 842-43 (1971); Solly v. City of Toledo, 7 Ohio St.2d 16, 218 N.E.2d 463, 467 (1966); Moll Co. v. Holstner, 252 Ky. 249, 67 S.W.2d 1 (1934). Thus, proof of actual notice is irrelevant to plaintiff's right to recover damages. The trial court erred in instructing the jury that it could find that the defendant used reasonable diligence to provide actual notice and thus absolve the defendant of its liability for damages to plaintiff, even though the defendant failed to serve the plaintiff as required by law before demolishing the building.",
"At the conclusion of the evidence, the trial court granted plaintiff's motion for directed verdict on the issue of service. *493 Defendant did not appeal from this ruling. Thus, defendant's failure to comply with the statutory requirement of service of the complaint and order has been conclusively established. The only issue left to be resolved is whether the plaintiff is entitled to damages for the loss of the value of the building as a result of the demolition. The cause must be remanded for the jury to determine the value of the building at the time of demolition. Any value so found by the jury which exceeds the $1,845.00 value of salvageable materials already found by the jury and awarded to the plaintiff as damages is to be reduced by $1,845.00. The judgment of the trial court is vacated and the cause remanded for a new trial solely on the issue of damages. Judgment vacated; new trial on damages.",
"JOHNSON and PARKER, JJ., concur."
] | https://www.courtlistener.com/api/rest/v3/opinions/1400557/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . Reasons for Allowance The following is an examiner’s statement of reasons for allowance: it is agreed that the prior art of record fails to teach the claimed invention as now defined by the amended independent claims 1, 10 and 19. In particular, the x-ray emitter and detector (collector) in Siren appear to be rigidly fixed with respect to each and thus movement in either emitter or detector (collector) is involved. Dependent claims 2, 4-9 and 11 are allowable for depending on either 1 or 10. Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.”
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DON KITSUN WONG whose telephone number is (571)272-1834. The examiner can normally be reached on Monday – Friday 9:00am – 6:00pm. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, David Porta can be reached on 571 272 2444. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see http://pair-direct.uspto.gov. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000. /DON K WONG/Primary Examiner, Art Unit 2884 | 2022-08-09T02:01:16 | [
"Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . Reasons for Allowance The following is an examiner’s statement of reasons for allowance: it is agreed that the prior art of record fails to teach the claimed invention as now defined by the amended independent claims 1, 10 and 19. In particular, the x-ray emitter and detector (collector) in Siren appear to be rigidly fixed with respect to each and thus movement in either emitter or detector (collector) is involved.",
"Dependent claims 2, 4-9 and 11 are allowable for depending on either 1 or 10. Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.” Any inquiry concerning this communication or earlier communications from the examiner should be directed to DON KITSUN WONG whose telephone number is (571)272-1834.",
"The examiner can normally be reached on Monday – Friday 9:00am – 6:00pm. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, David Porta can be reached on 571 272 2444.",
"The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see http://pair-direct.uspto.gov. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000. /DON K WONG/Primary Examiner, Art Unit 2884"
] | https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-08-14.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
DETAILED ACTION Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . Election/Restrictions Claims 23-30 and 85-90 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 08/16/2019.
Claim Rejections - 35 USC § 103 The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action: A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claim(s) 1-11 is/are rejected under 35 U.S.C. 103 as being unpatentable over Warlick US 2009/0041864 in view of Accumanno et al. US 2008/0202346. Warlick discloses an agitator for enhancing infusion of a liquid, comprising: (Re claim 1) “a vibration source configured to be operatively coupled to an infusion mixture so as to effectively transmit vibration energy from the vibration source to the infusion mixture” (43 figure 5, 13A). “a power source in operative communication with the vibration source” (41 figure 5). “a controller in operative communication with the vibration source, the controller being configured to … control the intensity of vibration energy emitted from the vibration source and the duration of the vibration energy emitted from the vibration source (41 figure 5, para 0063). Warlick is silent with regard to receiving input from a user. Accumanno disclose multiple methods for receiving input from a user (1060, 280 figure 10,11). It would have been obvious to one skilled in the art to modify they system of Warlick to include receiving input from a user because it allows a user to adjust the system to setup the system to produce the desired beverage. (Re claim 2) “the controller is further configured to adjust a time schedule of vibration delivered from the vibration source based on user input” (41 figure 5, para 0063) (Re claim 3) Warlick does not disclose a user interface including a plurality of buttons in order to adjust vibration parameters during infusion. Accumanno teaches a user interface including a plurality of buttons in order to adjust vibration parameters during infusion (1060 figure 11). It would have been obvious to one skilled in the art to modify the system of Warlick to include a user interface including a plurality of buttons in order to adjust vibration parameters during infusion because buttons are well known for their use in programming devices and it allows a user to adjust the system to setup the system to produce the desired beverage. (Re claim 4) “the controller is configured to control any one or more of vibration duration, vibration displacement, vibration frequency, and vibration schedule” (para 0056, 0058, 0063). (Re claim 5) “the power source is in operative communication with the controller” (41 figure 5). (Re claim 6) “the controller is configured for a user to select a vibration power level from pre-selected levels of vibration power, including low power, medium power and high power” The examiner takes official notice that buttons associated with pre-selected levels of power are well known in the art and are used in a wide variety of applications. It would have been obvious to one skilled in the art to modify the system of Warlick/Accumanno to include a plurality of buttons associated with preselected power levels because it allows a user to quickly program the system to make their desired beverages. (Re claim 7) “the controller is configured for a user to select a duration of vibration energy emission for a time of between 1 minute and 60 minutes” (para 0063, 0065). (Re claim 8) “the controller is configured for a user to select a duration of vibration energy emission from a pre-selected menu of vibration energy emission durations including 1 minute, 5 minutes and 10 minutes” The examiner takes official notice that buttons associated with pre-selected times are well known in the art and are used in a wide variety of applications. It would have been obvious to one skilled in the art to modify the system of Warlick/Accumanno to include a plurality of buttons associated with preselected times because it allows a user to quickly program the system to make their desired beverages.
Claim(s) 9-11 is/are rejected under 35 U.S.C. 103 as being unpatentable over Warlick/Accumanno in view of Rosati et al. US 2015/0305551. Warlick/Accumanno discloses the system as rejected above. Warlick/Accumanno do not disclose a remote controller and wherein the controller is configured to be in wireless communication with the remote controller, that the remote controller comprises a smart phone application nor that the remote controller comprises a separate wireless controller. Rosati teaches a remote controller and wherein the controller is configured to be in wireless communication with the remote controller, that the remote controller comprises a smart phone application nor that the remote controller comprises a separate wireless controller (104, 600 figure 1,6, abstract, para 0050,0055). It would have been obvious to one skilled in the art to modify the system of Warlick/Accumanno to include a remote controller and wherein the controller is configured to be in wireless communication with the remote controller, that the remote controller comprises a smart phone application and that the remote controller comprises a separate wireless controller because it allows the user to operate their system remotely and reduces the need for a complex physical interface on the system.
Conclusion The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. US 2018/0332996, 2017/0295983, 2014/0263780 and 2011/0297004.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to TIMOTHY R WAGGONER whose telephone number is (571)272-8204. The examiner can normally be reached Mon-Thurs 5am-330pm. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Charles Fox can be reached on 571-272-6923. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
TIMOTHY R. WAGGONER Primary Examiner Art Unit 3655
/TIMOTHY R WAGGONER/Primary Examiner, Art Unit 3655 | 2022-09-14T10:53:32 | [
"DETAILED ACTION Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . Election/Restrictions Claims 23-30 and 85-90 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 08/16/2019. Claim Rejections - 35 USC § 103 The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action: A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains.",
"Patentability shall not be negated by the manner in which the invention was made. Claim(s) 1-11 is/are rejected under 35 U.S.C. 103 as being unpatentable over Warlick US 2009/0041864 in view of Accumanno et al. US 2008/0202346. Warlick discloses an agitator for enhancing infusion of a liquid, comprising: (Re claim 1) “a vibration source configured to be operatively coupled to an infusion mixture so as to effectively transmit vibration energy from the vibration source to the infusion mixture” (43 figure 5, 13A). “a power source in operative communication with the vibration source” (41 figure 5).",
"“a controller in operative communication with the vibration source, the controller being configured to … control the intensity of vibration energy emitted from the vibration source and the duration of the vibration energy emitted from the vibration source (41 figure 5, para 0063). Warlick is silent with regard to receiving input from a user. Accumanno disclose multiple methods for receiving input from a user (1060, 280 figure 10,11).",
"It would have been obvious to one skilled in the art to modify they system of Warlick to include receiving input from a user because it allows a user to adjust the system to setup the system to produce the desired beverage. (Re claim 2) “the controller is further configured to adjust a time schedule of vibration delivered from the vibration source based on user input” (41 figure 5, para 0063) (Re claim 3) Warlick does not disclose a user interface including a plurality of buttons in order to adjust vibration parameters during infusion. Accumanno teaches a user interface including a plurality of buttons in order to adjust vibration parameters during infusion (1060 figure 11). It would have been obvious to one skilled in the art to modify the system of Warlick to include a user interface including a plurality of buttons in order to adjust vibration parameters during infusion because buttons are well known for their use in programming devices and it allows a user to adjust the system to setup the system to produce the desired beverage. (Re claim 4) “the controller is configured to control any one or more of vibration duration, vibration displacement, vibration frequency, and vibration schedule” (para 0056, 0058, 0063). (Re claim 5) “the power source is in operative communication with the controller” (41 figure 5).",
"(Re claim 6) “the controller is configured for a user to select a vibration power level from pre-selected levels of vibration power, including low power, medium power and high power” The examiner takes official notice that buttons associated with pre-selected levels of power are well known in the art and are used in a wide variety of applications. It would have been obvious to one skilled in the art to modify the system of Warlick/Accumanno to include a plurality of buttons associated with preselected power levels because it allows a user to quickly program the system to make their desired beverages. (Re claim 7) “the controller is configured for a user to select a duration of vibration energy emission for a time of between 1 minute and 60 minutes” (para 0063, 0065).",
"(Re claim 8) “the controller is configured for a user to select a duration of vibration energy emission from a pre-selected menu of vibration energy emission durations including 1 minute, 5 minutes and 10 minutes” The examiner takes official notice that buttons associated with pre-selected times are well known in the art and are used in a wide variety of applications. It would have been obvious to one skilled in the art to modify the system of Warlick/Accumanno to include a plurality of buttons associated with preselected times because it allows a user to quickly program the system to make their desired beverages. Claim(s) 9-11 is/are rejected under 35 U.S.C.",
"103 as being unpatentable over Warlick/Accumanno in view of Rosati et al. US 2015/0305551. Warlick/Accumanno discloses the system as rejected above. Warlick/Accumanno do not disclose a remote controller and wherein the controller is configured to be in wireless communication with the remote controller, that the remote controller comprises a smart phone application nor that the remote controller comprises a separate wireless controller. Rosati teaches a remote controller and wherein the controller is configured to be in wireless communication with the remote controller, that the remote controller comprises a smart phone application nor that the remote controller comprises a separate wireless controller (104, 600 figure 1,6, abstract, para 0050,0055). It would have been obvious to one skilled in the art to modify the system of Warlick/Accumanno to include a remote controller and wherein the controller is configured to be in wireless communication with the remote controller, that the remote controller comprises a smart phone application and that the remote controller comprises a separate wireless controller because it allows the user to operate their system remotely and reduces the need for a complex physical interface on the system.",
"Conclusion The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. US 2018/0332996, 2017/0295983, 2014/0263780 and 2011/0297004. Any inquiry concerning this communication or earlier communications from the examiner should be directed to TIMOTHY R WAGGONER whose telephone number is (571)272-8204. The examiner can normally be reached Mon-Thurs 5am-330pm. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Charles Fox can be reached on 571-272-6923. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users.",
"To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000. TIMOTHY R. WAGGONER Primary Examiner Art Unit 3655 /TIMOTHY R WAGGONER/Primary Examiner, Art Unit 3655"
] | https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-09-18.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
EXHIBIT 10.1
AMENDED AND RESTATED FIFTH SUPPLEMENT
TO THE MASTER LOAN AGREEMENT
(REVOLVING LINE OF CREDIT LOAN)
THIS FIFTH SUPPLEMENT TO THE MASTER LOAN AGREEMENT (this “Fifth Supplement”), dated as of July 2, 2010, is between AGSTAR FINANCIAL SERVICES, PCA (the “Lender”) and HERON LAKE BIOENERGY, LLC, a Minnesota limited liability company (the “Borrower”), and supplements that certain Fourth Amended and Restated Master Loan Agreement, dated October 1, 2007, between the Lender and the Borrower (as the same may be amended, modified, supplemented, extended or restated from time to time, the “MLA”).
1. Definitions. As used in this Fifth Supplement, the following terms shall have the following meanings. Capitalized terms used and not otherwise defined in this Fifth Supplement shall have the meanings attributed to such terms in the MLA. Terms not defined in either this Fifth Supplement or the MLA shall have the meanings attributed to such terms in the Uniform Commercial Code, as enacted in the State of Minnesota and as amended from time to time.
“Availability Date” shall have the meaning specified in Section 5 of this Fifth Supplement.
“Borrowing Base” means, at any time, the lesser of: (a) $6,750,000.00; or (b) the sum of: (i) 75% of Borrower’s Eligible Accounts Receivable; plus (ii) 75% of Borrower’s Eligible Inventory.
“Borrowing Base Certificate” means the certificate in the form of Exhibit A attached hereto properly completed and duly executed by an authorized officer of the Borrower.
“Eligible Accounts Receivable” means all unpaid Accounts, net of any credits, except the following shall not in any event be deemed Eligible Accounts:
(a) That portion of Accounts unpaid 30 days or more after the invoice date:
(b) That portion of Accounts that is disputed or subject to a claim of offset or a contra account;
(c) That portion of Accounts not yet earned by the final delivery of goods or rendition of services, as applicable, by any Borrower to the customer;
(d) Accounts owed by any unit of government, whether foreign or domestic except Incentive Payments will be considered a part of Eligible Accounts as defined in this Agreement;
(e) Accounts owed by an account debtor located outside the United States;
(f) Accounts owed by an account debtor that is insolvent, the subject of bankruptcy proceedings or has gone out of business;
(g) Accounts owed by a shareholder, Guarantor, Affiliate, officer or employee of any Borrower;
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(h) Accounts not subject to a duly perfected security interest in the Lender’s favor or which are subject to any lien, security interest or claim in favor of any Person other than the Lender, including, without limitation, any payment or performance bond;
(i) That portion of Accounts that has been restructured, extended, amended or modified;
(j) That portion of Accounts that constituted advertising, finance charges, service charges or sales or excise taxes; and
(k) Accounts, or portions thereof, otherwise deemed ineligible by the Lender, in its sole discretion, exercised reasonably.
“Eligible Inventory” means all inventory held for ultimate sale or lease, or which has been or will be supplied under contracts of service, or which are raw materials, work in process, or materials used or consumed in the Borrower’s business and that has been specifically identified and accepted by the Lender, excluding all of the following inventory:
(a) Covered by documents of title, instruments, or chattel paper when these documents, instruments and paper are not owned and held by the Borrower or are subject to competing claims, liens or encumbrances.
(b) Intended to be sold outside of the ordinary course of business.
(c) Consigned, sold or leased to others or on consignment or lease from others or subject to a bailment.
(d) Subject to a competing claim, lien or encumbrance.
(e) Paid for in advance with progress payments or any other sums to the Borrower in anticipation of the sale and delivery of inventory.
(f) Obsolete or unusable in the ordinary course of business.
(g) Inventory of work in progress.
(h) Inventory that the Lender, in its sole discretion, disqualifies as Eligible Inventory, exercised reasonably.
“Incentive Payments” means any and all federal or state governmental subsidies, payments, transfers or other benefits, whether now or hereafter established, received by the Borrower in any fiscal year aged less than 120 days.
“Letters of Credit” shall have the meaning specified in Section 7 of this Fifth Supplement.
“Maximum Rate” shall have the meaning specified in Section 8 of this Fifth Supplement.
“Monthly Payment Date” means the first (1st) day of each calendar month.
“Outstanding Credit” means, at any time of determination, the aggregate amount of Advances then outstanding under this Fifth Supplement and the Revolving Line of Credit Note.
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“Outstanding Revolving Advance” means the total Outstanding Credit under this Fifth Supplement and the Revolving Line of Credit Note.
“Revolving Advance” means an advance under this Fifth Supplement and the Revolving Line of Credit Note.
“Revolving Line of Credit Loan” shall have the meaning specified in Section 2 of this Fifth Supplement.
“Revolving Line of Credit Loan Commitment” shall have the meaning specified in Section 2 of this Fifth Supplement.
“Revolving Line of Credit Loan Maturity Date” shall mean December 31, 2010.
“Revolving Line of Credit Loan Termination Date” shall have the meaning specified in Section 2 of this Fifth Supplement.
“Unused Commitment Fee” shall have the meaning specified in Section 6(d) of this Fifth Supplement.
2. Revolving Loan Commitment. On the terms and conditions set forth in the MLA and this Fifth Supplement, Lender agrees to make one or more advances (collectively, the “Revolving Line of Credit Loan”) to the Borrower, during the period beginning on the Availability Date (as defined in Section 5 of this Fifth Supplement) and ending on the Business Day immediately preceding the Revolving Line of Credit Loan Maturity Date (as hereinafter defined in this Section 2) (the “Revolving Line of Credit Loan Termination Date”), in an aggregate principal amount outstanding at any one time not to exceed $6,750,000.00 (the “Revolving Line of Credit Loan Commitment”) provided, however, that at no time shall the Outstanding Revolving Advance exceed the Borrowing Base. The Revolving Line of Credit Loan Commitment shall expire at 12:00 noon Central time on the Revolving Line of Credit Loan Maturity Date. Subject to Section 7 of this Fifth Supplement, under the Revolving Line of Credit Loan Commitment amounts borrowed and repaid or prepaid may be reborrowed at any time prior to and including the Revolving Line of Credit Loan Termination Date.
3. Purpose. The purposes for which advances under the Loan may be used are for general corporate and operating purposes of the Borrower and its subsidiaries, including closing costs and fees associated with the Revolving Line of Credit Loan. The Borrower agrees that the proceeds of the Loan are to be used only for the purposes set forth in this Section 3.
4. Repayment of the Revolving Line of Credit Loan. The Borrower will pay interest on the Revolving Line of Credit Loan on the first day of each month, commencing on the first Monthly Payment Date following the date on which the first Advance is made on the Revolving Line of Credit Loan, and continuing on each Monthly Payment Date thereafter until the Revolving Line of Credit Loan Maturity Date. On the Revolving Line of Credit Loan Maturity Date, the amount of the then unpaid principal balance of the Revolving Line of Credit Loan and any and all other amounts due and owing hereunder or under any other Loan Document relating to the Revolving Line of Credit Loan will be due and payable. If any Payment Date is not a Business Day, then the principal installment then due shall be paid on the next Business Day and shall continue to accrue interest until paid.
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5. Availability. Subject to the provisions of the MLA and this Fifth Supplement, during the period commencing on the date on which all conditions precedent to the initial advance under the Revolving Line of Credit Loan are satisfied (the “Availability Date”) and ending on the Revolving Line of Credit Loan Termination Date, advances under the Revolving Line of Credit Loan will be made as provided in this Fifth Supplement.
6. Making the Advances.
(a) Revolving Advances. Each Revolving Advance shall be made, on notice from the Borrower (a “Request for Advance”) to the Lender delivered before 12:00 Noon (Minneapolis, Minnesota time) on a Business Day which is at least three (3) Business Days prior to the date of such Revolving Advance specifying the amount of such Revolving Advance, provided that, no Revolving Advance shall be made while an Event of Default exists or if the interest rate for such LIBOR Rate Accounts would exceed the Maximum Rate. Any Request for Advance applicable to a Revolving Advance received after 12:00 Noon (Minneapolis, Minnesota time) shall be deemed to have been received and be effective on the next Business Day. The amount so requested from the Lender shall, subject to the terms and conditions of this Fifth Supplement, be made available to the Borrower by: (i) depositing the same, in same day funds, in an account of the Borrower; or (ii) wire transferring such funds to a Person or Persons designated by the Borrower in writing.
(b) Requests for Advances Irrevocable. Each Request for Advance shall be irrevocable and binding on the Borrower and the Borrower shall indemnify the Lender against any loss or expense it may incur as a result of any failure to borrow any Advance after a Request for Advance (including any failure resulting from the failure to fulfill on or before the date specified for such Advance the applicable conditions set forth in Article III of this Fifth Supplement), including, without limitation, any loss (including loss of anticipated profits) or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by the Lender to fund such Advance when such Advance, as a result of such failure, is not made on such date.
(c) Minimum Amounts. Each Revolving Advance shall be in a minimum amount equal to $10,000.00.
(d) Unused Commitment Fee. Borrower agrees to pay to the Lender an Unused Commitment Fee on the average daily unused portion of the Revolving Line of Credit Loan Commitment from the effective date of this Agreement until the Revolving Line of Credit Loan Maturity Date. Such Unused Commitment Fee shall be equal to a rate of 0.25% per annum, payable in arrears in quarterly installments on the first (1st) day of each third month after the effective date of this Agreement.
(e) Draft Loan Program. At the Borrower’s request and at the Lender’s sole discretion, the Borrower may obtain a Revolving Advance by using draft forms furnished by the Lender to the Borrower, subject to the following terms and conditions:
(i) Borrower Authorization and Responsibility. The Borrower shall be deemed to have authorized and directed the Lender and its duly authorized agents to accept drafts and to disburse Revolving Line of Credit Loan funds by due execution of any draft. The Borrower shall be responsible for all disbursements made pursuant to this authorization and direction. The Lender shall not be obligated to inquire as to whether the Borrower has issued specific directions for any particular draft or to determine whether the Borrower has received the benefit of the proceeds of any particular draft before honoring such draft. The execution of any draft by the Borrower shall constitute a representation and warranty to the Lender that the conditions set forth in Section 6(e) have been met as of the date of all such drafts.
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(ii) Minimum Amount. Each draft shall be in a minimum amount equal to $10,000.00 and shall not be written in excess of the Revolving Line of Credit Loan Commitment provided, however; that at no time shall any draft be written that results in the Outstanding Revolving Advance exceeding the Borrowing Base or the Revolving Line of Credit Loan Commitment, whichever is less.
(iii) Stop Payment Provisions. The Borrower may stop payment on a draft by written request to the Lender. The Lender shall not be liable in the event the draft is honored following a stop-payment order, if such order is not received in sufficient time to permit the dishonor. The Borrower shall reimburse the Lender for all damages, costs and expenses as a result of the Lender’s refusal to honor a draft due to a stop payment order requested by the Borrower.
(iv) Fees. Reasonable fees may be charged the Borrower by Lender for the use of drafts and are subject to change at the Lender’s discretion. In addition, the Borrower may be charged additional fees for each draft that is not in compliance with the provisions set forth in this Section 6(d) and for any draft for which the Borrower requests a stop-payment order.
(v) Limitations. The Borrower shall not issue any draft as payment on this or other Loan Obligations of the Borrower or for any purpose other than as permitted in the Loan Documents.
(vi) Revocation of Rights and Rejection of Drafts. The Lender reserves the right to revoke all future draft privileges without notice to the Borrower in the event the payment of any draft would result in the Outstanding Revolving Advance exceeding the Borrowing Base or the Revolving Line of Credit Loan commitment, whichever is less. The Lender reserves the right to reject drafts that are not written for purposes specified in or pursuant to the terms and conditions of the Loan Documents. In the event that Lender chooses to honor a draft which exceeds the limits as set forth in this Section 6(d)(ii), Borrower shall repay all the amounts by which the Outstanding Revolving Advances exceed the Borrowing Base or the Revolving Line of Credit Loan Commitment, whichever is less, plus interest and a reasonable overdraft fee, upon demand by Lender.
(vii) Notification. The Borrower agrees to immediately notify the Lender in the event one or more drafts are lost, stolen, destroyed or otherwise misused and to indemnify the Lender and hold the Lender harmless from any loss or claim if any draft is lost, stolen, forged, altered or otherwise misused.
(viii) Authorization. This authorization and direction shall be effective until the Lender receives written notice of revocation by the Borrower, provided the privilege of using drafts may be terminated by the Lender at any time in its sole discretion. Upon such termination, the Borrower shall surrender to the Lender all unused drafts on demand.
(f) Conditions Precedent to All Advances. The Lender’s obligation to make each Advance under the Revolving Line of Credit Note shall be subject to the terms, conditions and covenants set forth in the MLA and this Fifth Supplement, including, without limitation, the following further conditions precedent:
(i) Representations and Warranties. The representations and warranties set forth in the MLA and this Fifth Supplement are true and correct in all material respects as of the date of the request for any Advance to the same extent and with the same effect as if made at and as of the date thereof except as disclosed in writing to the Lender;
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(ii) Compliance With Disbursing Agreement. All of the terms and conditions of the Disbursing Agreement have been satisfied with respect to each such Advance;
(iii) No Defaults. The Borrower is not in default under the terms of the MLA, the Related Documents or any other Material Contracts to which the Borrower is a party and which relates to the construction of the Project or the operation of the Borrower’s business; and
(iv) Deposit Accounts. The Borrower shall have established and shall maintain all of its primary deposit accounts at Home Federal Savings Bank.
7. Letters of Credit.
(a) Commitment to Issue. The Borrower may request Revolving Advances by the Lender, and the Lender, subject to the terms and conditions of this Fifth Supplement, may, in its sole discretion, issue letters of credit for any Borrower’s account (such letters of credit, being hereinafter referred to collectively as the “Letters of Credit”); provided, however, that:
(i) the aggregate amount of outstanding Letter of Credit Liabilities shall not at any time exceed the amount of $500,000.00;
(ii) the sum of the outstanding Letters of Credit plus the Outstanding Revolving Advances shall not at any time exceed the Borrowing Base.
(b) Letter of Credit Request Procedure. The Borrower shall give the Lender irrevocable prior notice (effective upon receipt) on or before 3:00 P.M. (Minneapolis, Minnesota time) on the Business Day three Business Days prior to the date of the requested issuance of a Letter of Credit specifying the requested amount, expiry date and issuance date of each Letter of Credit to be issued and the nature of the transactions to be supported thereby. Any such notice received after 3:00 P.M. (Minneapolis, Minnesota time) on a Business Day shall be deemed to have been received and be effective on the next Business Day. Each Letter of Credit shall be in the form of Exhibit B to this Fifth Supplement, have an expiration date that occurs on or before the Maturity Date, shall be payable in U.S. dollars, must be satisfactory in form and substance to the Lender, and shall be issued pursuant to such documentation as the Lender may require, including, without limitation, the Lender’s standard form letter of credit request and reimbursement Fifth Supplement; provided that, in the event of any conflict between the terms of such Fifth Supplement and the other Loan Documents, the terms of the other Loan Documents shall control.
(c) Letter of Credit Fees. The Borrower shall pay to the Lender for (i) all fees, costs, and expenses of the Lender arising in connection with any Letter of Credit, including the Lender’s customary fees for amendments, transfers, and drawings on Letters of Credit and (ii) on the date of the issuance of the Letter of Credit, and at the anniversary date of issuance of such Letter of Credit, an issuance fee equal to two and one-half (2.5%) percent, on an annualized basis, of the maximum amount available to be drawn under the Letter of Credit.
(d) Funding of Drawings. Upon receipt from the beneficiary of any Letter of Credit of any demand for payment or other drawing under such Letter of Credit, the Issuer shall promptly notify the Borrower as to the amount to be paid as a result of such demand or drawing and the respective payment date. Any notice pursuant to the forgoing sentence shall specify the amount to be paid as a result of such demand or drawing and the respective payment date.
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(e) Reimbursements. After receipt of the notice delivered pursuant to clause (d) of this section with respect to a Letter of Credit, the Borrower shall be irrevocably and unconditionally obligated to reimburse the Lender for any amounts paid by the Lender upon any demand for payment or drawing under the applicable Letter of Credit, without presentment, demand, protest, or other formalities of any kind other than the notice required by clause (d) of this section. Such reimbursement shall occur no later than 3:00 P.M. (Minneapolis, Minnesota time) on the date of payment under the applicable Letter of Credit if the notice under clause (d) of this section is received by 2:00 P.M. (Minneapolis, Minnesota time) on such date or by 11:00 A.M. (Minneapolis, Minnesota time) on the next Business Day, if such notice is received after 2:00 P.M. (Minneapolis, Minnesota time). All payments on the Reimbursement Obligations (including any interest earned thereon) shall be made to the Lender for the account of the Lender in U.S. dollars and in immediately available funds, without set-off, deduction, or counterclaim.
(f) Reimbursement Obligations Absolute. The Reimbursement Obligations of the Borrower under this Fifth Supplement shall be absolute, unconditional, and irrevocable, and shall be performed strictly in accordance with the terms of the Loan Documents under all circumstances whatsoever and the Borrower hereby waives any defense to the payment of the Reimbursement Obligations based on any circumstance whatsoever, including, without limitation, in any case, the following circumstances: (i) any lack of validity or enforceability of any Letter of Credit or any other Loan Document; (ii) any amendment or waiver of or any consent to departure from any Loan Document; (iii) the existence of any claim, set-off, counterclaim, defense, or other rights which any Borrower or any other Person may have at any time against any beneficiary of any Letter of Credit, the Lender or any other Person, whether in connection with any Loan Document or any unrelated transaction; (iv) any statement, draft, or other documentation presented under any Letter of Credit proving to be forged, fraudulent, invalid, or insufficient in any respect or any statement therein being untrue or inaccurate in any respect whatsoever; (v) payment by the Lender under any Letter of Credit against presentation of a draft or other document that does not comply with the terms of such Letter of Credit; or (vi) any other circumstance whatsoever, whether or not similar to any of the foregoing; provided that Reimbursement Obligations with respect to a Letter of Credit may be subject to avoidance by a Borrower if the Borrower proves in a final non-appealable judgment that it was damaged and that such damage arose directly from the Lender’s willful misconduct or gross negligence in determining whether the documentation presented under the Letter of Credit in question complied with the terms thereof.
(g) Issuer Responsibility. Borrower assumes all risks of the acts or omissions of any beneficiary of any Letter of Credit with respect to its use of such Letter of Credit. Neither the Lender, nor any of its respective officers or directors shall have any responsibility or liability to the Borrower or any other Person for: (a) the failure of any draft to bear any reference or adequate reference to any Letter of Credit, or the failure of any documents to accompany any draft at negotiation, or the failure of any Person to surrender or to take up any Letter of Credit or to send documents apart from drafts as required by the terms of any Letter of Credit, or the failure of any Person to note the amount of any instrument on any Letter of Credit, each of which requirements, if contained in any Letter of Credit itself, it is agreed may be waived by the Lender; (b) errors, omissions, interruptions, or delays in transmission or delivery of any messages; (c) the validity, sufficiency, or genuineness of any draft or other document, or any endorsement(s) thereon, even if any such draft, document or endorsement should in fact prove to be in any and all respects invalid, insufficient, fraudulent, or forged or any statement therein is untrue or inaccurate in any respect; (d) the payment by the Lender to the beneficiary of any Letter of Credit against presentation of any draft or other document that does not comply with the terms of the Letter of Credit; or (e) any other circumstance whatsoever in making or failing to make any payment under a Letter of Credit. The Lender may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary.
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8. Interest Rate. Subject to the provisions of Sections 9 and 11 of this Fifth Supplement, the Revolving Line of Credit Loan shall bear interest at a rate equal to the LIBOR Rate plus 325 basis points. The computation of interest, amortization, maturity and other terms and conditions of the Revolving Line of Credit Loan shall be as provided in the Revolving Line of Credit Note, provided, however, in no event shall the applicable rate exceed the maximum nonusurious interest rate, if any, that at any time, or from time to time, may be contracted for, taken, reserved, charged, or received under applicable state or federal laws (the “Maximum Rate”). Notwithstanding the foregoing, in no event shall the rate of interest under the Revolving Line of Credit Loan be less than six (6.0%) percent per annum until paid in full.
9. Default Interest. In addition to the rights and remedies set forth in the MLA: (i) if the Borrower fails to make any payment to Lender when due (including, without limitation, any purchase of equity of Lender when required), then at Lender’s option in each instance, such obligation or payment shall bear interest from the date due to the date paid at 2% per annum in excess of the rate of interest that would otherwise be applicable to such obligation or payment; (ii) upon the occurrence and during the continuance of an Event of Default beyond any applicable cure period, if any, at Lender’s option in each instance, the unpaid balances of the Revolving Line of Credit Loan shall bear interest from the date of the Event of Default or such later date as Lender shall elect at 2% per annum in excess of the rate(s) of interest that would otherwise be in effect on the Revolving Line of Credit Loan under the terms of the Revolving Line of Credit Note; (iii) after the maturity of the Revolving Line of Credit Loan, whether by reason of acceleration or otherwise, the unpaid principal balance of the Revolving Line of Credit Loan (including without limitation, principal, interest, fees and expenses) shall automatically bear interest at 2% per annum in excess of the rate of interest that would otherwise be in effect on the Revolving Line of Credit Loan under the terms of the Revolving Line of Credit Note. Interest payable at the Default Rate shall be payable from time to time on demand or, if not sooner demanded, on the last day of each calendar month.
10. Late Charge. If any payment of principal or interest due under this Fifth Supplement or the Revolving Line of Credit Note is not paid within ten (10) days of the due date thereof, the Borrower shall, in addition to such amount, pay a late charge equal to five percent (5%) of the amount of such payment.
11. Changes in Law Rendering Certain LIBOR Rate Loans Unlawful. In the event that any change in any applicable law (including the adoption of any new applicable law) or any change in the interpretation of any applicable law by any judicial, governmental or other regulatory body charged with the interpretation, implementation or administration thereof, should make it (or in the good-faith judgment of the Lender should raise a substantial question as to whether it is) unlawful for the Lender to make, maintain or fund LIBOR Rate Loans, then: (a) the Lender shall promptly notify each of the other parties hereto; and (b) the obligation of the Lender to make LIBOR rate loans of such type shall, upon the effectiveness of such event, be suspended for the duration of such unlawfulness. During the period of any suspension, Lender shall make loans to Borrower that are deemed lawful and that as closely as possible reflect the terms of the MLA.
12. Payments and Computations.
(a) Method of Payment. Except as otherwise expressly provided herein, all payments of principal, interest, and other amounts to be made by the Borrower under the Loan Documents shall be made to the Lender in U.S. dollars and in immediately available funds, without set-off, deduction, or counterclaim, not later than 2:00 P.M. (Minneapolis, Minnesota time) on the date on
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which such payment shall become due (each such payment made after such time on such due date to be deemed to have been made on the next succeeding Business Day). The Borrower shall, at the time of making each such payment, specify to the Lender the sums payable under the Loan Documents to which such payment is to be applied and in the event that the Borrower fail to so specify or if an Event of Default exists, the Lender may apply such payment and any proceeds of any Collateral to the Loan Obligations in such order and manner as it may elect in its sole discretion, subject to Section 12(c).
(b) Application of Funds. Apply all payments received by it to the Borrower’s obligations to Lender in such order and manner as Lender may elect in its sole discretion; provided that any payments received from any guarantor or from any disposition of any collateral provided by such guarantor shall only be applied against obligations guaranteed by such guarantor.
(c) Payments on a Non-Business Day. Whenever any payment under any Loan Document shall be stated to be due on a day that is not a Business Day, such payment may be made on the next succeeding Business Day, and such extension of time shall in such case be included in the computation of the payment of interest and fees, as the case may be.
(d) Proceeds of Collateral. All proceeds received by the Lender from the sale or other liquidation of the Collateral when an Event of Default exists shall first be applied as payment of the accrued and unpaid fees and expenses of the Lender hereunder and then to all other unpaid or unreimbursed Loan Obligations (including reasonable attorneys’ fees and expenses) owing to the Lender and then any remaining amount of such proceeds shall be applied to the unpaid amounts of Loan Obligations, until all the Loan Obligations have been paid and satisfied in full or cash collateralized. After all the Loan Obligations (including without limitation, all contingent Loan Obligations) have been paid and satisfied in full, all Commitments terminated and all other obligations of the Lender to the Borrower otherwise satisfied, any proceeds of Collateral shall be delivered to the Person entitled thereto as directed by the Borrower or as otherwise determined by applicable law or applicable court order.
(e) Computations. Except as expressly provided otherwise herein, all computations of interest and fees shall be made on the basis of actual number of days lapsed over a year of 365 or 366 days, as appropriate. Interest shall accrue from and include the date of borrowing, but exclude the date of payment.
13. Maximum Amount Limitation. Anything in this MLA, this Fifth Supplement, or the other Loan Documents to the contrary notwithstanding, Borrower shall not be required to pay unearned interest on the Revolving Line of Credit Note or any of the Loan Obligations, or ever be required to pay interest on the Revolving Line of Credit Note or any of the Loan Obligations at a rate in excess of the Maximum Rate, if any. If the effective rate of interest which would otherwise be payable under the MLA, this Fifth Supplement, the Revolving Line of Credit Note, or any of the other Loan Documents would exceed the Maximum Rate, if any, then the rate of interest which would otherwise be contracted for, charged, or received under the MLA, this Fifth Supplement, the Revolving Line of Credit Note, or any of the other Loan Documents shall be reduced to the Maximum Rate, if any. If any unearned interest or discount or property that is deemed to constitute interest (including, without limitation, to the extent that any of the fees payable by Borrower for the Loan Obligations to the Lender under the MLA, this Fifth Supplement, the Revolving Line of Credit Note, or any of the other Loan Documents are deemed to constitute interest) is contracted for, charged, or received in excess of the Maximum Rate, if any, then such interest in excess of the Maximum Rate shall be deemed a mistake and canceled, shall not be collected or collectible, and if paid nonetheless, shall, at the option of the holder of the Revolving Line of Credit Note, be either refunded to the Borrower, or credited on the principal of the Revolving Line of Credit Note. It is further agreed that, without limitation of the foregoing and to the extent permitted by applicable law, all calculations of the rate of interest or discount contracted for, charged or received by
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the Lender under the Revolving Line of Credit Note, or under any of the Loan Documents, that are made for the purpose of determining whether such rate exceeds the Maximum Rate applicable to the Lender, if any, shall be made, to the extent permitted by applicable laws (now or hereafter enacted), by amortizing, prorating and spreading during the period of the full terms of the Advances evidenced by the Revolving Line of Credit Note, and any renewals thereof all interest at any time contracted for, charged or received by Lender in connection therewith. This section shall control every other provision of all agreements among the parties to the MLA pertaining to the transactions contemplated by or contained in the Loan Documents, and the terms of this section shall be deemed to be incorporated in every Loan Document and communication related thereto.
14. Lender Records. All advances and all payments or prepayments made thereunder on account of principal or interest may be evidenced by the Lender in accordance with its usual practice in an account or accounts evidencing such advances and all payments or prepayments thereunder from time to time and the amounts of principal and interest payable and paid from time to time thereunder; in any legal action or proceeding in respect of the Notes, the entries made in such account or accounts shall be prima facie evidence of the existence and amounts of all advances and all payments or prepayments made thereunder on account of principal or interest. Lender shall provide monthly statements of such entries to Borrower for the purpose of confirming the accuracy of such entries.
15. Mandatory Prepayments or Collateralization. The Borrowers shall, within five (5) days following the earlier of the delivery of each Borrowing Base Certificate hereof or the day upon which such Borrowing Base Certificate was due, either (i) prepay the Advances in the amount, if any, by which the Outstanding Credit on the date of prepayment under this Section 15 exceeds the Borrowing Base at such time, together with accrued interest to the date of such prepayment on the amount prepaid, or (ii) pledge and assign to the Lender additional collateral acceptable to the Lender, in the Lender’s sole discretion, and deliver all documentation that the Lender, in its sole discretion, may require in connection with such pledge and assignment and the perfection of a first-priority security interest in such additional collateral, so that the Borrowing Base plus the value assigned by the Lender, in its sole discretion, to such additional collateral equals or exceeds the Outstanding Credit.
16. Loan Payments. During the continuance of an Event of Default, the Lender may deduct any obligations due or any other amounts due and payable by the Borrower under the Loan Documents from any accounts maintained with the Lender.
17. Reporting Requirements. In addition to the reporting requirements under Section 5.01(c) in the MLA, the Borrower will furnish to the Lender as soon as available and in any event within 30 days after the end of each month (or at such other times or with such greater frequency as is requested by the Lender), a duly completed Borrowing Base Certificate, setting forth the Borrowing Base as of the last day of such month calculated based upon collateral value criteria and advance rates which do not exceed those set forth in the Borrowing Base Certificate, and including such other information, representation and warranties contemplated therein, certified by the appropriate authorized officer of the Borrower.
18. Compensation. Upon the request of the Lender, the Borrower shall pay to the Lender such amount or amounts as shall be sufficient (in the reasonable opinion of the Lender) to compensate it for any loss, cost, or expense (excluding loss of anticipated profits incurred by it) as a result of: (i) any payment, prepayment, or conversion of a LIBOR rate loan for any reason on a date other than the last day of the Interest Period for such Loan; or (ii) any failure by the Borrower for any reason (including, without limitation, the failure of any condition precedent specified in the MLA or this Fifth Supplement to be satisfied) to borrow, extend, or prepay a LIBOR rate loan on the date for such borrowing, extension, or prepayment specified in the relevant notice of borrowing, extension or prepayment under this Agreement.
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Such indemnification may include any amount equal to the excess, if any, of: (a) the amount of interest which would have accrued on the amount so prepaid, or not so borrowed, converted or extended, for the period from the date of such prepayment or of such failure to borrower, convert or extend to the last day of the applicable Interest Period (or in the case of a failure to borrow, convert or extend, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such loan as provided for herein; over (b) the amount of interest (as reasonably determined by the Lender) which would have accrued to the Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank LIBOR market. The covenants of the Borrower set forth in this section shall survive the repayment of the Revolving Line of Credit Loan and other obligations under the Loan Documents hereunder.
19. Security. The Borrower’s obligations hereunder and, to the extent related thereto, the MLA, shall be secured as provided in the MLA.
20. Effect of Fifth Supplement. The execution and delivery of this Fifth Supplement and the Revolving Line of Credit Note shall supercede and replace in its entirety the Fourth Amended and Restated Second Supplement and the Second Amended and Restated Revolving Note dated May 18, 2007, which shall be of no force or effect.
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IN WITNESS WHEREOF, the parties have caused this Fifth Supplement to the Fourth Amended and Restated Master Loan Agreement to be executed by their duly authorized officers as of the date shown above.
HERON LAKE BIOENERGY, LLC
a Minnesota limited liability company
By:
/s/ Robert J. Ferguson
Name:
Robert J. Ferguson
Title:
President
12
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Dated: July 2, 2010
AGSTAR FINANCIAL SERVICES, PCA
an United States corporation
By:
/s/ Mark Schmidt
Mark Schmidt
Its Vice President
[Signature page for Amended and Restated Fifth Supplement]
13
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EXHIBIT A
BORROWING BASE CERTIFICATE
Date: ,
1
Accounts Receivable:
(ethanol)
$
(DDGs)
$
Other
$
Other
$
Total
$
Deduct Ineligible Accounts (31 days or more from invoice date)
$
Deduct Ineligible Accounts (as determined by Bank)
$
Eligible Accounts Receivable
$
Multiply by Borrowing Base Factor
75.00
%
Accounts Receivable Loan Availability
$
2
Corn and Distiller’s Dried Grain (current value)
Ending Corn Inventory
$
Ending DDGs Inventory
$
Total Inventory
Multiply by Borrowing Base Factor
75.00
%
Corn Inventory Loan Availability
$
3
Ethanol Inventories (lower of cost or market)
Ending Fuel Ethanol Inventory
$
Ending Denaturant Inventory
$
Ending AA Enzyme Inventory
$
Ending GA Enzyme Inventory
$
Other Inventory
Total Inventory
$
Multiply by Borrowing Base Factor
75.00
%
Inventory Loan Availability
$
4
Total Borrowing Base (Totals from #1, #2, & #3)
$
5
Outstanding Loan Balance (as of month end)
$
6
Margin (Line 4 minus Line 5)
$
14
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EXHIBIT B
FORM OF LETTER OF CREDIT
IRREVOCABLE STANDBY LETTER OF CREDIT NO.
(Date)
(Beneficiary)
Ladies and Gentlemen:
At the request of Heron Lake BioEnergy, LLC, , Heron Lake, MN , we hereby establish our Irrevocable Standby Letter of Credit in your favor in the amount of $ U.S. dollars.
We undertake that drawings under this Irrevocable Standby Letter of Credit will be honored upon presentation of your draft drawn on AgStar Financial Services, PCA, at 1921 Premier Drive, Mankato, Minnesota 56002-4249 and the original of this Irrevocable Standby Letter of Credit prior to the expiration date set forth herein. All drafts submitted to Agstar Financial Services, PCA must indicate the number and date of this Irrevocable Standby Letter of Credit.
This Irrevocable Standby Letter of Credit expires on .
Except as expressly stated herein, this undertaking is not subject to any conditions or qualification. The obligation of AgStar Financial Services, PCA, under this Irrevocable Standby Letter of Credit shall be the individual obligation of AgStar Financial Services, PCA, and in no way contingent upon reimbursement with respect thereto.
This Irrevocable Standby Letter of Credit is subject to the Uniform Customs and Practice for Documentary Credits, 1993 Version, of the International Chamber of Commerce or any successor publication.
Sincerely,
AGSTAR FINANCIAL SERVICES, PCA
Mark Schmidt
15
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"EXHIBIT 10.1 AMENDED AND RESTATED FIFTH SUPPLEMENT TO THE MASTER LOAN AGREEMENT (REVOLVING LINE OF CREDIT LOAN) THIS FIFTH SUPPLEMENT TO THE MASTER LOAN AGREEMENT (this “Fifth Supplement”), dated as of July 2, 2010, is between AGSTAR FINANCIAL SERVICES, PCA (the “Lender”) and HERON LAKE BIOENERGY, LLC, a Minnesota limited liability company (the “Borrower”), and supplements that certain Fourth Amended and Restated Master Loan Agreement, dated October 1, 2007, between the Lender and the Borrower (as the same may be amended, modified, supplemented, extended or restated from time to time, the “MLA”). 1. Definitions. As used in this Fifth Supplement, the following terms shall have the following meanings.",
"Capitalized terms used and not otherwise defined in this Fifth Supplement shall have the meanings attributed to such terms in the MLA. Terms not defined in either this Fifth Supplement or the MLA shall have the meanings attributed to such terms in the Uniform Commercial Code, as enacted in the State of Minnesota and as amended from time to time. “Availability Date” shall have the meaning specified in Section 5 of this Fifth Supplement. “Borrowing Base” means, at any time, the lesser of: (a) $6,750,000.00; or (b) the sum of: (i) 75% of Borrower’s Eligible Accounts Receivable; plus (ii) 75% of Borrower’s Eligible Inventory. “Borrowing Base Certificate” means the certificate in the form of Exhibit A attached hereto properly completed and duly executed by an authorized officer of the Borrower. “Eligible Accounts Receivable” means all unpaid Accounts, net of any credits, except the following shall not in any event be deemed Eligible Accounts: (a) That portion of Accounts unpaid 30 days or more after the invoice date: (b) That portion of Accounts that is disputed or subject to a claim of offset or a contra account; (c) That portion of Accounts not yet earned by the final delivery of goods or rendition of services, as applicable, by any Borrower to the customer; (d) Accounts owed by any unit of government, whether foreign or domestic except Incentive Payments will be considered a part of Eligible Accounts as defined in this Agreement; (e) Accounts owed by an account debtor located outside the United States; (f) Accounts owed by an account debtor that is insolvent, the subject of bankruptcy proceedings or has gone out of business; (g) Accounts owed by a shareholder, Guarantor, Affiliate, officer or employee of any Borrower; -------------------------------------------------------------------------------- (h) Accounts not subject to a duly perfected security interest in the Lender’s favor or which are subject to any lien, security interest or claim in favor of any Person other than the Lender, including, without limitation, any payment or performance bond; (i) That portion of Accounts that has been restructured, extended, amended or modified; (j) That portion of Accounts that constituted advertising, finance charges, service charges or sales or excise taxes; and (k) Accounts, or portions thereof, otherwise deemed ineligible by the Lender, in its sole discretion, exercised reasonably.",
"“Eligible Inventory” means all inventory held for ultimate sale or lease, or which has been or will be supplied under contracts of service, or which are raw materials, work in process, or materials used or consumed in the Borrower’s business and that has been specifically identified and accepted by the Lender, excluding all of the following inventory: (a) Covered by documents of title, instruments, or chattel paper when these documents, instruments and paper are not owned and held by the Borrower or are subject to competing claims, liens or encumbrances.",
"(b) Intended to be sold outside of the ordinary course of business. (c) Consigned, sold or leased to others or on consignment or lease from others or subject to a bailment. (d) Subject to a competing claim, lien or encumbrance. (e) Paid for in advance with progress payments or any other sums to the Borrower in anticipation of the sale and delivery of inventory. (f) Obsolete or unusable in the ordinary course of business. (g) Inventory of work in progress. (h) Inventory that the Lender, in its sole discretion, disqualifies as Eligible Inventory, exercised reasonably. “Incentive Payments” means any and all federal or state governmental subsidies, payments, transfers or other benefits, whether now or hereafter established, received by the Borrower in any fiscal year aged less than 120 days. “Letters of Credit” shall have the meaning specified in Section 7 of this Fifth Supplement. “Maximum Rate” shall have the meaning specified in Section 8 of this Fifth Supplement.",
"“Monthly Payment Date” means the first (1st) day of each calendar month. “Outstanding Credit” means, at any time of determination, the aggregate amount of Advances then outstanding under this Fifth Supplement and the Revolving Line of Credit Note. 2 -------------------------------------------------------------------------------- “Outstanding Revolving Advance” means the total Outstanding Credit under this Fifth Supplement and the Revolving Line of Credit Note. “Revolving Advance” means an advance under this Fifth Supplement and the Revolving Line of Credit Note. “Revolving Line of Credit Loan” shall have the meaning specified in Section 2 of this Fifth Supplement.",
"“Revolving Line of Credit Loan Commitment” shall have the meaning specified in Section 2 of this Fifth Supplement. “Revolving Line of Credit Loan Maturity Date” shall mean December 31, 2010. “Revolving Line of Credit Loan Termination Date” shall have the meaning specified in Section 2 of this Fifth Supplement. “Unused Commitment Fee” shall have the meaning specified in Section 6(d) of this Fifth Supplement. 2. Revolving Loan Commitment. On the terms and conditions set forth in the MLA and this Fifth Supplement, Lender agrees to make one or more advances (collectively, the “Revolving Line of Credit Loan”) to the Borrower, during the period beginning on the Availability Date (as defined in Section 5 of this Fifth Supplement) and ending on the Business Day immediately preceding the Revolving Line of Credit Loan Maturity Date (as hereinafter defined in this Section 2) (the “Revolving Line of Credit Loan Termination Date”), in an aggregate principal amount outstanding at any one time not to exceed $6,750,000.00 (the “Revolving Line of Credit Loan Commitment”) provided, however, that at no time shall the Outstanding Revolving Advance exceed the Borrowing Base. The Revolving Line of Credit Loan Commitment shall expire at 12:00 noon Central time on the Revolving Line of Credit Loan Maturity Date.",
"Subject to Section 7 of this Fifth Supplement, under the Revolving Line of Credit Loan Commitment amounts borrowed and repaid or prepaid may be reborrowed at any time prior to and including the Revolving Line of Credit Loan Termination Date. 3. Purpose. The purposes for which advances under the Loan may be used are for general corporate and operating purposes of the Borrower and its subsidiaries, including closing costs and fees associated with the Revolving Line of Credit Loan. The Borrower agrees that the proceeds of the Loan are to be used only for the purposes set forth in this Section 3. 4. Repayment of the Revolving Line of Credit Loan. The Borrower will pay interest on the Revolving Line of Credit Loan on the first day of each month, commencing on the first Monthly Payment Date following the date on which the first Advance is made on the Revolving Line of Credit Loan, and continuing on each Monthly Payment Date thereafter until the Revolving Line of Credit Loan Maturity Date.",
"On the Revolving Line of Credit Loan Maturity Date, the amount of the then unpaid principal balance of the Revolving Line of Credit Loan and any and all other amounts due and owing hereunder or under any other Loan Document relating to the Revolving Line of Credit Loan will be due and payable. If any Payment Date is not a Business Day, then the principal installment then due shall be paid on the next Business Day and shall continue to accrue interest until paid.",
"3 -------------------------------------------------------------------------------- 5. Availability. Subject to the provisions of the MLA and this Fifth Supplement, during the period commencing on the date on which all conditions precedent to the initial advance under the Revolving Line of Credit Loan are satisfied (the “Availability Date”) and ending on the Revolving Line of Credit Loan Termination Date, advances under the Revolving Line of Credit Loan will be made as provided in this Fifth Supplement. 6. Making the Advances. (a) Revolving Advances. Each Revolving Advance shall be made, on notice from the Borrower (a “Request for Advance”) to the Lender delivered before 12:00 Noon (Minneapolis, Minnesota time) on a Business Day which is at least three (3) Business Days prior to the date of such Revolving Advance specifying the amount of such Revolving Advance, provided that, no Revolving Advance shall be made while an Event of Default exists or if the interest rate for such LIBOR Rate Accounts would exceed the Maximum Rate.",
"Any Request for Advance applicable to a Revolving Advance received after 12:00 Noon (Minneapolis, Minnesota time) shall be deemed to have been received and be effective on the next Business Day. The amount so requested from the Lender shall, subject to the terms and conditions of this Fifth Supplement, be made available to the Borrower by: (i) depositing the same, in same day funds, in an account of the Borrower; or (ii) wire transferring such funds to a Person or Persons designated by the Borrower in writing. (b) Requests for Advances Irrevocable. Each Request for Advance shall be irrevocable and binding on the Borrower and the Borrower shall indemnify the Lender against any loss or expense it may incur as a result of any failure to borrow any Advance after a Request for Advance (including any failure resulting from the failure to fulfill on or before the date specified for such Advance the applicable conditions set forth in Article III of this Fifth Supplement), including, without limitation, any loss (including loss of anticipated profits) or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by the Lender to fund such Advance when such Advance, as a result of such failure, is not made on such date. (c) Minimum Amounts. Each Revolving Advance shall be in a minimum amount equal to $10,000.00.",
"(d) Unused Commitment Fee. Borrower agrees to pay to the Lender an Unused Commitment Fee on the average daily unused portion of the Revolving Line of Credit Loan Commitment from the effective date of this Agreement until the Revolving Line of Credit Loan Maturity Date. Such Unused Commitment Fee shall be equal to a rate of 0.25% per annum, payable in arrears in quarterly installments on the first (1st) day of each third month after the effective date of this Agreement. (e) Draft Loan Program. At the Borrower’s request and at the Lender’s sole discretion, the Borrower may obtain a Revolving Advance by using draft forms furnished by the Lender to the Borrower, subject to the following terms and conditions: (i) Borrower Authorization and Responsibility. The Borrower shall be deemed to have authorized and directed the Lender and its duly authorized agents to accept drafts and to disburse Revolving Line of Credit Loan funds by due execution of any draft.",
"The Borrower shall be responsible for all disbursements made pursuant to this authorization and direction. The Lender shall not be obligated to inquire as to whether the Borrower has issued specific directions for any particular draft or to determine whether the Borrower has received the benefit of the proceeds of any particular draft before honoring such draft. The execution of any draft by the Borrower shall constitute a representation and warranty to the Lender that the conditions set forth in Section 6(e) have been met as of the date of all such drafts. 4 -------------------------------------------------------------------------------- (ii) Minimum Amount. Each draft shall be in a minimum amount equal to $10,000.00 and shall not be written in excess of the Revolving Line of Credit Loan Commitment provided, however; that at no time shall any draft be written that results in the Outstanding Revolving Advance exceeding the Borrowing Base or the Revolving Line of Credit Loan Commitment, whichever is less. (iii) Stop Payment Provisions.",
"The Borrower may stop payment on a draft by written request to the Lender. The Lender shall not be liable in the event the draft is honored following a stop-payment order, if such order is not received in sufficient time to permit the dishonor. The Borrower shall reimburse the Lender for all damages, costs and expenses as a result of the Lender’s refusal to honor a draft due to a stop payment order requested by the Borrower. (iv) Fees.",
"Reasonable fees may be charged the Borrower by Lender for the use of drafts and are subject to change at the Lender’s discretion. In addition, the Borrower may be charged additional fees for each draft that is not in compliance with the provisions set forth in this Section 6(d) and for any draft for which the Borrower requests a stop-payment order. (v) Limitations. The Borrower shall not issue any draft as payment on this or other Loan Obligations of the Borrower or for any purpose other than as permitted in the Loan Documents. (vi) Revocation of Rights and Rejection of Drafts. The Lender reserves the right to revoke all future draft privileges without notice to the Borrower in the event the payment of any draft would result in the Outstanding Revolving Advance exceeding the Borrowing Base or the Revolving Line of Credit Loan commitment, whichever is less. The Lender reserves the right to reject drafts that are not written for purposes specified in or pursuant to the terms and conditions of the Loan Documents.",
"In the event that Lender chooses to honor a draft which exceeds the limits as set forth in this Section 6(d)(ii), Borrower shall repay all the amounts by which the Outstanding Revolving Advances exceed the Borrowing Base or the Revolving Line of Credit Loan Commitment, whichever is less, plus interest and a reasonable overdraft fee, upon demand by Lender. (vii) Notification. The Borrower agrees to immediately notify the Lender in the event one or more drafts are lost, stolen, destroyed or otherwise misused and to indemnify the Lender and hold the Lender harmless from any loss or claim if any draft is lost, stolen, forged, altered or otherwise misused. (viii) Authorization.",
"This authorization and direction shall be effective until the Lender receives written notice of revocation by the Borrower, provided the privilege of using drafts may be terminated by the Lender at any time in its sole discretion. Upon such termination, the Borrower shall surrender to the Lender all unused drafts on demand. (f) Conditions Precedent to All Advances. The Lender’s obligation to make each Advance under the Revolving Line of Credit Note shall be subject to the terms, conditions and covenants set forth in the MLA and this Fifth Supplement, including, without limitation, the following further conditions precedent: (i) Representations and Warranties. The representations and warranties set forth in the MLA and this Fifth Supplement are true and correct in all material respects as of the date of the request for any Advance to the same extent and with the same effect as if made at and as of the date thereof except as disclosed in writing to the Lender; 5 -------------------------------------------------------------------------------- (ii) Compliance With Disbursing Agreement.",
"All of the terms and conditions of the Disbursing Agreement have been satisfied with respect to each such Advance; (iii) No Defaults. The Borrower is not in default under the terms of the MLA, the Related Documents or any other Material Contracts to which the Borrower is a party and which relates to the construction of the Project or the operation of the Borrower’s business; and (iv) Deposit Accounts. The Borrower shall have established and shall maintain all of its primary deposit accounts at Home Federal Savings Bank. 7. Letters of Credit. (a) Commitment to Issue. The Borrower may request Revolving Advances by the Lender, and the Lender, subject to the terms and conditions of this Fifth Supplement, may, in its sole discretion, issue letters of credit for any Borrower’s account (such letters of credit, being hereinafter referred to collectively as the “Letters of Credit”); provided, however, that: (i) the aggregate amount of outstanding Letter of Credit Liabilities shall not at any time exceed the amount of $500,000.00; (ii) the sum of the outstanding Letters of Credit plus the Outstanding Revolving Advances shall not at any time exceed the Borrowing Base. (b) Letter of Credit Request Procedure. The Borrower shall give the Lender irrevocable prior notice (effective upon receipt) on or before 3:00 P.M. (Minneapolis, Minnesota time) on the Business Day three Business Days prior to the date of the requested issuance of a Letter of Credit specifying the requested amount, expiry date and issuance date of each Letter of Credit to be issued and the nature of the transactions to be supported thereby.",
"Any such notice received after 3:00 P.M. (Minneapolis, Minnesota time) on a Business Day shall be deemed to have been received and be effective on the next Business Day. Each Letter of Credit shall be in the form of Exhibit B to this Fifth Supplement, have an expiration date that occurs on or before the Maturity Date, shall be payable in U.S. dollars, must be satisfactory in form and substance to the Lender, and shall be issued pursuant to such documentation as the Lender may require, including, without limitation, the Lender’s standard form letter of credit request and reimbursement Fifth Supplement; provided that, in the event of any conflict between the terms of such Fifth Supplement and the other Loan Documents, the terms of the other Loan Documents shall control. (c) Letter of Credit Fees. The Borrower shall pay to the Lender for (i) all fees, costs, and expenses of the Lender arising in connection with any Letter of Credit, including the Lender’s customary fees for amendments, transfers, and drawings on Letters of Credit and (ii) on the date of the issuance of the Letter of Credit, and at the anniversary date of issuance of such Letter of Credit, an issuance fee equal to two and one-half (2.5%) percent, on an annualized basis, of the maximum amount available to be drawn under the Letter of Credit.",
"(d) Funding of Drawings. Upon receipt from the beneficiary of any Letter of Credit of any demand for payment or other drawing under such Letter of Credit, the Issuer shall promptly notify the Borrower as to the amount to be paid as a result of such demand or drawing and the respective payment date. Any notice pursuant to the forgoing sentence shall specify the amount to be paid as a result of such demand or drawing and the respective payment date. 6 -------------------------------------------------------------------------------- (e) Reimbursements. After receipt of the notice delivered pursuant to clause (d) of this section with respect to a Letter of Credit, the Borrower shall be irrevocably and unconditionally obligated to reimburse the Lender for any amounts paid by the Lender upon any demand for payment or drawing under the applicable Letter of Credit, without presentment, demand, protest, or other formalities of any kind other than the notice required by clause (d) of this section.",
"Such reimbursement shall occur no later than 3:00 P.M. (Minneapolis, Minnesota time) on the date of payment under the applicable Letter of Credit if the notice under clause (d) of this section is received by 2:00 P.M. (Minneapolis, Minnesota time) on such date or by 11:00 A.M. (Minneapolis, Minnesota time) on the next Business Day, if such notice is received after 2:00 P.M. (Minneapolis, Minnesota time). All payments on the Reimbursement Obligations (including any interest earned thereon) shall be made to the Lender for the account of the Lender in U.S. dollars and in immediately available funds, without set-off, deduction, or counterclaim. (f) Reimbursement Obligations Absolute.",
"The Reimbursement Obligations of the Borrower under this Fifth Supplement shall be absolute, unconditional, and irrevocable, and shall be performed strictly in accordance with the terms of the Loan Documents under all circumstances whatsoever and the Borrower hereby waives any defense to the payment of the Reimbursement Obligations based on any circumstance whatsoever, including, without limitation, in any case, the following circumstances: (i) any lack of validity or enforceability of any Letter of Credit or any other Loan Document; (ii) any amendment or waiver of or any consent to departure from any Loan Document; (iii) the existence of any claim, set-off, counterclaim, defense, or other rights which any Borrower or any other Person may have at any time against any beneficiary of any Letter of Credit, the Lender or any other Person, whether in connection with any Loan Document or any unrelated transaction; (iv) any statement, draft, or other documentation presented under any Letter of Credit proving to be forged, fraudulent, invalid, or insufficient in any respect or any statement therein being untrue or inaccurate in any respect whatsoever; (v) payment by the Lender under any Letter of Credit against presentation of a draft or other document that does not comply with the terms of such Letter of Credit; or (vi) any other circumstance whatsoever, whether or not similar to any of the foregoing; provided that Reimbursement Obligations with respect to a Letter of Credit may be subject to avoidance by a Borrower if the Borrower proves in a final non-appealable judgment that it was damaged and that such damage arose directly from the Lender’s willful misconduct or gross negligence in determining whether the documentation presented under the Letter of Credit in question complied with the terms thereof.",
"(g) Issuer Responsibility. Borrower assumes all risks of the acts or omissions of any beneficiary of any Letter of Credit with respect to its use of such Letter of Credit. Neither the Lender, nor any of its respective officers or directors shall have any responsibility or liability to the Borrower or any other Person for: (a) the failure of any draft to bear any reference or adequate reference to any Letter of Credit, or the failure of any documents to accompany any draft at negotiation, or the failure of any Person to surrender or to take up any Letter of Credit or to send documents apart from drafts as required by the terms of any Letter of Credit, or the failure of any Person to note the amount of any instrument on any Letter of Credit, each of which requirements, if contained in any Letter of Credit itself, it is agreed may be waived by the Lender; (b) errors, omissions, interruptions, or delays in transmission or delivery of any messages; (c) the validity, sufficiency, or genuineness of any draft or other document, or any endorsement(s) thereon, even if any such draft, document or endorsement should in fact prove to be in any and all respects invalid, insufficient, fraudulent, or forged or any statement therein is untrue or inaccurate in any respect; (d) the payment by the Lender to the beneficiary of any Letter of Credit against presentation of any draft or other document that does not comply with the terms of the Letter of Credit; or (e) any other circumstance whatsoever in making or failing to make any payment under a Letter of Credit.",
"The Lender may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary. 7 -------------------------------------------------------------------------------- 8. Interest Rate. Subject to the provisions of Sections 9 and 11 of this Fifth Supplement, the Revolving Line of Credit Loan shall bear interest at a rate equal to the LIBOR Rate plus 325 basis points. The computation of interest, amortization, maturity and other terms and conditions of the Revolving Line of Credit Loan shall be as provided in the Revolving Line of Credit Note, provided, however, in no event shall the applicable rate exceed the maximum nonusurious interest rate, if any, that at any time, or from time to time, may be contracted for, taken, reserved, charged, or received under applicable state or federal laws (the “Maximum Rate”). Notwithstanding the foregoing, in no event shall the rate of interest under the Revolving Line of Credit Loan be less than six (6.0%) percent per annum until paid in full.",
"9. Default Interest. In addition to the rights and remedies set forth in the MLA: (i) if the Borrower fails to make any payment to Lender when due (including, without limitation, any purchase of equity of Lender when required), then at Lender’s option in each instance, such obligation or payment shall bear interest from the date due to the date paid at 2% per annum in excess of the rate of interest that would otherwise be applicable to such obligation or payment; (ii) upon the occurrence and during the continuance of an Event of Default beyond any applicable cure period, if any, at Lender’s option in each instance, the unpaid balances of the Revolving Line of Credit Loan shall bear interest from the date of the Event of Default or such later date as Lender shall elect at 2% per annum in excess of the rate(s) of interest that would otherwise be in effect on the Revolving Line of Credit Loan under the terms of the Revolving Line of Credit Note; (iii) after the maturity of the Revolving Line of Credit Loan, whether by reason of acceleration or otherwise, the unpaid principal balance of the Revolving Line of Credit Loan (including without limitation, principal, interest, fees and expenses) shall automatically bear interest at 2% per annum in excess of the rate of interest that would otherwise be in effect on the Revolving Line of Credit Loan under the terms of the Revolving Line of Credit Note.",
"Interest payable at the Default Rate shall be payable from time to time on demand or, if not sooner demanded, on the last day of each calendar month. 10. Late Charge. If any payment of principal or interest due under this Fifth Supplement or the Revolving Line of Credit Note is not paid within ten (10) days of the due date thereof, the Borrower shall, in addition to such amount, pay a late charge equal to five percent (5%) of the amount of such payment. 11. Changes in Law Rendering Certain LIBOR Rate Loans Unlawful. In the event that any change in any applicable law (including the adoption of any new applicable law) or any change in the interpretation of any applicable law by any judicial, governmental or other regulatory body charged with the interpretation, implementation or administration thereof, should make it (or in the good-faith judgment of the Lender should raise a substantial question as to whether it is) unlawful for the Lender to make, maintain or fund LIBOR Rate Loans, then: (a) the Lender shall promptly notify each of the other parties hereto; and (b) the obligation of the Lender to make LIBOR rate loans of such type shall, upon the effectiveness of such event, be suspended for the duration of such unlawfulness.",
"During the period of any suspension, Lender shall make loans to Borrower that are deemed lawful and that as closely as possible reflect the terms of the MLA. 12. Payments and Computations. (a) Method of Payment. Except as otherwise expressly provided herein, all payments of principal, interest, and other amounts to be made by the Borrower under the Loan Documents shall be made to the Lender in U.S. dollars and in immediately available funds, without set-off, deduction, or counterclaim, not later than 2:00 P.M. (Minneapolis, Minnesota time) on the date on 8 -------------------------------------------------------------------------------- which such payment shall become due (each such payment made after such time on such due date to be deemed to have been made on the next succeeding Business Day). The Borrower shall, at the time of making each such payment, specify to the Lender the sums payable under the Loan Documents to which such payment is to be applied and in the event that the Borrower fail to so specify or if an Event of Default exists, the Lender may apply such payment and any proceeds of any Collateral to the Loan Obligations in such order and manner as it may elect in its sole discretion, subject to Section 12(c).",
"(b) Application of Funds. Apply all payments received by it to the Borrower’s obligations to Lender in such order and manner as Lender may elect in its sole discretion; provided that any payments received from any guarantor or from any disposition of any collateral provided by such guarantor shall only be applied against obligations guaranteed by such guarantor. (c) Payments on a Non-Business Day. Whenever any payment under any Loan Document shall be stated to be due on a day that is not a Business Day, such payment may be made on the next succeeding Business Day, and such extension of time shall in such case be included in the computation of the payment of interest and fees, as the case may be. (d) Proceeds of Collateral. All proceeds received by the Lender from the sale or other liquidation of the Collateral when an Event of Default exists shall first be applied as payment of the accrued and unpaid fees and expenses of the Lender hereunder and then to all other unpaid or unreimbursed Loan Obligations (including reasonable attorneys’ fees and expenses) owing to the Lender and then any remaining amount of such proceeds shall be applied to the unpaid amounts of Loan Obligations, until all the Loan Obligations have been paid and satisfied in full or cash collateralized.",
"After all the Loan Obligations (including without limitation, all contingent Loan Obligations) have been paid and satisfied in full, all Commitments terminated and all other obligations of the Lender to the Borrower otherwise satisfied, any proceeds of Collateral shall be delivered to the Person entitled thereto as directed by the Borrower or as otherwise determined by applicable law or applicable court order. (e) Computations. Except as expressly provided otherwise herein, all computations of interest and fees shall be made on the basis of actual number of days lapsed over a year of 365 or 366 days, as appropriate. Interest shall accrue from and include the date of borrowing, but exclude the date of payment. 13.",
"Maximum Amount Limitation. Anything in this MLA, this Fifth Supplement, or the other Loan Documents to the contrary notwithstanding, Borrower shall not be required to pay unearned interest on the Revolving Line of Credit Note or any of the Loan Obligations, or ever be required to pay interest on the Revolving Line of Credit Note or any of the Loan Obligations at a rate in excess of the Maximum Rate, if any. If the effective rate of interest which would otherwise be payable under the MLA, this Fifth Supplement, the Revolving Line of Credit Note, or any of the other Loan Documents would exceed the Maximum Rate, if any, then the rate of interest which would otherwise be contracted for, charged, or received under the MLA, this Fifth Supplement, the Revolving Line of Credit Note, or any of the other Loan Documents shall be reduced to the Maximum Rate, if any. If any unearned interest or discount or property that is deemed to constitute interest (including, without limitation, to the extent that any of the fees payable by Borrower for the Loan Obligations to the Lender under the MLA, this Fifth Supplement, the Revolving Line of Credit Note, or any of the other Loan Documents are deemed to constitute interest) is contracted for, charged, or received in excess of the Maximum Rate, if any, then such interest in excess of the Maximum Rate shall be deemed a mistake and canceled, shall not be collected or collectible, and if paid nonetheless, shall, at the option of the holder of the Revolving Line of Credit Note, be either refunded to the Borrower, or credited on the principal of the Revolving Line of Credit Note.",
"It is further agreed that, without limitation of the foregoing and to the extent permitted by applicable law, all calculations of the rate of interest or discount contracted for, charged or received by 9 -------------------------------------------------------------------------------- the Lender under the Revolving Line of Credit Note, or under any of the Loan Documents, that are made for the purpose of determining whether such rate exceeds the Maximum Rate applicable to the Lender, if any, shall be made, to the extent permitted by applicable laws (now or hereafter enacted), by amortizing, prorating and spreading during the period of the full terms of the Advances evidenced by the Revolving Line of Credit Note, and any renewals thereof all interest at any time contracted for, charged or received by Lender in connection therewith. This section shall control every other provision of all agreements among the parties to the MLA pertaining to the transactions contemplated by or contained in the Loan Documents, and the terms of this section shall be deemed to be incorporated in every Loan Document and communication related thereto.",
"14. Lender Records. All advances and all payments or prepayments made thereunder on account of principal or interest may be evidenced by the Lender in accordance with its usual practice in an account or accounts evidencing such advances and all payments or prepayments thereunder from time to time and the amounts of principal and interest payable and paid from time to time thereunder; in any legal action or proceeding in respect of the Notes, the entries made in such account or accounts shall be prima facie evidence of the existence and amounts of all advances and all payments or prepayments made thereunder on account of principal or interest. Lender shall provide monthly statements of such entries to Borrower for the purpose of confirming the accuracy of such entries. 15. Mandatory Prepayments or Collateralization. The Borrowers shall, within five (5) days following the earlier of the delivery of each Borrowing Base Certificate hereof or the day upon which such Borrowing Base Certificate was due, either (i) prepay the Advances in the amount, if any, by which the Outstanding Credit on the date of prepayment under this Section 15 exceeds the Borrowing Base at such time, together with accrued interest to the date of such prepayment on the amount prepaid, or (ii) pledge and assign to the Lender additional collateral acceptable to the Lender, in the Lender’s sole discretion, and deliver all documentation that the Lender, in its sole discretion, may require in connection with such pledge and assignment and the perfection of a first-priority security interest in such additional collateral, so that the Borrowing Base plus the value assigned by the Lender, in its sole discretion, to such additional collateral equals or exceeds the Outstanding Credit.",
"16. Loan Payments. During the continuance of an Event of Default, the Lender may deduct any obligations due or any other amounts due and payable by the Borrower under the Loan Documents from any accounts maintained with the Lender. 17. Reporting Requirements. In addition to the reporting requirements under Section 5.01(c) in the MLA, the Borrower will furnish to the Lender as soon as available and in any event within 30 days after the end of each month (or at such other times or with such greater frequency as is requested by the Lender), a duly completed Borrowing Base Certificate, setting forth the Borrowing Base as of the last day of such month calculated based upon collateral value criteria and advance rates which do not exceed those set forth in the Borrowing Base Certificate, and including such other information, representation and warranties contemplated therein, certified by the appropriate authorized officer of the Borrower.",
"18. Compensation. Upon the request of the Lender, the Borrower shall pay to the Lender such amount or amounts as shall be sufficient (in the reasonable opinion of the Lender) to compensate it for any loss, cost, or expense (excluding loss of anticipated profits incurred by it) as a result of: (i) any payment, prepayment, or conversion of a LIBOR rate loan for any reason on a date other than the last day of the Interest Period for such Loan; or (ii) any failure by the Borrower for any reason (including, without limitation, the failure of any condition precedent specified in the MLA or this Fifth Supplement to be satisfied) to borrow, extend, or prepay a LIBOR rate loan on the date for such borrowing, extension, or prepayment specified in the relevant notice of borrowing, extension or prepayment under this Agreement. 10 -------------------------------------------------------------------------------- Such indemnification may include any amount equal to the excess, if any, of: (a) the amount of interest which would have accrued on the amount so prepaid, or not so borrowed, converted or extended, for the period from the date of such prepayment or of such failure to borrower, convert or extend to the last day of the applicable Interest Period (or in the case of a failure to borrow, convert or extend, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such loan as provided for herein; over (b) the amount of interest (as reasonably determined by the Lender) which would have accrued to the Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank LIBOR market.",
"The covenants of the Borrower set forth in this section shall survive the repayment of the Revolving Line of Credit Loan and other obligations under the Loan Documents hereunder. 19. Security. The Borrower’s obligations hereunder and, to the extent related thereto, the MLA, shall be secured as provided in the MLA. 20. Effect of Fifth Supplement. The execution and delivery of this Fifth Supplement and the Revolving Line of Credit Note shall supercede and replace in its entirety the Fourth Amended and Restated Second Supplement and the Second Amended and Restated Revolving Note dated May 18, 2007, which shall be of no force or effect. 11 -------------------------------------------------------------------------------- IN WITNESS WHEREOF, the parties have caused this Fifth Supplement to the Fourth Amended and Restated Master Loan Agreement to be executed by their duly authorized officers as of the date shown above. HERON LAKE BIOENERGY, LLC a Minnesota limited liability company By: /s/ Robert J. Ferguson Name: Robert J. Ferguson Title: President 12 -------------------------------------------------------------------------------- Dated: July 2, 2010 AGSTAR FINANCIAL SERVICES, PCA an United States corporation By: /s/ Mark Schmidt Mark Schmidt Its Vice President [Signature page for Amended and Restated Fifth Supplement] 13 -------------------------------------------------------------------------------- EXHIBIT A BORROWING BASE CERTIFICATE Date: , 1 Accounts Receivable: (ethanol) $ (DDGs) $ Other $ Other $ Total $ Deduct Ineligible Accounts (31 days or more from invoice date) $ Deduct Ineligible Accounts (as determined by Bank) $ Eligible Accounts Receivable $ Multiply by Borrowing Base Factor 75.00 % Accounts Receivable Loan Availability $ 2 Corn and Distiller’s Dried Grain (current value) Ending Corn Inventory $ Ending DDGs Inventory $ Total Inventory Multiply by Borrowing Base Factor 75.00 % Corn Inventory Loan Availability $ 3 Ethanol Inventories (lower of cost or market) Ending Fuel Ethanol Inventory $ Ending Denaturant Inventory $ Ending AA Enzyme Inventory $ Ending GA Enzyme Inventory $ Other Inventory Total Inventory $ Multiply by Borrowing Base Factor 75.00 % Inventory Loan Availability $ 4 Total Borrowing Base (Totals from #1, #2, & #3) $ 5 Outstanding Loan Balance (as of month end) $ 6 Margin (Line 4 minus Line 5) $ 14 -------------------------------------------------------------------------------- EXHIBIT B FORM OF LETTER OF CREDIT IRREVOCABLE STANDBY LETTER OF CREDIT NO.",
"(Date) (Beneficiary) Ladies and Gentlemen: At the request of Heron Lake BioEnergy, LLC, , Heron Lake, MN , we hereby establish our Irrevocable Standby Letter of Credit in your favor in the amount of $ U.S. dollars. We undertake that drawings under this Irrevocable Standby Letter of Credit will be honored upon presentation of your draft drawn on AgStar Financial Services, PCA, at 1921 Premier Drive, Mankato, Minnesota 56002-4249 and the original of this Irrevocable Standby Letter of Credit prior to the expiration date set forth herein.",
"All drafts submitted to Agstar Financial Services, PCA must indicate the number and date of this Irrevocable Standby Letter of Credit. This Irrevocable Standby Letter of Credit expires on . Except as expressly stated herein, this undertaking is not subject to any conditions or qualification. The obligation of AgStar Financial Services, PCA, under this Irrevocable Standby Letter of Credit shall be the individual obligation of AgStar Financial Services, PCA, and in no way contingent upon reimbursement with respect thereto.",
"This Irrevocable Standby Letter of Credit is subject to the Uniform Customs and Practice for Documentary Credits, 1993 Version, of the International Chamber of Commerce or any successor publication. Sincerely, AGSTAR FINANCIAL SERVICES, PCA Mark Schmidt 15 --------------------------------------------------------------------------------"
] | https://github.com/TheAtticusProject/cuad | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
|
Citation Nr: 1223783
Decision Date: 07/10/12 Archive Date: 07/18/12
DOCKET NO. 96-08 800 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois
THE ISSUES
1. Entitlement to service connection for a disability manifested by multiple joint aches and pains, to include as due to an undiagnosed illness.
2. Entitlement to service connection for kidney stones, to include as due to an undiagnosed illness.
REPRESENTATION
Appellant represented by: Deanne L. Bonner, Attorney at law
WITNESSES AT HEARINGS ON APPEAL
Appellant and spouse
ATTORNEY FOR THE BOARD
M. C. Graham, Counsel
INTRODUCTION
The appellant is a Veteran who served on active duty from July 1983 to September 1983, and from November 1990 to June 1991. His military personnel records show that he was deployed in the Southwest Asia theater of operations from December 1990 to April 1991. These matters are before the Board of Veterans' Appeals (Board) on appeal from an October 1995 rating decision of the Louisville, Kentucky Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's claims file is now in the jurisdiction of the Chicago, Illinois RO. In January 2001, October 2004, November 2006, February 2008, and June 2009, these matters were remanded for additional development.
In a February 2008 decision, the Board denied the kidney stone claim on appeal, and in March 2010 the Board denied the claim for a disorder manifested by multiple joint aches and pains. The Veteran appealed those determinations to the United States Court of Appeals for Veterans Claims (Court), resulting in Joint Motions for Remand (Joint Motions) by the parties. By December 2009 (kidney stones) and December 2010 (multiple joint aches and pains) Orders, the Court remanded these matters for compliance with the instructions in the Joint Motions.
The Veteran had also initiated an appeal of a denial of service connection for fatigue. As an interim, October 2009, rating decision granted such benefit, the Veteran's appeal of that issue is satisfied and such matter is not before the Board.
The matter of service connection for a disability manifested by aches and pains of the lumbar spine, to include degenerative arthritis, which was remanded by the Board in March 2010, remains in remand status and will not be addressed herein.
The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required.
REMAND
The Veteran has presented testimony at two hearings before two different Veterans Law Judges (VLJs). The first (videoconference) hearing was held in November 2000, and the second (Travel Board) hearing was held in November 2003. Transcripts of those hearings are associated with the claims files. The same issues were addressed at both hearings.
The law requires that the VLJ who conducts a hearing on an appeal must participate in any decision made on that appeal. 38 U.S.C.A. § 7101(c); 38 C.F.R. § 20.707. Additionally, when two hearings have been held by different VLJs concerning the same issues the law also requires that the Board assign a third VLJ to decide those issues because a proceeding before the Board may be assigned either to an individual VLJ or a panel of three VLJs.
In May 2012, the Veteran was sent a letter asking him if he wanted to appear at another hearing before a third Veterans Law Judge who would be assigned to decide the appeal along with the other Veterans Law Judges who previously held hearings with him on these issues. In June 2012, the Veteran requested a three-way videoconference hearing before a third VLJ: he would appear at the Chicago RO and his attorney would appear at the Detroit RO. Videoconference hearings are scheduled by the RO.
Accordingly, the case is REMANDED for the following action:
Schedule the Veteran for a videoconference hearing at the Chicago, Illinois RO. Coordinate with the Detroit RO to enable the Veteran's attorney to appear at that facility. Also coordinate with the Board's hearing unit in Washington, DC for scheduling before a third VLJ. The Veteran and his attorney should be notified of the time and place to report for the hearing.
The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011).
_________________________________________________
GEORGE R. SENYK
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2011). | 07-10-2012 | [
"Citation Nr: 1223783 Decision Date: 07/10/12 Archive Date: 07/18/12 DOCKET NO. 96-08 800 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for a disability manifested by multiple joint aches and pains, to include as due to an undiagnosed illness. 2. Entitlement to service connection for kidney stones, to include as due to an undiagnosed illness. REPRESENTATION Appellant represented by: Deanne L. Bonner, Attorney at law WITNESSES AT HEARINGS ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD M. C. Graham, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from July 1983 to September 1983, and from November 1990 to June 1991. His military personnel records show that he was deployed in the Southwest Asia theater of operations from December 1990 to April 1991. These matters are before the Board of Veterans' Appeals (Board) on appeal from an October 1995 rating decision of the Louisville, Kentucky Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's claims file is now in the jurisdiction of the Chicago, Illinois RO.",
"In January 2001, October 2004, November 2006, February 2008, and June 2009, these matters were remanded for additional development. In a February 2008 decision, the Board denied the kidney stone claim on appeal, and in March 2010 the Board denied the claim for a disorder manifested by multiple joint aches and pains. The Veteran appealed those determinations to the United States Court of Appeals for Veterans Claims (Court), resulting in Joint Motions for Remand (Joint Motions) by the parties. By December 2009 (kidney stones) and December 2010 (multiple joint aches and pains) Orders, the Court remanded these matters for compliance with the instructions in the Joint Motions. The Veteran had also initiated an appeal of a denial of service connection for fatigue. As an interim, October 2009, rating decision granted such benefit, the Veteran's appeal of that issue is satisfied and such matter is not before the Board. The matter of service connection for a disability manifested by aches and pains of the lumbar spine, to include degenerative arthritis, which was remanded by the Board in March 2010, remains in remand status and will not be addressed herein. The appeal is REMANDED to the Department of Veterans Affairs Regional Office.",
"VA will notify the appellant if further action is required. REMAND The Veteran has presented testimony at two hearings before two different Veterans Law Judges (VLJs). The first (videoconference) hearing was held in November 2000, and the second (Travel Board) hearing was held in November 2003. Transcripts of those hearings are associated with the claims files. The same issues were addressed at both hearings. The law requires that the VLJ who conducts a hearing on an appeal must participate in any decision made on that appeal. 38 U.S.C.A. § 7101(c); 38 C.F.R. § 20.707. Additionally, when two hearings have been held by different VLJs concerning the same issues the law also requires that the Board assign a third VLJ to decide those issues because a proceeding before the Board may be assigned either to an individual VLJ or a panel of three VLJs.",
"In May 2012, the Veteran was sent a letter asking him if he wanted to appear at another hearing before a third Veterans Law Judge who would be assigned to decide the appeal along with the other Veterans Law Judges who previously held hearings with him on these issues. In June 2012, the Veteran requested a three-way videoconference hearing before a third VLJ: he would appear at the Chicago RO and his attorney would appear at the Detroit RO. Videoconference hearings are scheduled by the RO.",
"Accordingly, the case is REMANDED for the following action: Schedule the Veteran for a videoconference hearing at the Chicago, Illinois RO. Coordinate with the Detroit RO to enable the Veteran's attorney to appear at that facility. Also coordinate with the Board's hearing unit in Washington, DC for scheduling before a third VLJ. The Veteran and his attorney should be notified of the time and place to report for the hearing. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet.",
"App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). _________________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.",
"This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2011)."
] | https://drive.google.com/drive/folders/12lAd8Os7VFeqbTKi4wcqJqODjHIn0-yQ?usp=sharing | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
236 F. Supp. 8 (1964) Milton C. HONSEY, Connie Burchett, Harold H. Hoffmann, Donald L. Huber, Clark Mac Gregor, Glenn G. C. Olson, Stanley W. Olson, Richard J. Parish and Kenneth Wolfe, Plaintiffs, v. Joseph L. DONOVAN, Secretary of State of the State of Minnesota, Eugene A. Monick, Auditor of Ramsey County, Minnesota, Robert F. Fitzsimmons, Auditor of Hennepin County, Minnesota, Kenneth W. Campbell, Auditor of Anoka County, Minnesota, Carl D. Onischuk, Auditor of Dakota County, Minnesota, Individually as Auditors of Their Respective Counties and as Representatives of All County Auditors of the State of Minnesota, Defendants. Donald Sinclair, Rudolph Hanson, William C. Novosad, A. P. Lofgren, Charles Cheney, Richard C. Bergan, S. W. Rodekuhr, Martin L. Vanseth, and David G. Kankel, Intervening Defendants. No. 4-64-Civ. 169. United States District Court D. Minnesota, Fourth Division. December 4, 1964. *9 *10 Vernon E. Bergstrom and Clayton L. LeFevere, of Howard, Peterson, LeFevere, Lefler & Hamilton, Minneapolis, Minn., for plaintiffs. Walter F. Mondale, Atty. Gen., State of Minnesota, and John F. Casey, Jr., Deputy Atty. Gen., Saint Paul, Minn., for defendant Joseph L. Donovan. William B. Randall, County Atty., Ramsey County, and Thomas M. Quayle, Asst. County Atty., Ramsey County, Saint Paul, Minn., for defendant Eugene A. Monick. George M. Scott, County Atty., Hennepin County, Minneapolis, Minn., for defendant Robert F. Fitzsimmons. Robert W. Johnson, County Attorney, Anoka County, Anoka, Minn., for defendant Kenneth W. Campbell. J. Jerome Kluck, County Atty., Dakota County, Hastings, Minn., for defendant Carl D. Onischuk. Gordon Rosenmeier and John E. Simonett, Little Falls, Minn., for intervenors Donald Sinclair and Rudolph Hanson. William P. Scott, of Scott & Miller, Gaylord, Minn., for intervenor William C. Novosad. Lyman A. Brink, of Brink & Sobolik, Hallock, Minn., for intervenors A. P. Lofgren, Charles Cheney, Richard C. Bergan, C. W. Rodekuhr, Martin L. Vanseth and David G. Kankel. Before BLACKMUN, Circuit Judge, DEVITT, Chief District Judge, and NORDBYE, District Judge. BLACKMUN, Circuit Judge. This suit, instituted June 4, 1964, is based on those civil rights statutes which are now compiled as 42 U.S.C. §§ 1983 and 1988 and 28 U.S.C. § 1343(3) and (4). It challenges the validity of the present apportionment of both houses of the bicameral Minnesota legislature. The nine plaintiffs are residents and qualified voters of Anoka, Dakota, Hennepin, and Ramsey Counties, respectively; these embrace the State's Twin City metropolitan area. The complaint seeks, among other relief, (a) to have the most recent Minnesota legislative redistricting act, Laws 1959, Ex.Sess., ch. 45, now M.S.A. §§ 2.02 to 2.715, inclusive, declared *11 void and violative of both the equal protection clause of the fourteenth amendment of the Constitution of the United States and the equal-apportionment-of-both-houses-by-population requirement[1] of Article IV, § 2, of the Constitution of the State of Minnesota; (b) to restrain the defendant Donovan, who is the Minnesota Secretary of State, and the other defendants, who are the auditors of the four named counties, individually and as representatives of all other Minnesota county auditors, from performing acts necessary for the election of members of the state legislature, under the existing statutes, until the legislative districts have been properly reapportioned; and (c) to direct that elections for legislators be at large until new and proper apportionment legislation has been enacted. The defendants by their answer ask that the suit be dismissed or, in the alternative, that the court defer action until the adjournment of the forthcoming 1965 regular legislative session. Inasmuch as the suit is one to restrain the enforcement and execution of Minnesota statutes by a state officer, this three-judge district court was designated. 28 U.S.C. §§ 2281, 2284(1). The pertinent facts are established by the original parties by admissions in the pleadings and by stipulation. The last of the original briefs was filed on August 26. Shortly after the case was so submitted and before a decision was rendered, intervenors Sinclair and Hanson presented their joint application under Rule 24(a) (2), F.R.Civ.P., for leave to intervene as additional defendants as of right. The application, as authorized by 28 U.S.C. § 2284(5), was promptly heard by Judge Devitt and, with all of us concurring, was granted with permission to the intervenors and the plaintiffs to file affidavits and additional briefs.[2] By stipulations and with the court's consent, the other seven intervenors named in the title were also permitted to intervene as additional defendants. The last of the second set of briefs was received on October 30. Intervenors Sinclair and Hanson are, respectively, residents and qualified voters of Marshall and Freeborn Counties, Minnesota. Mr. Sinclair is a Minnesota state senator representing the Sixty-seventh Legislative District consisting of Kittson, Marshall and Roseau Counties in northwestern Minnesota. Mr. Hanson is a Minnesota state senator representing the Ninth Legislative District consisting of Freeborn County in southern Minnesota. Intervenor Novosad is a resident, a qualified voter and the auditor of Sibley County in south central Minnesota. Intervenors Lofgren, Cheney, Bergan, Rodekuhr, Vanseth, and Kankel are the respective auditors of the six counties of Kittson, Marshall, Roseau, Pennington, Polk, and Red Lake, comprising the northwestern corner of the State. Although the complaint requested injunctive relief, this aspect of the case, so far as the 1964 elections for the Minnesota House were concerned, was not seriously pressed upon us. Indeed, the plaintiffs by their brief stated that they did not "insist" that the 1964 candidates run at large. In view of this partial concession and in view of the lateness of the hour when the complaint was filed, we deemed it both unnecessary and undesirable to interfere with the then pending and now immediately past primary and general elections. Reynolds v. Sims, 377 U.S. 533, 585, 84 S. Ct. 1362, 12 L. Ed. 2d 506 (1964). Those elections have taken place in due course. *12 The earlier Minnesota reapportionment case. A suit similar to this one and for like relief, and alleging deprivation of rights guaranteed by the fourteenth amendment, was instituted in this court in 1957 against the defendant Donovan, two of the same county auditors, and others. It attacked the Minnesota legislative apportionment effected by Laws 1913, ch. 91. The 1913 Act was then still in effect even though the Minnesota Constitution, art. IV, § 23, calls for reapportionment at the first legislative session after each federal census.[3] The statutory three-judge federal court designated to hear that case recognized "the unmistakable duty of the State Legislature to reapportion itself periodically in accordance with recent population changes", noted that the legislature was then soon to be elected in its entirety and was to convene in early January 1959, and observed that "It is not to be presumed that the Legislature will refuse to take such action as is necessary to comply with its duty under the State Constitution." Although retaining jurisdiction, the court deferred decision on the issues "in order to afford the Legislature full opportunity to `heed the constitutional mandate to redistrict.'" Magraw v. Donovan, 163 F. Supp. 184, 187-188 (D. Minn.1958). Pending this deferral of decision, the 1959 Minnesota legislature effected the State's current apportionment which, as the original parties by the pleadings concede, is "based, somewhat, on the 1950 federal census". Thereafter the plaintiffs in the 1957 suit moved, under Rule 41(a) (2), F.R.Civ.P., to dismiss that action without prejudice. Judge Bell granted that motion. Magraw v. Donovan, 177 F. Supp. 803 (D.Minn.1959).[4] The federal constitutional development. Since the enactment of the 1959 statute and since the termination of the Magraw litigation the federal constitutional picture has been brought into focus and greatly clarified. The United States Supreme Court, in a series of now well-known decisions, has taken positive action with respect to the federal constitutional aspects of state legislative districting. The first three cases, decided near the end of the Court's 1961 term, were Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962), Scholle v. Hare, 369 U.S. 429, 82 S. Ct. 910, 8 L. Ed. 2d 1 (1962), and WMCA, Inc. v. Simon, 370 U.S. 190, 82 S. Ct. 1234, 8 L. Ed. 2d 430 (1962). A detailed analysis of those cases and of their respective procedural approaches is not necessary here. It suffices merely to say that, among other things, they established (a) that the very civil rights statutes invoked by the plaintiffs here afford a United States district court jurisdiction over a claim of alleged federal unconstitutionality *13 of state legislative districting; (b) that plaintiffs who are qualified to vote for members of a state legislature have standing to sue; and (c) that, in the setting of those cases, an allegation of a denial of the equal protection of the laws under the fourteenth amendment presents a justiciable constitutional cause of action. Clearly, these cases establish the jurisdiction of this court for the present action, the present plaintiffs' standing to sue, and the existence here of a justiciable controversy. This trilogy was followed by Gray v. Sanders, 372 U.S. 368, 83 S. Ct. 801, 9 L. Ed. 2d 821 (1963), which concerned the constitutionality of the use of Georgia's county-unit system in a primary election for the nomination of a United States Senator and state-wide officers and is the source, p. 381, 83 S. Ct. 809, of Mr. Justice Douglas' pronouncement, in a majority setting, of the "one person, one vote" concept, and by Wesberry v. Sanders, 376 U.S. 1, 84 S. Ct. 526, 11 L. Ed. 2d 481 (1964), which concerned the Georgia statute apportioning the state's congressional districts and is the source, p. 20, 84 S.Ct. p. 536 of Mr. Justice Harlan's statement in dissent, "I had not expected to witness the day when the Supreme Court of the United States would render a decision which casts grave doubt on the constitutionality of the composition of the House of Representatives." These two decisions perhaps contained the first definite indications of the Supreme Court's current attitude as to the merits of the apportionment-constitutional issue. Then came the six cases of June 15, 1964, decided, in fact, after the institution of the present lawsuit. These were the Alabama case of Reynolds v. Sims, supra, 377 U.S. 533, 84 S. Ct. 1362; the New York case of WMCA, Inc. v. Lomenzo, 377 U.S. 633, 84 S. Ct. 1418, 12 L. Ed. 2d 568; the Maryland case of Maryland Committee for Fair Representation v. Tawes, 377 U.S. 656, 84 S. Ct. 1429, 12 L. Ed. 2d 595; the Virginia case of Davis v. Mann, 377 U.S. 678, 84 S. Ct. 1441, 12 L. Ed. 2d 609; the Delaware case of Roman v. Sincock, 377 U.S. 695, 84 S. Ct. 1449, 12 L. Ed. 2d 620; and the Colorado case of Lucas v. Forty-fourth General Assembly, 377 U.S. 713, 84 S. Ct. 1459, 12 L. Ed. 2d 632. One week later nine other pending cases were remanded, per curiam, for further proceedings in the light of Reynolds v. Sims and its companions. Swann v. Adams, 378 U.S. 553, 84 S. Ct. 1904, 12 L. Ed. 2d 1033 (Florida); Meyers v. Thigpen, 378 U.S. 554, 84 S. Ct. 1905, 12 L. Ed. 2d 1024 (Washington); Nolan v. Rhodes, 378 U.S. 556, 84 S. Ct. 1906, 12 L. Ed. 2d 1034 (Ohio); Williams v. Moss, 378 U.S. 558, 84 S. Ct. 1907, 12 L. Ed. 2d 1026 (Oklahoma); Germano v. Kerner, 378 U.S. 560, 84 S. Ct. 1908, 12 L. Ed. 2d 1034 (Illinois); Marshall v. Hare, 378 U.S. 561, 84 S. Ct. 1912, 12 L. Ed. 2d 1036 (Michigan); Hearne v. Smylie, 378 U.S. 563, 84 S. Ct. 1917, 12 L. Ed. 2d 1036 (Idaho); Pinney v. Butterworth, 378 U.S. 564, 84 S. Ct. 1918, 12 L. Ed. 2d 1037 (Connecticut); Hill v. Davis, 378 U.S. 565, 84 S. Ct. 1918, 12 L. Ed. 2d 1037 (Iowa). Here, too, it is not necessary for us to discuss in detail the six cases' factual differences. Their holdings and implications, despite the presence of vigorous dissent, are clear. So far as pertinent for the present case, the majority opinions, all written by Mr. Chief Justice Warren, hold: 1. The equal protection clause of the fourteenth amendment requires substantially equal legislative representation for all citizens of a state. This is the basic concept. 2. "[T]he Equal Protection Clause requires that a State make an honest and good faith effort to construct districts, in both houses of its legislature, as nearly of equal population as is practicable." Reynolds v. Sims, p. 577 of 377 U.S., p. 1390 of 84 S.Ct. 3. But "Mathematical exactness or precision is hardly a workable constitutional requirement." Reynolds v. Sims, p. 577 of 377 U.S., p. 1390 of 84 S.Ct. And "it is neither practicable nor desirable to establish rigid mathematical *14 standards * * *. Rather, the proper judicial approach, is to ascertain whether * * * there has been a faithful adherence to a plan of population-based representation, with such minor deviations only as may occur in recognizing certain factors that are free from any taint of arbitrariness or discrimination." Roman v. Sincock, p. 710 of 377 U.S., p. 1470 of 84 S.Ct. 4. "So long as the divergences from a strict population standard are based on legitimate considerations incident to the effectuation of a rational state policy, some deviations from the equal-population principle are constitutionally permissible * * *." Reynolds v. Sims, p. 579 of 377 U.S., p. 1391 of 84 S.Ct. 5. However, weighting of votes according to area is discriminatory. A "built-in bias against voters living in the State's more populous counties" does not meet constitutional standards. WMCA, Inc. v. Lomenzo, p. 654 of 377 U.S., p. 1428 of 84 S.Ct. Also, "neither history alone, nor economic or other sorts of group interests, are permissible factors in attempting to justify disparities from population-based representation. Citizens, not history or economic interests, cast votes." [footnote omitted]. Reynolds v. Sims, pp. 579-80 of 377 U.S., p. 1391 of 84 S.Ct. 6. Any reliance on either the federal Senate and House analogy or on the Federal Electoral College analogy is misplaced. 7. A state "can rationally consider according political subdivisions some independent representation in at least one body of the state legislature, as long as the basic standard of equality of population among districts is maintained" and "provide for compact districts of contiguous territory". But in so doing population must not be "submerged as the controlling consideration in the apportionment of seats in the particular legislative body". Reynolds v. Sims, pp. 580, 578, and 581 of 377 U.S., pp. 1391, 1390, 1392 of 84 S.Ct. 8. "It is simply impossible to decide upon the validity of the apportionment of one house of a bicameral legislature in the abstract, without also evaluating the actual scheme of representation employed with respect to the other house." Maryland Committee for Fair Representation v. Tawes, p. 673 of 377 U.S., p. 1451 of 84 S.Ct. 9. A state may, consistently with the equal protection clause, provide for only periodic revision of its reapportionment scheme. Decennial reapportionment "would clearly meet the minimal requirements for maintaining a reasonably current scheme of legislative representation." But reapportionment accomplished with less frequency "would assuredly be constitutionally suspect." Reynolds v. Sims, 377 U.S. pp. 583-584, 84 S.Ct. p. 1393. 10. "Where a federal court's jurisdiction is properly invoked, and the relevant state constitutional and statutory provisions are plain and unambiguous, there is no necessity for the federal court to abstain pending determination of the state law questions in a state court." Davis v. Mann, p. 690 of 377 U.S., p. 1460 of 84 S.Ct. 11. A court "should attempt to accommodate the relief ordered to the apportionment provisions of state constitutions insofar as is possible." Reynolds v. Sims, p. 584 of 377 U.S., p. 1393 of 84 S.Ct. 12. Reapportionment "is primarily a matter for legislative consideration and determination, and * * * judicial relief becomes appropriate only when a legislature fails to reapportion according to federal constitutional requisites in a timely fashion after having had an adequate opportunity to do so." Reynolds v. Sims, p. 586 of 377 U.S., p. 1394 of 84 S.Ct. Retention of jurisdiction may be appropriate. The Minnesota facts. With these principles in mind, we turn to Minnesota's facts as established by the pleadings, the stipulation, the State's Constitution, and the 1959 Act: By statute (not by its Constitution) the State is divided into "67 senatorial *15 and representative districts". M.S.A. § 2.03. Each district elects one senator. Most districts elect two representatives, but five elect only one and six elect three. This makes a total of 67 senators and 135 representatives. In 17 districts the plural representatives run at large. Every other district which has more than one representative is geographically sub-divided. M.S.A. §§ 2.02, 2.04-2.70. Each house district falls entirely within or is congruent with a senate district and does not overlap another senate district. This meets the state constitutional requirement, art. IV, § 24, that senators shall "be chosen by single districts of convenient contiguous territory * * * and no representative district shall be divided in the formation of a senate district." Although not required by the state Constitution, county lines have been utilized generally in the formulation of districts.[5] Senators serve a 4-year term. Inasmuch as all senators were elected in 1962, they were not up for election in 1964 but, instead, serve until the first Monday in January 1967. House members serve a 2-year term. The present representatives hold their offices until the first Monday in January 1965. Minn. Const. art. IV, § 1, and art. VII, § 9. New house members, therefore, were chosen in the recent 1964 election. They assume office January 4, 1965. In the century which elapsed between the 1857 Minnesota Constitutional Convention and the 1959 Act the State's legislative districts were reapportioned generally seven times, namely, in 1860, 1866, 1871, 1881, 1889, 1897, and 1913. The 1959 Act was thus the eighth reapportionment, but it was the first in 46 years. Because the 1959 Act by its terms, M.S. A. § 2.71, did not go into effect until 1962 and thus affected only the 1962 election and those thereafter, the federal census of 1960 became due and was made in the interim. The Minnesota legislature's regular sessions of 1961 and 1963 and the two extra sessions of 1961 were held after that census. The 1959 Act was not amended at any of those sessions and no redistricting based upon the 1960 census has ever yet been effected. The population of Minnesota increased 14.5% between the 1950 census and that of 1960. This increase was not uniform throughout the state's 87 counties. The increases in the counties in which the respective plaintiffs reside varied from 18.9% (Ramsey) to 141.5% (Anoka). The plaintiffs' four counties were among the nine with the greatest increases. According to the 1960 federal census the population of Minnesota was 3,413,864. This number, divided by the number of senate districts (67) produces a figure of 50,953. When this population is divided by the number of house districts (135), a figure of 25,288 results. Based strictly on the 1960 population figure these are the average or "ideal" numbers for the senate and house districts. Also, according to the 1960 census, the populations of the senate districts range from 100,520 to 24,428. Thus the largest district in population (the Thirtieth, in suburban Hennepin County) has almost twice the average figure; the smallest (the Thirty-eighth, in the City of Minneapolis and also in Hennepin County) has less than half the average figure. The smallest, too, has less than one-third of the population of each of the seven largest districts. The second smallest (the Sixty-fifth) has less than *16 one-third of the population of each of the five largest districts. Each of the third and fourth smallest (the Third and Twenty-ninth) has less than one-third of the population of each of the two largest. The population ratio of each of the five largest to each of the nineteen smallest is over two to one. The same ratio applies between each of the nine largest and the ten smallest. The following ratios represent the population of each of the five districts where six of the plaintiffs reside (two plaintiffs live in the Thirty-first) as compared to the population of one of the adjoining or corner-touching districts: 100,520:24,428 (Thirtieth to Thirty-eighth); 93,919:- 41,815 (Thirty-second to Twelfth); 85,916:29,935 (Fifty-first to Twenty-ninth); 78,303:33,035 (Thirteenth to Sixth); 75,637:29,935 (Thirty-first to Twenty-ninth). The populations of the house districts range from 56,076 to 8,343. Thus the ratio of the largest (the Forty-third North) to the smallest (Kittson County in the Sixty-seventh) is nearly 7 to 1. The ratio of the five largest to the three smallest is over 5 to 1. The ratio of the thirteen largest to the sixteen smallest is over 3 to 1. The ratio of the twenty-five largest to the thirty-three smallest is over 2 to 1. The largest district has over twice the average figure. The smallest has less than one-third of that average. The Forty-third District, divided into North and South, has more than double the number of people in the North than in the South. The same is true of the divided Forty-eighth; as between the City of Austin and Dodge County in the Fifth; as between Nobles County and Rock County in the Nineteenth; as between Lincoln County and Lyon County in the Twentieth; as between Swift County and Kandiyohi County in the Twenty-third; as between Aitkin County and Carlton County in the Fifty-second; as between Clay County and Wilkin County in the Fifty-sixth; as between Becker County and Hubbard County in the Fifty-seventh; and as between Itasca County and Cass County in the Fifty-eighth. Some of these more-than-2-to-1 ratios existed under the figures of the 1950 census. It is stipulated that the disparity of populations of the legislative districts, as shown by the 1960 census, continues to the present time. If one uses the 1960 figures, then one may say that, in 1962, a majority of the state's population was represented by only 26 senators, or 38.8% of the 67 seats, and by only 48 representatives, or 35.5% of the 135 seats. Stating this in reverse, the 34 smallest senatorial districts were represented by the majority of the Senate but contained only 39.1% of the population. The 68 smallest House districts were represented by a majority of the House but contained only 35% of the population.[6] The affidavits filed in connection with the interventions refer to other undisputed facts. We mention these even though the relevancy of some of them may well be questionable. There were reapportionment discussions and activity, within the Minnesota legislature and outside it, not only during the 1959 regular and extra sessions, but, as well, in the regular sessions of 1955 and 1957 and the extra session of 1957. A number of bills were introduced. Some reached advanced stages in the legislative process but none was enacted until the 1959 statute. As a definite companion measure to that Act, the legislature proposed, Laws 1959, Ex. Sess., ch. 47, certain amendments to *17 Article IV of the Minnesota Constitution. Included were fixed maximums of members in both the senate and the house; representation in the house "on the basis of equality according to population"; representation in the senate "in a manner which will give fair representation to all parts of the state"; confinement of the percentage representation of the five counties "adjacent to and including the county containing the seat of government of the state" (Ramsey) to 35% of the members of the senate, even though those counties might have 35% or more of the State's total population; and a mandatory extra session for reapportionment purposes whenever reapportionment was not effected at the first regular session after a decennial census. These amendments were submitted in due course to the state's electorate in 1960 but failed to pass. The legislature was aware of its duty to reapportion. The Legislative Research Committee, created under M.S.A. § 3.31, made its report on relevant apportionment factors in the 1950's. There was a Citizen-Legislator Committee on Reapportionment appointed by the governor in late 1957 to recommend a reapportionment program. Its report was available for the 1959 sessions. The legislature in 1959 was aware of estimated population increases since the 1950 census and by the 1959 Act gave some recognition to increases in the more rapidly growing areas of suburban Hennepin County, Ramsey County, Rochester and its suburbs, Mower County, Anoka County, Washington County, and the City of Saint Cloud. The intervenors' position. The intervenors argue that "the factual environment of none of the Reapportionment Cases is present here"; that "There is no pattern of discrimination which by any test, or by dictionary definition, can be called invidious or arbitrary, notwithstanding obvious population differences"; that "Use of county lines for single county, multi-county districts, or multi-district counties, has been a practical necessity in apportionment to avoid the governmental awkwardness of dividing county government between senatorial districts and multiple representative districts"; that "Minnesota's 1959 reapportionment enactment was a rational plan, designed on county and other governmental subdivision lines, which afforded adequate and substantially equal representation to all parts of the state without sacrificing the equal-population concept, was wholly devoid of invidious discrimination against any area of the state or any population segment, and anticipated in spirit and letter the mandate of Reynolds"; that "Apportionment in Minnesota has followed the almost universal practice in the United States of using the county structure of the state, a practice benignly looked upon by the Court in Reynolds"; that "There was no adjusting of representation to favor rural counties as such or disfavor urban areas as such, nor were suburban districts as such discriminated against"; that "Apportionment to counties in this fashion, based on population, is grounded on the realistic premise that counties are the smallest territorial units to which apportionment can be made rationally"; that "it is important that the measure be seen as redistricting carefully planned and in good faith designed to comply with constitutional requirements"; that the 1959 reapportionment was not based on the 1950 population but "the population of that census was adjusted to what was believed by the evidence presented to the committees to be the actual 1959 population distribution, i. e., the distribution reflected later in the 1960 census"; that "Federal constitutional command should be deemed met by redistricting next according to the 1970 census inasmuch as the 1959 Act was valid when passed"; that apportionment to the plaintiffs' counties as a whole is "demonstrably adequate by constitutional *18 standards"; that in the metropolitan centers each county voter, in effect, has a number of senators and representatives speaking for him "on any parochial interest of legislative stature"; that "it has not been said that a federal court should take cognizance of a local contention that constitutional inequality is alleged because a complainant's district in Minneapolis has more people than another district in the same city, or because a suburban complainant has discovered a district in his county seat and core city has fewer people than his"; that "there could be no question if the same apportionment called for an at-large election" in the county; that there was no complaint to the legislature that any plaintiff's district was inequitably treated when the 1959 Act was passed; and that it has become "common thinking" to allow a variation, which equates with a 1½ to 1 ratio, of 20% from the average population per district. It is to be noted (a) that this argument clearly concedes the existence of "obvious population differences"; (b) that it stresses the use of county lines "as a practical necessity"; (c) that at the same time it recognizes, as it must, that exceptions do exist under the 1959 Act in that some counties find themselves allocated to more than one senatorial district; and (d) that it seeks to overcome any intra-county population discrepancy by the approach (which strikes us as one resting not essentially on fact but on concepts of political theory) that the voter in the multiple-district county really has multiple representation in the legislature and that, therefore, a within-the-county population discrepancy is of no constitutional consequence. We need not consider the "state of mind" of the legislature or of individual members thereof in the formulation and passage of the 1959 Act. Neither do we need to consider any question of basic good faith in the enactment of that legislation or, indeed, any question of the validity of the 1959 Act as of the time of its passage. We do not impugn the legislature's motive and we may assume that it acted in good faith. But all this does not render the 1959 Act, based, as it was, on the 1950 census updated, impervious to federal constitutional attack on facts which exist five years later in 1964. The admitted legislative district population figures, both senate and house, clearly demonstrate, it seems to us, first, that the plaintiffs have sustained their burden of proof, Thigpen v. Meyers, 211 F. Supp. 826, 832 (W.D. Wash.1962), affirmed on the merits and remanded, 378 U.S. 554, 84 S. Ct. 1905; Mann v. Davis, 213 F. Supp. 577, 584, (E.D.Va., 1962) affirmed on the merits and remanded, 377 U.S. 678, 84 S. Ct. 1441, and, second, that the 1959 apportionment presently violates the equal protection clause of the fourteenth amendment and fails to meet the minimal standards promulgated by the United States Supreme Court in the several recent cases which have been cited. Those standards, of course, are binding upon the Minnesota legislature, are binding upon us as a federal court and would be equally binding upon a Minnesota court if this litigation were in a state tribunal. Maryland Committee for Fair Representation v. Tawes, supra, p. 674 of 377 U.S., 84 S. Ct. 1429. The Minnesota Constitution, as has been noted, relates representation in both houses solely to population. We therefore are not confronted here with the situation, present in some cases, where the applicable state statute or constitutional provision recognizes factors other than population. But the disparities in population-representation apparent from the Supreme Court's opinions, even accepting in each the most favorable plan under consideration, reveal that the present Minnesota apportionment falls short of the prescribed *19 standards and is not legitimatized by proper "considerations incident to the effectuation of a rational state policy". Thus we have:
Percentage represented by majority Population variance (upper and lower State and case (upper and lower house) house) Alabama, Reynolds v. Sims 20-1 and 5-1 27.6% and 37% New York, WMCA, Inc. v. Lomenzo 3.9-1 and 21-1 41.8% and 34.7% Maryland, Maryland Committee for Fair Representation v. Tawes 34-1 and 6-1 14.1% and 35.6% Virginia, Davis v. Mann 2.65-1 and 4.36-1 41.1% and 40.5% Delaware, Roman v. Sincock 15-1 and 12-1 21% and 28% Colorado, Lucas v. Forty-fourth General Assembly 3.6-1 and 1.7-1 33.2% and 45.1%
These compare, as above noted, with Minnesota population variances of 4 to 1 and almost 7 to 1 and majority representation percentages of 39.1% and 35%. The Virginia discrepancies in all respects were less than those of Minnesota and would be less still if, as was urged, the large number of military personnel in that state were not taken into account. Yet, in Davis v. Mann, supra, p. 691 of 377 U.S., p. 1460 of 84 S.Ct. it was held that the "state legislative malapportionment, whether resulting from prolonged legislative inaction or from failure to comply sufficiently with federal constitutional requisites, although reapportionment is accomplished periodically, falls * * * within the proscription of the Equal Protection Clause." That case flatly controls this one, not only in its holding, but upon its facts. The intervenors would assert, however, that, while there are population variances in Minnesota under the 1959 Act, these result from "no pattern of discrimination against any part of the state or in favor of any part of the state" and "no design to dilute the vote of the people of any area". They point out that some of the least populated Minnesota districts are in the metropolitan area but others are spread all over the state and that some rural areas are also among the most populated districts. It is suggested that Reynolds v. Sims and its companion cases have, as an essential element, "a deliberate weighting of the votes of the citizens of one area against those of another area". We do not read the June 1964 cases so narrowly and we feel that they are not so easily to be explained away. It is true, of course, that the Supreme Court, as we have pointed out, did say that weighting of votes according to area is discriminatory. But the decisions are far broader than that in their holdings and in their implications. They are concerned with discrimination against individual citizens and groups of citizens and are not confined to discrimination against one type of area or one type of economic or interest group. We repeat that those cases stress equal legislative representation for all citizens and apportionment substantially on a population *20 basis. Failure to meet these standards is improper discrimination. This is so whether the discrimination is against both urban and rural areas, or against only one. A specific pattern of area discrimination is not necessary. Discrimination against some urban areas is not justified because of the simultaneous existence of discrimination against some rural areas. Discrimination is discrimination, wherever it exists and in whatever form it assumes. The intervenors' argument that population variances among districts in the same county have no significance in the determination of constitutionality also merits mention. We find it unpersuasive because, first, the variances evident from the facts before us are not confined to districts within a multi-district county. Thus, for example, the population variance between the Thirtieth District in Hennepin County and the Sixty-fifth District of Norman, Mahnomen and Clearwater Counties is 3.8 to 1. But we also feel that the principles enunciated by the Supreme Court do not stop short in their application at the county line and that it cannot be said that, so long as the county as a whole has an acceptable proportion of legislators, it makes no difference how the intra-county districts are themselves composed. Only slight imagination reveals the extremes to which this approach could take us. The more than 4 to 1 variation between the Hennepin County Thirtieth District and the Hennepin County Thirty-eighth District is an illustration. Neither does the suggestion that a county's legislators could be required to run at large and thereby become invulnerable to constitutional attack lend weight. The same suggestion could also be made as to a state as a whole; despite this, the decisions of June 1964 were rendered. If apportionment is attempted, it must be proper throughout. We feeland we are aware that we are repeating when we say this that what is important here is equality of representation; that inequality in representation in both houses of Minnesota's legislature must be avoided so far as practicable; that this is what is meant by the "one person, one vote" concept; and that a situation where one senator represents over 100,000 people and another senator represents only 24,428, is not one of acceptable equality but is, instead, improperly discriminatory. This is not a matter, so far as this court is concerned, of basic contest between densely populated metropolitan centers, on the one hand, and the less populated areas, on the other, or between cities and rural communities, or between political parties. No one in this day would argue that Citizen X should be entitled to 4 votes in a gubernatorial election but Citizen Y should be entitled to only one. Yet this is not significantly different from the situation where Citizen X must participate with 100,000 others in the election of one state senator, but Citizen Y may participate with only 25,000 others in the election of another state senator. It is in this light and in this respect that apportionment becomes a matter of concern under the equal protection clause of the fourteenth amendment of the United States Constitution. Reynolds v. Sims, supra, pp. 562-63 of 377 U.S., 84 S. Ct. 1362. We should also add a word about the youthful character of the 1959 Act. We recognize that, as the intervenors point out, the last Minnesota apportionment was evolved only a little over five years ago and that the Act became effective only in 1962, less than three years ago. It is then suggested that, since the 1959 Act rested on updated 1950 census figures, reapportionment this soon is not constitutionally demanded until, even, 1970. We doubt if reapportionment may be effected only near the end of the decennial period between censuses and may thereby assume a mantle of validity for another decade.[7] One might wonder, also, why the 1959 Act *21 was not made promptly effective, rather than deferred until after the 1961 elections. We are not sure, as has been suggested, that this was required by the last clause of Article IV, § 24, of the State's Constitution.[8] That provision would seem to require an election of senators at the very next election following reapportionment, even though four years had not elapsed since their last election, rather than to prohibit an election until the four year term had been completed. In any event, we are confronted here with the facts of 1964 and with the interim decisions of the United States Supreme Court which are clear in their import and direct in their mandate. On the present facts the comparative youth of the 1959 Act does not preserve its validity. This determination of federal unconstitutionality is all that the present case requires. Although the complaint also asserts violation of the Minnesota Constitution, we need not meet that issue even if we were to conclude that this court had the power and were an appropriate tribunal so to do. This brings us to the question of remedy. Although the existing Minnesota apportionment plan is invalid, as we here determine, equitable considerations in the aggregate demand that we withhold at this time the requested injunctive relief. We have every confidence that the Minnesota legislature will fulfill its constitutional obligations and, at the forthcoming 1965 regular session (limited by law to 120 legislative days, Minn.Const. art. IV, § 1), will enact appropriate reapportionment legislation effective forthwith, that is, for the 1966 and subsequent elections. We are confident, too, that this can be done without conflict with present Minnesota constitutional provisions even though county lines may have to be respected less strictly, but without gerrymandering, than has been the case in the past. The coming session will provide the legislature, to use the words of Reynolds v. Sims, p. 586 of 377 U.S., 84 S. Ct. 1362, with "an adequate opportunity" to reapportion "in a timely fashion". If the legislature fails to fulfill its constitutional reapportionment duty at its 1965 regular session, then more direct judicial relief may become appropriate. The details of redistricting we recognize as basically and primarily a legislative responsibility. Reynolds v. Sims, supra, p. 586 of 377 U.S., 84 S. Ct. 1362; Maryland Committee for Fair Representation v. Tawes, supra, p. 676 of 377 U.S., 84 S. Ct. 1429. The applicable standards are evident from the six Supreme Court opinions of June 15, 1964. We have endeavored to list, in summary form above, those standards which are pertinent here. We emphasize and repeat, for what assistance it may provide, that among the established guidelines are the following: substantially equal legislative representation is the base; mathematical exactness is not a workable constitutional requirement; there may be present an element, but not the governing one, resting upon the integrity of political subdivisions and other legitimate considerations incident to the effectuation of a rational state policy; this element, however, must be free from arbitrariness or discrimination; neither history alone, nor economic or other group interests are factors which justify disparities from population-based representation; political subdivisions may be accorded some independent representation in at least one house so long as the basic standard of equality of population among districts is maintained; weighting of votes according to residence is discriminatory; and there must be no "built-in bias". We add the following conclusionary comments: 1. We are not unaware of the anomaly which seems to be present in allowing *22 and expecting an improperly constituted or "de facto" legislature to proceed to enact reapportionment legislation. This, however, is a practical fact which exists and which must be faced. The Supreme Court has recognized the propriety of reapportionment by just such a body. Reynolds v. Sims, supra, p. 585 of 377 U.S., 84 S. Ct. 1362. We, of course, do no less. See League of Nebraska Municipalities v. Marsh, 232 F. Supp. 411, 414 (D.Neb.1964). 2. We know that it is very easy to criticize an existing apportionment and that, in contrast, it is not easy to formulate a plan which will not only meet constitutional standards but which will prove so acceptable to an existing legislature as a whole as to result in formal approval of that plan by that legislature. By our holding in this case we have endeavored, and certainly have intended, not to be destructively critical in any way. 3. Reapportionment is a problem common to all states today. Many of our states, perhaps most, are going through the throes of reapportionment in one manner or another. The problem is not Minnesota's alone. It will be solved and, as we have stated, we are confident that it will be solved promptly and effectively at the forthcoming session. As the intervenors have noted, the topic is a lively one and helpful and worthwhile suggestions are already being evolved and are available from a number of official and other responsible sources. 4. It is theoretically possible, of course, if country-to-city trends continue to the extreme, for a state conceivably to be reduced to only one legislative district for its territory apart from its metropolitan areas, and with all remaining districts in the cities. This, however, is a problem to be considered and resolved in another day. 5. The Supreme Court has agreed to hear the appeal (No. 178) in the case of Dorsey v. Fortson, 228 F. Supp. 259 (N.D.Ga.1964). This concerns the validity of a Georgia statute requiring county-wide election of senators in multi-district counties but unitary elections elsewhere. The trial court held that this was violative of the fourteenth amendment. The Supreme Court's decision in that case may come down before Minnesota's 1965 regular legislative session is completed. The existence of the Georgia case indicates that a problem might possibly be present in connection with multi-legislator districts. This will be kept in mind as Minnesota reapportionment progresses. This memorandum constitutes the findings of fact and the conclusions of law required by Rule 52(a), F.R.Civ.P. Jurisdiction of the case is retained. NOTES [1] "The representation in both houses shall be apportioned equally throughout the different sections of the State, in proportion to the population thereof, exclusive of Indians not taxable under the provisions of law." [2] Despite the fact that this and the other applications for intervention were filed only after the case had been submitted, we concluded that, under all the circumstances, the Rule's requirement of timeliness was satisfied. Kozak v. Wells, 278 F.2d 104, 109 (8 Cir. 1960). [3] Section 23 reads:
"The legislature shall provide by law for an enumeration of the inhabitants of this State in the year one thousand eight hundred and sixty-five, and every tenth year thereafter. At their first session after each enumeration so made, and also at their first session after each enumeration made by the authority of the United States, the legislature shall have the power to prescribe the bounds of congressional, senatorial and representative districts, and to apportion anew the senators and representatives among the several districts according to the provisions of section second of this article." Despite the apparent limiting character of this language, the section has been construed to mean that the legislature has the duty, not merely the power, to reapportion after a census, and that if this step is not taken at the first session after the census, it may be taken at a subsequent session. State ex rel. Meighen v. Weatherill, 125 Minn. 336, 341, 147 N.W. 105, 107 (1914). In Smith v. Holm, 220 Minn. 486, 490, 19 N.W.2d 914, 916 (1945), the Minnesota court also noted that "The responsibility to heed the constitutional mandate to redistrict is laid upon the legislature * * *." This language was quoted with approval in State ex rel. LaRose v. Tahash, 262 Minn. 552, 558, 115 N.W.2d 687, 691 (1962), appeal dismissed, 371 U.S. 114, 83 S. Ct. 172, 9 L. Ed. 2d 168. [4] For other aspects of the same litigation see Magraw v. Donovan, 159 F. Supp. 901 (D.Minn.1958), and Rosso v. Magraw, 288 F.2d 840 (8 Cir. 1961). [5] Exceptions as to both Senate and House are (a) the metropolitan counties of Hennepin (Thirtieth District to Forty-second District, inclusive) and Ramsey (Forty-third District to Forty-ninth District, inclusive); (b) the Third and Fourth Districts of Wabasha and Olmsted Counties; (c) the Twenty-sixth, Twenty-seventh and Twenty-eighth Districts, with their problem occasioned by the multi-county location of the City of Saint Cloud; (d) the Fifty-ninth, Sixtieth, Sixty-second, and Sixty-third Districts in Saint Louis County; and (e) the Sixty-first District of Cook and Lake Counties and part of Saint Louis County. Exceptions as to the House alone exist in the Second, Fifth, Eleventh, and Thirteenth Districts. [6] These statements and figures are to be distinguished from the frequently advanced theoretical proposition that, with equally populated districts, only 26% of the electorate (a bare majority of the voters in a bare majority of the districts) could elect a majority of the legislators. Mr. Justice Stewart referred to this in footnote 12 to his dissent in Lucas v. Forty-fourth General Assembly, supra, p. 750 of 377 U.S., 84 S. Ct. 1459. That theoretical approach rests on the percentage of each district's electorate. Our comments are based on the percentage of the entire population represented by a majority of legislators. [7] The Minnesota constitutional provision quoted in footnote 3, supra, would itself seem to contraindicate this. [8] "[A]and thereafter senators shall be chosen for four years, except there shall be an entire new election of all the senators at the election of representatives next succeeding each new apportionment provided for in this article." | 10-30-2013 | [
"236 F. Supp. 8 (1964) Milton C. HONSEY, Connie Burchett, Harold H. Hoffmann, Donald L. Huber, Clark Mac Gregor, Glenn G. C. Olson, Stanley W. Olson, Richard J. Parish and Kenneth Wolfe, Plaintiffs, v. Joseph L. DONOVAN, Secretary of State of the State of Minnesota, Eugene A. Monick, Auditor of Ramsey County, Minnesota, Robert F. Fitzsimmons, Auditor of Hennepin County, Minnesota, Kenneth W. Campbell, Auditor of Anoka County, Minnesota, Carl D. Onischuk, Auditor of Dakota County, Minnesota, Individually as Auditors of Their Respective Counties and as Representatives of All County Auditors of the State of Minnesota, Defendants. Donald Sinclair, Rudolph Hanson, William C. Novosad, A. P. Lofgren, Charles Cheney, Richard C. Bergan, S. W. Rodekuhr, Martin L. Vanseth, and David G. Kankel, Intervening Defendants. No. 4-64-Civ.",
"169. United States District Court D. Minnesota, Fourth Division. December 4, 1964. *9 *10 Vernon E. Bergstrom and Clayton L. LeFevere, of Howard, Peterson, LeFevere, Lefler & Hamilton, Minneapolis, Minn., for plaintiffs. Walter F. Mondale, Atty. Gen., State of Minnesota, and John F. Casey, Jr., Deputy Atty. Gen., Saint Paul, Minn., for defendant Joseph L. Donovan. William B. Randall, County Atty., Ramsey County, and Thomas M. Quayle, Asst. County Atty., Ramsey County, Saint Paul, Minn., for defendant Eugene A. Monick. George M. Scott, County Atty., Hennepin County, Minneapolis, Minn., for defendant Robert F. Fitzsimmons. Robert W. Johnson, County Attorney, Anoka County, Anoka, Minn., for defendant Kenneth W. Campbell. J. Jerome Kluck, County Atty., Dakota County, Hastings, Minn., for defendant Carl D. Onischuk. Gordon Rosenmeier and John E. Simonett, Little Falls, Minn., for intervenors Donald Sinclair and Rudolph Hanson.",
"William P. Scott, of Scott & Miller, Gaylord, Minn., for intervenor William C. Novosad. Lyman A. Brink, of Brink & Sobolik, Hallock, Minn., for intervenors A. P. Lofgren, Charles Cheney, Richard C. Bergan, C. W. Rodekuhr, Martin L. Vanseth and David G. Kankel. Before BLACKMUN, Circuit Judge, DEVITT, Chief District Judge, and NORDBYE, District Judge. BLACKMUN, Circuit Judge. This suit, instituted June 4, 1964, is based on those civil rights statutes which are now compiled as 42 U.S.C. §§ 1983 and 1988 and 28 U.S.C. § 1343(3) and (4). It challenges the validity of the present apportionment of both houses of the bicameral Minnesota legislature. The nine plaintiffs are residents and qualified voters of Anoka, Dakota, Hennepin, and Ramsey Counties, respectively; these embrace the State's Twin City metropolitan area. The complaint seeks, among other relief, (a) to have the most recent Minnesota legislative redistricting act, Laws 1959, Ex.Sess., ch. 45, now M.S.A. §§ 2.02 to 2.715, inclusive, declared *11 void and violative of both the equal protection clause of the fourteenth amendment of the Constitution of the United States and the equal-apportionment-of-both-houses-by-population requirement[1] of Article IV, § 2, of the Constitution of the State of Minnesota; (b) to restrain the defendant Donovan, who is the Minnesota Secretary of State, and the other defendants, who are the auditors of the four named counties, individually and as representatives of all other Minnesota county auditors, from performing acts necessary for the election of members of the state legislature, under the existing statutes, until the legislative districts have been properly reapportioned; and (c) to direct that elections for legislators be at large until new and proper apportionment legislation has been enacted.",
"The defendants by their answer ask that the suit be dismissed or, in the alternative, that the court defer action until the adjournment of the forthcoming 1965 regular legislative session. Inasmuch as the suit is one to restrain the enforcement and execution of Minnesota statutes by a state officer, this three-judge district court was designated. 28 U.S.C. §§ 2281, 2284(1). The pertinent facts are established by the original parties by admissions in the pleadings and by stipulation. The last of the original briefs was filed on August 26. Shortly after the case was so submitted and before a decision was rendered, intervenors Sinclair and Hanson presented their joint application under Rule 24(a) (2), F.R.Civ.P., for leave to intervene as additional defendants as of right.",
"The application, as authorized by 28 U.S.C. § 2284(5), was promptly heard by Judge Devitt and, with all of us concurring, was granted with permission to the intervenors and the plaintiffs to file affidavits and additional briefs. [2] By stipulations and with the court's consent, the other seven intervenors named in the title were also permitted to intervene as additional defendants. The last of the second set of briefs was received on October 30. Intervenors Sinclair and Hanson are, respectively, residents and qualified voters of Marshall and Freeborn Counties, Minnesota.",
"Mr. Sinclair is a Minnesota state senator representing the Sixty-seventh Legislative District consisting of Kittson, Marshall and Roseau Counties in northwestern Minnesota. Mr. Hanson is a Minnesota state senator representing the Ninth Legislative District consisting of Freeborn County in southern Minnesota. Intervenor Novosad is a resident, a qualified voter and the auditor of Sibley County in south central Minnesota. Intervenors Lofgren, Cheney, Bergan, Rodekuhr, Vanseth, and Kankel are the respective auditors of the six counties of Kittson, Marshall, Roseau, Pennington, Polk, and Red Lake, comprising the northwestern corner of the State. Although the complaint requested injunctive relief, this aspect of the case, so far as the 1964 elections for the Minnesota House were concerned, was not seriously pressed upon us. Indeed, the plaintiffs by their brief stated that they did not \"insist\" that the 1964 candidates run at large. In view of this partial concession and in view of the lateness of the hour when the complaint was filed, we deemed it both unnecessary and undesirable to interfere with the then pending and now immediately past primary and general elections.",
"Reynolds v. Sims, 377 U.S. 533, 585, 84 S. Ct. 1362, 12 L. Ed. 2d 506 (1964). Those elections have taken place in due course. *12 The earlier Minnesota reapportionment case. A suit similar to this one and for like relief, and alleging deprivation of rights guaranteed by the fourteenth amendment, was instituted in this court in 1957 against the defendant Donovan, two of the same county auditors, and others. It attacked the Minnesota legislative apportionment effected by Laws 1913, ch. 91. The 1913 Act was then still in effect even though the Minnesota Constitution, art. IV, § 23, calls for reapportionment at the first legislative session after each federal census. [3] The statutory three-judge federal court designated to hear that case recognized \"the unmistakable duty of the State Legislature to reapportion itself periodically in accordance with recent population changes\", noted that the legislature was then soon to be elected in its entirety and was to convene in early January 1959, and observed that \"It is not to be presumed that the Legislature will refuse to take such action as is necessary to comply with its duty under the State Constitution.\" Although retaining jurisdiction, the court deferred decision on the issues \"in order to afford the Legislature full opportunity to `heed the constitutional mandate to redistrict.'\"",
"Magraw v. Donovan, 163 F. Supp. 184, 187-188 (D. Minn.1958). Pending this deferral of decision, the 1959 Minnesota legislature effected the State's current apportionment which, as the original parties by the pleadings concede, is \"based, somewhat, on the 1950 federal census\". Thereafter the plaintiffs in the 1957 suit moved, under Rule 41(a) (2), F.R.Civ.P., to dismiss that action without prejudice. Judge Bell granted that motion. Magraw v. Donovan, 177 F. Supp. 803 (D.Minn.1959). [4] The federal constitutional development. Since the enactment of the 1959 statute and since the termination of the Magraw litigation the federal constitutional picture has been brought into focus and greatly clarified. The United States Supreme Court, in a series of now well-known decisions, has taken positive action with respect to the federal constitutional aspects of state legislative districting.",
"The first three cases, decided near the end of the Court's 1961 term, were Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962), Scholle v. Hare, 369 U.S. 429, 82 S. Ct. 910, 8 L. Ed. 2d 1 (1962), and WMCA, Inc. v. Simon, 370 U.S. 190, 82 S. Ct. 1234, 8 L. Ed. 2d 430 (1962). A detailed analysis of those cases and of their respective procedural approaches is not necessary here. It suffices merely to say that, among other things, they established (a) that the very civil rights statutes invoked by the plaintiffs here afford a United States district court jurisdiction over a claim of alleged federal unconstitutionality *13 of state legislative districting; (b) that plaintiffs who are qualified to vote for members of a state legislature have standing to sue; and (c) that, in the setting of those cases, an allegation of a denial of the equal protection of the laws under the fourteenth amendment presents a justiciable constitutional cause of action.",
"Clearly, these cases establish the jurisdiction of this court for the present action, the present plaintiffs' standing to sue, and the existence here of a justiciable controversy. This trilogy was followed by Gray v. Sanders, 372 U.S. 368, 83 S. Ct. 801, 9 L. Ed. 2d 821 (1963), which concerned the constitutionality of the use of Georgia's county-unit system in a primary election for the nomination of a United States Senator and state-wide officers and is the source, p. 381, 83 S. Ct. 809, of Mr. Justice Douglas' pronouncement, in a majority setting, of the \"one person, one vote\" concept, and by Wesberry v. Sanders, 376 U.S. 1, 84 S. Ct. 526, 11 L. Ed. 2d 481 (1964), which concerned the Georgia statute apportioning the state's congressional districts and is the source, p. 20, 84 S.Ct. p. 536 of Mr. Justice Harlan's statement in dissent, \"I had not expected to witness the day when the Supreme Court of the United States would render a decision which casts grave doubt on the constitutionality of the composition of the House of Representatives.\" These two decisions perhaps contained the first definite indications of the Supreme Court's current attitude as to the merits of the apportionment-constitutional issue. Then came the six cases of June 15, 1964, decided, in fact, after the institution of the present lawsuit.",
"These were the Alabama case of Reynolds v. Sims, supra, 377 U.S. 533, 84 S. Ct. 1362; the New York case of WMCA, Inc. v. Lomenzo, 377 U.S. 633, 84 S. Ct. 1418, 12 L. Ed. 2d 568; the Maryland case of Maryland Committee for Fair Representation v. Tawes, 377 U.S. 656, 84 S. Ct. 1429, 12 L. Ed. 2d 595; the Virginia case of Davis v. Mann, 377 U.S. 678, 84 S. Ct. 1441, 12 L. Ed. 2d 609; the Delaware case of Roman v. Sincock, 377 U.S. 695, 84 S. Ct. 1449, 12 L. Ed. 2d 620; and the Colorado case of Lucas v. Forty-fourth General Assembly, 377 U.S. 713, 84 S. Ct. 1459, 12 L. Ed. 2d 632.",
"One week later nine other pending cases were remanded, per curiam, for further proceedings in the light of Reynolds v. Sims and its companions. Swann v. Adams, 378 U.S. 553, 84 S. Ct. 1904, 12 L. Ed. 2d 1033 (Florida); Meyers v. Thigpen, 378 U.S. 554, 84 S. Ct. 1905, 12 L. Ed. 2d 1024 (Washington); Nolan v. Rhodes, 378 U.S. 556, 84 S. Ct. 1906, 12 L. Ed. 2d 1034 (Ohio); Williams v. Moss, 378 U.S. 558, 84 S. Ct. 1907, 12 L. Ed. 2d 1026 (Oklahoma); Germano v. Kerner, 378 U.S. 560, 84 S. Ct. 1908, 12 L. Ed. 2d 1034 (Illinois); Marshall v. Hare, 378 U.S. 561, 84 S. Ct. 1912, 12 L. Ed. 2d 1036 (Michigan); Hearne v. Smylie, 378 U.S. 563, 84 S. Ct. 1917, 12 L. Ed. 2d 1036 (Idaho); Pinney v. Butterworth, 378 U.S. 564, 84 S. Ct. 1918, 12 L. Ed.",
"2d 1037 (Connecticut); Hill v. Davis, 378 U.S. 565, 84 S. Ct. 1918, 12 L. Ed. 2d 1037 (Iowa). Here, too, it is not necessary for us to discuss in detail the six cases' factual differences. Their holdings and implications, despite the presence of vigorous dissent, are clear. So far as pertinent for the present case, the majority opinions, all written by Mr. Chief Justice Warren, hold: 1. The equal protection clause of the fourteenth amendment requires substantially equal legislative representation for all citizens of a state. This is the basic concept. 2. \"[T]he Equal Protection Clause requires that a State make an honest and good faith effort to construct districts, in both houses of its legislature, as nearly of equal population as is practicable.\" Reynolds v. Sims, p. 577 of 377 U.S., p. 1390 of 84 S.Ct.",
"3. But \"Mathematical exactness or precision is hardly a workable constitutional requirement.\" Reynolds v. Sims, p. 577 of 377 U.S., p. 1390 of 84 S.Ct. And \"it is neither practicable nor desirable to establish rigid mathematical *14 standards * * *. Rather, the proper judicial approach, is to ascertain whether * * * there has been a faithful adherence to a plan of population-based representation, with such minor deviations only as may occur in recognizing certain factors that are free from any taint of arbitrariness or discrimination.\" Roman v. Sincock, p. 710 of 377 U.S., p. 1470 of 84 S.Ct. 4.",
"\"So long as the divergences from a strict population standard are based on legitimate considerations incident to the effectuation of a rational state policy, some deviations from the equal-population principle are constitutionally permissible * * *.\" Reynolds v. Sims, p. 579 of 377 U.S., p. 1391 of 84 S.Ct. 5. However, weighting of votes according to area is discriminatory. A \"built-in bias against voters living in the State's more populous counties\" does not meet constitutional standards. WMCA, Inc. v. Lomenzo, p. 654 of 377 U.S., p. 1428 of 84 S.Ct. Also, \"neither history alone, nor economic or other sorts of group interests, are permissible factors in attempting to justify disparities from population-based representation. Citizens, not history or economic interests, cast votes.\" [footnote omitted].",
"Reynolds v. Sims, pp. 579-80 of 377 U.S., p. 1391 of 84 S.Ct. 6. Any reliance on either the federal Senate and House analogy or on the Federal Electoral College analogy is misplaced. 7. A state \"can rationally consider according political subdivisions some independent representation in at least one body of the state legislature, as long as the basic standard of equality of population among districts is maintained\" and \"provide for compact districts of contiguous territory\". But in so doing population must not be \"submerged as the controlling consideration in the apportionment of seats in the particular legislative body\". Reynolds v. Sims, pp. 580, 578, and 581 of 377 U.S., pp. 1391, 1390, 1392 of 84 S.Ct.",
"8. \"It is simply impossible to decide upon the validity of the apportionment of one house of a bicameral legislature in the abstract, without also evaluating the actual scheme of representation employed with respect to the other house.\" Maryland Committee for Fair Representation v. Tawes, p. 673 of 377 U.S., p. 1451 of 84 S.Ct. 9. A state may, consistently with the equal protection clause, provide for only periodic revision of its reapportionment scheme. Decennial reapportionment \"would clearly meet the minimal requirements for maintaining a reasonably current scheme of legislative representation.\" But reapportionment accomplished with less frequency \"would assuredly be constitutionally suspect.\" Reynolds v. Sims, 377 U.S. pp. 583-584, 84 S.Ct. p. 1393. 10. \"Where a federal court's jurisdiction is properly invoked, and the relevant state constitutional and statutory provisions are plain and unambiguous, there is no necessity for the federal court to abstain pending determination of the state law questions in a state court.\" Davis v. Mann, p. 690 of 377 U.S., p. 1460 of 84 S.Ct. 11.",
"A court \"should attempt to accommodate the relief ordered to the apportionment provisions of state constitutions insofar as is possible.\" Reynolds v. Sims, p. 584 of 377 U.S., p. 1393 of 84 S.Ct. 12. Reapportionment \"is primarily a matter for legislative consideration and determination, and * * * judicial relief becomes appropriate only when a legislature fails to reapportion according to federal constitutional requisites in a timely fashion after having had an adequate opportunity to do so.\" Reynolds v. Sims, p. 586 of 377 U.S., p. 1394 of 84 S.Ct. Retention of jurisdiction may be appropriate.",
"The Minnesota facts. With these principles in mind, we turn to Minnesota's facts as established by the pleadings, the stipulation, the State's Constitution, and the 1959 Act: By statute (not by its Constitution) the State is divided into \"67 senatorial *15 and representative districts\". M.S.A. § 2.03. Each district elects one senator. Most districts elect two representatives, but five elect only one and six elect three. This makes a total of 67 senators and 135 representatives. In 17 districts the plural representatives run at large. Every other district which has more than one representative is geographically sub-divided.",
"M.S.A. §§ 2.02, 2.04-2.70. Each house district falls entirely within or is congruent with a senate district and does not overlap another senate district. This meets the state constitutional requirement, art. IV, § 24, that senators shall \"be chosen by single districts of convenient contiguous territory * * * and no representative district shall be divided in the formation of a senate district.\" Although not required by the state Constitution, county lines have been utilized generally in the formulation of districts. [5] Senators serve a 4-year term. Inasmuch as all senators were elected in 1962, they were not up for election in 1964 but, instead, serve until the first Monday in January 1967. House members serve a 2-year term. The present representatives hold their offices until the first Monday in January 1965.",
"Minn. Const. art. IV, § 1, and art. VII, § 9. New house members, therefore, were chosen in the recent 1964 election. They assume office January 4, 1965. In the century which elapsed between the 1857 Minnesota Constitutional Convention and the 1959 Act the State's legislative districts were reapportioned generally seven times, namely, in 1860, 1866, 1871, 1881, 1889, 1897, and 1913. The 1959 Act was thus the eighth reapportionment, but it was the first in 46 years. Because the 1959 Act by its terms, M.S. A. § 2.71, did not go into effect until 1962 and thus affected only the 1962 election and those thereafter, the federal census of 1960 became due and was made in the interim.",
"The Minnesota legislature's regular sessions of 1961 and 1963 and the two extra sessions of 1961 were held after that census. The 1959 Act was not amended at any of those sessions and no redistricting based upon the 1960 census has ever yet been effected. The population of Minnesota increased 14.5% between the 1950 census and that of 1960. This increase was not uniform throughout the state's 87 counties. The increases in the counties in which the respective plaintiffs reside varied from 18.9% (Ramsey) to 141.5% (Anoka). The plaintiffs' four counties were among the nine with the greatest increases. According to the 1960 federal census the population of Minnesota was 3,413,864. This number, divided by the number of senate districts (67) produces a figure of 50,953. When this population is divided by the number of house districts (135), a figure of 25,288 results.",
"Based strictly on the 1960 population figure these are the average or \"ideal\" numbers for the senate and house districts. Also, according to the 1960 census, the populations of the senate districts range from 100,520 to 24,428. Thus the largest district in population (the Thirtieth, in suburban Hennepin County) has almost twice the average figure; the smallest (the Thirty-eighth, in the City of Minneapolis and also in Hennepin County) has less than half the average figure. The smallest, too, has less than one-third of the population of each of the seven largest districts. The second smallest (the Sixty-fifth) has less than *16 one-third of the population of each of the five largest districts. Each of the third and fourth smallest (the Third and Twenty-ninth) has less than one-third of the population of each of the two largest.",
"The population ratio of each of the five largest to each of the nineteen smallest is over two to one. The same ratio applies between each of the nine largest and the ten smallest. The following ratios represent the population of each of the five districts where six of the plaintiffs reside (two plaintiffs live in the Thirty-first) as compared to the population of one of the adjoining or corner-touching districts: 100,520:24,428 (Thirtieth to Thirty-eighth); 93,919:- 41,815 (Thirty-second to Twelfth); 85,916:29,935 (Fifty-first to Twenty-ninth); 78,303:33,035 (Thirteenth to Sixth); 75,637:29,935 (Thirty-first to Twenty-ninth). The populations of the house districts range from 56,076 to 8,343. Thus the ratio of the largest (the Forty-third North) to the smallest (Kittson County in the Sixty-seventh) is nearly 7 to 1. The ratio of the five largest to the three smallest is over 5 to 1. The ratio of the thirteen largest to the sixteen smallest is over 3 to 1.",
"The ratio of the twenty-five largest to the thirty-three smallest is over 2 to 1. The largest district has over twice the average figure. The smallest has less than one-third of that average. The Forty-third District, divided into North and South, has more than double the number of people in the North than in the South. The same is true of the divided Forty-eighth; as between the City of Austin and Dodge County in the Fifth; as between Nobles County and Rock County in the Nineteenth; as between Lincoln County and Lyon County in the Twentieth; as between Swift County and Kandiyohi County in the Twenty-third; as between Aitkin County and Carlton County in the Fifty-second; as between Clay County and Wilkin County in the Fifty-sixth; as between Becker County and Hubbard County in the Fifty-seventh; and as between Itasca County and Cass County in the Fifty-eighth. Some of these more-than-2-to-1 ratios existed under the figures of the 1950 census.",
"It is stipulated that the disparity of populations of the legislative districts, as shown by the 1960 census, continues to the present time. If one uses the 1960 figures, then one may say that, in 1962, a majority of the state's population was represented by only 26 senators, or 38.8% of the 67 seats, and by only 48 representatives, or 35.5% of the 135 seats. Stating this in reverse, the 34 smallest senatorial districts were represented by the majority of the Senate but contained only 39.1% of the population. The 68 smallest House districts were represented by a majority of the House but contained only 35% of the population.",
"[6] The affidavits filed in connection with the interventions refer to other undisputed facts. We mention these even though the relevancy of some of them may well be questionable. There were reapportionment discussions and activity, within the Minnesota legislature and outside it, not only during the 1959 regular and extra sessions, but, as well, in the regular sessions of 1955 and 1957 and the extra session of 1957. A number of bills were introduced. Some reached advanced stages in the legislative process but none was enacted until the 1959 statute.",
"As a definite companion measure to that Act, the legislature proposed, Laws 1959, Ex. Sess., ch. 47, certain amendments to *17 Article IV of the Minnesota Constitution. Included were fixed maximums of members in both the senate and the house; representation in the house \"on the basis of equality according to population\"; representation in the senate \"in a manner which will give fair representation to all parts of the state\"; confinement of the percentage representation of the five counties \"adjacent to and including the county containing the seat of government of the state\" (Ramsey) to 35% of the members of the senate, even though those counties might have 35% or more of the State's total population; and a mandatory extra session for reapportionment purposes whenever reapportionment was not effected at the first regular session after a decennial census. These amendments were submitted in due course to the state's electorate in 1960 but failed to pass. The legislature was aware of its duty to reapportion.",
"The Legislative Research Committee, created under M.S.A. § 3.31, made its report on relevant apportionment factors in the 1950's. There was a Citizen-Legislator Committee on Reapportionment appointed by the governor in late 1957 to recommend a reapportionment program. Its report was available for the 1959 sessions. The legislature in 1959 was aware of estimated population increases since the 1950 census and by the 1959 Act gave some recognition to increases in the more rapidly growing areas of suburban Hennepin County, Ramsey County, Rochester and its suburbs, Mower County, Anoka County, Washington County, and the City of Saint Cloud. The intervenors' position.",
"The intervenors argue that \"the factual environment of none of the Reapportionment Cases is present here\"; that \"There is no pattern of discrimination which by any test, or by dictionary definition, can be called invidious or arbitrary, notwithstanding obvious population differences\"; that \"Use of county lines for single county, multi-county districts, or multi-district counties, has been a practical necessity in apportionment to avoid the governmental awkwardness of dividing county government between senatorial districts and multiple representative districts\"; that \"Minnesota's 1959 reapportionment enactment was a rational plan, designed on county and other governmental subdivision lines, which afforded adequate and substantially equal representation to all parts of the state without sacrificing the equal-population concept, was wholly devoid of invidious discrimination against any area of the state or any population segment, and anticipated in spirit and letter the mandate of Reynolds\"; that \"Apportionment in Minnesota has followed the almost universal practice in the United States of using the county structure of the state, a practice benignly looked upon by the Court in Reynolds\"; that \"There was no adjusting of representation to favor rural counties as such or disfavor urban areas as such, nor were suburban districts as such discriminated against\"; that \"Apportionment to counties in this fashion, based on population, is grounded on the realistic premise that counties are the smallest territorial units to which apportionment can be made rationally\"; that \"it is important that the measure be seen as redistricting carefully planned and in good faith designed to comply with constitutional requirements\"; that the 1959 reapportionment was not based on the 1950 population but \"the population of that census was adjusted to what was believed by the evidence presented to the committees to be the actual 1959 population distribution, i. e., the distribution reflected later in the 1960 census\"; that \"Federal constitutional command should be deemed met by redistricting next according to the 1970 census inasmuch as the 1959 Act was valid when passed\"; that apportionment to the plaintiffs' counties as a whole is \"demonstrably adequate by constitutional *18 standards\"; that in the metropolitan centers each county voter, in effect, has a number of senators and representatives speaking for him \"on any parochial interest of legislative stature\"; that \"it has not been said that a federal court should take cognizance of a local contention that constitutional inequality is alleged because a complainant's district in Minneapolis has more people than another district in the same city, or because a suburban complainant has discovered a district in his county seat and core city has fewer people than his\"; that \"there could be no question if the same apportionment called for an at-large election\" in the county; that there was no complaint to the legislature that any plaintiff's district was inequitably treated when the 1959 Act was passed; and that it has become \"common thinking\" to allow a variation, which equates with a 1½ to 1 ratio, of 20% from the average population per district.",
"It is to be noted (a) that this argument clearly concedes the existence of \"obvious population differences\"; (b) that it stresses the use of county lines \"as a practical necessity\"; (c) that at the same time it recognizes, as it must, that exceptions do exist under the 1959 Act in that some counties find themselves allocated to more than one senatorial district; and (d) that it seeks to overcome any intra-county population discrepancy by the approach (which strikes us as one resting not essentially on fact but on concepts of political theory) that the voter in the multiple-district county really has multiple representation in the legislature and that, therefore, a within-the-county population discrepancy is of no constitutional consequence. We need not consider the \"state of mind\" of the legislature or of individual members thereof in the formulation and passage of the 1959 Act. Neither do we need to consider any question of basic good faith in the enactment of that legislation or, indeed, any question of the validity of the 1959 Act as of the time of its passage.",
"We do not impugn the legislature's motive and we may assume that it acted in good faith. But all this does not render the 1959 Act, based, as it was, on the 1950 census updated, impervious to federal constitutional attack on facts which exist five years later in 1964. The admitted legislative district population figures, both senate and house, clearly demonstrate, it seems to us, first, that the plaintiffs have sustained their burden of proof, Thigpen v. Meyers, 211 F. Supp. 826, 832 (W.D. Wash.1962), affirmed on the merits and remanded, 378 U.S. 554, 84 S. Ct. 1905; Mann v. Davis, 213 F. Supp. 577, 584, (E.D.Va., 1962) affirmed on the merits and remanded, 377 U.S. 678, 84 S. Ct. 1441, and, second, that the 1959 apportionment presently violates the equal protection clause of the fourteenth amendment and fails to meet the minimal standards promulgated by the United States Supreme Court in the several recent cases which have been cited. Those standards, of course, are binding upon the Minnesota legislature, are binding upon us as a federal court and would be equally binding upon a Minnesota court if this litigation were in a state tribunal. Maryland Committee for Fair Representation v. Tawes, supra, p. 674 of 377 U.S., 84 S. Ct. 1429.",
"The Minnesota Constitution, as has been noted, relates representation in both houses solely to population. We therefore are not confronted here with the situation, present in some cases, where the applicable state statute or constitutional provision recognizes factors other than population. But the disparities in population-representation apparent from the Supreme Court's opinions, even accepting in each the most favorable plan under consideration, reveal that the present Minnesota apportionment falls short of the prescribed *19 standards and is not legitimatized by proper \"considerations incident to the effectuation of a rational state policy\".",
"Thus we have: Percentage represented by majority Population variance (upper and lower State and case (upper and lower house) house) Alabama, Reynolds v. Sims 20-1 and 5-1 27.6% and 37% New York, WMCA, Inc. v. Lomenzo 3.9-1 and 21-1 41.8% and 34.7% Maryland, Maryland Committee for Fair Representation v. Tawes 34-1 and 6-1 14.1% and 35.6% Virginia, Davis v. Mann 2.65-1 and 4.36-1 41.1% and 40.5% Delaware, Roman v. Sincock 15-1 and 12-1 21% and 28% Colorado, Lucas v. Forty-fourth General Assembly 3.6-1 and 1.7-1 33.2% and 45.1% These compare, as above noted, with Minnesota population variances of 4 to 1 and almost 7 to 1 and majority representation percentages of 39.1% and 35%. The Virginia discrepancies in all respects were less than those of Minnesota and would be less still if, as was urged, the large number of military personnel in that state were not taken into account. Yet, in Davis v. Mann, supra, p. 691 of 377 U.S., p. 1460 of 84 S.Ct. it was held that the \"state legislative malapportionment, whether resulting from prolonged legislative inaction or from failure to comply sufficiently with federal constitutional requisites, although reapportionment is accomplished periodically, falls * * * within the proscription of the Equal Protection Clause.\" That case flatly controls this one, not only in its holding, but upon its facts. The intervenors would assert, however, that, while there are population variances in Minnesota under the 1959 Act, these result from \"no pattern of discrimination against any part of the state or in favor of any part of the state\" and \"no design to dilute the vote of the people of any area\". They point out that some of the least populated Minnesota districts are in the metropolitan area but others are spread all over the state and that some rural areas are also among the most populated districts.",
"It is suggested that Reynolds v. Sims and its companion cases have, as an essential element, \"a deliberate weighting of the votes of the citizens of one area against those of another area\". We do not read the June 1964 cases so narrowly and we feel that they are not so easily to be explained away. It is true, of course, that the Supreme Court, as we have pointed out, did say that weighting of votes according to area is discriminatory. But the decisions are far broader than that in their holdings and in their implications. They are concerned with discrimination against individual citizens and groups of citizens and are not confined to discrimination against one type of area or one type of economic or interest group. We repeat that those cases stress equal legislative representation for all citizens and apportionment substantially on a population *20 basis. Failure to meet these standards is improper discrimination. This is so whether the discrimination is against both urban and rural areas, or against only one.",
"A specific pattern of area discrimination is not necessary. Discrimination against some urban areas is not justified because of the simultaneous existence of discrimination against some rural areas. Discrimination is discrimination, wherever it exists and in whatever form it assumes. The intervenors' argument that population variances among districts in the same county have no significance in the determination of constitutionality also merits mention. We find it unpersuasive because, first, the variances evident from the facts before us are not confined to districts within a multi-district county. Thus, for example, the population variance between the Thirtieth District in Hennepin County and the Sixty-fifth District of Norman, Mahnomen and Clearwater Counties is 3.8 to 1. But we also feel that the principles enunciated by the Supreme Court do not stop short in their application at the county line and that it cannot be said that, so long as the county as a whole has an acceptable proportion of legislators, it makes no difference how the intra-county districts are themselves composed. Only slight imagination reveals the extremes to which this approach could take us. The more than 4 to 1 variation between the Hennepin County Thirtieth District and the Hennepin County Thirty-eighth District is an illustration.",
"Neither does the suggestion that a county's legislators could be required to run at large and thereby become invulnerable to constitutional attack lend weight. The same suggestion could also be made as to a state as a whole; despite this, the decisions of June 1964 were rendered. If apportionment is attempted, it must be proper throughout. We feeland we are aware that we are repeating when we say this that what is important here is equality of representation; that inequality in representation in both houses of Minnesota's legislature must be avoided so far as practicable; that this is what is meant by the \"one person, one vote\" concept; and that a situation where one senator represents over 100,000 people and another senator represents only 24,428, is not one of acceptable equality but is, instead, improperly discriminatory.",
"This is not a matter, so far as this court is concerned, of basic contest between densely populated metropolitan centers, on the one hand, and the less populated areas, on the other, or between cities and rural communities, or between political parties. No one in this day would argue that Citizen X should be entitled to 4 votes in a gubernatorial election but Citizen Y should be entitled to only one.",
"Yet this is not significantly different from the situation where Citizen X must participate with 100,000 others in the election of one state senator, but Citizen Y may participate with only 25,000 others in the election of another state senator. It is in this light and in this respect that apportionment becomes a matter of concern under the equal protection clause of the fourteenth amendment of the United States Constitution. Reynolds v. Sims, supra, pp. 562-63 of 377 U.S., 84 S. Ct. 1362. We should also add a word about the youthful character of the 1959 Act.",
"We recognize that, as the intervenors point out, the last Minnesota apportionment was evolved only a little over five years ago and that the Act became effective only in 1962, less than three years ago. It is then suggested that, since the 1959 Act rested on updated 1950 census figures, reapportionment this soon is not constitutionally demanded until, even, 1970. We doubt if reapportionment may be effected only near the end of the decennial period between censuses and may thereby assume a mantle of validity for another decade.",
"[7] One might wonder, also, why the 1959 Act *21 was not made promptly effective, rather than deferred until after the 1961 elections. We are not sure, as has been suggested, that this was required by the last clause of Article IV, § 24, of the State's Constitution. [8] That provision would seem to require an election of senators at the very next election following reapportionment, even though four years had not elapsed since their last election, rather than to prohibit an election until the four year term had been completed. In any event, we are confronted here with the facts of 1964 and with the interim decisions of the United States Supreme Court which are clear in their import and direct in their mandate. On the present facts the comparative youth of the 1959 Act does not preserve its validity. This determination of federal unconstitutionality is all that the present case requires. Although the complaint also asserts violation of the Minnesota Constitution, we need not meet that issue even if we were to conclude that this court had the power and were an appropriate tribunal so to do. This brings us to the question of remedy.",
"Although the existing Minnesota apportionment plan is invalid, as we here determine, equitable considerations in the aggregate demand that we withhold at this time the requested injunctive relief. We have every confidence that the Minnesota legislature will fulfill its constitutional obligations and, at the forthcoming 1965 regular session (limited by law to 120 legislative days, Minn.Const. art. IV, § 1), will enact appropriate reapportionment legislation effective forthwith, that is, for the 1966 and subsequent elections. We are confident, too, that this can be done without conflict with present Minnesota constitutional provisions even though county lines may have to be respected less strictly, but without gerrymandering, than has been the case in the past.",
"The coming session will provide the legislature, to use the words of Reynolds v. Sims, p. 586 of 377 U.S., 84 S. Ct. 1362, with \"an adequate opportunity\" to reapportion \"in a timely fashion\". If the legislature fails to fulfill its constitutional reapportionment duty at its 1965 regular session, then more direct judicial relief may become appropriate. The details of redistricting we recognize as basically and primarily a legislative responsibility. Reynolds v. Sims, supra, p. 586 of 377 U.S., 84 S. Ct. 1362; Maryland Committee for Fair Representation v. Tawes, supra, p. 676 of 377 U.S., 84 S. Ct. 1429. The applicable standards are evident from the six Supreme Court opinions of June 15, 1964. We have endeavored to list, in summary form above, those standards which are pertinent here. We emphasize and repeat, for what assistance it may provide, that among the established guidelines are the following: substantially equal legislative representation is the base; mathematical exactness is not a workable constitutional requirement; there may be present an element, but not the governing one, resting upon the integrity of political subdivisions and other legitimate considerations incident to the effectuation of a rational state policy; this element, however, must be free from arbitrariness or discrimination; neither history alone, nor economic or other group interests are factors which justify disparities from population-based representation; political subdivisions may be accorded some independent representation in at least one house so long as the basic standard of equality of population among districts is maintained; weighting of votes according to residence is discriminatory; and there must be no \"built-in bias\".",
"We add the following conclusionary comments: 1. We are not unaware of the anomaly which seems to be present in allowing *22 and expecting an improperly constituted or \"de facto\" legislature to proceed to enact reapportionment legislation. This, however, is a practical fact which exists and which must be faced. The Supreme Court has recognized the propriety of reapportionment by just such a body. Reynolds v. Sims, supra, p. 585 of 377 U.S., 84 S. Ct. 1362.",
"We, of course, do no less. See League of Nebraska Municipalities v. Marsh, 232 F. Supp. 411, 414 (D.Neb.1964). 2. We know that it is very easy to criticize an existing apportionment and that, in contrast, it is not easy to formulate a plan which will not only meet constitutional standards but which will prove so acceptable to an existing legislature as a whole as to result in formal approval of that plan by that legislature. By our holding in this case we have endeavored, and certainly have intended, not to be destructively critical in any way. 3. Reapportionment is a problem common to all states today. Many of our states, perhaps most, are going through the throes of reapportionment in one manner or another. The problem is not Minnesota's alone. It will be solved and, as we have stated, we are confident that it will be solved promptly and effectively at the forthcoming session. As the intervenors have noted, the topic is a lively one and helpful and worthwhile suggestions are already being evolved and are available from a number of official and other responsible sources.",
"4. It is theoretically possible, of course, if country-to-city trends continue to the extreme, for a state conceivably to be reduced to only one legislative district for its territory apart from its metropolitan areas, and with all remaining districts in the cities. This, however, is a problem to be considered and resolved in another day. 5. The Supreme Court has agreed to hear the appeal (No. 178) in the case of Dorsey v. Fortson, 228 F. Supp. 259 (N.D.Ga.1964). This concerns the validity of a Georgia statute requiring county-wide election of senators in multi-district counties but unitary elections elsewhere.",
"The trial court held that this was violative of the fourteenth amendment. The Supreme Court's decision in that case may come down before Minnesota's 1965 regular legislative session is completed. The existence of the Georgia case indicates that a problem might possibly be present in connection with multi-legislator districts. This will be kept in mind as Minnesota reapportionment progresses. This memorandum constitutes the findings of fact and the conclusions of law required by Rule 52(a), F.R.Civ.P. Jurisdiction of the case is retained. NOTES [1] \"The representation in both houses shall be apportioned equally throughout the different sections of the State, in proportion to the population thereof, exclusive of Indians not taxable under the provisions of law.\"",
"[2] Despite the fact that this and the other applications for intervention were filed only after the case had been submitted, we concluded that, under all the circumstances, the Rule's requirement of timeliness was satisfied. Kozak v. Wells, 278 F.2d 104, 109 (8 Cir. 1960). [3] Section 23 reads: \"The legislature shall provide by law for an enumeration of the inhabitants of this State in the year one thousand eight hundred and sixty-five, and every tenth year thereafter. At their first session after each enumeration so made, and also at their first session after each enumeration made by the authority of the United States, the legislature shall have the power to prescribe the bounds of congressional, senatorial and representative districts, and to apportion anew the senators and representatives among the several districts according to the provisions of section second of this article.\"",
"Despite the apparent limiting character of this language, the section has been construed to mean that the legislature has the duty, not merely the power, to reapportion after a census, and that if this step is not taken at the first session after the census, it may be taken at a subsequent session. State ex rel. Meighen v. Weatherill, 125 Minn. 336, 341, 147 N.W. 105, 107 (1914). In Smith v. Holm, 220 Minn. 486, 490, 19 N.W.2d 914, 916 (1945), the Minnesota court also noted that \"The responsibility to heed the constitutional mandate to redistrict is laid upon the legislature * * *.\"",
"This language was quoted with approval in State ex rel. LaRose v. Tahash, 262 Minn. 552, 558, 115 N.W.2d 687, 691 (1962), appeal dismissed, 371 U.S. 114, 83 S. Ct. 172, 9 L. Ed. 2d 168. [4] For other aspects of the same litigation see Magraw v. Donovan, 159 F. Supp. 901 (D.Minn.1958), and Rosso v. Magraw, 288 F.2d 840 (8 Cir. 1961). [5] Exceptions as to both Senate and House are (a) the metropolitan counties of Hennepin (Thirtieth District to Forty-second District, inclusive) and Ramsey (Forty-third District to Forty-ninth District, inclusive); (b) the Third and Fourth Districts of Wabasha and Olmsted Counties; (c) the Twenty-sixth, Twenty-seventh and Twenty-eighth Districts, with their problem occasioned by the multi-county location of the City of Saint Cloud; (d) the Fifty-ninth, Sixtieth, Sixty-second, and Sixty-third Districts in Saint Louis County; and (e) the Sixty-first District of Cook and Lake Counties and part of Saint Louis County. Exceptions as to the House alone exist in the Second, Fifth, Eleventh, and Thirteenth Districts.",
"[6] These statements and figures are to be distinguished from the frequently advanced theoretical proposition that, with equally populated districts, only 26% of the electorate (a bare majority of the voters in a bare majority of the districts) could elect a majority of the legislators. Mr. Justice Stewart referred to this in footnote 12 to his dissent in Lucas v. Forty-fourth General Assembly, supra, p. 750 of 377 U.S., 84 S. Ct. 1459. That theoretical approach rests on the percentage of each district's electorate. Our comments are based on the percentage of the entire population represented by a majority of legislators. [7] The Minnesota constitutional provision quoted in footnote 3, supra, would itself seem to contraindicate this. [8] \"[A]and thereafter senators shall be chosen for four years, except there shall be an entire new election of all the senators at the election of representatives next succeeding each new apportionment provided for in this article.\""
] | https://www.courtlistener.com/api/rest/v3/opinions/2238961/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
DETAILED ACTION Notice of Pre-AIA or AIA Status The present application is being examined under the pre-AIA first to invent provisions.
Continued Examination Under 37 CFR 1.114 A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 12 July 2021 has been entered.
Response to Arguments Applicant's arguments filed 12 July 2021 have been fully considered but they are not persuasive.
Applicant argues “Richards does not disclose the recited fixed time delay element comprised within a roadside unit as claimed”. Examiner respectfully disagrees and respectfully submits the claim recites an optional “fixed or known” and the “known” time delay used to determine distance is disclosed in the cited portion of Richards appears to disclose the claims.
Applicant further argues “it is not possible to use a triangulation measurement method using only two devices”, however, there is no requirement in the claims for only two devices and .
Claim Rejections - 35 USC § 103 The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim 21 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Kavaler et al. (US 9418551 B2) in view of Richards (US 6163336)
Regarding Claim 21, Kavaler discloses a parking management system, comprising: a roadside unit having a vehicle occupancy sensor with a zone of detection that corresponds to an individual parking space [Kavaler: FIG. 12D], the roadside unit comprising: the vehicle occupancy sensor configured to sense an occupancy condition of a parking space in its zone of detection [Kavaler: FIG. 12D]; an antenna configured to facilitate communication between the roadside unit and one or more of gateways, cellular towers, servers, or parking meters [Kavaler: FIG. 3C: 300-2]; an in-vehicle device comprising an in-vehicle transceiver and configured to communicate with the roadside unit [Kavaler: Claim 1], wherein the roadside unit and in-vehicle device comprises a fixed or known time delay element [Kavaler: Col. 22, l. 66, through Col. 23, l. 3: In some embodiments, the repeaters may also maintain a local clock count that may be used to synchronize their transmissions to the access point and control a time delay in sending transmissions to specific sensors]; and a guidance display configured to indicate a [Kavaler: Col. 12, ll. 46-50: The determination of the vehicle 12 parking in multiple parking spots 20 may involve interactions with more than one parking sensor 200. The parking session 150 may further include more than one of the parking spot 20 identifications to indicate that the vehicle 12 is parked in more than one of the parking spots 20. The determination of the vehicle 12 parking in multiple parking spots 20 may involve interactions with more than one parking sensor 200 as shown in FIG. 1C and FIG. 1D, and represented by an example of the parking session 150 as shown in FIG. 1E]. Kavaler may not explicitly disclose the fixed or known time delay element being configured to determine the distance between the roadside unit and the in-vehicle device based on a fixed or known time delay. However, Richards discloses a fixed or known time delay element, the fixed or known time delay element being configured to determine the distance between the roadside unit and the in-vehicle device based on a fixed or known time delay in synchronization with the roadside unit and the in-vehicle device [Richards: Col. 5, ll. 43-55: A second approach is to use acoustic range finding from several different locations on the display unit and utilising triangulation to find the position of the viewer's head. A system based upon four ultrasonic transducers, one on each corner of the 3D display, would operate as follows. One transducer is used to transmit a pulse, the other three transducers are set to receive the echoes from this pulse. The first pulse that is received (from the closest object) should be from the viewer's nose. By knowing the time delay between the sending of the pulse and when it was received by each sensor, the distance to the object (from each sensor) can be determined and a triangulation method used to locate this point in space]. It would have been obvious to one having ordinary skill in the art before the effective filing date to combine the triangulation via time delay of Richards with the parking assistance system of Kavaler in order to utilize position determination methods similar to those used by GPS satellites, improving accuracy and usability of location determination and sharing systems.
Claims 1, 3, 5, 6, 8, and 9 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Kavaler et al. (US 9418551 B2) in view of Nath et al. (US 2008/0158010 A1), and Richards (US 6163336).
Regarding Claim 1, Kavaler discloses a parking management system, comprising: a roadside unit having a vehicle occupancy sensor with a zone of detection that corresponds to an individual parking space [Kavaler: FIG. 12D], the roadside unit comprising: the vehicle occupancy sensor comprising a radar or an infrared sensor with a transmit burst less than 10 ns in duration [Kavaler: Col. 34, ll. 33-35: 4ns], the sensor comprising a power conserving cycle such that the sensor is placed in a predetermined power state [Kavaler: Col. 5, ll. 47-48: requiring that a micro-radar use power in a frugal manner]; a first transceiver having a first radiating element configured to substantially radiate towards the individual parking space and that is configured to communicate with an in- vehicle transceiver [Kavaler: FIG. 3C: 350, 300-1]; a second antenna configured to substantially radiate in a direction of one or more gateways, cellular towers, or parking meters, the direction supporting communication between the second antenna and the one or more of gateways, cellular towers, servers, or parking meters [Kavaler: FIG. 3C: 300-2]; a fixed or known time delay element configured to measure distance between the roadside unit [Kavaler: Col. 34, ll. 36-45; and Col. 7, ll. 21-25] and a guidance display showing a representation of the occupancy condition of one or more parking spaces, wherein the guidance display is updated based on occupancy information collected by the roadside unit [Kavaler: Col. 12, ll. 12-15: The OBD 100 may be configured to signal a person and/or a processor 170 that a parking session 150 has started as shown in FIG. 2G. The OBD 100 may be configured to display additional information for the person]. Kavaler may not have disclosed the sensor comprising a power conserving cycle such that the sensor is placed in a predetermined power state based on an evaluation of a received signal, the received signal being based on a vehicle occupancy condition associated with the zone of detection; and the measured distance between the roadside unit and the in-vehicle device based on a fixed or known time delay. However, Nath discloses the sensor comprising a power conserving cycle such that the sensor is placed in a predetermined power state based on an evaluation of a received signal, the received signal being based on a vehicle occupancy condition associated with the zone of detection [Nath: ¶ [0050]: FIG. 5(a)-5(h) represent a flowchart of an exemplary process, in which T.I.P.P.S. mounted inside the parking meter initiates the process 601 to detect the presence of a vehicle in the metered zone. To lower power consumption, T.I.P.P.S. is programmed to go into a sleep mode 600 if there is no activity in the metered zone. If there is no vehicle sensed in the metered zone, T.I.P.P.S. waits for "n" seconds 602 and goes back to sleep mode 600. If the presence of a vehicle is detected in the metered zone, T.I.P.P.S. initiates broadcasting a unique T.I.P.P.S. identifying number 603].
However, Richards discloses the measured distance between the roadside unit and the in-vehicle device is based on a fixed or known time delay [Richards: Col. 5, ll. 43-55: A second approach is to use acoustic range finding from several different locations on the display unit and utilising triangulation to find the position of the viewer's head. A system based upon four ultrasonic transducers, one on each corner of the 3D display, would operate as follows. One transducer is used to transmit a pulse, the other three transducers are set to receive the echoes from this pulse. The first pulse that is received (from the closest object) should be from the viewer's nose. By knowing the time delay between the sending of the pulse and when it was received by each sensor, the distance to the object (from each sensor) can be determined and a triangulation method used to locate this point in space]. It would have been obvious to one having ordinary skill in the art at the time of the invention to combine the power management of Nath with the frugal power using parking system of Kavaler in order prolong life and reduce consumption of a remote system as well as the triangulation via time delay of Richards in order to utilize position determination methods similar to those used by GPS satellites, improving accuracy and usability of location determination and sharing systems.
Regarding Claim 3, Kavaler in view of Nath, and Richards disclose(s) all the limitations of Claim 1, and is/are analyzed as previously discussed with respect to that claim. Furthermore, Kavaler in view of Nath, and Richards discloses further comprising: an in-vehicle device, having a battery operated RF transceiver, the in-vehicle device being configured [Kavaler: FIG. 1C; FIG. 3E; and Col. 11, ll. 19-65].
Regarding Claim 5, Kavaler in view of Nath, and Richards disclose(s) all the limitations of Claim 1, and is/are analyzed as previously discussed with respect to that claim. Furthermore, Kavaler in view of Nath, and Richards discloses wherein the roadside unit includes a radar sensor for the vehicle occupancy sensor comprising an antenna radiating element mounted within a parking meter mechanism or housing located proximate the parking space that is configured to substantially radiate towards at least one of one or more zones of the parking space or its adjacent areas [Kavaler: FIG. 3B: 200; FIG. 12C].
Regarding Claim 6, Kavaler in view of Nath, and Richards disclose(s) all the limitations of Claim 3, and is/are analyzed as previously discussed with respect to that claim. Furthermore, Kavaler in view of Nath, and Richards discloses wherein the first radiating element comprises a plurality of antenna elements used for directional communications with the in- vehicle device [Kavaler: FIG. 12A].
Regarding Claim 8, Kavaler in view of Nath, and Richards disclose(s) all the limitations of Claim 3, and is/are analyzed as previously discussed with respect to that claim. Furthermore, Kavaler in view of Nath, and Richards discloses wherein the in-vehicle device comprises at least one of a visual and auditory indicator for a vehicle operator indicating at least one of communications and range information with the roadside unit [Kavaler: Col. 12, ll. 3-5: The OBD 100 may be configured to determine its range from the parking sensor 200, the access point 350 and/or another OBD 100 to at least partly determine the parking position], the in-vehicle device further comprising at least one controller to perform one or more actions [Kavaler: FIG. 14: 3000].
Regarding Claim 9, Kavaler in view of Nath, and Richards disclose(s) all the limitations of Claim 1, and is/are analyzed as previously discussed with respect to that claim. Furthermore, Kavaler in view of Nath, and Richards discloses wherein the roadside unit is mounted on a pole, coupled with a parking meter by at least one of wired or wireless means, mounted at or under the road surface in a subterranean configuration, or mounted on a curb [Kavaler: FIG. 3A: Pole 210].
Claim 2 is rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Kavaler in view of Nath, and Richards as applied to claim 1 above, and further in view of Jones et al. (US 2012/0285790 A1).
Regarding Claim 2, Kavaler in view of Nath, and Richards discloses all the limitations of Claim 1, and is analyzed as previously discussed with respect to that claim. Furthermore, Kavaler in view of Nath, and Richards discloses an imaging camera system, including at least one imaging sensor, for collecting evidence of parking violations, such that first evidence of a parking violation is generated using data derived from the vehicle occupancy sensor, and second evidence of the parking violation is generated using the imaging camera system [Nath: ¶ [0011]: In another embodiment of the invention, one or more of the intelligent parking enforcement devices optionally senses idling vehicles whether stationary or parked in a metered zone, tracks traffic volume and flow, provides time-lapse and full motion real time images, and/or self-generates a summons during the commission of a violation without human intervention]. Kavaler in view of Nath, and Richards may not explicitly disclose at least one imaging sensor that has an area of coverage associated with a plurality of parking spaces. However, Jones discloses at least one imaging sensor that has an area of coverage associated with a plurality of parking spaces [Jones: ¶ [0134]: FIG. 18 shows controller 200 communicably coupled to a camera module, shown including a first camera 272 and a second camera 274, each associated with one of the single-space meters. Cameras 272 and 274 are configured to capture image data of the vehicle located in the parking spot associated with each meter, and specifically may be configured to obtain an image of the license plate of each vehicle located in each parking spot. This information may then be communicated to parking management system 18 for processing and for use related to an enforcement activity (e.g., the mailing of a parking ticket directly to the owner of the vehicle if parking regulations were violated]. It would have been obvious to one having ordinary skill in the art to combine the parking management system of Kavaler in view of Nath, and Richards with the multi-space coverage of a single sensor of Jones in order to more efficiently perform parking monitoring.
Claim 4 is rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Kavaler in view of Nath, and Richards as applied to claim 1 above, and further in view of Genc et al. (US 2013/0057686 A1).
Regarding Claim 4 Kavaler in view of Nath, and Richards disclose(s) all the limitations of Claim 3, and is/are analyzed as previously discussed with respect to that claim. Kavaler in view of Nath, and Richards may not explicitly disclose wherein the vehicle occupancy sensor is mounted on a mobile platform or a vehicle that can be parked at the side of a road. However, Genc discloses wherein the vehicle occupancy sensor is mounted on a mobile platform or a vehicle that can be parked at the side of a road [Genc: Abstract; and ¶ [0002]: it relates to applying image processing in collaborative mobile sensing platforms to detect vacant parking spots]. It would have been obvious to one having ordinary skill in the art at the time of the invention to combine the in vehicle device communication of Genc with the parking management systems of Kavaler in view of Nath, and Richards in order utilize crowd source data, improving real-time updates using already available resources.
Claim 7 is rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Kavaler in view of Nath, Richards, and Jones as applied to claim 2 above, and further in view of Ratnakar (US 2006/0152349 A1).
Regarding Claim 7, Kavaler in view of Nath, Richards, and Jones discloses all the limitations of Claim 2, and is analyzed as previously discussed with respect to that claim. Kavaler in view of Nath, Richards, and Jones does not explicitly disclose further comprising a list of unique vehicle identifiers to deny or give differential handling of the vehicle However, Ratnakar discloses further comprising a list of unique vehicle identifiers to deny or give differential handling of the vehicle information, including wirelessly alerting authorities in case of a stolen or scofflaw vehicle, and the list being capable of remotely wirelessly being updated from a backend computer and being associated with the imaging camera system [Ratnakar: ¶ [0038]: The smart parking meter (100) can be very helpful in locating vehicles wanted by law enforcement agencies, such as stolen vehicles, vehicles involved in unlawful activities and the like. A central control station has access to data from all smart parking meters within its network. The network of the central control station can be city wide, county wide, state wide, countrywide or can cover any desired geographic area. The central control station has a master database that contains all information obtained from all smart parking meters, both real time and past. ID of the vehicle wanted by a law enforcement agency is entered into the computer system at the central control station; which then matches it with the master database contained therein. The central computer system has means to determine whether the wanted vehicle is presently parked in a parking stall within its network, and if so, it can determine its exact location. If the vehicle is presently not parked within the network, the computer system at the central controls station has means to determine if the said vehicle was parked in a parking stall within its network in the past. This is helpful to the law enforcement agencies in determining the general location of the said vehicle during a specified time period. According to another method, all smart parking meters within the network of the central control station are fed with the ID of the wanted vehicle. When a smart parking meter (100) identifies the wanted vehicle in its parking stall, it alerts the central control station. The central control station determines the exact location of the said smart parking meter (100) and alerts law enforcement personnel. Alternatively, the smart parking meters can be programmed to alert law enforcement personnel directly. It can also be programmed to give a visual and/or audio alarm when it detects a wanted vehicle to notify a near by law enforcement personnel]. It would have been obvious to one having ordinary skill in the art at the time of the invention to combine the parking management systems of Kavaler in view of Nath, Richards, and Jones with the vehicle registry system of Ratnakar in order to better and more accurately resolve parking violations being detected.
Claim 10 is rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Kavaler in view of Nath, and Richards as applied to claim 3 above, and further in view of Ratnakar (US 2006/0152349 A1).
Regarding Claim 10, Kavaler in view of Nath, and Richards disclose(s) all the limitations of Claim 3, and is/are analyzed as previously discussed with respect to that claim. Kavaler in view of Nath, and Richards do not explicitly disclose wherein a unique vehicle identifier is obtained from the in-vehicle device and is used to send location based information to a driver through an in-car navigation device or portable electronic device associated with the driver, using SMS, email, or other data transmissions, the information comprising guidance, location related information, parking related information, and promotional media. [Ratnakar: ¶ [0038]: The smart parking meter (100) can be very helpful in locating vehicles wanted by law enforcement agencies, such as stolen vehicles, vehicles involved in unlawful activities and the like. A central control station has access to data from all smart parking meters within its network. The network of the central control station can be city wide, county wide, state wide, countrywide or can cover any desired geographic area. The central control station has a master database that contains all information obtained from all smart parking meters, both real time and past. ID of the vehicle wanted by a law enforcement agency is entered into the computer system at the central control station; which then matches it with the master database contained therein. The central computer system has means to determine whether the wanted vehicle is presently parked in a parking stall within its network, and if so, it can determine its exact location. If the vehicle is presently not parked within the network, the computer system at the central controls station has means to determine if the said vehicle was parked in a parking stall within its network in the past. This is helpful to the law enforcement agencies in determining the general location of the said vehicle during a specified time period. According to another method, all smart parking meters within the network of the central control station are fed with the ID of the wanted vehicle. When a smart parking meter (100) identifies the wanted vehicle in its parking stall, it alerts the central control station. The central control station determines the exact location of the said smart parking meter (100) and alerts law enforcement personnel. Alternatively, the smart parking meters can be programmed to alert law enforcement personnel directly. It can also be programmed to give a visual and/or audio alarm when it detects a wanted vehicle to notify a near by law enforcement personnel]. It would have been obvious to one having ordinary skill in the art at the time of the invention to combine the parking management systems of Kavaler in view of Nath, and Richards with the vehicle registry system of Ratnakar in order to better and more accurately resolve parking violations being detected.
Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to JONATHAN R MESSMORE whose telephone number is (571)272-2773. The examiner can normally be reached on Monday-Friday 9-5 EST/EDT. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Chris Kelley can be reached on 571-272-7331. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished
/JONATHAN R MESSMORE/Primary Examiner, Art Unit 2482 | 2021-08-05T10:56:58 | [
"DETAILED ACTION Notice of Pre-AIA or AIA Status The present application is being examined under the pre-AIA first to invent provisions. Continued Examination Under 37 CFR 1.114 A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 12 July 2021 has been entered.",
"Response to Arguments Applicant's arguments filed 12 July 2021 have been fully considered but they are not persuasive. Applicant argues “Richards does not disclose the recited fixed time delay element comprised within a roadside unit as claimed”. Examiner respectfully disagrees and respectfully submits the claim recites an optional “fixed or known” and the “known” time delay used to determine distance is disclosed in the cited portion of Richards appears to disclose the claims. Applicant further argues “it is not possible to use a triangulation measurement method using only two devices”, however, there is no requirement in the claims for only two devices and . Claim Rejections - 35 USC § 103 The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.",
"Claim 21 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Kavaler et al. (US 9418551 B2) in view of Richards (US 6163336) Regarding Claim 21, Kavaler discloses a parking management system, comprising: a roadside unit having a vehicle occupancy sensor with a zone of detection that corresponds to an individual parking space [Kavaler: FIG. 12D], the roadside unit comprising: the vehicle occupancy sensor configured to sense an occupancy condition of a parking space in its zone of detection [Kavaler: FIG. 12D]; an antenna configured to facilitate communication between the roadside unit and one or more of gateways, cellular towers, servers, or parking meters [Kavaler: FIG. 3C: 300-2]; an in-vehicle device comprising an in-vehicle transceiver and configured to communicate with the roadside unit [Kavaler: Claim 1], wherein the roadside unit and in-vehicle device comprises a fixed or known time delay element [Kavaler: Col. 22, l. 66, through Col. 23, l. 3: In some embodiments, the repeaters may also maintain a local clock count that may be used to synchronize their transmissions to the access point and control a time delay in sending transmissions to specific sensors]; and a guidance display configured to indicate a [Kavaler: Col. 12, ll. 46-50: The determination of the vehicle 12 parking in multiple parking spots 20 may involve interactions with more than one parking sensor 200. The parking session 150 may further include more than one of the parking spot 20 identifications to indicate that the vehicle 12 is parked in more than one of the parking spots 20.",
"The determination of the vehicle 12 parking in multiple parking spots 20 may involve interactions with more than one parking sensor 200 as shown in FIG. 1C and FIG. 1D, and represented by an example of the parking session 150 as shown in FIG. 1E]. Kavaler may not explicitly disclose the fixed or known time delay element being configured to determine the distance between the roadside unit and the in-vehicle device based on a fixed or known time delay. However, Richards discloses a fixed or known time delay element, the fixed or known time delay element being configured to determine the distance between the roadside unit and the in-vehicle device based on a fixed or known time delay in synchronization with the roadside unit and the in-vehicle device [Richards: Col. 5, ll. 43-55: A second approach is to use acoustic range finding from several different locations on the display unit and utilising triangulation to find the position of the viewer's head.",
"A system based upon four ultrasonic transducers, one on each corner of the 3D display, would operate as follows. One transducer is used to transmit a pulse, the other three transducers are set to receive the echoes from this pulse. The first pulse that is received (from the closest object) should be from the viewer's nose. By knowing the time delay between the sending of the pulse and when it was received by each sensor, the distance to the object (from each sensor) can be determined and a triangulation method used to locate this point in space]. It would have been obvious to one having ordinary skill in the art before the effective filing date to combine the triangulation via time delay of Richards with the parking assistance system of Kavaler in order to utilize position determination methods similar to those used by GPS satellites, improving accuracy and usability of location determination and sharing systems. Claims 1, 3, 5, 6, 8, and 9 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Kavaler et al.",
"(US 9418551 B2) in view of Nath et al. (US 2008/0158010 A1), and Richards (US 6163336). Regarding Claim 1, Kavaler discloses a parking management system, comprising: a roadside unit having a vehicle occupancy sensor with a zone of detection that corresponds to an individual parking space [Kavaler: FIG. 12D], the roadside unit comprising: the vehicle occupancy sensor comprising a radar or an infrared sensor with a transmit burst less than 10 ns in duration [Kavaler: Col. 34, ll. 33-35: 4ns], the sensor comprising a power conserving cycle such that the sensor is placed in a predetermined power state [Kavaler: Col. 5, ll. 47-48: requiring that a micro-radar use power in a frugal manner]; a first transceiver having a first radiating element configured to substantially radiate towards the individual parking space and that is configured to communicate with an in- vehicle transceiver [Kavaler: FIG. 3C: 350, 300-1]; a second antenna configured to substantially radiate in a direction of one or more gateways, cellular towers, or parking meters, the direction supporting communication between the second antenna and the one or more of gateways, cellular towers, servers, or parking meters [Kavaler: FIG. 3C: 300-2]; a fixed or known time delay element configured to measure distance between the roadside unit [Kavaler: Col. 34, ll.",
"36-45; and Col. 7, ll. 21-25] and a guidance display showing a representation of the occupancy condition of one or more parking spaces, wherein the guidance display is updated based on occupancy information collected by the roadside unit [Kavaler: Col. 12, ll. 12-15: The OBD 100 may be configured to signal a person and/or a processor 170 that a parking session 150 has started as shown in FIG. 2G. The OBD 100 may be configured to display additional information for the person]. Kavaler may not have disclosed the sensor comprising a power conserving cycle such that the sensor is placed in a predetermined power state based on an evaluation of a received signal, the received signal being based on a vehicle occupancy condition associated with the zone of detection; and the measured distance between the roadside unit and the in-vehicle device based on a fixed or known time delay. However, Nath discloses the sensor comprising a power conserving cycle such that the sensor is placed in a predetermined power state based on an evaluation of a received signal, the received signal being based on a vehicle occupancy condition associated with the zone of detection [Nath: ¶ [0050]: FIG.",
"5(a)-5(h) represent a flowchart of an exemplary process, in which T.I.P.P.S. mounted inside the parking meter initiates the process 601 to detect the presence of a vehicle in the metered zone. To lower power consumption, T.I.P.P.S. is programmed to go into a sleep mode 600 if there is no activity in the metered zone. If there is no vehicle sensed in the metered zone, T.I.P.P.S. waits for \"n\" seconds 602 and goes back to sleep mode 600. If the presence of a vehicle is detected in the metered zone, T.I.P.P.S. initiates broadcasting a unique T.I.P.P.S. identifying number 603]. However, Richards discloses the measured distance between the roadside unit and the in-vehicle device is based on a fixed or known time delay [Richards: Col. 5, ll.",
"43-55: A second approach is to use acoustic range finding from several different locations on the display unit and utilising triangulation to find the position of the viewer's head. A system based upon four ultrasonic transducers, one on each corner of the 3D display, would operate as follows. One transducer is used to transmit a pulse, the other three transducers are set to receive the echoes from this pulse. The first pulse that is received (from the closest object) should be from the viewer's nose. By knowing the time delay between the sending of the pulse and when it was received by each sensor, the distance to the object (from each sensor) can be determined and a triangulation method used to locate this point in space]. It would have been obvious to one having ordinary skill in the art at the time of the invention to combine the power management of Nath with the frugal power using parking system of Kavaler in order prolong life and reduce consumption of a remote system as well as the triangulation via time delay of Richards in order to utilize position determination methods similar to those used by GPS satellites, improving accuracy and usability of location determination and sharing systems.",
"Regarding Claim 3, Kavaler in view of Nath, and Richards disclose(s) all the limitations of Claim 1, and is/are analyzed as previously discussed with respect to that claim. Furthermore, Kavaler in view of Nath, and Richards discloses further comprising: an in-vehicle device, having a battery operated RF transceiver, the in-vehicle device being configured [Kavaler: FIG. 1C; FIG. 3E; and Col. 11, ll. 19-65]. Regarding Claim 5, Kavaler in view of Nath, and Richards disclose(s) all the limitations of Claim 1, and is/are analyzed as previously discussed with respect to that claim.",
"Furthermore, Kavaler in view of Nath, and Richards discloses wherein the roadside unit includes a radar sensor for the vehicle occupancy sensor comprising an antenna radiating element mounted within a parking meter mechanism or housing located proximate the parking space that is configured to substantially radiate towards at least one of one or more zones of the parking space or its adjacent areas [Kavaler: FIG. 3B: 200; FIG. 12C]. Regarding Claim 6, Kavaler in view of Nath, and Richards disclose(s) all the limitations of Claim 3, and is/are analyzed as previously discussed with respect to that claim. Furthermore, Kavaler in view of Nath, and Richards discloses wherein the first radiating element comprises a plurality of antenna elements used for directional communications with the in- vehicle device [Kavaler: FIG.",
"12A]. Regarding Claim 8, Kavaler in view of Nath, and Richards disclose(s) all the limitations of Claim 3, and is/are analyzed as previously discussed with respect to that claim. Furthermore, Kavaler in view of Nath, and Richards discloses wherein the in-vehicle device comprises at least one of a visual and auditory indicator for a vehicle operator indicating at least one of communications and range information with the roadside unit [Kavaler: Col. 12, ll. 3-5: The OBD 100 may be configured to determine its range from the parking sensor 200, the access point 350 and/or another OBD 100 to at least partly determine the parking position], the in-vehicle device further comprising at least one controller to perform one or more actions [Kavaler: FIG. 14: 3000]. Regarding Claim 9, Kavaler in view of Nath, and Richards disclose(s) all the limitations of Claim 1, and is/are analyzed as previously discussed with respect to that claim. Furthermore, Kavaler in view of Nath, and Richards discloses wherein the roadside unit is mounted on a pole, coupled with a parking meter by at least one of wired or wireless means, mounted at or under the road surface in a subterranean configuration, or mounted on a curb [Kavaler: FIG.",
"3A: Pole 210]. Claim 2 is rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Kavaler in view of Nath, and Richards as applied to claim 1 above, and further in view of Jones et al. (US 2012/0285790 A1). Regarding Claim 2, Kavaler in view of Nath, and Richards discloses all the limitations of Claim 1, and is analyzed as previously discussed with respect to that claim. Furthermore, Kavaler in view of Nath, and Richards discloses an imaging camera system, including at least one imaging sensor, for collecting evidence of parking violations, such that first evidence of a parking violation is generated using data derived from the vehicle occupancy sensor, and second evidence of the parking violation is generated using the imaging camera system [Nath: ¶ [0011]: In another embodiment of the invention, one or more of the intelligent parking enforcement devices optionally senses idling vehicles whether stationary or parked in a metered zone, tracks traffic volume and flow, provides time-lapse and full motion real time images, and/or self-generates a summons during the commission of a violation without human intervention]. Kavaler in view of Nath, and Richards may not explicitly disclose at least one imaging sensor that has an area of coverage associated with a plurality of parking spaces. However, Jones discloses at least one imaging sensor that has an area of coverage associated with a plurality of parking spaces [Jones: ¶ [0134]: FIG.",
"18 shows controller 200 communicably coupled to a camera module, shown including a first camera 272 and a second camera 274, each associated with one of the single-space meters. Cameras 272 and 274 are configured to capture image data of the vehicle located in the parking spot associated with each meter, and specifically may be configured to obtain an image of the license plate of each vehicle located in each parking spot. This information may then be communicated to parking management system 18 for processing and for use related to an enforcement activity (e.g., the mailing of a parking ticket directly to the owner of the vehicle if parking regulations were violated]. It would have been obvious to one having ordinary skill in the art to combine the parking management system of Kavaler in view of Nath, and Richards with the multi-space coverage of a single sensor of Jones in order to more efficiently perform parking monitoring. Claim 4 is rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Kavaler in view of Nath, and Richards as applied to claim 1 above, and further in view of Genc et al. (US 2013/0057686 A1).",
"Regarding Claim 4 Kavaler in view of Nath, and Richards disclose(s) all the limitations of Claim 3, and is/are analyzed as previously discussed with respect to that claim. Kavaler in view of Nath, and Richards may not explicitly disclose wherein the vehicle occupancy sensor is mounted on a mobile platform or a vehicle that can be parked at the side of a road. However, Genc discloses wherein the vehicle occupancy sensor is mounted on a mobile platform or a vehicle that can be parked at the side of a road [Genc: Abstract; and ¶ [0002]: it relates to applying image processing in collaborative mobile sensing platforms to detect vacant parking spots].",
"It would have been obvious to one having ordinary skill in the art at the time of the invention to combine the in vehicle device communication of Genc with the parking management systems of Kavaler in view of Nath, and Richards in order utilize crowd source data, improving real-time updates using already available resources. Claim 7 is rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Kavaler in view of Nath, Richards, and Jones as applied to claim 2 above, and further in view of Ratnakar (US 2006/0152349 A1). Regarding Claim 7, Kavaler in view of Nath, Richards, and Jones discloses all the limitations of Claim 2, and is analyzed as previously discussed with respect to that claim. Kavaler in view of Nath, Richards, and Jones does not explicitly disclose further comprising a list of unique vehicle identifiers to deny or give differential handling of the vehicle However, Ratnakar discloses further comprising a list of unique vehicle identifiers to deny or give differential handling of the vehicle information, including wirelessly alerting authorities in case of a stolen or scofflaw vehicle, and the list being capable of remotely wirelessly being updated from a backend computer and being associated with the imaging camera system [Ratnakar: ¶ [0038]: The smart parking meter (100) can be very helpful in locating vehicles wanted by law enforcement agencies, such as stolen vehicles, vehicles involved in unlawful activities and the like.",
"A central control station has access to data from all smart parking meters within its network. The network of the central control station can be city wide, county wide, state wide, countrywide or can cover any desired geographic area. The central control station has a master database that contains all information obtained from all smart parking meters, both real time and past. ID of the vehicle wanted by a law enforcement agency is entered into the computer system at the central control station; which then matches it with the master database contained therein. The central computer system has means to determine whether the wanted vehicle is presently parked in a parking stall within its network, and if so, it can determine its exact location.",
"If the vehicle is presently not parked within the network, the computer system at the central controls station has means to determine if the said vehicle was parked in a parking stall within its network in the past. This is helpful to the law enforcement agencies in determining the general location of the said vehicle during a specified time period. According to another method, all smart parking meters within the network of the central control station are fed with the ID of the wanted vehicle. When a smart parking meter (100) identifies the wanted vehicle in its parking stall, it alerts the central control station.",
"The central control station determines the exact location of the said smart parking meter (100) and alerts law enforcement personnel. Alternatively, the smart parking meters can be programmed to alert law enforcement personnel directly. It can also be programmed to give a visual and/or audio alarm when it detects a wanted vehicle to notify a near by law enforcement personnel]. It would have been obvious to one having ordinary skill in the art at the time of the invention to combine the parking management systems of Kavaler in view of Nath, Richards, and Jones with the vehicle registry system of Ratnakar in order to better and more accurately resolve parking violations being detected. Claim 10 is rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Kavaler in view of Nath, and Richards as applied to claim 3 above, and further in view of Ratnakar (US 2006/0152349 A1). Regarding Claim 10, Kavaler in view of Nath, and Richards disclose(s) all the limitations of Claim 3, and is/are analyzed as previously discussed with respect to that claim. Kavaler in view of Nath, and Richards do not explicitly disclose wherein a unique vehicle identifier is obtained from the in-vehicle device and is used to send location based information to a driver through an in-car navigation device or portable electronic device associated with the driver, using SMS, email, or other data transmissions, the information comprising guidance, location related information, parking related information, and promotional media.",
"[Ratnakar: ¶ [0038]: The smart parking meter (100) can be very helpful in locating vehicles wanted by law enforcement agencies, such as stolen vehicles, vehicles involved in unlawful activities and the like. A central control station has access to data from all smart parking meters within its network. The network of the central control station can be city wide, county wide, state wide, countrywide or can cover any desired geographic area. The central control station has a master database that contains all information obtained from all smart parking meters, both real time and past. ID of the vehicle wanted by a law enforcement agency is entered into the computer system at the central control station; which then matches it with the master database contained therein. The central computer system has means to determine whether the wanted vehicle is presently parked in a parking stall within its network, and if so, it can determine its exact location. If the vehicle is presently not parked within the network, the computer system at the central controls station has means to determine if the said vehicle was parked in a parking stall within its network in the past.",
"This is helpful to the law enforcement agencies in determining the general location of the said vehicle during a specified time period. According to another method, all smart parking meters within the network of the central control station are fed with the ID of the wanted vehicle. When a smart parking meter (100) identifies the wanted vehicle in its parking stall, it alerts the central control station. The central control station determines the exact location of the said smart parking meter (100) and alerts law enforcement personnel. Alternatively, the smart parking meters can be programmed to alert law enforcement personnel directly.",
"It can also be programmed to give a visual and/or audio alarm when it detects a wanted vehicle to notify a near by law enforcement personnel]. It would have been obvious to one having ordinary skill in the art at the time of the invention to combine the parking management systems of Kavaler in view of Nath, and Richards with the vehicle registry system of Ratnakar in order to better and more accurately resolve parking violations being detected. Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to JONATHAN R MESSMORE whose telephone number is (571)272-2773. The examiner can normally be reached on Monday-Friday 9-5 EST/EDT. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Chris Kelley can be reached on 571-272-7331.",
"The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished /JONATHAN R MESSMORE/Primary Examiner, Art Unit 2482"
] | https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2021-08-01.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
DECISION AND JUDGMENT ENTRY This is an appeal from a judgment of conviction and sentence entered by the Lucas County Court of Common Pleas after a jury found defendant-appellant, Eldon E. Petrey, guilty of one count of breaking and entering. From that judgment and from the denial of his motion to suppress, appellant now assigns the following as error on appeal: "I. THE WARRANTLESS SEARCH OF THE DORCAS STREET PROPERTY WAS UNCONSTITUTIONAL AND A VIOLATION OF APPELLANT'S RIGHTS PURSUANT TO THE CONSTITUTIONS OF THE STATE OF OHIO AND THE UNITED STATES OF AMERICA. "II. THE PRE-TRIAL IDENTIFICATION PROCEDURE WAS SO UNNECESSARILY SUGGESTIVE AS TO VIOLATE DUE PROCESS AND SO INFLUENCED THE COURT IDENTIFICATION, THAT IT WAS ERROR TO ADMIT IT. "III. THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE." In the early morning hours of January 27, 1999, Deputies William Talbott and Randy Likes of the Lucas County Sheriff's Department responded to an alarm at the McCord Carry Out at 6801 Nebraska Avenue in Toledo, Lucas County, Ohio. The alarm indicated that the store had been broken into. Upon arriving at the carry out, the officers inspected the outside of the building and found a ladder on the south side of the building leading to the roof. Officer Talbott climbed the ladder onto the roof and found a hole in the roof. Outside of the hole on the roof, Officer Talbott found approximately eighteen cartons of cigarettes, a hammer, a brown glove, a screwdriver and pliers with the initials "E.P." on them. Believing that the intruder may still be in the building, the officers waited for backup before proceeding any further. In the meantime, at approximately 2:15 a.m., Derek Thomas had just arrived home at 1944 King Road, from his job when he heard a knock on his door. Thomas answered the door to find a man, who he subsequently identified as appellant, standing in his doorway. Thomas testified at the trial below that appellant was wearing a green military jacket, blue jeans and tennis shoes. Appellant asked Thomas if he could have a ride home and Thomas agreed. When the two were in Thomas' car, Thomas noticed that appellant was carrying a rolled up brown paper bag. Thomas testified that appellant's demeanor was pleasant until they drove by the carry out, which was then surrounded by police cruisers, when appellant mumbled "fucking cops." Appellant then directed Thomas to an address on Dorcas Street where appellant exited the vehicle and entered the home. On his way back home, Thomas drove by the carry out again and decided to find out what was going on. Thomas approached the officers who told him that there had been a robbery. Thomas then told the officers that a man had come to his door asking for a ride and he had just taken the man to a home on Dorcas Street. Thomas further agreed to show the officers the house at which he dropped off the suspect. Thomas directed Officers Talbott and Likes along with Deputy Gary Lofgren to the home on Dorcas Street and was then returned to the carry out. The officers then knocked on the door of the home. After several minutes, a man, who identified himself as Michael Taylor, came to the door. Upon questioning by the officers, Taylor stated that he lived alone and that no one else was in the house at that time. The officers obtained Taylor's identification and subsequently learned that there were several warrants for Taylor's arrest. The officers therefore told Taylor that he would have to come with them. Because Taylor was not dressed, the officers told him he could get dressed but that they would have to come into the home. Taylor agreed. After Taylor was dressed, however, and the officers were helping him with his keys, Officer Lofgren heard a rustling noise from the bedroom and went in to investigate. Upon shining his flashlight around the room, Officer Lofgren saw a man, appellant, hiding under the bed. Next to the man's shoulder was a brown paper bag. Appellant then came out from under the bed and Officer Lofgren patted him down for weapons. Officer Lofgren then looked under the bed and found the brown paper bag and a green military jacket. The bag was partially open and, looking inside, Officer Lofgren saw what appeared to be a number of scratch off lottery ticket and some rolls of coins. Prior to this time, the officers had learned that scratch off lottery tickets and coins, as well as approximately $300 in cash, had been stolen from the carry out. The officers then took Taylor and appellant into custody and transported them to the carry out to determine if Derek Thomas could identify either suspect as the man to whom he had given a ride. Initially, the officers removed Taylor from a cruiser and shined a light on him. Thomas, however, stated that Taylor was not the man he had assisted. The officers then removed appellant from a cruiser and shined a light on him. Thomas immediately identified him as the man to whom he had given a ride. A subsequent investigation of the crime scene revealed that the lottery tickets that were found in appellant's brown paper bag had been taken from the dispensers in the carry out. Moreover, a black hat with the words "East Side" was found in the store rafters. Atul Patel, the owner of the carry out, testified that appellant had come into the store the previous evening and was wearing that very same hat. On February 2, 1999, appellant was indicted and charged with one count of breaking and entering in violation of R.C.2911.13(A). He subsequently filed motions to suppress the pre-trial identification of him by Derek Thomas and any and all evidence found at 101 North Dorcas Street. Appellant asserted that the identification procedure was biased and prejudicial and that the evidence was seized without a warrant and in violation of his rights against unreasonable searches and seizures. Prior to the trial, the court held a hearing on the motions to suppress at which Derek Thomas, Officers Gary Lofgren, Gary Heil and William Talbott, and Penni Fields, appellant's parole officer, testified. At the conclusion of the hearing, the court denied the motions to suppress. The case then proceeded to trial at the conclusion of which appellant was found guilty of breaking and entering. On June 10, 1999, the trial court entered a judgment of conviction and sentence, in which the court sentenced appellant to a term of eleven months incarceration. It is from that judgment that appellant now appeals. Appellant's first and second assignments of error challenge the trial court's ruling on his motions to suppress. Appellate review of a denial of a motion to suppress presents a mixed question of law and fact. In a motion to suppress, the trial court assumes the role of trier of fact and, as such, is in the best position to resolve questions of fact and evaluate witness credibility. State v. Smith (1997), 80 Ohio St.3d 89,105. Accordingly, this court is bound to accept the trial court's findings of fact if they are supported by competent, credible evidence. State v. Rhude (1993), 91 Ohio App.3d 623, 626; Statev. Guysinger (1993), 86 Ohio App.3d 592, 594. Accepting those facts as true, this court must independently determine as a matter of law, without deference to the trial court's conclusion, whether they meet the applicable legal standard. State v. Klein (1991),73 Ohio App.3d 486, 488. In his first assignment of error, appellant asserts that the trial court erred in denying his motion to suppress the physical evidence found at the Dorcas Street address. Appellant contends that because the evidence was collected without a warrant based on probable cause, the court erred in refusing to suppress it. In ruling on this motion to suppress, the trial court concluded that appellant had not established that he had the requisite standing to challenge the search. For the following reasons we agree. The Fourth Amendment protects persons against unreasonable government intrusions, whether a search or a seizure, into areas of recognized privacy expectations. United States v. Chadwick (1977),433 U.S. 1, 11. "In order to challenge a search or seizure on Fourth Amendment grounds, a defendant must possess a legitimate expectation of privacy in the area searched, and the burden is upon the defendant to prove facts sufficient to establish such an expectation." Statev. Steele (1981), 2 Ohio App.3d 105, 107. See, also, State v.Williams (1995), 73 Ohio St.3d 153, 166. With regard to this expectation of privacy, the United States Supreme Court determined inMinnesota v. Carter (1998), 525 U.S. 83, 90, that "an overnight guest in a home may claim the protection of the Fourth Amendment, but one who is merely present with the consent of the householder may not." In the present case, appellant presented no evidence that he was an overnight guest in Taylor's home or possessed any legitimate expectation of privacy in that home. Rather, when police came to Taylor's door, Taylor stated that he lived alone and that no one else was in the home. In addition, Penni Fields, appellant's parole officer, testified that appellant was listed as living with his father at 3009 Elmwood, Sylvania, Ohio, and that he was not given permission to stay overnight anywhere else. She further testified that it would be a violation of his parole to stay overnight at any address other than the one listed in his file. Accordingly, because appellant failed to present evidence sufficient to establish that he had a legitimate expectation of privacy in Taylor's home, he did not have standing to challenge the search of that home and the trial court did not err in denying his motion to suppress the evidence seized during that search. The first assignment of error is not well-taken. In his second assignment of error, appellant challenges the trial court's denial of his motion to suppress Thomas' pretrial identification of him. Appellant asserts that the identification procedure, in which he was transported to the carry out in a police cruiser and in handcuffs, was so unnecessarily suggestive as to violate his right to due process. It is well-established that "[w]here a witness has been confronted by a suspect before trial, that witness' identification of the suspect will be suppressed if the confrontation procedure was unnecessarily suggestive of the suspect's guilt and the identification was unreliable under the totality of the circumstances." State v. Brown (1988), 38 Ohio St.3d 305, 310, citing Manson v. Brathwaite (1977), 432 U.S. 98. A one-on-one show-up for identification purposes could be deemed a suggestive procedure. See Stovall v. Denno (1967), 388 U.S. 293. However, there is no absolute prohibition in employing such a procedure.Id.; State v. Madison (1980), 64 Ohio St.2d 322, 332, citingBates v. United States (C.A.D.C. 1968), 405 F.2d 1104, 1106. Rather, the likelihood of misidentification becomes the crucial issue and must be determined by a consideration of several factors, including: "* * * the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and confrontation." Manson, supra, at 114. In the present case the witness, Derek Thomas, drove appellant to the Dorcas Street home approximately forty-five minutes before the identification. Thomas described appellant as wearing a green military jacket, blue jeans and tennis shoes. Thomas also stated that appellant was carrying a brown paper bag. When appellant was at Thomas' door and during the drive to Dorcas Street, Thomas got a good look at appellant. When appellant was apprehended, he was hiding underneath a bed with a green military jacket and a brown paper bag. The officers then transported appellant and Taylor to the carry out to determine if either man was the man Thomas had driven. Initially the officers showed Taylor to Thomas. Thomas immediately stated that Taylor was not the man. The officers then took appellant out of the cruiser. Thomas immediately identified appellant as the man he had driven. Based on the above, we conclude that the trial court did not err in determining that the one-on-one identification was reliable under the totality of the circumstances and, therefore, the trial court did not err in failing to suppress that identification. The second assignment of error is not well-taken. In his third and final assignment of error, appellant asserts that his conviction was against the manifest weight of the evidence. Under a manifest weight standard, an appellate court sits as a "thirteenth juror" and may disagree with the fact finder's resolution of the conflicting testimony. State v.Thompkins (1997), 78 Ohio St.3d 380, 387. The appellate court, "`reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against conviction.'" Id., quoting State v. Martin (1983), 20 Ohio App.3d 172, 175. Appellant was convicted of breaking and entering in violation of R.C. 2911.13(A). That statute reads: "No person by force, stealth, or deception, shall trespass in an unoccupied structure, with purpose to commit therein any theft offense, as defined in section 2913.01 of the Revised Code, or any felony." The evidence presented at the trial below revealed that in the early morning hours of January 27, 1999, someone cut a hole in the roof of the McCord Carry Out and thereby entered the store. A pair of pliers found outside of the hole bore the initials "E.P." In addition, a hat found in the rafters was identified by the owner of the store as one that he had seen appellant wearing the previous evening. Derek Thomas' testimony revealed that appellant was in the vicinity of the carry out that morning. Moreover, when appellant was apprehended he was in possession of lottery tickets that were positively identified as having come from the carry out. He was also in possession of several rolls of coins. The owner of the store testified that several rolls of coins had been stolen along with $300 cash and the lottery tickets. Upon a review of the evidence presented in the trial below and in light of the applicable standard, we cannot say that the verdict finding appellant guilty of breaking and entering was against the manifest weight of the evidence. Accordingly, the third assignment of error is not well-taken. On consideration whereof, the court finds that appellant was not prejudiced or prevented from having a fair trial and the judgment of the Lucas County Court of Common Pleas is affirmed. Court costs of this appeal are assessed to appellant. JUDGMENT AFFIRMED. Judge George M. Glasser, retired, sitting by assignment of the Chief Justice of the Supreme Court of Ohio. | 07-06-2016 | [
"DECISION AND JUDGMENT ENTRY This is an appeal from a judgment of conviction and sentence entered by the Lucas County Court of Common Pleas after a jury found defendant-appellant, Eldon E. Petrey, guilty of one count of breaking and entering. From that judgment and from the denial of his motion to suppress, appellant now assigns the following as error on appeal: \"I. THE WARRANTLESS SEARCH OF THE DORCAS STREET PROPERTY WAS UNCONSTITUTIONAL AND A VIOLATION OF APPELLANT'S RIGHTS PURSUANT TO THE CONSTITUTIONS OF THE STATE OF OHIO AND THE UNITED STATES OF AMERICA. \"II. THE PRE-TRIAL IDENTIFICATION PROCEDURE WAS SO UNNECESSARILY SUGGESTIVE AS TO VIOLATE DUE PROCESS AND SO INFLUENCED THE COURT IDENTIFICATION, THAT IT WAS ERROR TO ADMIT IT. \"III. THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.\"",
"In the early morning hours of January 27, 1999, Deputies William Talbott and Randy Likes of the Lucas County Sheriff's Department responded to an alarm at the McCord Carry Out at 6801 Nebraska Avenue in Toledo, Lucas County, Ohio. The alarm indicated that the store had been broken into. Upon arriving at the carry out, the officers inspected the outside of the building and found a ladder on the south side of the building leading to the roof. Officer Talbott climbed the ladder onto the roof and found a hole in the roof.",
"Outside of the hole on the roof, Officer Talbott found approximately eighteen cartons of cigarettes, a hammer, a brown glove, a screwdriver and pliers with the initials \"E.P.\" on them. Believing that the intruder may still be in the building, the officers waited for backup before proceeding any further. In the meantime, at approximately 2:15 a.m., Derek Thomas had just arrived home at 1944 King Road, from his job when he heard a knock on his door. Thomas answered the door to find a man, who he subsequently identified as appellant, standing in his doorway.",
"Thomas testified at the trial below that appellant was wearing a green military jacket, blue jeans and tennis shoes. Appellant asked Thomas if he could have a ride home and Thomas agreed. When the two were in Thomas' car, Thomas noticed that appellant was carrying a rolled up brown paper bag. Thomas testified that appellant's demeanor was pleasant until they drove by the carry out, which was then surrounded by police cruisers, when appellant mumbled \"fucking cops.\" Appellant then directed Thomas to an address on Dorcas Street where appellant exited the vehicle and entered the home.",
"On his way back home, Thomas drove by the carry out again and decided to find out what was going on. Thomas approached the officers who told him that there had been a robbery. Thomas then told the officers that a man had come to his door asking for a ride and he had just taken the man to a home on Dorcas Street. Thomas further agreed to show the officers the house at which he dropped off the suspect. Thomas directed Officers Talbott and Likes along with Deputy Gary Lofgren to the home on Dorcas Street and was then returned to the carry out.",
"The officers then knocked on the door of the home. After several minutes, a man, who identified himself as Michael Taylor, came to the door. Upon questioning by the officers, Taylor stated that he lived alone and that no one else was in the house at that time. The officers obtained Taylor's identification and subsequently learned that there were several warrants for Taylor's arrest. The officers therefore told Taylor that he would have to come with them. Because Taylor was not dressed, the officers told him he could get dressed but that they would have to come into the home. Taylor agreed. After Taylor was dressed, however, and the officers were helping him with his keys, Officer Lofgren heard a rustling noise from the bedroom and went in to investigate. Upon shining his flashlight around the room, Officer Lofgren saw a man, appellant, hiding under the bed. Next to the man's shoulder was a brown paper bag.",
"Appellant then came out from under the bed and Officer Lofgren patted him down for weapons. Officer Lofgren then looked under the bed and found the brown paper bag and a green military jacket. The bag was partially open and, looking inside, Officer Lofgren saw what appeared to be a number of scratch off lottery ticket and some rolls of coins. Prior to this time, the officers had learned that scratch off lottery tickets and coins, as well as approximately $300 in cash, had been stolen from the carry out. The officers then took Taylor and appellant into custody and transported them to the carry out to determine if Derek Thomas could identify either suspect as the man to whom he had given a ride. Initially, the officers removed Taylor from a cruiser and shined a light on him. Thomas, however, stated that Taylor was not the man he had assisted. The officers then removed appellant from a cruiser and shined a light on him.",
"Thomas immediately identified him as the man to whom he had given a ride. A subsequent investigation of the crime scene revealed that the lottery tickets that were found in appellant's brown paper bag had been taken from the dispensers in the carry out. Moreover, a black hat with the words \"East Side\" was found in the store rafters. Atul Patel, the owner of the carry out, testified that appellant had come into the store the previous evening and was wearing that very same hat. On February 2, 1999, appellant was indicted and charged with one count of breaking and entering in violation of R.C.2911.13(A).",
"He subsequently filed motions to suppress the pre-trial identification of him by Derek Thomas and any and all evidence found at 101 North Dorcas Street. Appellant asserted that the identification procedure was biased and prejudicial and that the evidence was seized without a warrant and in violation of his rights against unreasonable searches and seizures. Prior to the trial, the court held a hearing on the motions to suppress at which Derek Thomas, Officers Gary Lofgren, Gary Heil and William Talbott, and Penni Fields, appellant's parole officer, testified. At the conclusion of the hearing, the court denied the motions to suppress. The case then proceeded to trial at the conclusion of which appellant was found guilty of breaking and entering.",
"On June 10, 1999, the trial court entered a judgment of conviction and sentence, in which the court sentenced appellant to a term of eleven months incarceration. It is from that judgment that appellant now appeals. Appellant's first and second assignments of error challenge the trial court's ruling on his motions to suppress. Appellate review of a denial of a motion to suppress presents a mixed question of law and fact. In a motion to suppress, the trial court assumes the role of trier of fact and, as such, is in the best position to resolve questions of fact and evaluate witness credibility. State v. Smith (1997), 80 Ohio St.3d 89,105. Accordingly, this court is bound to accept the trial court's findings of fact if they are supported by competent, credible evidence.",
"State v. Rhude (1993), 91 Ohio App.3d 623, 626; Statev. Guysinger (1993), 86 Ohio App.3d 592, 594. Accepting those facts as true, this court must independently determine as a matter of law, without deference to the trial court's conclusion, whether they meet the applicable legal standard. State v. Klein (1991),73 Ohio App.3d 486, 488. In his first assignment of error, appellant asserts that the trial court erred in denying his motion to suppress the physical evidence found at the Dorcas Street address. Appellant contends that because the evidence was collected without a warrant based on probable cause, the court erred in refusing to suppress it. In ruling on this motion to suppress, the trial court concluded that appellant had not established that he had the requisite standing to challenge the search. For the following reasons we agree. The Fourth Amendment protects persons against unreasonable government intrusions, whether a search or a seizure, into areas of recognized privacy expectations. United States v. Chadwick (1977),433 U.S. 1, 11.",
"\"In order to challenge a search or seizure on Fourth Amendment grounds, a defendant must possess a legitimate expectation of privacy in the area searched, and the burden is upon the defendant to prove facts sufficient to establish such an expectation.\" Statev. Steele (1981), 2 Ohio App.3d 105, 107. See, also, State v.Williams (1995), 73 Ohio St.3d 153, 166. With regard to this expectation of privacy, the United States Supreme Court determined inMinnesota v. Carter (1998), 525 U.S. 83, 90, that \"an overnight guest in a home may claim the protection of the Fourth Amendment, but one who is merely present with the consent of the householder may not.\" In the present case, appellant presented no evidence that he was an overnight guest in Taylor's home or possessed any legitimate expectation of privacy in that home. Rather, when police came to Taylor's door, Taylor stated that he lived alone and that no one else was in the home. In addition, Penni Fields, appellant's parole officer, testified that appellant was listed as living with his father at 3009 Elmwood, Sylvania, Ohio, and that he was not given permission to stay overnight anywhere else.",
"She further testified that it would be a violation of his parole to stay overnight at any address other than the one listed in his file. Accordingly, because appellant failed to present evidence sufficient to establish that he had a legitimate expectation of privacy in Taylor's home, he did not have standing to challenge the search of that home and the trial court did not err in denying his motion to suppress the evidence seized during that search. The first assignment of error is not well-taken. In his second assignment of error, appellant challenges the trial court's denial of his motion to suppress Thomas' pretrial identification of him. Appellant asserts that the identification procedure, in which he was transported to the carry out in a police cruiser and in handcuffs, was so unnecessarily suggestive as to violate his right to due process. It is well-established that \"[w]here a witness has been confronted by a suspect before trial, that witness' identification of the suspect will be suppressed if the confrontation procedure was unnecessarily suggestive of the suspect's guilt and the identification was unreliable under the totality of the circumstances.\" State v. Brown (1988), 38 Ohio St.3d 305, 310, citing Manson v. Brathwaite (1977), 432 U.S. 98.",
"A one-on-one show-up for identification purposes could be deemed a suggestive procedure. See Stovall v. Denno (1967), 388 U.S. 293. However, there is no absolute prohibition in employing such a procedure.Id. ; State v. Madison (1980), 64 Ohio St.2d 322, 332, citingBates v. United States (C.A.D.C. 1968), 405 F.2d 1104, 1106. Rather, the likelihood of misidentification becomes the crucial issue and must be determined by a consideration of several factors, including: \"* * * the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and confrontation.\" Manson, supra, at 114. In the present case the witness, Derek Thomas, drove appellant to the Dorcas Street home approximately forty-five minutes before the identification.",
"Thomas described appellant as wearing a green military jacket, blue jeans and tennis shoes. Thomas also stated that appellant was carrying a brown paper bag. When appellant was at Thomas' door and during the drive to Dorcas Street, Thomas got a good look at appellant. When appellant was apprehended, he was hiding underneath a bed with a green military jacket and a brown paper bag. The officers then transported appellant and Taylor to the carry out to determine if either man was the man Thomas had driven. Initially the officers showed Taylor to Thomas. Thomas immediately stated that Taylor was not the man. The officers then took appellant out of the cruiser.",
"Thomas immediately identified appellant as the man he had driven. Based on the above, we conclude that the trial court did not err in determining that the one-on-one identification was reliable under the totality of the circumstances and, therefore, the trial court did not err in failing to suppress that identification. The second assignment of error is not well-taken. In his third and final assignment of error, appellant asserts that his conviction was against the manifest weight of the evidence. Under a manifest weight standard, an appellate court sits as a \"thirteenth juror\" and may disagree with the fact finder's resolution of the conflicting testimony. State v.Thompkins (1997), 78 Ohio St.3d 380, 387. The appellate court, \"`reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against conviction.'\"",
"Id., quoting State v. Martin (1983), 20 Ohio App.3d 172, 175. Appellant was convicted of breaking and entering in violation of R.C. 2911.13(A). That statute reads: \"No person by force, stealth, or deception, shall trespass in an unoccupied structure, with purpose to commit therein any theft offense, as defined in section 2913.01 of the Revised Code, or any felony.\" The evidence presented at the trial below revealed that in the early morning hours of January 27, 1999, someone cut a hole in the roof of the McCord Carry Out and thereby entered the store. A pair of pliers found outside of the hole bore the initials \"E.P.\" In addition, a hat found in the rafters was identified by the owner of the store as one that he had seen appellant wearing the previous evening. Derek Thomas' testimony revealed that appellant was in the vicinity of the carry out that morning.",
"Moreover, when appellant was apprehended he was in possession of lottery tickets that were positively identified as having come from the carry out. He was also in possession of several rolls of coins. The owner of the store testified that several rolls of coins had been stolen along with $300 cash and the lottery tickets. Upon a review of the evidence presented in the trial below and in light of the applicable standard, we cannot say that the verdict finding appellant guilty of breaking and entering was against the manifest weight of the evidence. Accordingly, the third assignment of error is not well-taken. On consideration whereof, the court finds that appellant was not prejudiced or prevented from having a fair trial and the judgment of the Lucas County Court of Common Pleas is affirmed.",
"Court costs of this appeal are assessed to appellant. JUDGMENT AFFIRMED. Judge George M. Glasser, retired, sitting by assignment of the Chief Justice of the Supreme Court of Ohio."
] | https://www.courtlistener.com/api/rest/v3/opinions/3733660/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
The Honorable Sam Pope Prosecuting Attorney 409 N. Main Street Hamburg, AR 71646 Dear Mr. Pope: This is in response to your request for an opinion regarding expenses of court reporters. Specifically, you state that in the Tenth Judicial District, all court reporters are steno-mask reporters who use many cassette tapes during a year in their job of recording. You have asked the following question concerning expenses in this regard: Since the expense of buying these tapes is apparently not one of the specific expenses set out at Ark. Code Ann. 16-13-505, is their purchase price `an expense accruing in Circuit Courts' under Ark. Code Ann. 16-13-219, which the county in which the court is held is obligated to pay? It is my opinion that the answer to this question is "yes." As you note, A.C.A. § 16-13-505 authorizes reimbursement for certain costs incurred while attending court away from the reporter's official station. These expense reimbursements, subject to a $4,500 cap, are to be made monthly by the Auditor of State. A.C.A. § 16-13-505 (b). A fund is created under A.C.A. §16-13-508 on the books of the State Auditor, State Treasurer and Chief Fiscal Officer for the payment of such expenses, as follows: There is created on the books of the Auditor of State, Treasurer of State, and the Chief Fiscal Officer a fund to be known as the Court Reporters' Fund, which fund shall be used exclusively for paying such salaries, transcript fees, and expenses of court reporters as may be provided by law to be paid from state funds. [Emphasis added.] See also A.C.A. § 16-13-503(b)(2) ("[t]he salaries, together with such expenses as may be authorized by law for the court reporters to be paid from state funds shall be paid with moneys appropriated therefor by the General Assembly from the Court Reporters' fund"). While the General Assembly has thus clearly provided a mechanism for the payment of those reporters' expenses that are "to be paid from state funds," reference must also be made in this instance to the general provision for circuit court expenses. Arkansas Code of 1987 Annotated § 16-13-219(a) states that "[t]he expenses accruing in the circuit courts shall be paid out of the county treasury in which the court is held in the same manner as other demands."1 Subsection (b)(1) of this section states: These expenses shall include reasonable sums for the employment of secretaries by circuit judges and for reasonable office expenses and office supplies of the circuit judges. In my opinion, it may reasonably be concluded that the cassette tapes of steno-mask reporters fall within this provision for circuit court expenses that are to be paid by the county. The fact that these expenses are not included in those to be paid from state funds under A.C.A. § 16-13-501 to -508 is not dispositive. In order to give effect to § 16-13-219, it must be concluded that with the exception of those expenses that are authorized and provided by law to be paid from state funds, circuit court expenses "shall be paid out of the county treasury." A.C.A. § 16-13-219(a). The expense in question would appear to be an expense "accruing in the circuit court." The foregoing opinion, which I hereby approve, was prepared by Deputy Attorney General Elisabeth A. Walker. Sincerely, WINSTON BRYANT Attorney General WB:arb 1 If the judicial district is comprised of more than one county, the expenses are prorated among the counties as the circuit judge directs. A.C.A. § 16-13-219(c). | 07-05-2016 | [
"The Honorable Sam Pope Prosecuting Attorney 409 N. Main Street Hamburg, AR 71646 Dear Mr. Pope: This is in response to your request for an opinion regarding expenses of court reporters. Specifically, you state that in the Tenth Judicial District, all court reporters are steno-mask reporters who use many cassette tapes during a year in their job of recording. You have asked the following question concerning expenses in this regard: Since the expense of buying these tapes is apparently not one of the specific expenses set out at Ark. Code Ann. 16-13-505, is their purchase price `an expense accruing in Circuit Courts' under Ark. Code Ann. 16-13-219, which the county in which the court is held is obligated to pay? It is my opinion that the answer to this question is \"yes.\" As you note, A.C.A.",
"§ 16-13-505 authorizes reimbursement for certain costs incurred while attending court away from the reporter's official station. These expense reimbursements, subject to a $4,500 cap, are to be made monthly by the Auditor of State. A.C.A. § 16-13-505 (b). A fund is created under A.C.A. §16-13-508 on the books of the State Auditor, State Treasurer and Chief Fiscal Officer for the payment of such expenses, as follows: There is created on the books of the Auditor of State, Treasurer of State, and the Chief Fiscal Officer a fund to be known as the Court Reporters' Fund, which fund shall be used exclusively for paying such salaries, transcript fees, and expenses of court reporters as may be provided by law to be paid from state funds. [Emphasis added.]",
"See also A.C.A. § 16-13-503(b)(2) (\"[t]he salaries, together with such expenses as may be authorized by law for the court reporters to be paid from state funds shall be paid with moneys appropriated therefor by the General Assembly from the Court Reporters' fund\"). While the General Assembly has thus clearly provided a mechanism for the payment of those reporters' expenses that are \"to be paid from state funds,\" reference must also be made in this instance to the general provision for circuit court expenses. Arkansas Code of 1987 Annotated § 16-13-219(a) states that \"[t]he expenses accruing in the circuit courts shall be paid out of the county treasury in which the court is held in the same manner as other demands. \"1 Subsection (b)(1) of this section states: These expenses shall include reasonable sums for the employment of secretaries by circuit judges and for reasonable office expenses and office supplies of the circuit judges.",
"In my opinion, it may reasonably be concluded that the cassette tapes of steno-mask reporters fall within this provision for circuit court expenses that are to be paid by the county. The fact that these expenses are not included in those to be paid from state funds under A.C.A. § 16-13-501 to -508 is not dispositive. In order to give effect to § 16-13-219, it must be concluded that with the exception of those expenses that are authorized and provided by law to be paid from state funds, circuit court expenses \"shall be paid out of the county treasury.\" A.C.A. § 16-13-219(a). The expense in question would appear to be an expense \"accruing in the circuit court.\" The foregoing opinion, which I hereby approve, was prepared by Deputy Attorney General Elisabeth A. Walker. Sincerely, WINSTON BRYANT Attorney General WB:arb 1 If the judicial district is comprised of more than one county, the expenses are prorated among the counties as the circuit judge directs. A.C.A. § 16-13-219(c)."
] | https://www.courtlistener.com/api/rest/v3/opinions/3262422/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
NUMBER 13-98-579-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI ____________________________________________________________________
KAREN SLATON, Appellant,
v.
PITMAN PHOTO, INC., MICHAEL WERNER, AND
PROFESSIONAL ADVERTISING CONSULTANTS, INC., Appellees.
____________________________________________________________________
On appeal from the 197th District Court of Cameron
County, Texas. ____________________________________________________________________
O P I N I O N
Before Chief Justice Seerden and Justices Hinojosa and
Yañez
Opinion by Justice Hinojosa
Appellant, Karen Slaton, was injured in an automobile accident on
May 12, 1995, on South Padre Island. On February 3, 1997, she filed
suit in Cameron County against: (1) Debra Moore (the driver of the
vehicle in which Slaton was a passenger) for negligence; (2) Kevin
Maupin (the person who rented the vehicle and gave Moore permission
to drive it) for negligent entrustment; and (3) Pitman Photo, Inc.
(Maupin's employer) under the doctrine of respondeat superior.(1) On
May 11, 1998, one day less than three years after the accident, Slaton
filed her First Amended Petition and added two more defendants: (4)
Michael Werner, president of Pitman Photo; and (5) Professional
Advertising Consultants, Inc. ("PAC"), another Werner company.
Appellees, Pitman Photo, Werner and PAC, filed their Amended
Motion for Summary Judgment(2) on June 8, 1998. On July 29, 1998,
the trial court granted the motion for summary judgment, ordered a
severance, and signed a final take-nothing judgment. By three points
of error, Slaton contends the trial court erred in granting the motion for
summary judgment because: (1) a genuine issue of material fact exists
regarding whether Moore was acting within the course and scope of
her employment or agency for appellees; (2) the proper statute of
limitations is the three-year statute applicable in Jones Act and general
maritime torts; and (3) appellees did not address Slaton's maritime
causes of action in their amended motion for summary judgment.
A. Standard of Review When reviewing a summary judgment granted under Texas Rule
of Civil Procedure 166a(c), an appellate court must follow these well-established rules:
(1) the movant has the burden of showing that there is no
genuine issue of material fact and that it is entitled to
judgment as a matter of law;
(2) in deciding whether there is a disputed material fact
issue precluding summary judgment, evidence
favorable to the nonmovant will be taken as true; and
(3) every reasonable inference must be indulged in favor of
the nonmovant and any doubts must be resolved in
favor of the nonmovant.
American Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex.
1997); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985); see also Tex. R. Civ. P. 166a. A defendant's motion for
summary judgment should be granted if he disproves at least one
essential element of each of the plaintiff's causes of action, or if he
establishes all the elements of an affirmative defense as a matter of law.
Grinnell, 951 S.W.2d at 425; Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997); Randall's Food Mkts., Inc. v. Johnson,
891 S.W.2d 640, 644 (Tex. 1995). Evidence favoring the movant's
position will not be considered unless it is uncontradicted. Great Amer.
Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41,
47 (Tex. 1965). Once the movant establishes his right to summary
judgment as a matter of law, the burden shifts to the nonmovant to
offer any issue or evidence that would preclude summary judgment.
City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.
1979).
A no-evidence summary judgment granted under Texas Rule Civil
Procedure 166a(i) is essentially a pretrial directed verdict, and we apply
the same legal sufficiency standard in reviewing a no-evidence
summary judgment as we apply in reviewing a directed verdict. Zapata
v. Children's Clinic, 997 S.W.2d 745, 747 (Tex. App.--Corpus Christi
1999, pet. filed); Moritz v. Bueche, 980 S.W.2d 849, 853 (Tex.
App.--San Antonio 1998, no pet.); Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex. App.--San Antonio 1998, pet. denied). We review the
evidence in the light most favorable to the respondent against whom
the summary judgment was rendered, disregarding all contrary
evidence and inferences. Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997); Zapata, 997 S.W.2d at 747; Connell v.
Connell, 889 S.W.2d 534, 537 (Tex. App.--San Antonio 1994, writ
denied). A no-evidence summary judgment is improper if the
respondent brings forth more than a scintilla of probative evidence to
raise a genuine issue of material fact. Havner, 953 S.W.2d at 711;
Zapata, 997 S.W.2d at 747. Less than a scintilla of evidence exists
when the evidence is so weak as to do no more than create a mere
surmise or suspicion of a fact. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983); Zapata, 997 S.W.2d at 747. More than a scintilla
of evidence exists when the evidence rises to a level that would enable
reasonable and fair-minded people to differ in their conclusions.
Havner, 953 S.W.2d at 711; Zapata, 997 S.W.2d at 747.
If a summary judgment is granted generally, without specifying
the reason, it will be upheld if any ground in the motion for summary
judgment can be sustained. Carr v. Brasher, 776 S.W.2d 567, 569
(Tex. 1989); Weakly v. East, 900 S.W.2d 755, 758 (Tex. App.--Corpus
Christi 1995, writ denied); Benavides v. Moore, 848 S.W.2d 190, 192
(Tex. App.--Corpus Christi 1992, writ denied).
B. Facts Viewed in the light most favorable to the nonmovant, the
summary judgment evidence shows the facts leading up to the accident
as follows: Maupin, Moore's "boyfriend, kind of," who worked as a
production manager for Pitman Photo in Miami, called and invited
Moore to attend an American Powerboat Association race to be held on
South Padre Island during the weekend of May 12, 1995. Maupin was
to be the navigator of a powerboat owned by PAC, a company owned
by Werner. Werner was also president of Pitman Photo. Moore had
previously met Werner and Maupin at a boat race held in Galveston.
Pitman Photo paid PAC for the race expenses. Maupin asked Moore to
find a company that would be willing to provide them with free food in
exchange for having its logo placed on the powerboat, and sent her
some American Powerboat Association literature containing the names,
addresses and telephone numbers of some South Padre Island
businesses. Moore enlisted a pizza restaurant, which provided the
group with free food and drinks; the powerboat carried the restaurant
logo as well as the Pitman Photo logo. Maupin had to get Werner's
approval before this arrangement was finalized. Maupin agreed to pay
for Moore's airfare, lodging and "whatever [Moore] wanted" on the trip.
Moore, her daughter Amy, and another mutual friend, Van Shotwell,
flew together from Houston to South Padre Island.
Maupin volunteered his time at the boat race that weekend; he
was not compensated for his time. Navigating the boat was not part
of his duties as a Pitman Photo employee. Maupin's group, which
included Werner, arrived at the island first. They had rented a two-story
condominium for the whole group. Maupin met Moore at the airport,
where he rented a Buick Regal in his name alone. He paid for the car
rental himself. Werner had brought his own Suburban for his and the
crew's use.
Slaton, a friend of Moore's from Houston, had made her own
independent plans to travel to South Padre Island to watch the boat
race. However, her plans fell through, and she arrived at the Island
with no place to stay.(3) Moore asked the group if Slaton could stay at
the condominium with the rest of the group. Maupin and Werner
reluctantly agreed. Werner told Moore that Slaton was a "golddigger,"
and he did not like Moore inviting her along. Werner never invited
Slaton to the race. Slaton ended up sleeping on a couch at the condo.
On the morning of the accident, Moore, Shotwell and Slaton rode
on the boat in a parade; they posed for pictures with the mayor. They
wore T-shirts imprinted with the Pitman Photo and pizza restaurant
logos, and they passed out menus from the restaurant. At Maupin's
request, Moore used the rental car to run several errands for the boat
crew. Alcohol was consumed during and after the parade. At some
point the group returned to the condo. Maupin gave Moore some
money and the keys to the rental car and asked her to run to a nearby
"Circle K" convenience store for supplies.(4) Moore complied, and Slaton
went with her. On the return trip, they had a minor collision with
another car, causing the air bags to inflate. Slaton sustained injuries to
her face and eye. She was taken to the hospital, but released later that
evening. The boat race was canceled the next day due to bad weather,
and the group returned to their respective homes.
Moore never filled out a job application, received a paycheck,
signed an employment contract, or received a W-2 form from Pitman
Photo. She has never considered Pitman Photo her employer. Pitman
Photo did not pay for her airfare. Attending boat races was a hobby of
hers, and when Maupin asked her to arrange a sponsorship, she did not
ask for anything in return. Maupin probably would have paid her airfare
and other expenses because of their personal relationship.
C. Motion for Summary Judgment of Werner and PAC By her second point of error, Slaton contends the trial court erred
in granting Werner and PAC's motion for summary judgment because,
even though they were not joined until more than two years after the
accident, the federal three-year statute of limitations for Jones Act and
general maritime law torts applies, not the Texas two-year statute of
limitations.
Generally, a suit arising out of a personal injury must be filed
within two years of the date the injury occurred. Tex. Civ Prac. & Rem.
Code Ann. § 16.003 (Vernon Supp. 2000). However, the statute of
limitations for Jones Act and general maritime law torts is three years
from the date the injury occurred. 46 U.S.C. § 763a. Which statute of
limitations applies in this case depends on what causes of action were
pleaded by Slaton.
In neither the Plaintiff's Original Petition nor the Plaintiff's First
Amended Petition (Slaton's last live pleading before the summary
judgment) is there any mention of, or reference to, her reliance on either
the Jones Act or federal maritime law. The amendment adds Werner
and PAC as defendants to the lawsuit, and both were sued as the
employers of Moore and Maupin, or in the alternative, as the employers
of Slaton.
Pleadings must give fair and reasonable notice of the claims
asserted. Tex. R. Civ. P. 47; SmithKline Beecham Corp. v. Doe, 903 S.W.2d 347, 354 (Tex. 1995); Gilmore v. Lopez, 974 S.W.2d 67, 68
(Tex. App.--San Antonio 1998, pet. denied); Garner v. Corpus Christi
Nat'l Bank, 944 S.W.2d 469, 476-77 (Tex. App.--Corpus Christi 1997,
writ denied), cert. denied, 525 U.S. 965 (1998). A court should uphold
a petition containing a cause of action that a person may reasonably
infer from what is specifically stated, even if an element of the cause of
action is not specifically alleged. SmithKline, 944 S.W.2d at 476; Boyles
v. Kerr, 855 S.W.2d 593, 601 (Tex. 1993).
To show the status of seaman, necessary to maintain a Jones Act
claim, there are two essential requirements: (1) an employee's duties
must contribute to the function of the vessel or to the accomplishment
of its mission; and (2) a seaman must have a connection to a vessel in
navigation (or to an identifiable group of such vessels) that is
substantial in terms of both its duration and its nature. Harbor Tug &
Barge Co. v. Papai, 117 S. Ct. 1535, 1540 (1997) (citing Chandris, Inc.
v. Latsis, 515 U.S. 347, 368 (1995)); see also 46 U.S.C. § 688. To
invoke admiralty jurisdiction and assert a general maritime law claim,
the plaintiff must show that: (1) the wrong occurred in navigable
waters, and (2) the wrong had a significant relationship to traditional
maritime activity. 46 U.S.C. app. § 740; Jerome B. Grubart, Inc. v.
Great Lakes Dredge & Dock Co., 513 U.S. 527, 532 (1995) (citing
Executive Jet Aviation, Inc. v. Cleveland, 409 U.S. 249 (1972)).
We find nothing in Slaton's pleadings that can be construed as
invoking these causes of action. The record shows appellees filed a
vigorous and well-briefed motion for summary judgment, but they did
not address any Jones Act or maritime claims. The claims were first
raised by Slaton in her response to appellees' motion for summary
judgment. After reviewing the record, we conclude that Slaton did not
plead any Jones Act or maritime causes of action in her First Amended
Petition, and that appellees were not on notice of any such claims.
Because Slaton did not properly plead any Jones Act or maritime
causes of action, we hold the three-year federal statute of limitation
does not apply. Because Slaton did not add Werner and PAC as
defendants in this case within the two-year Texas statute of limitations,
we hold the trial court did not err in granting their motion for summary
judgment.
We overrule Slaton's second point of error. In light of our
disposition of this point of error, it is not necessary to address Slaton's
third point of error. Tex. R. App. P. 47.1.
D. Motion for Summary Judgment of Pitman Photo By her first point of error, Slaton contends the trial court erred in
granting the motion for summary judgment of Pitman Photo because a
genuine issue of material fact exists as to whether Moore was acting
within the course and scope of her employment or agency with Pitman
Photo.
Slaton seeks to hold Pitman Photo vicariously liable for the
negligence of Moore on the theory that Moore was an employee or
agent of Pitman Photo. Under the doctrine of respondeat superior, an
employer is vicariously liable for the negligence of an agent or employee
acting within the scope of his or her agency or employment, although
the principal or employer has not personally committed a wrong.
Baptist Mem. Hosp. Sys. v. Sampson, 969 S.W.2d 945, 947 (Tex.
1998); DeWitt v. Harris Co., 904 S.W.2d 650, 654 (Tex. 1995);
Restatement (Second) of Agency § 219 (1958). The most frequently
proffered justification for imposing such liability is that the principal or
employer has the right to control the means and methods of the agent's
or employee's work. Sampson, 969 S.W.2d at 947 (citing Newspapers
Inc. v. Love, 380 S.W.2d 582, 585-86 (Tex. 1964)). A mere scintilla of
control does not establish an employer-employee relationship. Alvarado
v. Old Republic Ins. Co., 951 S.W.2d 254, 264 (Tex. App.--Corpus
Christi 1997, no writ).
We find no summary judgment evidence showing that Moore was
an employee or agent of Pitman Photo, or that she was acting within
the scope of her duties as an agent or employee when the accident
occurred. Moore attended the race at the request of her "kind of"
boyfriend, Maupin, who himself was not acting within the scope of his
employment duties. Moore testified that her interest in the boat race
was a hobby. Maupin testified that his participation was voluntary, and
that he was not paid for his time that weekend. Werner, the owner of
Pitman Photo, testified that Maupin was not acting within the scope of
his employment duties that weekend, and that Moore was never an
employee of Pitman Photo.
The summary judgment evidence shows that a group of mutual
acquaintances decided to attend a boat race together at South Padre
Island. The objective was a fun weekend getaway with friends. Slaton
has not produced any summary judgment evidence to contradict this
evidence. There is simply no summary judgment evidence that Pitman
Photo had any right to control Moore's actions at the time of Slaton's
injury.
We conclude that Moore was not an employee or agent of Pitman
Photo, and that she was not acting within the scope of her duties as an
agent or employee of Pitman Photo when the accident occurred.
Accordingly, we hold the trial court did not err in granting Pitman
Photo's motion for summary judgment. We overrule Slaton's first point
of error.
We affirm the trial court's order granting appellees' motion for
summary judgment.
FEDERICO G. HINOJOSA
Justice
Do not publish. Tex. R. App. P. 47.3.
Opinion delivered and filed this
the 10th day of August, 2000.
1. Slaton alleged that Moore and Maupin were employees, agents or
servants of Pitman Photo, acting within the scope of their duties.
2. Pitman Photo had filed a motion for summary judgment on its own behalf
before Werner and PAC were added as defendants. That motion was denied.
3. It is unclear whether Slaton was on the same flight as the Moore group.
4. The "supplies" included cigarettes, water, soft drinks, beer, Zima, and
food. | 09-11-2015 | [
"NUMBER 13-98-579-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI ____________________________________________________________________ KAREN SLATON, Appellant, v. PITMAN PHOTO, INC., MICHAEL WERNER, AND PROFESSIONAL ADVERTISING CONSULTANTS, INC., Appellees. ____________________________________________________________________ On appeal from the 197th District Court of Cameron County, Texas. ____________________________________________________________________ O P I N I O N Before Chief Justice Seerden and Justices Hinojosa and Yañez Opinion by Justice Hinojosa Appellant, Karen Slaton, was injured in an automobile accident on May 12, 1995, on South Padre Island. On February 3, 1997, she filed suit in Cameron County against: (1) Debra Moore (the driver of the vehicle in which Slaton was a passenger) for negligence; (2) Kevin Maupin (the person who rented the vehicle and gave Moore permission to drive it) for negligent entrustment; and (3) Pitman Photo, Inc. (Maupin's employer) under the doctrine of respondeat superior.",
"(1) On May 11, 1998, one day less than three years after the accident, Slaton filed her First Amended Petition and added two more defendants: (4) Michael Werner, president of Pitman Photo; and (5) Professional Advertising Consultants, Inc. (\"PAC\"), another Werner company. Appellees, Pitman Photo, Werner and PAC, filed their Amended Motion for Summary Judgment(2) on June 8, 1998. On July 29, 1998, the trial court granted the motion for summary judgment, ordered a severance, and signed a final take-nothing judgment. By three points of error, Slaton contends the trial court erred in granting the motion for summary judgment because: (1) a genuine issue of material fact exists regarding whether Moore was acting within the course and scope of her employment or agency for appellees; (2) the proper statute of limitations is the three-year statute applicable in Jones Act and general maritime torts; and (3) appellees did not address Slaton's maritime causes of action in their amended motion for summary judgment.",
"A. Standard of Review When reviewing a summary judgment granted under Texas Rule of Civil Procedure 166a(c), an appellate court must follow these well-established rules: (1) the movant has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law; (2) in deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true; and (3) every reasonable inference must be indulged in favor of the nonmovant and any doubts must be resolved in favor of the nonmovant. American Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985); see also Tex. R. Civ. P. 166a. A defendant's motion for summary judgment should be granted if he disproves at least one essential element of each of the plaintiff's causes of action, or if he establishes all the elements of an affirmative defense as a matter of law.",
"Grinnell, 951 S.W.2d at 425; Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997); Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). Evidence favoring the movant's position will not be considered unless it is uncontradicted. Great Amer. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex. 1965). Once the movant establishes his right to summary judgment as a matter of law, the burden shifts to the nonmovant to offer any issue or evidence that would preclude summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). A no-evidence summary judgment granted under Texas Rule Civil Procedure 166a(i) is essentially a pretrial directed verdict, and we apply the same legal sufficiency standard in reviewing a no-evidence summary judgment as we apply in reviewing a directed verdict.",
"Zapata v. Children's Clinic, 997 S.W.2d 745, 747 (Tex. App.--Corpus Christi 1999, pet. filed); Moritz v. Bueche, 980 S.W.2d 849, 853 (Tex. App.--San Antonio 1998, no pet. ); Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex. App.--San Antonio 1998, pet. denied). We review the evidence in the light most favorable to the respondent against whom the summary judgment was rendered, disregarding all contrary evidence and inferences. Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997); Zapata, 997 S.W.2d at 747; Connell v. Connell, 889 S.W.2d 534, 537 (Tex. App.--San Antonio 1994, writ denied). A no-evidence summary judgment is improper if the respondent brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact.",
"Havner, 953 S.W.2d at 711; Zapata, 997 S.W.2d at 747. Less than a scintilla of evidence exists when the evidence is so weak as to do no more than create a mere surmise or suspicion of a fact. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983); Zapata, 997 S.W.2d at 747. More than a scintilla of evidence exists when the evidence rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. Havner, 953 S.W.2d at 711; Zapata, 997 S.W.2d at 747. If a summary judgment is granted generally, without specifying the reason, it will be upheld if any ground in the motion for summary judgment can be sustained. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.",
"1989); Weakly v. East, 900 S.W.2d 755, 758 (Tex. App.--Corpus Christi 1995, writ denied); Benavides v. Moore, 848 S.W.2d 190, 192 (Tex. App.--Corpus Christi 1992, writ denied). B. Facts Viewed in the light most favorable to the nonmovant, the summary judgment evidence shows the facts leading up to the accident as follows: Maupin, Moore's \"boyfriend, kind of,\" who worked as a production manager for Pitman Photo in Miami, called and invited Moore to attend an American Powerboat Association race to be held on South Padre Island during the weekend of May 12, 1995. Maupin was to be the navigator of a powerboat owned by PAC, a company owned by Werner.",
"Werner was also president of Pitman Photo. Moore had previously met Werner and Maupin at a boat race held in Galveston. Pitman Photo paid PAC for the race expenses. Maupin asked Moore to find a company that would be willing to provide them with free food in exchange for having its logo placed on the powerboat, and sent her some American Powerboat Association literature containing the names, addresses and telephone numbers of some South Padre Island businesses. Moore enlisted a pizza restaurant, which provided the group with free food and drinks; the powerboat carried the restaurant logo as well as the Pitman Photo logo. Maupin had to get Werner's approval before this arrangement was finalized. Maupin agreed to pay for Moore's airfare, lodging and \"whatever [Moore] wanted\" on the trip.",
"Moore, her daughter Amy, and another mutual friend, Van Shotwell, flew together from Houston to South Padre Island. Maupin volunteered his time at the boat race that weekend; he was not compensated for his time. Navigating the boat was not part of his duties as a Pitman Photo employee. Maupin's group, which included Werner, arrived at the island first. They had rented a two-story condominium for the whole group. Maupin met Moore at the airport, where he rented a Buick Regal in his name alone. He paid for the car rental himself. Werner had brought his own Suburban for his and the crew's use. Slaton, a friend of Moore's from Houston, had made her own independent plans to travel to South Padre Island to watch the boat race.",
"However, her plans fell through, and she arrived at the Island with no place to stay. (3) Moore asked the group if Slaton could stay at the condominium with the rest of the group. Maupin and Werner reluctantly agreed. Werner told Moore that Slaton was a \"golddigger,\" and he did not like Moore inviting her along. Werner never invited Slaton to the race. Slaton ended up sleeping on a couch at the condo. On the morning of the accident, Moore, Shotwell and Slaton rode on the boat in a parade; they posed for pictures with the mayor.",
"They wore T-shirts imprinted with the Pitman Photo and pizza restaurant logos, and they passed out menus from the restaurant. At Maupin's request, Moore used the rental car to run several errands for the boat crew. Alcohol was consumed during and after the parade. At some point the group returned to the condo. Maupin gave Moore some money and the keys to the rental car and asked her to run to a nearby \"Circle K\" convenience store for supplies. (4) Moore complied, and Slaton went with her. On the return trip, they had a minor collision with another car, causing the air bags to inflate. Slaton sustained injuries to her face and eye.",
"She was taken to the hospital, but released later that evening. The boat race was canceled the next day due to bad weather, and the group returned to their respective homes. Moore never filled out a job application, received a paycheck, signed an employment contract, or received a W-2 form from Pitman Photo. She has never considered Pitman Photo her employer. Pitman Photo did not pay for her airfare. Attending boat races was a hobby of hers, and when Maupin asked her to arrange a sponsorship, she did not ask for anything in return. Maupin probably would have paid her airfare and other expenses because of their personal relationship. C. Motion for Summary Judgment of Werner and PAC By her second point of error, Slaton contends the trial court erred in granting Werner and PAC's motion for summary judgment because, even though they were not joined until more than two years after the accident, the federal three-year statute of limitations for Jones Act and general maritime law torts applies, not the Texas two-year statute of limitations.",
"Generally, a suit arising out of a personal injury must be filed within two years of the date the injury occurred. Tex. Civ Prac. & Rem. Code Ann. § 16.003 (Vernon Supp. 2000). However, the statute of limitations for Jones Act and general maritime law torts is three years from the date the injury occurred. 46 U.S.C. § 763a. Which statute of limitations applies in this case depends on what causes of action were pleaded by Slaton.",
"In neither the Plaintiff's Original Petition nor the Plaintiff's First Amended Petition (Slaton's last live pleading before the summary judgment) is there any mention of, or reference to, her reliance on either the Jones Act or federal maritime law. The amendment adds Werner and PAC as defendants to the lawsuit, and both were sued as the employers of Moore and Maupin, or in the alternative, as the employers of Slaton. Pleadings must give fair and reasonable notice of the claims asserted. Tex. R. Civ. P. 47; SmithKline Beecham Corp. v. Doe, 903 S.W.2d 347, 354 (Tex. 1995); Gilmore v. Lopez, 974 S.W.2d 67, 68 (Tex. App.--San Antonio 1998, pet. denied); Garner v. Corpus Christi Nat'l Bank, 944 S.W.2d 469, 476-77 (Tex. App.--Corpus Christi 1997, writ denied), cert.",
"denied, 525 U.S. 965 (1998). A court should uphold a petition containing a cause of action that a person may reasonably infer from what is specifically stated, even if an element of the cause of action is not specifically alleged. SmithKline, 944 S.W.2d at 476; Boyles v. Kerr, 855 S.W.2d 593, 601 (Tex. 1993). To show the status of seaman, necessary to maintain a Jones Act claim, there are two essential requirements: (1) an employee's duties must contribute to the function of the vessel or to the accomplishment of its mission; and (2) a seaman must have a connection to a vessel in navigation (or to an identifiable group of such vessels) that is substantial in terms of both its duration and its nature. Harbor Tug & Barge Co. v. Papai, 117 S. Ct. 1535, 1540 (1997) (citing Chandris, Inc. v. Latsis, 515 U.S. 347, 368 (1995)); see also 46 U.S.C.",
"§ 688. To invoke admiralty jurisdiction and assert a general maritime law claim, the plaintiff must show that: (1) the wrong occurred in navigable waters, and (2) the wrong had a significant relationship to traditional maritime activity. 46 U.S.C. app. § 740; Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 532 (1995) (citing Executive Jet Aviation, Inc. v. Cleveland, 409 U.S. 249 (1972)). We find nothing in Slaton's pleadings that can be construed as invoking these causes of action. The record shows appellees filed a vigorous and well-briefed motion for summary judgment, but they did not address any Jones Act or maritime claims.",
"The claims were first raised by Slaton in her response to appellees' motion for summary judgment. After reviewing the record, we conclude that Slaton did not plead any Jones Act or maritime causes of action in her First Amended Petition, and that appellees were not on notice of any such claims. Because Slaton did not properly plead any Jones Act or maritime causes of action, we hold the three-year federal statute of limitation does not apply. Because Slaton did not add Werner and PAC as defendants in this case within the two-year Texas statute of limitations, we hold the trial court did not err in granting their motion for summary judgment. We overrule Slaton's second point of error. In light of our disposition of this point of error, it is not necessary to address Slaton's third point of error. Tex. R. App. P. 47.1.",
"D. Motion for Summary Judgment of Pitman Photo By her first point of error, Slaton contends the trial court erred in granting the motion for summary judgment of Pitman Photo because a genuine issue of material fact exists as to whether Moore was acting within the course and scope of her employment or agency with Pitman Photo. Slaton seeks to hold Pitman Photo vicariously liable for the negligence of Moore on the theory that Moore was an employee or agent of Pitman Photo. Under the doctrine of respondeat superior, an employer is vicariously liable for the negligence of an agent or employee acting within the scope of his or her agency or employment, although the principal or employer has not personally committed a wrong. Baptist Mem. Hosp.",
"Sys. v. Sampson, 969 S.W.2d 945, 947 (Tex. 1998); DeWitt v. Harris Co., 904 S.W.2d 650, 654 (Tex. 1995); Restatement (Second) of Agency § 219 (1958). The most frequently proffered justification for imposing such liability is that the principal or employer has the right to control the means and methods of the agent's or employee's work. Sampson, 969 S.W.2d at 947 (citing Newspapers Inc. v. Love, 380 S.W.2d 582, 585-86 (Tex. 1964)). A mere scintilla of control does not establish an employer-employee relationship. Alvarado v. Old Republic Ins. Co., 951 S.W.2d 254, 264 (Tex. App.--Corpus Christi 1997, no writ). We find no summary judgment evidence showing that Moore was an employee or agent of Pitman Photo, or that she was acting within the scope of her duties as an agent or employee when the accident occurred.",
"Moore attended the race at the request of her \"kind of\" boyfriend, Maupin, who himself was not acting within the scope of his employment duties. Moore testified that her interest in the boat race was a hobby. Maupin testified that his participation was voluntary, and that he was not paid for his time that weekend. Werner, the owner of Pitman Photo, testified that Maupin was not acting within the scope of his employment duties that weekend, and that Moore was never an employee of Pitman Photo. The summary judgment evidence shows that a group of mutual acquaintances decided to attend a boat race together at South Padre Island. The objective was a fun weekend getaway with friends. Slaton has not produced any summary judgment evidence to contradict this evidence. There is simply no summary judgment evidence that Pitman Photo had any right to control Moore's actions at the time of Slaton's injury. We conclude that Moore was not an employee or agent of Pitman Photo, and that she was not acting within the scope of her duties as an agent or employee of Pitman Photo when the accident occurred. Accordingly, we hold the trial court did not err in granting Pitman Photo's motion for summary judgment. We overrule Slaton's first point of error. We affirm the trial court's order granting appellees' motion for summary judgment.",
"FEDERICO G. HINOJOSA Justice Do not publish. Tex. R. App. P. 47.3. Opinion delivered and filed this the 10th day of August, 2000. 1. Slaton alleged that Moore and Maupin were employees, agents or servants of Pitman Photo, acting within the scope of their duties. 2. Pitman Photo had filed a motion for summary judgment on its own behalf before Werner and PAC were added as defendants. That motion was denied.",
"3. It is unclear whether Slaton was on the same flight as the Moore group. 4. The \"supplies\" included cigarettes, water, soft drinks, beer, Zima, and food."
] | https://www.courtlistener.com/api/rest/v3/opinions/2919120/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Petition for writ of certiorari to the Supreme Court of Arizona denied. | 07-20-2022 | [
"Petition for writ of certiorari to the Supreme Court of Arizona denied."
] | https://www.courtlistener.com/api/rest/v3/opinions/6673157/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Appeal from a judgment of the Superior Court for King County, No. 01-1-00593-2, Anthony P. Wartnik, J., entered June 8, 2001. Affirmed in part and remanded by unpublished per curiam opinion. | 08-12-2021 | [
"Appeal from a judgment of the Superior Court for King County, No. 01-1-00593-2, Anthony P. Wartnik, J., entered June 8, 2001. Affirmed in part and remanded by unpublished per curiam opinion."
] | https://www.courtlistener.com/api/rest/v3/opinions/4740956/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
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