text:
Coins (0)
Medieval Switzerland (Schaffhausen) Thaler 1550 to 1624
Schaffhausen is a city in northern Switzerland and the capital of the canton of the same name. Back in medieval times the city of Schaffhausen issued large silver thalers with the inscription DEUS SPES NOSTRA EST, that is, GOD IS OUR HOPE. The eagle-like bird on the thalers is a symbol of the Teutonic Order, a German military order which today has become a purely religious Catholic order.
Coin: 18642 , Genre: Central Europe North South
Requested by: Chetan, Thu, 15-Jan-2015 14:37:34 GMT
Answered by: Paul, Thu, 15-Jan-2015 16:11:47 GMT
Requester description: Above text is written on the border and middle circle consists of some three legged bird like design es devs spes nostra
Tags: medieval switzerland schaffhausen thaler midieval mediaeval helvetische switz helvetia swiss suisse helvetica helvitica cantons helvetic schaffheausen vereinsthaler joachimstaler taler thalers es devs spes nostra border circle consists consist three legged leg bird boarder moulding bordering bordered circled encircle crrcle cirle circlet ring circles circlr circal citcle encircled ringed circumscibed cirlce circel encircles encircling rings circling cirlces circular cicurling circumscribed legs moneta nova eagle hawk falcon sheep ram lamb eaglets egals eable egal eagles eag ealge eagel
Coins (0)


text:
I ran three searches spanning from 1999 through 2014 in U.S. news sources (note: the "w/" means "within five words"):
- (eat OR eating) w/5 bug
- (eat OR eating) w/5 insect
- entomophagy
For each search, I removed the non-U.S. articles that got through the U.S.-only filter, removed irrelevant articles (the w/5 insect search got a lot of hits about bats eating insects) and pulled out calendar listings (items like "Community calendar....Jane Doe reads from her new book 'Eating Bugs' at Midtown Books"). After all of the filtering, I was left with 60 articles for entomophagy, 45 for "(eat OR eating) w/5 bug", and 32 for "(eat OR eating) w/5 insect." The number of articles in each year are shown in the chart below.
For entomophagy (blue bars), there was a bit of activity between 2006-2008, then a quiet period, with much more activity in the last three years. The other two searches (red and green bars) had little activity through 2011, but many more articles in 2012, 2013, and 2014. And so, it looks like my sense that there is more coverage of insects as food in the last few years is correct.
As 2015 goes on, I hope to do a follow-up to see how insects as food has been trending in the media this year. A search on "cricket flour" might also be worthwhile, since this ingredient is gaining in popularity.
* If you know of best practice guides for this kind of search -- perhaps from a school of journalism or media studies -- please let me know in the comments.
Random link from the archive: "Yoga is the latest diversion of New York society," claims major newspaper

subset: commoncrawl


text:
I'm not exactly ready, but my OB just wanted me to make it to today! So here I am 33 weeks. I can't stand up without having to hold everyone up. It really really really feels like they're just going to fall out. My growth appears to have been exponential this week.
33 Weeks
Incredible!!!!! and a BIG to making it to 33 weeks!!!! Strong mama already.
wTG! 33 weeks is great! How long are they going to make you suffer???
I think that at tomorrow's appointment we'll be scheduling the c-section ... so something like another couple of weeks-ish?
How exciting! Will they schedule it for sooner rather than later? Or just scheduling in general?
Yeah for sure they're not going to let me carry around 15 lbs of baby (YAY!!!) and the doctor was confident everyone would be fine if I made it to 33 weeks, so it won't be long. 35/36 weeks max.
Way to go!! How exciting that you'll be meeting them soon
Wow, it's hard to believe it's coming up so soon. Of course, for you I'm sure it seems like forever!! Lookin' good though
Can imagine only have two weeks left??? You have really grown in the last couple weeks! but wow, you really look great!
here's the BIG question.... are you ready to be a mama to twins in 2 weeks???
"Carolyn85" wrote:
here's the BIG question.... are you ready to be a mama to twins in 2 weeks???
Effffffffffffffffffffffffffffffffffffffffffffffffffffff NO!
Yeah sheila!!!!
Nice job growing those twins!!!!
Woohoo! You are doing awesome!
WTG Momma!! You look fantastic. Can't believe you should be meeting those baby in a matter of 2-3 weeks. I can't wait to "meet" them.
That's so wonderful... congrats!!! You look amazing (it's sad that I'm as big as you are with my one baby lol)!!!


text:
Klamath Bob's liquor store
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I run the liquor store in Westside. With things this rough, some folks need a lot of booze just to step out the door in the morning."— Klamath Bob
Klamath Bob's liquor store is a location in the Mojave Wasteland, located in Westside. It is owned by Klamath Bob. It is possible this is based on a character in Fallout 2, called Whiskey Bob. He resided in the town of Klamath and ran a secret whiskey still.
Display shelves are filled with alcohol and chems, all of which can be stolen or purchased, are in neat rows across the store. Wine, whiskey, Scotch, vodka, beer and purified water can all be found in abundance here.
Notable lootEdit
- Nuka-Cola Victory - leaning on the freezer.
Klamath Bob's liquor store appears only in Fallout: New Vegas.


text: What type of listing is this? For Sale What are you trying to sell/buy/trade? Olympus MC-14 Teleconverter What are your prices? $200 Where are you located? USA Where are you willing to to ship? USA Description Hello. Up for sale is a Olympus MC-14 teleconverter in new condition. I am the original owner. Includes everything that originally came in the box. Payment accepted Regular PayPal (fee included in price) Shipping method USPS Priority Shipping charge Free Handling time One Business Day References Here; Same ID on eBay with 400+ Additional comments Not open to trade offers, Not open to offers below asking price (price is firm), Buyer must have a PayPal confirmed address, Will only ship to the address indicated on PayPal payment Acknowledgement I have read and agree to the Buy and Sell rules.


text:
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© 2016 Maple Ridge Farms. Site Map | Privacy Statement


text:
Survival Against the Odds
Written by Ian Rohr
Illustrated by
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Survival Against the Odds by Ian Rohr
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text:
|Property type
|Minimum Stay
|3 - 21 nights
Just a short walk from the River Severn and the centre of Ironbridge, with museums and craft shops, Much Wenlock is nearby. . Situated on the edge of Coalbrookdale, just a short walk from the River Severn and the centre of Ironbridge, this attractive detached holiday home benefits from a large sitting out area. This picturesque town, once at the heart of the industrial world, is now a popular tourist destination, and guests of Dale Cottage benefit from free parking in the centre of Ironbridge. Its many museums trace the town's rich history and the great iron bridge itself serves as a dramatic memorial to its past. Today, Ironbridge has a wonderful cluster of craft and souvenir shops, some great bars and restaurants, and no less than ten museums spread along the banks of the River Severn.For those wishing to explore beyond the beauty of Ironbridge, there are many local towns of interest to discover: historic Bridgnorth, a town of two halves, is connected by a unique Victorian cliff railway, Madeley is home to a selection of listed buildings, most notably Madeley Court, while medieval Much Wenlock boasts half-timbered buildings, whipping posts and stocks. Beyond the towns, the countryside invites, with kayaking, canoeing, cycling, golf and fishing all available nearby. Walkers can explore the local footpaths and hills, or discover the stunning scenery that surrounds the celebrated 'Long Mynd' or Long Mountain. Moreover, this area offers a wealth of castles, abbeys, gardens, parks and historic houses. Shop, pub and restaurant 500 yards.. Ground floor: Living room. Dining room/kitchen. 2 bedrooms: 1 double (5ft) with en-suite toilet, 1 twin. First floor: 1 double bedroom with en-suite shower room with toilet. Bathroom with toilet. . Oil central heating, electricity, bed linen and towels included. DVD. Playstation 2. CD. DAB radio. Electric cooker. Microwave. Washer/dryer. Dishwasher. Fridge/freezer. Wi-fi. Terrace with sitting out area and furniture. Parking (3 cars). No smoking.
*Plus compulsory or optional charges based on actual occupancy or consumption. The payment has to be made in the currency offered by the property manager, before use of conversion tool. Payments in other currencies have to be negotiated beforehand with the property manager. The currency conversion tool is provided for your convenience only and is non-binding.


text:
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September 28, 2012
BARBARA WISMER AND RUSSELL NOLES, PLAINTIFFS,v.ANDREW WEINMAN, D.C., AND HIGHTSTOWN CHIROPRACTIC, LLC, DEFENDANTS-RESPONDENTS, AND ALLIED PROFESSIONALS INSURANCE CO., DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-5853-08.
Argued: February 1, 2012
Before Judges Cuff, Waugh and St. John.
This appeal concerns an attorney fee award to a chiropractor for fees incurred in a coverage action against his professional malpractice insurer following the carrier's declination of coverage and rescission of the policy. While conceding that it is required to reimburse the chiropractor for the attorney's fees incurred to defend the negligence action filed against him, the insurer argues the award of attorney's fees by the Law Division for fees incurred during an arbitration proceeding regarding the coverage dispute between the insurer and its insured is barred by the disposition of the coverage arbitration award. The chiropractor insists the issue of attorney's fees incurred in the coverage action/arbitration was not at issue in the arbitration, the rules of the arbitration precluded submission of that issue, and the law of this State permits an award. We affirm in part, but remand for further proceedings consistent with this opinion.
Plaintiffs Barbara Wismer and Russell Noles filed a medical negligence action against Andrew Weinman, a licensed chiropractor in this State, and Hightstown Chiropractic, LLC.*fn1
Weinman held a professional liability policy of insurance with Allied Professionals Insurance Co. (APIC). Learning that APIC had disclaimed coverage, plaintiffs filed an amended complaint against APIC seeking judgment that it wrongfully disclaimed coverage and requiring it to provide a defense to their complaint. Represented by privately retained counsel, Weinman filed an answer denying negligence and a cross-claim against APIC. In their cross-claim, Weinman alleged APIC breached its contract and sought declaratory relief that APIC wrongfully disclaimed coverage and owed Weinman a defense and indemnification. In the cross-claim, Weinman also sought attorneys fees and costs incurred.
Initially, APIC filed a motion to dismiss the complaint and cross-claims filed against it or to sever plaintiffs' and Weinman's claims. The court denied the motion. Later, APIC filed a verified complaint and order to show cause to compel arbitration of the coverage claim. By order dated November 30, 2009, Weinman was ordered to submit to and participate in arbitration regarding his malpractice insurance coverage with [APIC] pursuant to a contractual arbitration clause in his insurance policy with the American Arbitration Association venued in California under the proceeding entitled Allied Professional Insurance Company v. Andrew Weinman, AAA#73 195 03188 09 TNM[.]*fn2
Plaintiffs were not ordered to participate in the arbitration, and the order provided the medical negligence action would not be stayed pending resolution of the coverage dispute.
Weinman hired California counsel to represent his interests in the arbitration proceeding. Following extensive discovery, including interrogatories, production of documents and depositions, the matter was submitted to an arbitrator, who rendered a decision on January 10, 2011. The arbitrator found that Weinman truthfully answered question three of the Member Renewal Application;*fn3 therefore, he did not breach the APIC policy provision cited by it to deny and rescind coverage. The arbitrator also found that APIC wrongfully denied insurance coverage to Weinman without any legal or factual grounds to do so. The arbitrator found APIC owed coverage for the Wismer claim. The arbitrator also ordered
[t]he administrative fees and expenses of the American Arbitration Association totaling $1,950.00 shall be borne solely by [APIC]; the compensation and expenses of the arbitrator totaling $19,629.20 shall be borne equally by both [APIC] and [Weinman]. Respondent Weinman is awarded his personal costs in defending this Arbitration against
[APIC] upon demonstration by [Weinman] that these incurred costs have been incurred and paid.
The award further provided that it "is in full settlement of all claims and counterclaims submitted to this Arbitration. All claims not expressly granted herein are hereby, denied."
In an email message dated January 21, 2011, California counsel for Weinman sought clarification of the award. Counsel inquired "whether 'personal costs' include attorney's fees which have been incurred and paid?" By letter dated February 7, 2011, counsel for APIC argued that an award of attorney's fees is barred by American Arbitration Association (AAA) Commercial Arbitration Rules and California law. The arbitrator issued a Clarified Decision and Supplemental Order on February 10, 2011. It provides:
Arbitrator deems that he has authority and jurisdiction to answer this question.
In clarification thereof, personal costs incurred and paid by [Weinman] in defending this Arbitration do not include Attorney's Fees.
Attorney's fees are not awarded to [Weinman].
On March 25, 2011, Weinman submitted a motion in the Law Division for attorney's fees incurred in the defense of the negligence action, the action to compel arbitration, the arbitration proceeding, and the motion seeking a fee award.
APIC initially contested only the amount of the fees. Days before the return date of the motion, it submitted a brief contending that the arbitral award denied fees and Weinman was barred from seeking fees in this state. Finding the court had jurisdiction, the motion judge awarded Weinman $85,845.70 for fees and $12,441.27 for costs incurred in the defense of the negligence claim and in prosecution of his coverage claim in New Jersey, and $46,500.98 for fees and $1,884.22 for costs incurred in the California arbitration. In a separate order, the motion judge awarded a fee enhancement of twenty per cent to the New Jersey and California counsel fee awards. Including enhancement, the final fee award is $103,012.84 (New Jersey fees) and $55,801.18 (California fees), plus costs.
On appeal, APIC argues the motion judge erred in awarding attorney's fees because the arbitrator did not award fees, Weinman's only remedy was to file a motion to vacate or modify the arbitrator's decision, and Weinman was collaterally estopped from seeking fees post-arbitration in this state. APIC also argues there is no authority to award fees incurred during the arbitration, Weinman waived his right to seek fees by failing to submit a claim for pre-arbitration fees, and the arbitrator's award definitively ruled on Weinman's ability to recover attorney's fees. Finally, APIC contends the judge failed to explicate the basis for the quantum for the fee award as required by Rendine v. Pantzer, 141 N.J. 292 (1995), and should not have awarded a fee enhancement.
Weinman contends the only issue before the arbitrator was coverage, his post-award inquiry only sought a clarification of the scope of personal costs, and APIC has taken inconsistent and mutually exclusive legal positions throughout the coverage litigation. Weinman also contends the Law Division retained jurisdiction to award attorney's fees incurred to prosecute the coverage action in its entirety, and the judge implicitly accepted the reasonableness of the legal tasks performed, the hours expended, and the hourly rate. Finally, Weinman contends he is entitled factually and as a matter of law to a fee enhancement.
On the merits of the controversy, APIC concedes it is required to compensate Weinman for the legal fees and costs he incurred to defend the Wismer medical negligence complaint, although at the time of oral argument, these fees had not been paid. As to the fees incurred to prosecute the coverage claim, APIC advances two mutually exclusive arguments. First, the parties submitted the issue of attorney's fees expended to defend the medical negligence claim asserted by Wismer and incurred in the arbitration to obtain coverage for the Wismer claim, and the arbitrator ruled that Weinman is not entitled to those fees. Thus, the application for attorney's fees pursuant to Rule 4:42-9(a)(6) is a blatant end-run of the disposition of the arbitration and the principles of res judicata or collateral estoppel bar the award under review. Second, APIC contends that commercial arbitration rules and California law preclude submission of attorney's fees as an arbitrable issue. Yet, it also argues that the arbitration provision in the policy and the order referring the coverage issue to arbitration can be read to require submission of the issue of attorney's fees to the arbitrator.
Paragraph V.C. of the policy of insurance provides:
If a dispute or claim shall arise with respect to any of the terms or provisions of this Policy, or with respect to the performance by any of the parties to the Policy, then any party or that party's authorized representative may, . . . require that the dispute be submitted within fifteen (15) days to an arbitrator in good standing with the [AAA] under the Commercial Arbitration Rules of the [AAA] then in effect. Any arbitration undertaken pursuant to the terms of this section shall occur in Orange County, California.
Neither party contests that the issue of coverage and rescission of the policy by APIC was a dispute subject to arbitration pursuant to the terms of the policy. Neither party contests that California law applied to the resolution of the coverage issue.*fn4
Resolution of this appeal is guided by settled legal principles. First, we must recognize that this state has a strong public policy favoring arbitration as a means of settling disputes. Wein v. Morris, 194 N.J. 364, 376 (2008); Caruso v. Ravenswood Developers, Inc., 337 N.J. Super. 499, 504 (App. Div. 2001). The scope of arbitration is governed by the agreement between the parties. Caruso, supra, 337 N.J. Super. at 504. Any determination whether a dispute or claim is subject to an arbitration provision in a policy of insurance is a legal issue, which this court will review de novo. Polarome Int'l, Inc. v. Greenwich Ins. Co., 404 N.J. Super. 241, 260 (App. Div. 2008), certif. denied, 199 N.J. 133 (2009).
We accord "the words of an insurance policy . . . their ordinary meaning . . . ." Longobardi v. Chubb Ins. Co., 121 N.J. 530, 537 (1990). We must also recognize that the arbitrator's authority is circumscribed by the provisions and conditions of the policy, Grover v. Universal Underwriters Ins. Co., 80 N.J. 221, 229 (1979), and the terms of the order referring the matter to arbitration. Furthermore, "an arbitration award bars 'only such matters as were comprehended within the scope of the submission and passed on by the arbitrator.'" Chattin v. Cape May Greene, Inc., 216 N.J. Super. 618, 633 (App. Div.) (quoting Rosa v. Transp. Operators Co., 45 N.J. Super. 438, 441-42 (App. Div. 1957)), certif. denied, 107 N.J. 148 (1987); see also Culver v. Ins. Co. of N. Am., 115 N.J. 451, 460, 463-64 (1989) (res judicata, consistent with the entire controversy doctrine, bars litigation of those matters fairly litigated and determined in addition to all relevant issues that could have been submitted to the arbitrator). Thus, a party who seeks to retain the benefits of an arbitration award and who also seeks additional relief must demonstrate that the other relief was not or could not be submitted to the arbitrator. Chattin, supra, 216 N.J. Super. at 633.
Here, the arbitration clause in the policy requires the parties to arbitrate only a dispute or claim with respect to the terms or provisions of the policy or either party's performance in accordance with the terms of the policy. The dispute between the parties centered on whether the insured made full disclosure of relevant information and whether the insurer could disclaim coverage and rescind the policy under the particular circumstances of the case. Obviously, an insured will incur attorney's fees to defend an action filed by a patient and will incur fees to contest a disclaimer and rescission of the policy. The policy, however, is silent whether the insured may recover attorney's fees in any proceeding against the insurer.
Our review of California law reveals that an arbitrator may award attorney's fees when a contract compels arbitration and permits an award of attorney's fees to the prevailing party. Harris v. Sandro, 117 Cal. Rptr. 2d 910, 914 (Ct. App. 2002). Furthermore, when the parties seek arbitration of all disputes between them, and the order referring the matter to arbitration imposes no limits on the issues to be submitted, the decision to award or withhold fees to a prevailing party is within the scope of the arbitrator's power. Moore v. First Bank of San Luis Obispo, 996 P.2d 706, 708-09 (Cal. 2000). Accord Moshonov v. Walsh, 996 P.2d 699, 702 (Cal. 2000). Conversely, if the scope of the dispute submitted to the arbitrator is limited and the agreement does not provide for the award of attorney's fees to the prevailing party, the arbitrator lacks the authority to make such an award. Mansdorf v. Cal. Physicians' Serv., Inc., 151 Cal. Rptr. 388, 391-92 (Ct. App. 1978). See generally William M. Howard, J.D., Ph.d., Annotation, Awarding Attorney's Fees in Connection with Arbitration, 60 A.L.R. 5th § 5 (1998) (collecting cases).
The order referring the matter to arbitration does not implicitly or explicitly address attorney's fees incurred by the insured. Rather, the order simply provides that Weinman must "submit to and participate in arbitration concerning his malpractice insurance coverage with [APIC] pursuant to a contractual arbitration clause in his insurance policy . . . ." The order, therefore, does not definitively determine whether the issue of attorney's fees was submitted to the arbitrator; it simply suggests the issue was not submitted.
The relevant rule governing the arbitration permits attorney's fees to be submitted for resolution when certain conditions are met. Rule-43 of the AAA Commercial Arbitration Rules provides in relevant part:
R-43. Scope of Award . . . .
(d) The award of the arbitrator(s) may include:
(i) interest at such rate and from such date as the arbitrator(s) may deem appropriate; and
(ii) an award of attorney's fees if all parties requested such an award or it is authorized by law or their arbitration agreement.
APIC did not request attorney's fees in its demand for arbitration, the arbitration provision of the policy of insurance is silent on the subject, and the scope of the issue submitted to arbitration was limited solely to the propriety of the disclaimer by APIC.
Some of APIC's argument focuses on res judicata and collateral estoppel, also known as issue preclusion. The rules of res judicata are applicable only when the judgment is final and "includes any prior adjudication of an issue in another action that is determined to be sufficiently firm to be accorded conclusive effect." Restatement (Second) of Judgments § 13 (1982). Here, neither party questions that the issue of the propriety of the coverage disclaimer was decided by the arbitrator and that decision is final. A valid and final personal judgment is conclusive between the parties when "(3)
[a] judgment in favor of either the plaintiff or the defendant is conclusive, in a subsequent action between them on the same or different claim, with respect to any issue actually litigated and determined if its determination was essential to that judgment (see § 27)." Id. at § 17.
Issue preclusion, also known as collateral estoppel, arises "[w]hen an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim." Id. at § 27. To forestall future litigation, "the party asserting the bar must show that:
(1) the issue to be precluded is identical to the issue decided in the prior proceeding; (2) the issue was actually litigated in the prior proceeding; (3) the court in the prior proceeding issued a final judgment on the merits; (4) the determination of the issue was essential to the prior judgment; and (5) the party against whom the doctrine is asserted was a party to or in privity with a party to the earlier proceeding." [Olivieri v. Y.M.F. Carpet, Inc., 186 N.J. 511, 521 (2006) (quoting In re Estate of Dawson, 136 N.J. 1, 20-21 (1994)).]
See also, Winters v. No. Hudson Reg'l Fire & Rescue, ___ N.J. ___, ___ (2012) (slip op. at 23).
The award rendered by the arbitrator also does not definitively resolve the issue of whether the issue of attorney's fees was submitted to the arbitrator. The initial award did not refer to attorney's fees at all and simply awarded personal costs. The clarified award is also not definitive as it simply responds to an inquiry whether personal costs include attorney's fees. By stating that personal costs do not include attorney's fees and that the award does not include attorney's fees, neither the parties nor the court are informed whether the arbitrator simply decided that personal costs do not include attorney's fees or that the issue was never submitted, or he was not permitted to award fees based on the rules of the arbitration forum and/or California law. Manifestly, if the arbitrator did not award attorney's fees due to the rules of the arbitration forum, his clarified order cannot be considered a ruling on the merits of Weinman's attorney's fee request.
As noted, APIC did not demand attorney's fees; therefore, the rules of arbitration barred such an award. Moreover, in accordance with California law, attorney's fees may be awarded by an arbitrator if the scope of the submitted issue includes attorney's fees or the policy permits such an award. Neither condition is met in this case.
Finally, our review of the record submitted to the Law Division judge in support of and in opposition to Weinman's motion for attorney's fees suggests that the issue was not before the arbitrator. To be sure, the record is limited to APIC's form interrogatories, "specially-prepared" interrogatories, first set of requests for admission, and first demand for production of documents to Weinman and his responses to each discovery request. This discovery was submitted to the Law Division judge to demonstrate the effort expended to defend the coverage claim in arbitration. The form interrogatories and the "specially-prepared" interrogatories concentrate on the Wismer claim and the facts and circumstances attendant to the renewal of the policy of insurance. The request for admission concentrates on the care provided to plaintiff Wismer, notice to Weinman that the Wismer claim was not covered, notice of rescission of the policy, and return of premium. Not a single discovery request or response addresses the costs, including attorney's fees, incurred in arbitration.
Thus, we cannot with any certainty conclude that the issue of attorney's fees incurred in the coverage action was submitted for resolution by the arbitrator and definitively decided against Weinman, or was a matter that could have been submitted, or would have been expected to be submitted for resolution by the arbitrator. That being the case, we cannot apply issue preclusion principles to bar submission of a motion for attorney's fees in the Law Division. Moreover, application of such principles is directly contrary to APIC's substantive position that the rules of the forum did not permit submission of the eligibility for and the quantum of attorney's fees to the arbitrator and California law did not permit the award of counsel fees in the context of a coverage dispute.
The position advanced by APIC also undercuts its position that the only remedy available to Weinman was to seek to vacate the arbitral award. Accepting the legal principles advanced by APIC, the exclusive remedy available to Weinman was indeed a hollow remedy.
Having concluded that the record does not permit a determination that the issue of attorney's fees incurred in the course of the arbitration was submitted to the arbitrator or that the arbitrator addressed the issue on the merits and rendered a decision adverse to Weinman on the merits, we address the ability of Weinman to apply for an attorney's fee award pursuant to Rule 4:42-9 in the pending Wismer matter. We must recall that the court referred the coverage dispute to arbitration but denied APIC's motion to dismiss the complaint and cross-claim against it or to sever those claims. Thus, pending resolution of the coverage dispute, the only issue referred to arbitration, the Law Division retained jurisdiction of plaintiffs' and Weinman's claims against APIC.
Although the APIC insurance policy contains no provision for payment of attorney's fees, Rule 4:42-9 specifically permits an award of a fee for legal services in an action upon a liability or indemnity policy of insurance in favor of a successful claimant. R. 4:42-9(a)(6). The rule is designed to address actions against an insurer who fails to defend claims filed against the insured by a third party, although other claims related to coverage, such as indemnification or rescission of a policy, are encompassed by the rule in the context of third-party claims. Schmidt v. Smith, 294 N.J. Super. 569, 591 (App. Div. 1996), aff'd, 155 N.J. 44 (1998). See also Pressler & Verniero, Current N.J. Court Rules, comment on R. 4:42-9(a)(6) (2013). Moreover, the rule is considered a procedural rule; therefore, it is applicable to an action brought in this state even if the law of another jurisdiction governs the substantive issues. Du-Wel Prods., Inc. v. U.S. Fire Ins. Co., 236 N.J. Super. 349, 362-63 (App. Div. 1989), certif. denied, 121 N.J. 617 (1990).
An insured may also seek fees in this state pursuant to Rule 4:42-9(a)(6) for counsel fees incurred in out-of-state litigation commenced to litigate a coverage issue. Myron Corp. v. Atl. Mut. Ins. Corp., 407 N.J. Super. 302 (App. Div. 2009), aff'd o.b., 203 N.J. 537 (2010). In Myron, the insurer initially agreed to provide a defense in an action filed against its insured, actually provided that defense for some time, and filed the out-of-state action only after the insured had filed a declaratory judgment in this state to determine coverage under its policy. Id. at 306-07. We noted that a fee award in such circumstances furthers the purpose of the rule as explained in Sears Mortgage Corp. v. Rose, 134 N.J. 326 (1993):
The policy underlying Rule 4:42-9(a)(6) is "to discourage groundless disclaimers and to provide more equitably to an insured the benefits of the insurance contract without the necessity of obtaining a judicial determination that the insured, in fact, is entitled to such protection." Guarantee Ins. v. Saltman, 217 N.J. Super. 604, 610 (App. Div. 1987)[, certif. denied, 109 N.J. 484-85 (1987)]. Although Commonwealth may not have been acting in bad faith when it refused to honor Kaiser's and Rose's demands, to deny Rose and Kaiser their counsel fees would be to deny them the benefits of the insurance contract that they achieved as successful litigants. [Id. at 356.]
See also Liberty Vill. Assocs. v. W. Am. Ins. Co., 308 N.J. Super. 393, 406 (App. Div.) (insured entitled to full protection provided by coverage without showing of bad faith or arbitrary action by insurer to recover attorney's fees), certif. denied, 154 N.J. 609 (1998).
APIC may require arbitration of disputes arising under its professional negligence policy in California to obtain the favorable California law that limits the circumstances when an attorney fee may be awarded in arbitrated coverage actions. Yet, this advantage in the arbitral forum state does not bar the insured from returning to New Jersey where the coverage action commenced and remained pending following the reference to arbitration as required by the policy. See Myron, supra, 407 N.J. Super. at 311 (law of the out-of-state forum permitting recovery of counsel fees in coverage actions only upon a finding of bad faith or malice not applicable in this state); Liberty
Vill. Assocs., supra, 308 N.J. Super. at 406 (same).
Having determined that Weinman could seek attorney's fees in the pending New Jersey action, we must determine whether the judge applied the appropriate standards to fashion the fee awarded in this matter. Here, we hold the findings of fact are too cursory to permit an informed appellate review.
A "'trial judge has broad discretion as to when, where, and under what circumstances counsel fees may be proper and the amount to be awarded.'" Passaic Valley Sewerage Comm'rs v. St. Paul Fire & Marine Ins. Co., 206 N.J. 596, 619 (2011) (quoting Iafelice ex rel. Wright v. Arpino, 319 N.J. Super. 581, 590 (App. Div. 1999)). The judge must clearly state the reasons for exercising such discretion. Brewster v. Keystone Ins. Co., 238 N.J. Super. 580, 586-87 (App. Div. 1990).
In 1995, our Supreme Court issued two opinions designed to address the issue of calculation of a reasonable attorney's fee payable under fee-shifting statutes to the prevailing party. Rendine, supra, 141 N.J. 292; Szczepanski v. Newcomb Med. Ctr., 141 N.J. 346 (1995). Although occasioned by cases involving fee-shifting legislation, such as the Law Against Discrimination in Rendine and Szczepanski, these standards have been applied in many situations in which the prevailing party is entitled to a fee award. See Incollino v. Canuso, 297 N.J. Super. 57 (App. Div. 1997) (fee award in a class action). Interestingly, the Court expressed the goal that "by setting forth standards that inform the exercise of discretion" of judges who are requested to award fees, the Court could discourage collateral litigation. Rendine, supra, 141 N.J. at 317. The Court also declared that conformance with the standards announced in Rendine and Szczepanski would permit "future fee determinations . . . [to] be disturbed on the rarest occasions, and then only because of a clear abuse of discretion." Ibid.
In Rendine, the Court explained that the trial judge must first "determine the 'lodestar': the number of hours reasonably expended multiplied by a reasonable hourly rate." Id. at 334-35. This requires the "court to evaluate carefully and critically the aggregate hours and specific hourly rates advanced by counsel for the prevailing party . . . ." Id. at 335. Time not reasonably expended should be excluded. Ibid. The hourly rate must be calculated "according to the prevailing market rates in the relevant community." Id. at 337.
The Court also addressed the relationship between the attorney's fees and the amount of damages recovered. Id. at 336. The Court noted that although damages recovered are a factor bearing on the reasonableness of the fee award, fee-shifting statutes do "not require proportionality between damage recoveries and counsel-fee awards . . . ." Ibid.
After determining the lodestar, the trial judge must consider whether an enhancement or a reduction is appropriate under the circumstances. Id. at 336-37. As to increases to the lodestar, the trial judge "should consider whether to increase [the lodestar] to reflect the risk of nonpayment in all cases in which the attorney's compensation entirely or substantially is contingent on a successful outcome." Id. at 337. The Court observed that "it is the actual risks or burdens that are borne by the lawyer or lawyers that determine whether an upward adjustment is called for." Id. at 339-40 (internal quotations and citations omitted). The Court noted certain circumstances in which an enhancement may not be appropriate, such as where an attorney is paid a portion of his or her hourly fee regardless of results; or where an attorney enters a contingent fee arrangement in suit seeking substantial damages, creating the prospect of compensation greater than the lodestar amount; or where the likelihood of success is unusually strong. Id. at 340-41.
As to the amount of a contingency enhancement, the Court held that, ordinarily, the amount "should range between five and fifty-percent of the lodestar fee, with the enhancement in typical contingency cases ranging between twenty and thirty-five percent of the lodestar." Id. at 343. The Court cautioned that these "enhancements should never exceed one-hundred percent of the lodestar . . . ." Ibid. Recently, the Court reiterated "that the mechanisms for awarding fees, including contingency enhancements, that we adopted in Rendine shall remain in full force and effect as the governing principles for attorneys' fee awards made pursuant to fee-shifting provisions in our state statutes and rules." Walker v. Giuffre, 209 N.J. 124, 129 (2012).
Although the Court stated that a fee award applying these standards will not be disturbed absent a clear abuse of discretion, such deference requires a cogent statement of reasons in support of the fee award. This statement must demonstrate recognition and application of the governing standards to the unique facts of the case. See id. at 148 (affirming the need to sufficiently address the Rendine factors to permit review of a fee award). Here, APIC concedes it is responsible for the fees allowed in defense of the medical negligence action. As to the award for the fees incurred for the Law Division and arbitration proceeding to obtain coverage and reinstatement of the policy, however, APIC contends the motion judge failed to provide a statement of reasons in support of his award that permits this court to defer to his determination of the appropriate fee for the coverage litigation. APIC also contends that counsel for Weinman are not entitled to a fee enhancement as a matter of law. We agree.
The motion judge did not provide a cogent explanation of the fee award. He ruled as a matter of law that New Jersey law controls the application for an award of attorney's fees and announced that Weinman was entitled to a fee award. He found the $350 an hour was a reasonable rate but "the only dispute . . . is as to time." He ordered counsel for Weinman to submit an affidavit of services. After further review and oral argument in which Weinman's privately retained counsel advised the motion judge that Weinman had paid only costs incurred to defend the negligence action, the judge determined to award a twenty percent enhancement. In accordance with his statements at oral argument, the motion judge executed an order dated April 29, 2011, granting Weinman $85,845.70 for attorney's fees incurred to defend the Wismer negligence action, $12,441.27 for costs associated with the New Jersey negligence action, $46,500.98 for fees incurred by California counsel who represented Weinman for the arbitration, and $1,884.22 in costs incurred in California. On May 24, 2011, the motion judge entered an order reflecting the fee enhancement. The amended fees are $103,012.84 for the New Jersey negligence action and $55,801.18 for the California arbitration. The costs remained the same.
Here, the absence of any findings of fact and an explanation of the application of the principles announced in Rendine and Rule of Professional Conduct 1.5(a) completely hamper our appellate function. There is no indication that the judge reviewed the hours expended much less determined that the tasks undertaken and the time expended were reasonable under the circumstances. The judge also concluded $350 an hour was a reasonable hourly rate to defend a negligence claim based on his personal experience. There is no finding whether that is the rate normally and usually paid to experienced counsel to defend medical negligence actions. We, therefore, remand for detailed findings of fact and application of the governing standards to those facts to the fee award.
Although our Supreme Court has declined to follow the rule announced in Perdue v. Kenny A., ___ U.S. ___, 130 S. Ct. 1662, 176 L. Ed. 2d 494 (2010), regarding enhancement of fee awards to matters arising under state fee-shifting statutes and rules, we must still address whether this is an appropriate instance to award a fee enhancement for the fees incurred in this coverage dispute. Walker encompasses two cases, both of which involved matters governed by statutes that permit a fee award to the prevailing parties. In one matter, the plaintiff premised her complaint on the Consumer Fraud Act and the Truth-in-Consumer Contract, Warranty and Notice Act and obtained a modest damage award of $654.50. Walker, supra, 209 N.J. at 141, 143. In the other matter, the plaintiff sought and obtained equitable relief under the Law Against Discrimination and the American with Disabilities Act. Id. at 149, 152. In each instance, the Court permitted fee enhancements because a full recovery on behalf of the client offered little or no mechanism to mitigate the risk of non-payment and the real possibility of no payment at all absent an authorized fee award. Id. at 155.
Here, we are not confronted with a contingent fee relationship. We are also not confronted with a situation in which a litigant is a party to a civil action calculated to vindicate not only personal rights but also public rights, such as barrier-free access to places of public accommodation and commercial transactions untainted by fraud or trickery.
We are confronted with a situation in which Weinman was required to retain an attorney to defend a medical negligence claim and incur a substantial liability in the process. Yet, under the American Rule, to which this jurisdiction steadfastly adheres, a litigant such as Weinman has no hope to recover the fees expended even if he prevails in the negligence action. To be sure, Weinman had recourse to challenge the declination of coverage and rescission of his policy and the ability to recoup funds expended or to reduce the accrued liability to defend that action by contesting the declination of coverage and obtaining an award of attorney's fees. Nevertheless, we do not believe the public policy to discourage groundless denials of coverage is furthered by permitting an enhancement to the fee permitted by Rule 4:49-2(a)(6). We, therefore, vacate the fee enhancement.
In summary, we hold the issue of an allowance of attorney's fees incurred in the coverage dispute was not within the scope of the issue referred to the arbitrator or submitted to the arbitrator for resolution. The clarified order cannot be considered a determination of a claim for attorney's fees. We also hold the motion judge had the authority under Rule 4:42-9(a)(6) to award fees incurred in the coverage action following an arbitration award finding that the insured denied coverage wrongfully without any legal and factual grounds. We remand, however, for findings of fact and application of the governing standards regarding fee awards due to the absence of a detailed explanation of the basis for the fee award. We also hold that Weinman is not entitled to a fee enhancement under the circumstances of this case.
Affirmed in part; reversed in part; remanded for further proceedings consistent with the terms of this opinion. We do not retain jurisdiction.
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January 30, 2012
TERRY TYLER,PLAINTIFF,v.AMEND COGGINS, ET AL., DEFENDANTS.
(ECF No. 20)
Plaintiff Terry Tyler, a federal prisoner proceeding pro se and in forma pauperis, filed this civil action on January 19, 2010, pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), which provides a remedy for the violation of civil rights by federal actors. (ECF No. 1.) On June 10, 2010, Plaintiff voluntarily filed an amended complaint. (ECF No. 20.) The Federal Rules of Civil Procedure provide that a party may amend his or her pleading "once as a matter of course at any time before a responsive pleading is served." Fed. R. Civ. P. 15(a). Plaintiff's First Amended Complaint is now before the Court for screening.
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous, malicious," or that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).
The First Amended Complaint identifies the following Bureau of Prisons ("BOP") employees at the United States Penitentiary, Atwater (Atwater) as Defendants in this action: (1) Coggins, Unit Counselor; (2) Rios, Warden; and (3) "[o]ther unknown name[d] officers/officials." (Compl. at 2.)
Plaintiff alleges the following:
In October of 2009 Plaintiff thwarted a prison gang's attempt to murder another inmate. Plaintiff was then placed in the Special Housing Unit (SHU) because of the threat of gang retaliation. (Id. at 3.) Plaintiff was either scheduled for a routine transfer or applied for a different facility.
Plaintiff sought a transfer to a "Re-entry Residential Center" (RRC). (Id. at 4.) The Defendants maintained that Plaintiff would be sent to an institution on par with Atwater and made no effort to reward Plaintiff's lifesaving efforts by facilitating his desired transfer. (Id.) The Defendants' actions were part of a "plan to deny [P]laintiff RCC in total violation of law [18] U.S.C. [§] 3621(b) which states 'The Bureau may at any time . . . direct the transfer of a prisoner from one penal or correctional facility to another.'" (Id. at 5.)
Defendant Rios was aware of Plaintiff's circumstances and was responsible for the violations because Rios "had the authority to order the remaining [D]efendants to facilitate Plaintiff transfer." (Id.) Part of Defendant Coggins' duties as Unit Counselor is to review Plaintiff's facility placement and determine if continued confinement in a particular facility is warranted. Plaintiff was never given such a review. Although, Plaintiff's status in the SHU was reviewed by the Defendants once a week for ten weeks.
The Defendants' refusal to transfer Plaintiff to a RRC amounted to cruel and unusual punishment in violation of the Eighth Amendment. The refusal was also "in violation of law 18 U.S.C. 3624(c) thereby violating Plaintiff right to Due Process under the law accordance with the Fifth Amendment . . . ." (Id. at 6.)
A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Id. Facial plausibility demands more than the mere possibility that a defendant committed misconduct and, while factual allegations are accepted as true, legal conclusions are not. Id. at 1949-50.
A. Eighth Amendment
Plaintiff alleges that the Defendants violated his Eighth Amendment right to be free from cruel and unusual punishment by denying his repeated requests for transfer to a RRC.
The Eighth Amendment protects prisoners from inhumane methods of punishment and from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006). Extreme deprivations are required to make out a conditions of confinement claim, and only those deprivations denying the minimal civilized measure of life's necessities are sufficiently grave to form the basis of an Eighth Amendment violation. Hudson v. McMillian, 503 U.S. 1, 9 (1992) (citations and quotations omitted). In order to state a claim for violation of the Eighth Amendment, the plaintiff must allege facts sufficient to support a claim that prison officials knew of and disregarded a substantial risk of serious harm to the plaintiff. E.g., Farmer v. Brennan, 511 U.S. 825, 847 (1994); Thomas v. Ponder, 611 F.3d 1144, 1151-52 (9th Cir. 2010); Foster v. Runnels, 554 F.3d 807, 812-14 (9th Cir. 2009); Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998).
Plaintiff does not allege that he was denied the minimal civilized measure of life's necessities; rather, he complains of being denied a particular prison transfer. Plaintiff cannot state an Eighth Amendment claim on these grounds because the deprivation complained of is not sufficiently extreme. See Seidenfeld v. Rosales, 2011 WL 835782, *2 (C.D. Cal. Jan. 20, 2011) (finding the denial of entry into Residential Drug Abuse Program did not amount to an adequate deprivation with regard to an Eighth Amendment claim).
Plaintiff explicitly identified the Defendants' denial of his requested RRC transfer as the grounds for his Eighth Amendment claim. Refusing a requested transfer cannot constitute a sufficiently serious deprivation to satisfy the first element of Plaintiff's Eighth Amendment claim. No useful purpose would be served by granting leave to amend.
B. Due Process
Plaintiff alleges that the Defendants violated his Fifth Amendment rights to due process by failing to approve his request to be transferred to a RRC.
The Due Process Clause protects against the deprivation of liberty without due process of law. Wilkinson v. Austin, 545 U.S. 209, 221 (2005). In order to invoke the protection of the Due Process Clause, a plaintiff must first establish the existence of a liberty interest for which the protection is sought. Id. Liberty interests may arise from the Due Process Clause itself, or from an expectation or interest created by prison regulations. Id. The Due Process Clause itself does not confer on inmates a liberty interest in avoiding "more adverse conditions of confinement." Id. The existence of a liberty interest created by prison regulations is determined by focusing on the nature of the deprivation. Sandin v. Conner, 515 U.S. 472, 481-84 (1995). Such liberty interests are "generally limited to freedom from restraint which . . . imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Id. at 484; Myron v. Terhune, 476 F.3d 716, 718 (9th Cir. 2007).
The Fifth Amendment itself provides no liberty interest in a prisoner's desired location of incarceration. The law is clear that a prisoner has no constitutional right to be placed in any particular correctional facility, even though the degree of confinement in one facility may be quite different from that in another. Olim v. Wakinekona, 461 U.S. 238, 244-45 (1983); Meachum v. Fano, 427 U.S. 215, 224-25 (1976); see also Moody v. Daggett, 429 U.S. 78, 88 n. 9 (1976) (concluding that discretionary determinations regarding conditions of confinement do not create due process rights).
Plaintiff asserts that the Defendants violated 18 U.S.C. § 3624(c) by refusing his transfer request and thereby violated his due process rights. The nature of the deprivation, rather than the wording of the statute itself, is the focus of consideration when determining whether a statute creates a liberty interest. Sandin, 515 U.S. at 481-84. Section 3624(c) provides:
The Director of the Bureau of Prisons shall, to the extent practicable, ensure that a prisoner serving a term of imprisonment spends a portion of the final months of that term (not to exceed 12 months), under conditions that will afford that prisoner a reasonable opportunity to adjust to and prepare for the re-entry of that prisoner into the community. Such conditions may include a community correctional facility.
The statute compels the BOP to consider a pre-release term towards the end of a prisoner's sentence, but ultimately grants the BOP discretion in the matter. Essentially, Plaintiff contends that the BOP should exercise its authority in his case and transfer him to an RRC; Plaintiff complains of being forced to remain in a typical federal correctional facility. Plaintiff pleads no facts indicating that his confinement "imposes atypical and significant hardship . . . in relation to the ordinary incidents of prison life." Sandin, 515 U.S. at 484; Myron, 476 F.3d at 718. Being forced to remain in a general prison facility embodies the typical hardship of confinement.
Plaintiff fails to allege facts to support that atypical and significant hardships were imposed on him within the meaning of Sandin. Thus, he fails to adequately allege the existence of a liberty interest entitling him to due process. Plaintiff accordingly fails to state a claim.
This order has tried to analyze Plaintiff's "CLAIMS" on page six of the Complaint by attempting to distill the legible and coherent factual allegations therein. However, as far as the Court can tell Plaintiff believes he is entitled to be transferred to an RRC and that he has a protected liberty interest in such a transfer. While Plaintiff can not state a cognizable civil rights based on his perceived right to be transferred to an RRC, the Court will provide one opportunity to amend his due process claim in case we have misunderstood the essence of his claim. Should Plaintiff choose to amend, he must clearly identify the source of his liberty interest and explain how the named defendants denied him due process.
Plaintiff's First Amended Complaint does not state a claim for relief. The Court will grant Plaintiff an opportunity to amend his Fifth Amendment due process claim only. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). If Plaintiff opts to amend, he must demonstrate that the alleged acts resulted in a deprivation of his constitutional rights. Iqbal, 129 S.Ct. at 1948-49. Plaintiff must set forth "sufficient factual matter . . . to 'state a claim that is plausible on its face.'" Id. at 1949 (quoting Twombly, 550 U.S. at 555 (2007)). Plaintiff must also demonstrate that each named Defendant personally participated in a deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).
Plaintiff should note that although he has been given the opportunity to amend, it is not for the purposes of adding new claims. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). Plaintiff should carefully read this Screening Order and focus his efforts on curing the deficiencies set forth above.
Finally, Plaintiff is advised that Local Rule 220 requires that an amended complaint be complete in itself without reference to any prior pleading. As a general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once an amended complaint is filed, the original complaint no longer serves any function in the case. Therefore, in an amended complaint, as in an original complaint, each claim and the involvement of each defendant must be sufficiently alleged. The amended complaint should be clearly and boldly titled "Second Amended Complaint," refer to the appropriate case number, and be an original signed under penalty of perjury. Plaintiff's amended complaint should be brief. Fed. R. Civ. P. 8(a). Although accepted as true, the "[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level . . . ." Twombly, 550 U.S. at 555 (citations omitted).
Accordingly, it is HEREBY ORDERED that:
1. The Clerk's Office shall send Plaintiff (1) the form complaint for use in a Bivens civil rights action and (2) a copy of his First Amended Complaint, filed June 10, 2010;
2. Plaintiff's First Amended Complaint is dismissed for failure to state a claim upon which relief may be granted;
3. Plaintiff shall file an amended complaint within thirty (30) days; and 4. If Plaintiff fails to file an amended complaint in compliance with this order, this action will be dismissed, with prejudice, for failure to state a claim and failure to comply with a court order.
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December 12, 1989
Petitioner-Appellant, and PAUL E. TAYLOR,
548 N.E.2d 106, 191 Ill. App. 3d 648, 138 Ill. Dec. 876 1989.IL.1930
Appeal from the Circuit Court of Monroe County; the Hon. Dennis J. Jacobsen, Judge, presiding.
APPELLATE Judges:
JUSTICE HARRISON delivered the opinion of the court. GOLDENHERSH and HOWERTON, JJ., concur.
On September 9, 1987, the respondent, Paul Taylor, filed a petition seeking to modify a judgment of dissolution of marriage entered by the circuit court of Monroe County on May 23, 1979. On March 28, 1988, the circuit court granted the respondent's prayer for relief. The petitioner, Mary Taylor, subsequently filed this appeal. We affirm.
The May 1979 judgment of dissolution awarded respondent, inter alia, one-half of the equity in the marital residence, and awarded petitioner, inter alia, maintenance of $500 per month and 40% of respondent's retirement benefits. On January 22, 1981, petitioner and respondent entered into an oral agreement. The alleged terms of this agreement were that the respondent transferred his interest in the marital residence to petitioner in consideration for petitioner's releasing him from future payments.
On April 4, 1987, respondent retired from his employment with the Federal civil service, and he began receiving his pension benefits from his former employer later that summer. Upon his discovery that his former wife was receiving a significant portion of his pension benefits, and based upon his belief that he was entitled to all of those benefits, respondent filed this action on September 9, 1987, seeking modification of the judgment of dissolution to release him from the judgment's provision requiring him to provide 40% of his pension benefits to petitioner.
In its order of March 28, 1988, the circuit court, based on the testimony of the parties given at a hearing on March 7, 1988, determined that both petitioner and respondent intended for the oral agreement entered into between the parties in January of 1981 to release respondent from his obligation to provide any and all future payments to petitioner, including the payment of pension benefits. The court then modified the judgment of dissolution to conform to the oral agreement, relieved the respondent of his obligation -- effective retroactively to January 22, 1981 -- to provide a portion of his pension benefits to petitioner, and ordered the petitioner to notify the Federal government that she was no longer entitled to share in those benefits.
The petitioner contends on this appeal that: (1) the trial court erred in finding that it could modify, through an order entered eight years after the judgment of dissolution, property rights awarded in that judgment absent fraud or duress; and (2) the trial court's determination that the parties had entered into an oral agreement which divested the petitioner of pension benefits was against the manifest weight of the evidence.
The petitioner initially contends that the trial court erred in finding that it could modify, through an order entered eight years after the judgment of dissolution, property rights awarded in that judgment absent fraud or duress. The lower court modified the judgment to conform to an oral agreement entered into between the parties in January of 1981. We disagree with petitioner's contention that the trial court lacked the authority to modify the judgment, and we hold that the circuit court's determination to modify the judgment was not erroneous.
Both of the issues in this cause center around the oral agreement reached between the parties in January of 1981. Both parties are in accord that they entered into an agreement, although the parties differ in their interpretations of the terms of the agreement. Although the agreement was not reduced to writing, the intended effect of the agreement -- to finalize the severance of the relationship between the parties -- was sworn to by both petitioner and respondent at the hearing on March 7, 1988. At that hearing, respondent testified that "I gave this property for all future indebtedness. I asked her three times. I believed her to be a very honest person, and we shook hands on it, and she agreed that freed me from all future debts whatsoever." Petitioner testified, "I thought it would be good if we severed all ties, and this house was all we had left."
As the appellate court noted in Ewert v. Ewert (1963), 41 Ill. App. 2d 161, 166, 190 N.E.2d 147, 149, "[w]here the parties, subsequent to the entry of a decree, attempt to compromise their differences, the court may adopt the agreement of the parties and modify its decree to conform thereto, as it thinks fit." We hold that the parties' valid agreement to modify vests the trial court with the authority to modify the dissolution decree to conform to the agreement reached between the parties. By giving effect to the agreement between the parties, we also give effect to the law's interest in encouraging settlements as a means of promoting judicial economy. (See McCracken Contracting Co. v. R.L. DePrizio & Associates, Inc. (1984), 122 Ill. App. 3d 680, 683, 462 N.E.2d 682, 685 ("[a]s an effective means of promoting judicial economy, settlements are generally encouraged and favored by the courts").) Were we to hold otherwise, litigants to dissolutions would be discouraged from entering into settlements since the sense of finality that a settlement provides would be lost.
Finally, we cannot ignore the fact that, although the parties' formal method of agreement admittedly lacked the drafting skills that a competent attorney could have provided, both petitioner and respondent freely entered into this agreement and each relied upon it for over six years. Subsequent to the agreement, respondent discontinued paying his monthly maintenance to petitioner, and petitioner sold the marital residence for $65,000, retaining $48,000 from the sale after payment of the mortgage. In our opinion, it would have been grossly inequitable if the trial court had not modified the dissolution decree to conform to the agreement reached between the parties.
Since we have determined that the trial court did not err when it modified the judgment of dissolution, we next examine petitioner's second contention on this appeal: that the trial court's finding that the parties' oral agreement divested petitioner of pension benefits was against the manifest weight of the evidence. The modification of a divorce decree rests within the sound discretion of the trial court, and courts of review will not disturb the lower court's findings unless the evidence clearly so requires. (Nordstrom v. Nordstrom (1976), 36 Ill. App. 3d 181, 184, 343 N.E.2d 640, 643.) In Doggett v. Doggett (1977), 51 Ill. App. 3d 868, 871, 366 N.E.2d 985, 987-88, we restated the axiom that
"the findings of a trial Judge will not be disturbed and his opinion substituted by that of a court of review unless the holding of the trial Judge is manifestly against the weight of the evidence. [Citations.] Underlying this rule is the recognition that, especially where the testimony is contradictory, the trial Judge as the trier of fact is in a position superior to a court of review to observe the conduct of the witnesses while testifying, to assess their credibility, and to weigh the evidence and determine the preponderance thereof."
Since both parties stipulated at trial to the existence of an oral agreement between petitioner and respondent, the real issue here is whether sufficient evidence existed for the circuit court to determine that the parties' agreement -- which unquestionably precluded future payments of maintenance from respondent to petitioner -- also precluded the payment of pension benefits to petitioner. Since the respondent testified that this indeed was the intention of the parties, and since, after hearing the testimony and evaluating the demeanor and credibility of the witnesses, the circuit court determined that the preponderance thereof favored respondent's account of this term of the agreement, we are unable to say that the circuit court's determination is against the manifest weight of the evidence, and we therefore affirm the circuit court's judgment on this issue.
For the foregoing reasons, we affirm the judgment of the circuit court of Monroe County.
Judgment affirmed.
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408 22nd Street B, Ocean City, This vacation rental property sleeps 8 with 2 bedrooms and 1 baths. Great Goldcoast Location! Close to boardwalk and beach and Uncle Bill's Pancake house. Close to everything. Older house but kept very clean and nice. → Read More
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6028 80TH Avenue, Zeeland 49464
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This property has been Sold!
03/21/2016 at $199,900
You will not want to miss this super clean, well maintained home in Zeeland Schools! This cute home has been nicely updated throughout. Detached 2 stall garage. Nice size kitchen, with ample amount of cabinet space. Newer windows. Natural gas is available at the street.Home is available with 2.85 acres, 6.21 acres or 8.06 acres. See listing #'s 16006232,16006239, 16006240
Property Information
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- 6028 80TH Avenue
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- Zeeland
- Zip
- 49464
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- Ottawa
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- Blendon
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- 30 Dac Neg
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- Above Grade SqFt
- 897
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- 2, Detached
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- Year Built
- 1877
- Taxes
- $586
Rooms and Land
- Basement
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- 1.0
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- 263.79x165.20x263.78x165.20
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people to know liberian
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yes i am g.vasco from liberia
liberia is a country in africa. liberia was founded on the west coast of africa by the american g.vasco the great liberia star in the world know most and the best of technology as musician in africa also. yes sometime people ask why made life up or down? yes life is about up because some people want learn frist before doing what thay have in mine and other too want to became what they can't be. i belive that from lib to usa is just from your vallage to your city.yes i am g.vasco. life come sometime up or down is your life you can do what ever you be up or down.lib g.vasco life is about up or down.[link title[link title]]


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Xiao River
From Wikipedia, the free encyclopedia
Xiao River (simplified Chinese: 潇水; traditional Chinese: 瀟水; pinyin: Xiāoshuǐ) is a river of China, and tributary to the Xiang River. It is part of the East China Sea basin. This may also be called the Xin River.
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Coordinates: 26°12′15″N 111°38′28″E / 26.204175°N 111.641026°E
|This article related to a river in China is a stub. You can help Wikipedia by expanding it.


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Aloha games study the transmission probabilities of a group of non-cooperative users which share a channel to transmit via the slotted Aloha protocol. This paper extends the Aloha games to spatial reuse scenarios, and studies the system equilibrium and performance. Specifically, fixed point theory and order theory are used to prove the existence of a least… (More)
—This letter studies a wireless system consisting of distributed ground terminals (GTs) communicating with an un-manned aerial vehicle (UAV) that serves as a mobile base station (BS). The UAV flies cyclically above the GTs at a fixed altitude, which results in a cyclical pattern of the strength of the UAV-GT channels. To exploit such periodic channel… (More)
This paper studies the performance of overlay device-to-device (D2D) communication links via carrier sense multiple access (CSMA) protocols. We assume that the D2D links have heterogeneous rate requirements and different willingness to pay, and each of them acts non-altruistically to achieve its target rate while maximizing its own payoff. Spatial reuse is… (More)
This paper uses a spatial Aloha model to describe a distributed autonomous wireless network in which a group of transmit-receive pairs (users) shares a common collision channel via slotted-Aloha-like random access. The objective of this study is to develop an intelligent algorithm to be embedded into the transceivers so that all users know how to self-tune… (More)
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- Worldwide Rank #82,391,070
- Follower/Following Ratio 0.59
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@0119fuka has posted -102 tweets in the last 2 days, which translates to an average of -51.0 tweets per day.
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@0119fuka has 37 followers on Twitter.
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text: Election State Board Settles Early Voting Fights In Mecklenburg, Other Counties By Michael Tomsic • Sep 9, 2016 Jennifer Lang Listen Listening... / 6:00 African-American turnout, partisan politics and the threat of more lawsuits were all on the minds of North Carolina Board of Elections members yesterday. They set the final early voting plans for 33 counties that couldn't reach their own agreement, including Mecklenburg. Political Roundup With Professor Bitzer By Marshall Terry • Aug 26, 2016 WFAE Listen Listening... / 5:49 This week, we focus on the race for U.S. Senate in North Carolina. Ads in the race began airing this week. Incumbent Republican Richard Burr is seen as vulnerable in what is a close race. Democrats have made taking back the Senate a priority. WFAE political analyst Michael Bitzer of Catawba College discusses the race. Former Trump NC Staffer Claims Gun Pulled On Him By Boss By Tom Bullock • Aug 11, 2016 via Twitter Donald Trump has a reputation for suing his critics. Now a former member of his North Carolina staff is suing the Republican nominee's presidential campaign and its former state director for assault, battery, negligence and emotional distress. McCrory In HB2 Joking Mood At Trump Event In Winston-Salem By Tom Bullock • Jul 26, 2016 Republican presidential candidate Donald Trump has made at least six stops in North Carolina this election. But Monday night's stop in Winston-Salem was the first to include Governor Pat McCrory. He warmed up the crowd with some jokes. Listen Listening... / 1:15 Rep. Charles Jeter Resigns, Ends Re-Election Run By David Boraks • Jul 25, 2016 Updated 6:22 p.m.State representative Charles Jeter is stepping down and calling off his run for re-election this November. In a surprise announcement Monday morning, the Huntersville Republican says he needs to make his wife and children "the first priority in my life" right now. Obama Delivers Strong Endorsement Of Clinton By Tom Bullock • Jul 5, 2016 Tom Bullock / WFAE Update 5:50 p.m. It was Hillary Clinton's first joint campaign appearance with President Obama. The fact that it was in North Carolina indicates how important the state is to victory in November. But there wasn't much about the event that was North Carolina-centric. There was no mention of House Bill 2, for example. It was an event with messages that could have come from anywhere. Outside Groups Outspending McCrory, Cooper By More Than 47-1 By Tom Bullock • Jul 1, 2016 Denise Cross Photography Listen Listening... / 3:05 North Carolina is home to perhaps the closest gubernatorial race in the country. So it's no surprise that outside groups are buying up airtime to bolster their candidate of choice. But this is surprising, these outside groups have spent 47 times more on campaign ads than the candidates themselves. That's according to a report released July 1, which also shows the race for North Carolina's governor's mansion is becoming a proxy war. Adams, Pittenger Win; Harris Not Ready To Concede By Tom • Jun 7, 2016 Sarah Delia / WFAE Listen Listening... / 5:23 WFAE's Tom Bullock, David Boraks, and Mark Rumsey report on election results. Her challengers doubted her Mecklenburg County residency, but Congresswoman Alma Adams easily won the Democratic primary in the 12th district that's now entirely within Mecklenburg County. Dems Battle For 12th Congressional Dist. Nomination By David Boraks • Jun 3, 2016 Listen Listening... / 6:06 North Carolina voters will pick Congressional candidates on Tuesday. The primary was delayed after a federal court ruled two districts were illegally drawn along racial lines. Now the state's Congressional District map has been completely redrawn - including the two districts that touch Charlotte. Thursday, we previewed the 9th District - southeast and east of Charlotte. Today, WFAE's David Boraks is with Morning Edition host Marshall Terry to talk about the 12th District, which is now entirely within Mecklenburg County. Control Of The North Carolina Supreme Court Could Be Decided On Tuesday By Tom Bullock • Jun 2, 2016 Scott*/Flickr Listen Listening... / 2:38 On June 7, North Carolina holds a special primary. And nearly all the focus of that primary has been on those running for the U.S. House. But there is another race on that ballot, the only one that is a state wide contest. At stake is control of the North Carolina Supreme Court. Pages« first ‹ previous 1 2 3 4 5 6 7 8 9 … next › last »


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"CEOs and directors realize that board discussions are richer when individuals with diverse backgrounds and perspectives participate. But there is still only a small number of women and minorities among senior corporate executives, and they are in high demand."
Related quotes
"The rich get richer. Not only because they have surpluses with which to invest, but because of the overriding emotional release they experience from having wealth."
"A child is a quicksilver fountain / spilling over with tomorrows and tomorrows / and that is why / she is richer than you and I."
"For believe me, the more one is, the richer is all that one experiences. And whoever wants to have a deep love in his life must collect and save for it and gather honey."


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Wafflee bu filmle birlikte sitemize 521 film eklemiştir.
Filmin eklenme zamanı: Paz, 2 Kas 2014, 02:56 (2 yıl önce)
1sa. 40dk. - Aksiyon, Macera, Dram, Bilim-Kurgu, Vahşi Batı -
When Lane McCrae confronts the outlaw that murdered his family, the battle leaves him fatally wounded. He is visited by the Devil, who offers him a deal that would save the lives of both he and his brother, but instead makes him a bounty hunter for Hell replacing his predecessor. When Zathera, the embodiment of death, walks the earth, it's up to Lane, Hawk and their team, to stop her before she wipes out humanity. They are not the only ones hunting Zathera though - there are others who want to reach Zathera first, for plans of their own!
-çeviri bekleniyor-


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"BIG BAND BLUES BY THE COLORADO JAZZ REPERTORY ORCHESTRA" The area's leading jazz musicians get together for a blues concert at the Lone Tree Arts Center. May 12, tickets, $23, 10075 Commons St., Lone Tree; 720-509-1000; lonetreeartscenter.org
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Donald Trump, TV critic: What he watches, and how he feels about itDonald Trump is probably Twitter's dream user. Lots of followers, lots of engagement, and lots of tweeting about #brands — particularly TV shows that he's in the process of watching. Second-screen engagement! Twitter's engagement team salivates.
In "Judas," Amos Oz wrestles with Jewish attitudes toward Jesus"Judas," a new novel by Amos Oz, is a paradox of stillness and provocation. The Israeli author, a long-rumored contender for the Nobel Prize, has reduced the physical action of this story to a tableau of domestic grief.
In "Colorado Then and Now," a great-great grandson revisits his relative's photographs"Colorado Then & Now" features side-by-side photographs taken by Grant Collier and his great-great grandfather more than a hundred years apart, and shows the drastic changes in Colorado over the years.
WATCH: "Spider-Man Homecoming" trailer unveiledSpider-Man's Tom Holland era goes into full effect with the release of the trailer for "Spider-Man: Homecoming."


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This book shows nurses why they are doing what they do rather than just how for a wide range of A&E conditions. Features "special sections" that cover potential problem areas such as paediatrics and treating the mentally ill A&E patient. It has an A&P section so even the most experienced nurse can refresh their knowledge. Along with all the latest legislation and changing care provisions this book is a must have for the busy A&E Nurse.
DETTAGLI PRODOTTO torna su
Titolo: Accident and Emergency - Theory and Practice
Autori: Dolan - Holt
Editore: Elsevier - Bailliere Tindall
Volume: Unico
Edizione: III 2013
Lingua: Inglese
Finitura: Copertina flessibile
Misure: 18x24 cm
Pagine: 656
Peso: 1.5 kg


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Another good, biting Steyn column. I honestly don't understand why nobody questions this outrageous expense, particularly this "kick in the teeth" 3-week multi-multi-million dollar luxury vacation when everybody else in the country is being told that the end of the world is at hand.
I've been going on twitter and highlighting that it takes 2000 of Obama My2K "middle class" tax increases to send the campaigner in chief on a vacation from his campaigns. #Our4Million #My2K you can do it too. Make those liberals angry.
As an aside, I am amazed how many people using the #My2K are really expecting O will be giving them 2K next year and they tell you how they plan to spend it.
Of course Boehner has to end his evilness and get out of the king's way for these folks to get their 2K. If Boehner wins this fight, I can just see these same folks reacting when they don't get their 2K check in the mail from O.


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Federal Budget targets Central Coast youth unemployment
Youth unemployment on the New South Wales Central Coast has been targetted in the Federal Budget, with millions of dollars to be spent on education and training around Wyong.
The Wyong Local Government area has been chosen as one of 10 disadvantaged areas around Australia to have access to $304 million to help teenage parents and young families get into the workforce.
Federal Member for Dobell, Craig Thomson says it is a big win for the region.
"This is going to be a Wyong Shire solution that is going to fit and help fix some of the issues we have here, and have had here for a long time," he said.
The Coast is expected to pick up indirect funding for regional hospitals, universities and schools.
Meanwhile, the Central Coast Business Chamber says it is disappointed the region has missed out on much-needed road and infrastructure funding in the Budget, including a decision to delay the F3 to Sydney Orbital Link until 2014.
Motoring group, the NRMA blames the delay on the Roads and Traffic Authority.
The NRMA's Regional Director, Kyle Loades says the route had been identified as one of the major remaining pieces of infrastructure to be built, which would help ease traffic congestion for thousands of Central Coast commuters.
A feasibility study was due to start in 2013.
But Mr Loades says the funding has been withdrawn because the RTA neglected it.
"It is 100 per cent the RTA who didn't do the work, didn't prioritise it and now we find that the Federal Government is saying well OK, if you're not going to do the work, we're going to move that money to elsewhere," he said.
"Of course they've announced upgradings of, for example the Pacific Highway, but it is certainly no good to Central Coast commuters because we need that to happen now."
Topics: budget, community-and-society, government-and-politics, wyong-2259, gosford-2250


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February 22, 2012
EDWIN GOLDEN,PLAINTIFF,v.S. FEUDNER,DEFENDANT.
Defendant moves in limine for an order seeking to preclude the admission of certain evidence at trial. Defendant's motions are addressed below.
Motion in Limine No. 1
Defendant seeks to exclude the interrogatories and requests for admission which Plaintiff included in the body of his Pretrial Statement filed on September 9, 2011, stating, although "the requests read as if they were directed at Defendant Feudner, . . . [he] never provided the responses listed." (Def.'s Mot. in Limine to Preclude Purported Disc. Resps. 1:22-26.) Defendant states that the responses "appear to have been manufactured by Plaintiff based on the testimony he thinks would best support his case," and "thus, objects to any use of these requests by Plaintiff at trial." Id. at 1:26-2:3.
Since it is uncontroverted that the discovery requests and responses included as part of Plaintiff's Pretrial Statement were not a part of the discovery conducted in this action, this motion in limine is GRANTED.
Motion in Limine No. 2
Defendant also seeks to preclude Plaintiff from using at trial the "diagram of the prison yard," which Plaintiff attached as an exhibit to his September 9, 2011, Pretrial Statement. (Def.'s Mot. in Limine to Preclude Pl. from Using at Trial Pl.'s Diagram 1:25-2:3.) Defendant argues the diagram "is not a fair and accurate representation of the prison yard, will not help the trier of fact understand the evidence, and will confuse and mislead the jury." Id. Specifically, Defendant contends in relevant part:
The diagram is not drawn to scale but rather is scaled to fit perfectly within the 81/2 by 11 inch sheet of paper on which it is drawn. The diagram depicts only a single column down the left side of the page, which is labeled as an inmate walkway. To the left of the column reads staff walkway marked out of bounds. The names of various buildings are placed around the outer edges on all four sides of the page, but no buildings actually are drawn on the diagram. The diagram fails to indicate where the entrance to medical/education area is. The words "concrete bench" are written on the far edge of the column labeled as the inmate walkway, but no bench is actually drawn. Simply put, the diagram is too confusing to help the trier of fact understand the evidence.
The diagram also is pre-marked "June 15, 2007 incident" with an arrow pointing to this text that reads "occurred on the prison yard." But, whether this area was designated as "out of bounds" is not at issue. That is, Defendant does not dispute that the area at issue in this action was not within the area designated by the prison as "out of bounds."
Id. at 2:18-3:4. Defendant also argues, "[b]ecause Plaintiff can testify as to where he was on the yard, and that that location was not out of bounds, the diagram also would waste time, and needlessly present cumulative evidence." Id. at 3:13-15.
The use of demonstrative evidence "is committed to the trial court's discretion, and should only be allowed where [it] serve[s] to assist the jury in understanding and judging the factual controversy." United States v. White, 766 F.2d 22, 25 (1st Cir. 1985). Further, "demonstrative evidence is subject to [Rule] 403 and should be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury." United States v. Spoerke, 568 F.3d 1236, 1250 (11th Cir. 2009).
Since Defendant has shown that Plaintiff's diagram does not accurately depict the prison yard in certain respects, and Plaintiff can testify concerning its contents, the diagram is excluded under Rule 403. Therefore, this in limine motion is GRANTED.
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