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September 10, 1981
RCA GLOBAL COMMUNICATIONS, INC., Plaintiff,
The WESTERN UNION TELEGRAPH COMPANY, Defendant
RCA Global Communications, Inc. ("Globcom") sues pursuant to the Communications Act of 1934, 47 U.S.C. §§ 206 and 207, to recover compensatory and exemplary damages on account of Western Union's provision of international telecommunications service in violation of the Communications Act, 47 U.S.C. §§ 203, 222(c)(2) and 222(e). Western Union ("WU") moves to dismiss the complaint on the grounds that it fails to state a claim upon which relief can be granted, that the Federal Communications Commission ("FCC") has exclusive jurisdiction over the claims and that the issues should be referred to the FCC. Alternatively, WU moves for a stay until the completion of pending administrative proceedings.
The history preceding this suit is set forth in detail in the opinion of the Court of Appeals in ITT World Communications, Inc. v. Federal Communications Commission, 635 F.2d 32 (2d Cir. 1980). Briefly stated, Globcom and WU are in the business of providing telecommunications service. As a condition to Congress' enactment of § 222 of the Communications Act in 1943, which allowed WU to merge with Postal Telegraph, WU is prohibited from engaging in "international telegraph operations" and is obligated to distribute its outbound overseas traffic among "international telegraph carriers" (now commonly known as "international records carriers" or "IRCs"). 47 U.S.C. §§ 222(e) and 222(c)(2). Globcom is an IRC.
In September, 1979, WU inaugurated a new overseas telecommunications service, utilizing a Mexican and a Canadian carrier to transmit and receive communications between the continental United States and most foreign countries. This service, known as Western Union International Teletype Service ("WUITS") which WU designates as "Low Cost Routing" ("LCR"), allowed WU to bypass the IRCs and to retain control over the outgoing international business it generated. ITT World Communications v. F.C.C., 635 F.2d at 38-39. Shortly thereafter several IRCs, including Globcom, complained to the FCC that WUITS violated the Communications Act because it constituted international telegraph operations in violation of § 222(c)(2), because it breached the obligation to distribute its international traffic among IRCs under § 222(e), and because WU had failed to obtain prior FCC authorization or to file a tariff for the service.
On December 12, 1979, the FCC adopted an order which found that WUITS would not violate the Communications Act so long as WU filed a tariff for the service. The FCC decided that WUITS constituted only "domestic telegraph operations" under § 222(a) and (b) because the Canadian and Mexican carriers, rather than WU, were performing the actual overseas transmission. The FCC further held that § 222 did not prohibit WU from engaging in international telecommunications in futuro provided that authority were granted by the FCC, despite the earlier unmistakable statements of the Court of Appeals in Western Union International, Inc. v. Federal Communications Commission, 544 F.2d 87, 92 (2d Cir. 1976), cert. denied, Western Union Tel. Co. v. Western Union Intern. Inc., 434 U.S. 903, 98 S. Ct. 299, 54 L. Ed. 2d 189 (1977) ("Mailgram"), that § 222 operates "as a continuing bar to Western Union's involvement in international communications" and that "(because) it was Congress that enacted the statute and imposed this ban ... it is only Congress that, under the circumstances of this case, can change it."
On review of the FCC order, the Court of Appeals rejected the FCC's analysis and held that WU's overseas service violated both the prohibition of § 222(c) (2) on WU engaging in "international telegraph operations" and the obligation under § 222(e) to distribute its overseas bound traffic among IRCs. ITT World Communications v. F.C.C., supra. In its strongly worded opinion, the court rebuked the FCC for "the Commission's defiance of Mailgram " and stated that WU's "conduct of international telegraph operations ... clearly violates § 222 of the Act and cannot lawfully be authorized by the FCC ..." 635 F.2d at 43. In a proceeding shortly thereafter, the Court of Appeals held that WU's offer of WUITS service even after the Court's decision constituted "contemptuous conduct." ITT World Communications, Inc. v. Federal Communications Commission, 635 F.2d at 43 (1980).
A. WU first contends that until the Court of Appeals declared that WUITS violated the Communications Act, its international telecommunications service had not been "prohibited or declared unlawful" and therefore was not actionable under § 206 of the Act. According to WU, its international service had been lawful because it had been approved by the FCC and, under the provisions of § 408 of the Communications Act, FCC orders "shall continue in force ... unless ... suspended or modified or set aside by the Commission or ... by a court of competent jurisdiction." 47 U.S.C. § 408. WU argues that a private damage action based on conduct approved by the FCC is inconsistent with the scheme of the Act and would undermine the FCC's exercise of its regulatory authority by burdening compliance with its orders with the threat of a later damage suit.
Globcom answers that the FCC's unauthorized approval of WU's conduct cannot serve to immunize WU from liability. According to Globcom, the statutory language of § 222 and the definitive construction accorded the statute by the Court of Appeals in Mailgram, prior to WU's entry into the international telecommunications market, clearly forbade WU's conduct, and thus WU acted at its own risk. Globcom argues further that WUITS was unlawful under the provisions of § 222 itself and its unlawfulness did not depend upon FCC construction of the statute. It is irrelevant to WU's liability, Globcom contends, that it was necessary for the Court of Appeals to render the judgment banning WUITS that the FCC should have rendered in the first instance. In addition, Globcom emphasizes that this is not a case in which liability is premised upon conduct which a private party was ordered to undertake by a government agency, since the FCC did not order WU to undertake overseas service but merely construed the Communications Act not to forbid it.
B. WU further contends that equitable principles dictate that the Court of Appeals' decision in ITT World Communications not be applied retroactively to impose liability for conduct taken in accordance with an FCC order. Otherwise, it argues, regulated parties will be paralyzed from relying on agency decisions in determining their course of business. Relying heavily on Lemon v. Kurtzman, 411 U.S. 192, 93 S. Ct. 1463, 36 L. Ed. 2d 151 (1973) (Lemon II), WU claims that, despite the facts that the FCC order at issue was subject to judicial review and that a challenge to its validity could be expected, its reliance on the order was reasonable.
Globcom replies that the principle of non-retroactivity upon which WU relies is not applicable to this case. First, Globcom contends that its allegations of bad faith on the part of WU prevent the application of equitable principles at this stage of the case, and that in any event good faith is not a defense to a § 222 damage action. Second, Globcom maintains that no issue of reasonable reliance is present because WU did not rely on the FCC's approval in instituting its overseas service but began its service without seeking FCC authorization and before the FCC ruled on the issue. Third, Globcom argues that it has never been held that a party's reliance on a decision of an administrative decision serves to immunize the party from liability in a legal action for damages. Fourth, Globcom contends that WU's analysis of retroactivity cases mistakes the applicability of equitable considerations in cases where a long-standing precedent has been overruled to cases, like the present one, where there has been no overruling but rather a simple reversal of an erroneous agency decision. According to Globcom, WU's position rests on the novel proposition that a defendant is not liable for the continuing damages suffered during the pendency of a successful appeal. Finally, Globcom next asserts that even if the retroactivity cases cited by WU did apply, the criteria delineated by the Supreme Court in Chevron Oil v. Huson, 404 U.S. 97, 92 S. Ct. 349, 30 L. Ed. 2d 296 (1971), support application of the Court of Appeals' ITT World Communications decision to WU's conduct because that decision neither overruled settled precedent nor was an unforeshadowed case of first impression, it will foster the purposes of § 222 to permit the suit to continue, and no inequitable result will follow.
C. Relying on § 207 of the Act, which provides that an aggrieved party may seek damages for a Communications Act violation either through the FCC or a court, but not in both fora, WU next argues that the FCC has exclusive jurisdiction over Globcom's claims. According to WU, Globcom elected to pursue its administrative remedies by complaining to the FCC and seeking administrative sanctions when WU initiated its international service and by seeking monetary damages for WU's allegedly unlawful diversion of overseas telecommunications traffic in formal complaints filed with the FCC in July, 1980.
Globcom responds that it has never sought damages through the FCC for WU's entry into the international telecommunications market. Instead, it merely wrote letters complaining of WU's actions to the FCC soon after WU inaugurated WUITS and the FCC instituted its own informal inquiry resulting in the FCC order approving the practice. With respect to the administrative complaints filed in July, 1980, Globcom argues that they seek damages for WU's failure to provide interconnection equipment and access to Globcom and do not involve claims for damages from WU's illegal provision of overseas service at issue in the present case.
D. WU claims that the doctrine of primary jurisdiction dictates dismissal or a stay of these proceedings pending administrative resolution. The argument runs that a decision in this action would present a substantial risk of inconsistent or duplicative judgments and that the FCC is the preferable forum because it has the expertise necessary to apportion an award of damages, if any, among the various IRCs who may be entitled to compensation. Furthermore, WU maintains that the issues presented here are already before the FCC and that the FCC is intimately familiar with the questions presented because it has been involved in the controversy since its inception. According to WU the issues raised here are only a part of a broader dispute between it and other domestic and international telecommunications carriers which is presently before the FCC and that only by application of the doctrine of primary jurisdiction can the FCC's comprehensive supervisory authority be exercised consistently for these and related issues.
Globcom retorts that the doctrine of primary jurisdiction should not be applied here because the essential factual and legal issues upon which its claims rest have been definitively resolved by the Court of Appeals decision and the only remaining question is the quantum of damages, a matter which does not concern the FCC's policymaking role or require its expertise. Moreover, Globcom emphasizes that the doctrine of primary jurisdiction need not be applied where the agency has already expressed its hostility to the plaintiff's claim. It adds that there is no proceeding pending before the FCC involving WU's overseas telecommunications service and that in any event judicial resolution of the issue of the quantum of damages for past conduct does not raise a possibility of conflict with the FCC's ongoing administration of the Communications Act.
E. Finally, WU contends that there is no basis for a damage claim in its failure to file a tariff for its overseas service. WU asserts that this was merely a technical violation from which Globcom alleges no injury. Globcom, on the other hand, maintains that the question whether it suffered damage from WU's failure to file a tariff must be resolved by evidence at trial.
WU's motion to dismiss the complaint or stay these proceedings is denied, except for that part of the motion seeking dismissal of Globcom's claim for damages based on WU's failure to file a tariff for its international service, which is granted unless within thirty days Globcom amends its complaint to allege specific damage it suffered from WU's tariff violation.
A. The proposition that WU's international telecommunications service was not "prohibited" for the purposes of § 206 of the Communications Act until the Court of Appeals declared it so is without merit. Section 222 prohibits WU, as a merged carrier, in haec verba from engaging in "international telegraph operations," 47 U.S.C. § 222(c)(2), and § 222(e) obligates WU to distribute its outbound overseas traffic among IRCs. Section 206 specifically provides for the recovery of damages "(in) case any common carrier shall do any act, matter or thing in this chapter prohibited or declared to be unlawful ..." 47 U.S.C. § 206. WU's liability therefore depends only on the question whether its overseas service constituted "international telegraph service" within the meaning of § 222(c)(2), or whether it violated its obligation to distribute its overseas traffic among IRCs under § 222(e). As indicated above, the Court of Appeals has definitively held that WU's service constituted both "international telegraph operations" under § 222(c)(2) and a breach of WU's obligations under § 222(e). It follows that, by entering the overseas telecommunications market, WU embarked on a course of conduct "prohibited or declared to be unlawful" by the Communications Act, and it is "liable to the person or persons injured thereby ..." 47 U.S.C. § 206.
We need not determine whether the FCC's approval of WUITS might carry weight if the FCC had been delegated authority to determine which operations would be permissible and which would be prohibited for communications carriers. With respect to merged telecommunications carriers, the FCC never possessed such authority. The Act itself limits merged carriers to the domestic market. In these circumstances, the FCC acted in an adjudicatory rather than a rulemaking role which it construed the Communications Act to permit WUITS. By providing for judicial review, however, Congress intended that the courts, rather than the FCC, should have the final say on the interpretation of the Act.
Nor are we persuaded by WU's argument that the FCC order served to immunize it from liability for its overseas service by virtue of § 408 of the Act, which provides that FCC orders "shall continue in force ... unless ... suspended or modified or set aside by the Commission or ... by a court of competent jurisdiction." 47 U.S.C. § 408. Section 408 appears to be directed to orders which require affirmative action to be taken by a party. The "order" at issue here did not, however, require WU to establish or continue to operate its overseas service. Instead, it merely interpreted the Communications Act not to forbid such operations. There is no question here of WU having been forced, by the authority of the FCC, to "comply" with an FCC order which remained in force until vacated under § 408. Moreover, § 408 does not purport to immunize from future damage actions conduct taken in compliance with an FCC order. Whatever bearing § 408 may have where a party is sued for actions taken in accordance with an affirmative FCC order, this is not such a case. Accordingly, we hold that the unauthorized and erroneous FCC decision that WUITS did not violate the Communications Act does not prevent WU from being held liable for its illegal conduct.
We do not agree with WU that such a holding serves to undermine the FCC's regulatory authority. As the Court of Appeals made abundantly clear in both the Mailgram and ITT World Communications cases, the FCC simply had no authority to authorize WU to engage in international telecommunications operations. Entertaining a private damage action based on conduct which the FCC had no authority to approve does not, therefore, interfere with the agency's legitimate administration of the Communications Act. To the contrary, such a suit serves to ensure that "the Commission's defiance of Mailgram " is not granted legal validity.
B. It is true, as WU contends, that the FCC's lack of authority to approve WU's overseas service is not the end of the question whether it may be held liable in damages for its unlawful international service. Still to be considered is the issue whether the Court of Appeals' decision in ITT World Communications should be limited to prospective effect. While Globcom argues that there has been no case in which a party has been deprived of a statutory right to damages because its adversary relied upon an erroneous administrative decision, the fact remains that administrative orders, like "statutory and even judge-made rules of law are hard facts on which people must rely in making decisions and shaping their conduct. This fact of legal life underpins our modern decisions recognizing a doctrine of nonretroactivity." Lemon v. Kurtzman, 411 U.S. 192, 199, 93 S. Ct. 1463, 1468, 36 L. Ed. 2d 151 (1973) (Lemon II). See also Chevron Oil Company v. Huson, 404 U.S. 97, 92 S. Ct. 349, 30 L. Ed. 2d 296 (1971); Atlantic Richfield Company v. Federal Energy Administration, 463 F. Supp. 1079 (N.D.Cal.1979) (recognizing justifiable reliance on administrative order as basis for application of doctrine of nonretroactivity). Furthermore, while the court in Lemon II emphasized the fact that an equitable decree was at issue there, we do not agree with Globcom that the doctrine of nonretroactivity is necessarily limited to cases involving such a remedy. See Chevron Oil Company v. Huson, 404 U.S. 97, 106-107, 92 S. Ct. 349, 355, 30 L. Ed. 2d 296 and cases cited therein. Nor are we persuaded by Globcom's contention that the doctrine of nonretroactivity is irrelevant because ITT World Communications involved a simple reversal rather than an overruling of precedent. Contrary to Globcom's assertions, the doctrine of nonretroactivity does not depend on the existence of nonlitigants who may have relied on the former rule of law. See, e.g., Lemon v. Kurtzman, supra; Atlantic Richfield Company v. Federal Energy Administration, supra. Nevertheless, we do agree with Globcom that the doctrine of nonretroactivity should not be applied here.
The doctrine of nonretroactivity serves to reconcile the legal interests in a new rule of law with the reliance interests founded upon a preexisting rule of law. The question presented is whether "we should reach back to disturb or to attach legal consequence to patterns of conduct premised either on unlawful statutes or on a different understanding of the controlling judge-made law from the rule that ultimately prevailed." Lemon v. Kurtzman, 411 U.S. at 198, 93 S. Ct. at 1468. The Supreme Court has set forth three primary factors to be considered in determining whether to apply a decision retroactively: 1) whether the decision to be applied retroactively establishes a "new principle of law, either by overruling clear precedent upon which litigants may have relied ... or by deciding an issue of first impression whose resolution was not clearly foreshadowed"; 2) whether retrospective application will further the purposes of the rule in question; and 3) whether retrospective application will produce "substantial inequitable results." Chevron Oil Company v. Huson, 404 U.S. at 106-107, 92 S. Ct. at 355.
Applying these criteria to the case at bar, we find no basis for limiting the Court of Appeals decision in ITT World Communications to prospective application. First, the decision in ITT World Communications did not establish a new rule of law. To the contrary, the Court of Appeals began its opinion by stating that "(once) again we are faced with a major question with respect to the provision of international telecommunications service in the United States, which we thought we had firmly settled in ... Mailgram." ITT World Communications v. Federal Communications Commission, 635 F.2d at 33. Indeed, the court pointed out that the FCC's order was inconsistent not only with the Mailgram decision, but also with the FCC's own views expressed in cases arising prior to Mailgram. 635 F.2d at 43. In short, the conclusion that WU may not engage in international telecommunications service neither overruled clear past precedent nor presented an issue of first impression.
Second, WU's contention that it was entitled to rely on the FCC approval of WUITS service is unpersuasive. Given the existence of the Mailgram decision, the FCC order simply did not constitute the kind of "clear past precedent" envisaged in Chevron Oil. To the contrary, the Court of Appeals' reversal was clearly foreshadowed by Mailgram, and therefore it cannot be said that any reliance by WU was reasonable or justified. Moreover, WU's assertion of justifiable reliance on the FCC order is directly contradicted by the fact that it unilaterally instituted its overseas telecommunications service without first seeking FCC authorization. ITT World Communications v. Federal Communications Commission, 635 F.2d at 38. Rather than relying on any rule of law, it would appear that WU began its overseas operation in blatant opposition to the extant law.
Third, the purpose of the statutory provisions vindicated in ITT World Communications will be fostered by retrospective application of that decision. As described by the Court of Appeals, the purpose of the statutory ban on WU engaging in overseas telecommunications operations is, at least in part, to prevent WU from using its domestic monopoly over telegraph operations to favor its own overseas system to the detriment of the IRCs. 635 F.2d at 36. By permitting Globcom to recover for whatever injury it may have sustained as a result of WU's illegal entry into the international market, this statutory purpose would be vindicated.
Finally, retrospective application of ITT World Communications will produce no substantial inequities. Whatever equities may support WU's position, it is also presumably true that WU profited from its illegal service. Globcom, on the other hand, was entitled by statute to have WU distribute its outbound overseas traffic among the IRCs, and it has allegedly suffered substantial loss of business from WU's failure to do so. In these circumstances, the equities support Globcom's claim for damages and warrant retrospective application of ITT World Communications.
C. We also find unpersuasive WU's argument that Globcom has elected to pursue administrative remedies and is therefore precluded from presenting its claim here under § 207. While Globcom did invoke the FCC's remedial authority in 1979 with respect to WU's overseas service, WU has failed to demonstrate that Globcom ever presented a claim for damages to the FCC concerning WU's overseas operations. Section 207 clearly relates to a "suit for the recovery of damages," 47 U.S.C. § 207, and grants the aggrieved party the choice of administrative or judicial remedies for those damage claims. The only evidence presented by WU in support of its position consists of two formal complaints filed with the FCC by Globcom in July, 1980. (W.U. Exs. 3-L, M). However, as we read these complaints, they relate to WU's alleged failure to provide interconnection equipment and access and mention WU's overseas operations only in support of allegations of WU's bad faith, not as a basis for the recovery of damages. Accordingly, we find that Globcom has not presented its claim for damages from the WUITS operation to the FCC, and conclude that the FCC does not have exclusive jurisdiction over the claim under § 207.
D. We decline to apply the doctrine of primary jurisdiction in this case. The doctrine is intended to accommodate the "complementary roles of courts and administrative agencies, Far East Conference v. United States, 342 U.S. 570, 575, 72 S. Ct. 492, 494, 96 L. Ed. 576 (1952), by ensuring that "in cases raising issues of fact not within the conventional experience of judges or cases requiring the exercise of administrative discretion, agencies created by Congress for regulating the subject matter should not be passed over." Far East Conference v. United States, 342 U.S. at 574, 72 S. Ct. at 494. The factors to be considered in determining whether to apply the doctrine are 1) whether the question at issue is within the conventional experience of judges or whether it involves technical or policy considerations within the agency's particular field of expertise, 2) whether the question at issue is peculiarly within the agency's discretion, 3) whether there exists a substantial danger of inconsistent rulings, and 4) whether a prior application to the agency has been made. Orange & Rockland Utilities, Inc. v. Howard Oil Co., 416 F. Supp. 460, 466 (S.D.N.Y.1976).
Applying these factors, there is no basis for deferring to the FCC. All of the significant legal and factual issues have been resolved by the decision in ITT World Communications and the only remaining question to be resolved is the apportionment of damages. While the FCC may be more familiar with the particular markets at issue here, the questions at hand do not involve technical or policy considerations and may be safely said to be within the conventional experience of judges. Moreover, the determination of the proper measure of damages does not involve the FCC's discretion, but rather is the kind of matter classically decided by courts. And since there is no pending dispute before the FCC involving the same claim, there is no danger of inconsistent rulings. Finally, while the dispute originated with the FCC, where the agency "has already evinced its "special competence' in a manner hostile to petitioner, courts need not bow to the primary jurisdiction of the administrative body." Board of Education v. Harris, 622 F.2d 599, 607 (2d Cir. 1979), cert. denied, 449 U.S. 1124, 101 S. Ct. 940, 67 L. Ed. 2d 110 (1981). WU's argument that the doctrine of primary jurisdiction should be applied because this dispute is part of a broader contest between WU and other domestic and international telecommunications carriers is unpersuasive in the circumstances. Here the question presented does not affect the regulatory system of telecommunications in general, but only a particular claim for damages from a course of conduct that has already been judicially determined to be illegal.
E. We agree with WU that Globcom's claim based on WU's failure to file a tariff for its overseas service is insufficient. Sections 206 and 207 of the Act by their terms provide a private cause of action for a party damaged by another's violation of the Act. Globcom has failed to allege any damage flowing from the lack of a tariff or to articulate any possible damages which it may be able to prove at trial. In all candor, we find it difficult to conceive of any damages Globcom could have suffered as a result of the tariff violation not identical to the damages resulting from the violations of the Communications Act. Globcom acknowledges as much. (Br. at 63). In these circumstances, the claim will be dismissed unless Globcom amends its complaint within thirty days to allege specific damages resulting from WU's tariff violation itself.
WU's motion to dismiss the complaint or stay these proceedings is denied, except for that portion of the complaint based on WU's failure to file a tariff for its overseas telecommunications service, which will be dismissed thirty days from the filing of this Memorandum unless Globcom amends its complaint in good faith to allege damages resulting from WU's tariff violation itself.
It is so ordered.
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Adidas introduces a new special edition of the male fragrance Pure Game, launched in 2010 in the honor of all the football fans and participants of the 2010 South African world cup. Pure Game is created in the cooperation with Firmenich, featuring bubbly citrus notes of mandarin and grapefruit, completed with basil and bitter pepper. the heart is composed of lavender, cypress and guaiac wood, while the base consists of patchouli, tonka and incense.
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text:
Lemon-Filled Meringue Cake
Total Time
Prep 30 mins
Cook 30 mins
A lovely lemon dessert.
Ingredients Nutrition
- 1⁄2 cup butter
- 1⁄2 cup sugar
- 4 eggs, seperated
- 1⁄4 cup milk
- 1⁄2 teaspoon vanilla
- 1 cup flour
- 1 teaspoon baking powder
- 1 teaspoon lemon juice
- 1 cup sugar
- 1⁄4 cup almonds, sliced
- 1 tablespoon cornstarch
- 1⁄4 cup sugar
- 3⁄4 cup milk
- 2 egg yolks
- 1 teaspoon lemon rind, grated
- 2 tablespoons lemon juice
- 1 cup whipping cream
- 2 tablespoons sugar
- To make Cake: Preheat oven to 350.
- Grease two 8 inch gake pans.
- Cream butter with 1/2 cup sugar untill light and fluffy.
- Add egg yolks one at a time.
- Blend in milk and vanilla.
- Sift flour and baking powder together, and gradually add this to creamed mixture.
- Beat for 2 minutes.
- Divide batter between pans.
- In another bowl beat egg whites and 1 tsp lemon juice untill soft peaks form.
- gradually add 1 cup sugar, and beat till stiff peaks form.
- Spread meringue over cake batter in pans.
- Sprinkle Almons on one layer.
- Bake for 30 minutes.
- Filling: Mix cornstarch, sugar and milk in a small saucepan, heating over medium heat and stiring constantly.
- Bring to a boil.
- Stir a little of the hot mixture into the egg yolks, then add egg mixture to the sauce pan.
- Cook for 1 minute, stirring.
- remove from heat and add lemon rind and juice.
- Frosting: Whip cream and sugar till soft peaks form.
- Assemble the cake: place layer without almonds on a serving platter, meringue side down.
- Spread with lemon filling.
- Place second layer on top, almond side up.
- Frost edges of cake with whipped cream.
Most Helpful
It tasted really great. The only thing I would suggest is that you leave the cake and the filling to cool until you assemble it. I assembled it almost right away and everything started to slip off and it was just a giant mess. Very yummy however!! Remember LET IT COOL!


text:
Hi ladies! Looks like things are starting to move right along! I'm definitely busy and tired. The hardest part has been my recovery. My c sec incision ended up reopening. Very painful and had it stapled with no anesthetic! ouch! tomorrow they may get removed. Cristiano is a great nurser! He falls asleep right away so last night I ended up pumping the rest so i can continue making some at a decent speed and always good to store breast milk for later! Hes exclusively bf so dont want to introduce bottles until its time for me to go back to work. He was born at 7lbs 4oz and 2 days ago was 6 lbs 14oz. But nobody is worried. I did lose a lot of blood so am on iron pills. We feel so complete now. We are so in love! Even though the stinker made me labor 11 hours on my scheduled c section day! So here is some pics!
Update and pics
Aww. Such a beautiful family. Im sorry to hear that your recovery has been troubleshome.. Hopefully its much smoother, and fast, from here on out
he is adorableeeee!!!!! congrats
Look at that gorgeous dark hair! You look amazing mama! Sorry to hear about your incision coming open, sounds miserable You all look so happy in the whole family shot!!
Beautiful pics! Glad to hear he's BFing fantastically. That isn't much of a weight loss at all, so woo hoo (most babies lose weight)!
Sooooo hate hearing that you had issues with your incision. Hope it's smooth sailing after this.
Beautiful family! I hope you heal quickly!
He is so cute! Congratulations!
What a CUTIE!!!!!!!!!!!!!!!!!!! Congrats!!!!!!
Cute! and many congrats
He's adorable!! Sorry about your recovery. I hope you are feeling better soon!
He's a beautiful baby boy. Sorry to hear about the incision. I hope it heals quickly.


text:
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September 14, 2012
JOHN PALLADINO, PLAINTIFF-APPELLANT,v.JEFFREY MELCHIONNA AND FLORA MELCHIONNA, SOUTHSTAR FUNDING, L.L.C. AND MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Chancery Division, Union County, Docket No. F-37439-10.
Argued January 31, 2012 -
Before Judges Reisner and Hayden.
Plaintiff John Palladino appeals from the April 29, 2011 Chancery Division order granting the mortgage held by defendants SouthStar Funding, L.L.C. and Mortgage Electronic Registration Systems, Inc. a lien priority over plaintiff's mortgage by authority of the doctrine of equitable subrogation. After considering the applicable legal principles in light of the record, we affirm.
The basic facts are not in dispute. On March 14, 2006, defendants Jeffrey and Flora Melchionna purchased an investment property in Linden financed by a mortgage of approximately $373,000 from Accredited Home Lenders, Inc. Accredited did not record its mortgage loan until July 20, 2006, over four months later.
Meanwhile, on April 10, 2006, the Melchionnas took out a second mortgage on the same property from Palladino. The Melchionnas received $50,000 in cash, and the loan was secured by a $75,000 mortgage, recorded on April 12, 2006, three months before Accredited recorded its mortgage. Palladino knew, at the time he made the loan to the Melchionnas, that Accredited was the first mortgage holder on the property.
In September 2006, the Melchionnas refinanced the Accredited mortgage with two loans from SouthStar totaling $399,922. SouthStar's title search revealed the Accredited mortgage but failed to uncover the Palladino mortgage. SouthStar paid off the Accredited mortgage of $373,643 as part of the refinancing. The SouthStar mortgage was promptly recorded after the closing. Subsequently, SouthStar named a third party, defendant Mortgage Electronic Systems, Inc., as the "nominee for the lender" and as the mortgagee.*fn1
By January 2011, both Palladino and SouthStar had begun foreclosure proceedings against the Melchionnas. Judge John F. Malone consolidated these proceedings. Shortly thereafter, SouthStar filed a motion seeking to have its mortgage declared the superior lien and Palladino filed a cross-motion asking for his mortgage to be deemed superior.
Judge Malone granted SouthStar's motion and denied Palladino's cross-motion because he found the doctrine of equitable subrogation applied. In an oral decision rendered April 29, 2011, Judge Malone observed that Palladino did not dispute that Accredited, as a purchase money mortgagee, had a priority over his loan, even though Accredited's loan had been recorded later. By paying off the first priority mortgage, the judge found, SouthStar stepped into the place of the first priority mortgagee, and its lien had priority over the second-place lien holder. The judge rejected Palladino's argument that SouthStar's negligence in not finding Palladino's lien deprived it of its equitable position. The judge concluded that, even though its security was defective, SouthStar, as the refinancing lender, was subrogated by equitable assignment to the position of the lender whose lien was discharged by the proceeds of the later loan.
This appeal followed.*fn2
Our scope of review is limited here. Decisions as to the application of an equitable doctrine are left to the sound discretion of the trial judge, and we will not substitute our judgment for that of the trial judge in the absence of a clear abuse of discretion. Kurzke v. Nissan Motor Corp. in U.S.A., 164 N.J. 159, 165 (2000).
On appeal, plaintiff argues that the judge erred in not finding that the first recorded mortgage must prevail; in applying the doctrine of equitable subrogation in a non-fraud case; and in applying an equitable remedy since defendant banks have legal remedies at their disposal to re-coup their losses. We disagree. We have considered Palladino's arguments and find them without merit. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons expressed in Judge Malone's cogent opinion of April 29, 2011. We add the following comments.
Under the doctrine of equitable subrogation, "a refinancing lender whose security turns out to be defective is subrogated by equitable assignment 'to the position of the lender whose lien is discharged by the proceeds of the later loan, there being no prejudice to or justified reliance by a party in adverse interest.'" Equity Sav. and Loan Ass'n v. Chicago Title Ins. Co., 190 N.J. Super. 340, 342 (App. Div. 1983) (quoting Kaplan v. Walker, 164 N.J. Super. 130, 138 (App. Div. 1978)). Equitable subrogation is a remedy "highly favored in the law." First Fid. Bank, Nat. Ass'n, S. v. Travelers Mortg. Servs., Inc., 300 N.J. Super. 559, 564 (App. Div. 1997) (internal citations omitted). As it is an equitable doctrine, it is applied only in the exercise of the court's equitable discretion. Metrobank for Sav., FSB v. Nat'l Cmty. Bank, 262 N.J. Super. 133, 144 (App. Div. 1993). Hence, "[e]quitable subrogation may only be imposed 'if the cause is just and enforcement is consonant with right and justice.'" Feigenbaum v. Guaracini, 402 N.J. Super. 7, 20 (App. Div. 2008) (quoting Standard Acc. Ins. Co. v. Pellechia, 15 N.J. 162, 173 (1954)).
In the context of mortgages, we have previously described the equitable subrogation doctrine as follows:
Generally, a new mortgage is subrogated to the priority rights of an old mortgage by either agreement or assignment. In the absence of such an agreement or assignment, a mortgagee who accepts a mortgage whose proceeds are used to pay off an older mortgage is equitably subrogated to the extent of the loan so long as the new mortgagee lacks knowledge of the other encumbrances. Metrobank for Sav., FSB v.
Nat'l Cmty. Bank, 262 N.J. Super. 133, 143-44 (App. Div. 1993). In that situation, the new mortgagee by virtue of its subrogated status can enjoy the priority afforded the old mortgage. Ibid. Equitable subrogation may still be afforded even though lack of knowledge on the part of the new mortgagee occurs as a result of negligence. Kaplan v.
Walker, 164 N.J. Super. 130, 138 (App. Div. 1978). On the other hand, the new lender is not entitled to subrogation, absent an agreement or formal assignment, if it possesses actual knowledge of the prior encumbrance. Metrobank, supra, 262 N.J. Super. at 143-44. [First Union Nat'l Bank v. Nelkin, 354 N.J. Super. 557, 565-66 (App. Div. 2002).]
Thus, to the extent that the proceeds of the new mortgage are used to satisfy the old mortgage, even a mortgagee who negligently accepts a mortgage without knowledge of intervening encumbrances will subrogate to a first mortgage with priority over the intervening encumbrances. Trus Joist Corp. v. Nat'l Union Fire Ins. Co., 190 N.J. Super. 168, 179 (App. Div. 1983), rev'd on other grounds, 97 N.J. 22 (1984). See also First Fid. Bank, supra, 300 N.J. Super. at 565 (negligence does not bar subrogation unless subsequent intervening rights are involved). However, application of the doctrine requires a finding that the older mortgagee acted fraudulently or would be unjustly enriched. First Union Nat'l Bank, supra, 354 N.J. Super. at 566.
We agree with the trial judge that the prerequisites for imposing
equitable subrogation are present here. SouthStar is a refinancer that
loaned money to the Melchionnas to discharge the Accredited purchase
money mortgage. The subrogation did not prejudice Palladino in any way
because his interest remained in its prior position, subordinate to
the purchase money mortgage securing the $373,000 loan.*fn3
Moreover, if Palladino succeeded beyond his original
expectation to become the first priority lien holder, he would be
unjustly enriched. Additionally, there is nothing in the record
evidencing that SouthStar had any knowledge, real or imputable through
its agents, of Palladino's lien on the property. As a result, we
concur with Judge Malone that equitable subrogation is reasonable
here, as "the cause is just and enforcement is consonant with reason and justice." Standard
Acc. Ins. Co. v. Pellechia, supra, 15 N.J. at 173.
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Jul 21, 2016 1:03 PM CST
|The unique and, to me, the most appealing charateristic of Aucuba japonica Picturata is the prominent solid yellow streak in the center of the leaf, like this:
However, leaves with streaks are rare on my plant. Most of the time my plant has leaves with small yellow spots and no streaks, although streaked leaves have occurred on rare occasions, confirming Picturata as the cultivar.
Are particular growing conditions conducive to encouraging leaves with prominent yellow streaks instead of small yellow spots on Aucuba japonica Picturata?
Carol Sandt
"Experience is the name we give to our mistakes." - Oscar Wilde
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Redeeming Relevance: Parshat Reeh: The Taste for Blood and the Imperative of RelevanceMonday, August 29th, 2016
When we read the Torah, through what lens are we supposed to read it? Are we supposed to read it as the Jews who received it would have? Or is it actually meant to be read in a way that fits with our own understanding of the world – one that cannot possibly be the same as that of those who first received the Torah?
I believe that the rabbinic discussion in the Midrash and later in the Mishna about the wording of one of the mitzvot in this week's pasha can take us far towards answering this important question. Rashi's formulation of the midrash on Devarim 12:23 brings this out quite remarkably. In it, Rabbi Yehudah tells us that the reason that the Torah tells the reader that they must be strong and not eat blood is because the Jews who had lived in Egypt struggled to fulfill this mitzvah. But then Rabbi Shimon ben Azai comes along and says that the actual reason for the wording is diametrically opposite – for him, the mitzvah of not eating blood is actually something very easy for the Jews to keep. Rather, the Torah is telling us that even an easy mitzvah requires exertion, and all the more so, a hard one.
The rabbis who oppose Rabbi Yehudah (Rabban Gamliel takes a similar to position to Ben Azzai) may not disagree with him about the state of affairs in Egypt. Indeed, a careful reading of their words show that they do not actually deny it. Rather, their objection is that his reading is irrelevant to the readers of the time (and, incidentally, ours as well). For in their times, Jews did not seem to have much of a taste for blood. And once that reason became irrelevant, it could no longer be how an eternal Torah was to be read in their time. What is interesting here is that the Torah's eternity is not understood as it needing to carry the same message for all times, but rather that the Torah can sometimes carry a variety of valid readings for different times. And so, whereas Rabbi Yehudah's reading may have been correct for the generation at Sinai, it was no longer correct for their generation. Moreover, while this takes the form of a disagreement in the Midrash, Rebbe unequivocally adopts the latter approach in the Mishna (Makkot 3:10)
In the introduction to the first volume of my Redeeming Relevance series, I wrote as follows:
The classical search for relevance seems to be rooted in what commentators perceived to be the unique properties that emanate from the Torah's Divine authorship. That is to say, whereas a human author's meaning is necessarily limited by his culture, God's intentions and meaning can span whatever possibilities the words can legitimately carry.
God's ability to communicate two contradictory things at once is actually illustrated in a different context by a famous midrash. In Mechilta 87 we read that when delivering the Decalogue (specifically, the fourth commandment), God said two different words, shamor and zachor, at the same time. What is illustrated here about God's ability to communicate two words simultaneously – which the Midrash points out is impossible for a human speaker – can provide a paradigm for God's propensity to communicate simultaneous meanings of the words actually written in the Torah.
For us then, the historic or original meaning of a mitzvah – while it has great value and instructive import – is by no means its paramount message. The meaning(s) we can derive for generations that followed, and our especially for our own, holds equal validity and thus we are compelled to search for these messages with renewed vigor in each generation.Rabbi Francis Nataf


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MMA H.E.A.T.'s Karyn Bryant spoke via Skype with #8 UFC Middleweight Gegard Mousasi and heard what he had to say about his upcoming UFC 200 fight with Thiago Santos, who is stepping in for original o watch video >>
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Ron Kruck went to Florida to catch up with Thiago Silva before his WSOF 22 fight only to find that the Nevada State Athletic Commission denied Silva a license to fight just 5 days before the fight. watch video >>
http://fightnetwork.com/ - Fight Network's Robin Black breaks down the skills of Carlos Condit vs. Thiago Alves ahead of their welterweight main event of UFC Fight Night Goiania this Saturday, May 30 watch video >>
Teddy Holder vs Thiago Silva full fight at WSOF 19 watch video >>
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text: Photo 1.14 This wall mural is a visual reminder of the program's goal of character devel- opment for children. Pro- grams that change goals periodically can use less permanent displays, such as quilts, posters, or bul- letin boards, to be equally effective and reflective of their program goals. Setting Goals for Your Environment No matter where your program is located, how big or small your space is, or how many children attend, the ultimate goal for all school-age care programs is to support children's learning. Remember that learning is a broad term that includes how we react either consciously or unconsciously to what is going on around us. It is a process, not a product. Learning happens over a period of time by building on what we already know with new information to develop additional behaviors, skills, attitudes, and preferences. In other words, learn- ing is more than memorizing facts or spelling words; it is making sense of these facts and words to understand the world around us and our role in it. Setting the stage for learning success begins with the children. What you place in the environment depends on the children. For instance, if you have children in primary grades (grades K–3), having on hand early reader books, larger balls, and a variety of art supplies and providing additional staff supervision create an environment that supports children's learning. Children in intermediate grades (grades 4–6) and above benefit from activities with higher-level problem solving, challenging games, and staff who encourage children to think for themselves. There is no one design that fits all. Each environment should be as unique as the children and adults in the program while also being designed to develop children's love of learning, which ideally will last their lifetime. 14 • Chapter 1 COPYRIGHTED MATERIAL


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HOME > Survivor > Survivor: Micronesia
Survivor: Micronesia
Exclusive: Parvati Shallow talks about her 'Survivor: Micronesia' win
Parvati Shallow readily admitted to outwitting, outplaying and outlasting her fellow castaways, and they awarded her for it. Full Story
'The Amazing Race' continues Emmy run, Jeff Probst wins best host
A pair of CBS reality TV pioneers came away victorious during last night's live broadcast of the 60th Annual Primetime Emmy Awards, with The Amazing Race continuing its Outstanding Reality-competition Program award dominance and Survivor host Jeff Probst winning the inaugural Outstanding Host for a Reality or Reality-Competition Program statuette.
Mark Burnett files a countersuit against former partner Conrad Riggs
Mark Burnett is apparently trying to turn the tables on his former business partner.
Conrad Riggs sues former partner Mark Burnett for $70 million
Conrad Riggs sues former partner Mark Burnett for $70 million
Exclusive: Natalie Bolton talks about 'Survivor: Micronesia' journey
Natalie Bolton was the last fan standing.
Exclusive: Amanda Kimmel talks about 'Survivor,' losing twice in a row
Amanda Kimmel admits she's not very good at choosing castaways to take with her to Survivor's final Tribal Council.
Exclusive: Cirie Fields talks about her 'Survivor: Micronesia' experience
Cirie Fields felt she was a much more active as a Survivor: Micronesia -- Fans vs. Favorites castaway than she was on Survivor: Panama, and she planned to use that as her argument for why she deserved the $1 million during the final Tribal Council.
Parvati Shallow wins 'Survivor: Micronesia,' defeats Amanda Kimmel
Parvati Shallow was more than just the flirt this time around.
State of the Spoiling: 'Survivor: Micronesia' Season Finale Episode
Reality TV World's commmunity spoiler sleuths' 'State of the Spoiling' summary for the fourteenth and final episode of Survivor: Micronesia -- Fans vs. Favorites is now available.
Exclusive: Erik Reichenbach dishes on biggest 'Survivor' blunder ever
Erik Reichenbach stands accused of being the "dumbest Survivor ever," and he can't argue.
The 22-year-old student from Hell, MI gave his Individual Immunity to another castaway in an attempt at redemption and was promptly blindsided, becoming the sixteenth castaway eliminated from Survivor: Micronesia -- Fans vs. Favorites during last night's penultimate episode of the CBS reality series' sixteenth season.
Jeff Probst talks about surviving sixteen seasons of 'Survivor'
Jeff Probst talks about surviving sixteen seasons of 'Survivor'
Erik Reichenbach exits 'Micronesia,' becomes "dumbest Survivor ever"
Dumbest Survivor ever.
State of the Spoiling: 'Survivor: Micronesia - Fans vs Faves' Episode 13
Reality TV World's commmunity spoiler sleuths' 'State of the Spoiling' summary for the thirteenth episode of Survivor: Micronesia -- Fans vs. Favorites is now available.
Exclusive: James Clement talks about 'Survivor: Micronesia'
James Clement feels that even without his injured finger, he was in a "tight spot."
- 'The Victoria's Secret Fashion Show' PHOTOS - See pics of Kendall Jenner, Gigi Hadid, Bella Hadid, Adriana Lima, Irana Shayk, Lily Aldridge, Lais Ribeiro, Stella Maxwell, Romee Strijd, Jasmine Tookes, Josephine Skriver and many more!
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- Courtney Harrell talks 'The Voice' elimination: I saw it coming, I was not my best self and it's a numbers game
- Chip Gaines and Joanna Gaines anti-gay controversy -- Church pastor and 'Fixer Upper' network respond to accusations
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- Kourtney Kardashian and Scott Disick reportedly officially back together again
- Blake Shelton on dating Gwen Stefani: "It's been good for me"
- Exclusive: Zeke Smith talks 'Survivor' -- "I don't think anyone needed convincing I was the biggest threat"
- Jade Roper calls herself "disgusting," Tanner Tolbert reveals fear of "getting a divorce" on 'Marriage Boot Camp'
- 'Dancing with the Stars' pros and their significant others -- Who's dating or married to whom?! (PHOTOS)
- Austin Allsup: I honestly didn't want to win 'The Voice'
- 'The Victoria's Secret Fashion Show' PHOTOS - See Kendall Jenner, Gigi Hadid, Bella Hadid and the other models!
- 'Marriage Boot Camp: Reality Stars' Season 7 cast announced -- will include 'The Bachelorette's Ashley Hebert and JP Rosenbaum
- 'Survivor: Millennials vs. Gen X's merged Vinaka tribe votes out Zeke Smith
- 'Vanderpump Rules' star Scheana Shay files for divorce from Mike Shay
- Kendall Jenner, Bella Hadid and Gigi Hadid wow in Victoria's Secret Fashion Show
- Jessa Duggar shares Instagram video of baby No. 2 moving in her belly
- Kanye West reportedly released from hospital, will continue to receive treatment
- 'Survivor' premiere date for Season 34 revealed by CBS
- Ben Higgins and Lauren Bushnell discuss 'Happily Ever After?' renewal
- Gigi Hadid and Bella Hadid dress as angels in throwback photo
- 'The Amazing Race' Season 29 premiere date announced by CBS
- Survivor: Millennials vs Gen X
- Survivor: Kaoh Rong -- Brains vs. Brawn vs. Beauty
- Survivor Cambodia: Second Chance
- Survivor: Worlds Apart
- Survivor: San Juan del Sur -- Blood vs. Water
- Survivor: Cagayan -- Brawn vs Brains vs Beauty
- Survivor: Blood vs. Water
- Survivor: Caramoan -- Fans vs. Favorites
- Survivor: Philippines
- Survivor: One World
- Survivor: South Pacific
- Survivor: Redemption Island
- Survivor: Nicaragua
- Survivor: Heroes vs. Villains
- Survivor: Samoa
- Survivor: Tocantins
- Survivor: Gabon
- Survivor: Micronesia
- Survivor: China
- Survivor: Fiji
- Survivor: Cook Islands
- Survivor: Panama
- Survivor: Guatemala
- Survivor: Palau
- Survivor: Vanuatu
- Survivor: All Stars
- Survivor: Pearl Islands
- Survivor: The Amazon
- Survivor: Thailand
- Survivor: Marquesas
- Survivor: Africa
- Survivor: The Australian Outback
- Survivor: Borneo


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Looping "petals" offer an attractive alternative to a traditional frame in this Dania openwork wall mirror design.
Enhance your home decor with the beautiful design of this round frameless Dania wall mirror. The large mirror in the center features a stylish beveled edge, and is surrounded by looping openwork that resembles petals of a sunflower. From the Noble Park collection of mirrors.
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