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Buford (Ga.) High School coach Allen Whitehart took time out of his relaxing Sunday afternoon to talk about Rakim Lubin.
Lubin, a 6-foot-8, 245-pound forward, gave UConn a verbal commitment on Saturday during his official visit to Storrs.
"It's a great fit," Whitehart said. "I think he can do very well there."
Here's a rundown on Lubin:
-- Whitehart's scouting report: "He's pretty agile. He runs well. He's a good athlete. He defends well in open space. He's so strong. He's physically college ready now.
"…Strangely enough, he's got a pretty good face-up game. If you get him on the block, you're going to foul him or he's going to score. He finishes extremely well."
He added the Lubin is very soft-spoken and humble.
-- Lubin spent the first three years of his high school career at Gadsden City in Alabama before transferring to Buford, which is located on the north side of Atlanta. He has family living in the Atlanta area.
-- Whitehart added that Lubin had never lifted weights before coming to Buford. He's added about 12 pounds of muscle since changing schools.
-- Recruiting interest in Lubin declined over the summer because he injured his back and missed most of the July summer basketball circuit.
"He had a down summer," Whitehart said. "He hurt his back early in the summer and he had been pretty sought after until he got hurt."
-- Memphis, Marquette and Auburn were some of the schools recruiting Lubin.
-- Lubin told Whitehart that he liked the UConn coaching staff's attention to detail with athletics and academics. His mother, Sabrina, also went on the trip.
"They will monitor him and help him achieve his goals," Whitehart said.
-- Whitehart is very familiar with the UConn basketball program. About four years ago, he traveled to Storrs along with one of players, Lorenzo Brown, to attend Jim Calhoun's Elite basketball camp. Brown wound up at North Carolina State.
"I was very impressed," Whitehart said.
The Buford coach heard Kevin Ollie speak at the camp. He also knows Jeremy Lamb.
"I told Lorenzo that he'll be the head coach one day," Whitehart said of Ollie. "(I told him) just listen to how passionate he is about the university and how he talks about intangibles and character and the way things should be done."
-- UConn first-year assistant coach Ricky Moore recruited Lubin. A native of Augusta,Ga., he's working in familiar territory.
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Bill would use new Amistad funding to repay in-state creditors


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GREER, SC-- Carroll Eugene Bright, 73, of 4574 North Hwy 14, passed away Thursday, April 25, 2013.
A native of Blue Ridge, he was the son of the late William C. and Ellen Campbell Bright and the husband of Sybil Faye DeYoung Bright for 53 years of the home. He attended Greer Church of God. Mr. Bright was retired from Jackson Mill and a former employee of Whitey's Auto Auction. He was a veteran of the United States Army National Guard. He enjoyed playing the piano for prison ministries, nursing homes, and for shut ins.
Survivors also include two son, Daryl Bright and Randy Bright, both of Greer; two brothers, Bobby Bright and Carlos Bright both of Greer; a sister, Jane Fowler of Greer; six grandchildren, Caleb, Sean, Christian, Dylan, Jon Michael and Anna Marie Bright. He was predeceased by a brother, Leon Bright.
Funeral services will be at 2:00 PM Saturday, April 27, 2013, at The Stribling Funeral Home Chapel with Pastor Gene Land and Chaplin John Elmore officiating.
The family will receive friends from 1:00 until 2:00 at the funeral home prior to the service. Interment will be at Fort Prince Memorial Gardens.
The family is at the home.
Online condolences can be given at striblingfuneralhome.net
Stribling Funeral Home - Duncan, SC
Carroll Bright
GREER, SC-- Carroll Eugene Bright, 73, of 4574 North Hwy 14, passed away Thursday, April 25, 2013.

subset: commoncrawl


text:
Watch a.k.a. Cassius Clay (1970) Free Online
a.k.a. Cassius Clay
IMDB Link:
Rating: 6.6/10 (306 votes)
Director: Jim Jacobs
Writer: Bernard Evslin
Stars: Cus D'Amato, Floyd Patterson, Muhammad Ali, Richard Kiley
Runtime: 79 min
Rated: PG
Year: 1970
Genre: Documentary, Sport
Quality: HD
Language: English
Released: 01 Mar 1971
|Plot: The documentary story of Muhammad Ali (Cassius Clay)--the heavyweight boxing champion whose style and courage captured the imagination of the world.
Watch A k a Cassius Clay (1970) - Alternative Servers
|Version 2
|Version 3


text:
Check in from 15h / Check out prior to 11h
Marco Island Lakeside Inn: Find photos, reviews, information, amenities and compare prices for 4 stars hotels in Marco Island, United States.
Marco Island Lakeside Inn is situated in Marco Island and is close to the area's popular attractions. It also provides shops, a hearing impaired service and an outdoor pool.
Hotel description
There are 19 rooms at the hotel, each offering all the essentials to ensure a comfortable stay.
Naples Municipal Airport is less than a 35-minute drive from Marco Island Lakeside Inn. Naples and Goodland are also just a short car ride from the property.
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600 S Collier Blvd, Marco Island
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Marriott Beach Resort Marco Island
400 South Collier Boulevard, Marco Island
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Hilton Marco Island Beach Resort
560 South Collier Boulevard, Marco Island
560 South Collier Boulevard, Marco Island
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text: I have an Ipod Touch 32gig 3rd Gen. What I would like to do is take some of my TV show DVDs and put them on the ipod. Doing just that hasn't been a problem. However, they show up under movies/videos. I would like them to show up under TV and be organized like the few shows that I have purchased and downloaded from iTunes. Is that possible, and where can I find a tutorial/instructions for doing that? If it makes any difference, I'm running Win7


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The Rail Working Group
The 2001 Cape Town Convention on international interests in mobile equipment
The Rail Working Group (RWG) is a not-for-profit group established at the request of UNIDROIT (the International Institute for the Unification of Private Law) to represent the position of the rail industry relating to adoption and implementation of the 2007 Luxembourg Protocol to the Cape Town Convention on International Interests in Mobile Equipment on matters relating to railway rolling stock (the Luxembourg Rail Protocol).
Our key task is to ensure that the Luxembourg Rail Protocol is brought into force in as many countries as possible as quickly as possible but ensuring that the operation of the Protocol does not lose touch with the commercial realities of the rail industry.
The RWG
Actively participates in the preparation for the implementation of the Luxembourg Rail Protocol and acts as an interface with
UNIDROIT, OTIF and the Luxembourg government in
connection therewith
Participates in seminars and generally promotes the signature and ratification of the Luxembourg Rail Protocol
Issues publications and position papers relating to the Protocol
Acts as a forum for consideration of the practical aspects of the operation of the Luxembourg Rail Protocol by the rail industry


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Is this restaurant good for scenic view?
Is this restaurant good for local cuisine?
Is this restaurant appropriate for Kids?
Is this an Italian restaurant?
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Does this restaurant offer validated parking?
Is this restaurant good for brunch?
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Guide to San Diego Outdoors
Guide to San Diego for Families
One Day in San Diego
The service is superb, the breakfast menu is great, and the breakfast is excellent. The farm fresh eggs are really a treat and the croissants are some of the best in San Diego. It was a very nice experience.
We had breakfast twice there. The wait staff was very attentive. The food was good, and not too unreasonably priced, even for a Fairmont. We would have had dinner, but one of the other Fiarmont restaurants had options that were more appealing.
Thank you for taking the time to leave your review. We are delighted to hear that you found we offered an excellent value and hope that you try us for dinner next time!
Had an uninspired breakfast. Sausage was fatty and not fully cooked. Coffee was tasteless and weak. Potatoes ok as was eggs.
Thank you for your feedback. We would like to learn more so that we may improve our breakfast experience. Please kindly respond to our private message at your earliest convenience.
The Amaya is located in the Fairmont Grand Del Mar. Like the rest of the hotel, it is decorated in over-the-top Italian style. We sat in a booth large enough for six, and the high backs of the booth made it feel like we were dining alone. Very cool. The wine list was extensive. We decided to order by the...
Thank you for taking the time to leave feedback about your dining experience. We are delighted to hear that you enjoyed the ambiance, wine and dinner. We hope to welcome you back soon -- perhaps for one of our upcoming holiday menus! You might want to try our covered, outdoor terrace next time, which is even heated during the winter.
The food and service here is wonderful, and I especially recommend the weekend brunch, which is lovely and quite delicious. Our dogs were allowed on the patio with us which was very nice as well. The patio overlooks the lovely grounds and is a very tranquil and relaxing place to spend some time.
Thank you for taking the time to leave your review. We are delighted to hear you--and your four-legged friends--had such an enjoyable meal. We hope to welcome you back soon, perhaps for one of our special holiday menus!
Whilst staying at the Grand Del Mar, we dined here twice for dinner and each time was pleasant. You can't beat the peaceful Mediterranean ambience on the patio. Service was very personable and charming.
Thank you for taking the time to share your review. The outdoor terrace is a favorite year-round, thanks to our beautiful Southern California weather (and the heaters when needed!). We hope to welcome you back soon.
We stayed at the Grand Del Mar and ate breakfast one day at Amaya. The outside dining area was quiet, pleasant and they adjust the temperature depending on the weather using propane heaters. In October, our day was perfect. The service was personal and professional and the view is beautiful. We had an omelette, eggs, breakfast meats, juice and coffee...
Thank you for sharing your review with the TripAdvisor community. We are pleased to hear you enjoyed our little slice of Italy right here in Southern California. We hope to welcome you back to both the resort and restaurant soon!
Amaya has a very interesting menu, what ever you order I guarantee you will not be disappointed. The staff are amazing,efficient, professional, This restaurant has a stunning view for you to enjoy, regardless of what meal you are having.When you are enjoying your stay at the Grand Del Mar, please do not miss Amaya
Thank you for the wonderful review. We are delighted you enjoyed both the menu and the view. We hope to welcome you back soon, perhaps for one of our upcoming holiday menus!
We've eaten at Amaya twice since their menu changed a few months ago. Some of what we ordered was not edible, some was just fair; some we sent back and we got the same thing served again. Our server in both cases was outstanding. The food was not. Recently we went to the bar on the main level for the...
Thank you for sharing your review. We are sorry to learn that you are disappointed with our menu changes. We especially value feedback from return guests such as you and would appreciate the opportunity to speak with you personally. Please respond to our direct message at your convenience.
Lunch with a spectatuclar view. We had a Mexican buffet with many tempting choices. Build your own or enjoy the enchiladas or tamales. Flan and tres leche flourish for the finale. All delicious
Thank you for sharing your comments on our restaurant views as well as the Mexican-themed buffet, both of which are real crowd-pleasers here in San Diego! We hope to welcome you back for many more meals to come.
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Having undesirable fat in various areas of your body can have a considerable influence on your health and self-esteem. While standard weight loss through workout and diet plan is a great method to slim down in general, even the very best workouts can't target issue areas like the belly, inner thighs, arms, and buttocks. Liposuction is a time checked treatment that is utilized to get rid of excess fat from specific areas of the body, enabling an individual to shape and contour their body to their liking. Is liposuction right for you? Discover now.
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Laser Liposuction procedure is a new non invasive procedure to loose unwanted bodyfat in Venice FL
Laser liposuction is a newer, minimally invasive procedure that involves heating the fat cells to melting point and getting rid of the melted fat through a little cannula. The procedure is typically done right in your doctor's office and is an outstanding choice for individuals who have less than 500 ml of fat to eliminate from any one location. Laser liposuction can be a safe, complementary treatment to weight reduction in order to sculpt the body you've always desired.
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Relationship Issues Therapists in San Antonio, TX
Neighborhoods | Zip Codes
- Any Insurance
- ACI Specialty Benefits
- APS Healthcare
- Aetna
- Alliance
- AmeriHealth
- American Behavioral
- Anthem
- Beacon
- Beech Street
- Behavioral Health Systems
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- Blue Cross
- Blue Shield
- BlueCross and BlueShield
- CHIP | Children's Program
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- Cenpatico
- Ceridian
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- First Health
- Great-West
- Guardian
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- Holman Group
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- Addiction
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- Chronic Illness
- Chronic Impulsivity
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- Obesity
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- Oppositional Defiance
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- Sex Therapy
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- Transgender
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- Cognitive Behavioral (CBT)
- Culturally Sensitive
- Dialectical (DBT)
- Eclectic
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- Existential
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- Multicultural
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- Sand Play
- Solution Focused Brief (SFBT)
- Somatic
- Strength Based
- Structural Family Therapy
- Transpersonal
- Trauma Focused
Online Therapy
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"Are you having couple or family conflict? I am a trained couple and family therapist who can help. I work with individuals, couples, and families who are experiencing a wide variety of problems such as frequent fighting, sexual difficulties, parenting issues, and more. I work with and affirm clients of all backgrounds, regardless of race, gender, sexual orientation, or faith (or lack thereof). I use evidence-based practices in my work to maximize the likelihood of an outcome that you can feel satisfied with. I will meet you where you are at without judgment and work at your pace."
Relationship Issues
Sex Therapy
"My training as a healer began with my own in-depth psychotherapy. Subsequently,I have worked with adults, teens and kids in the areas of substance and sexual abuse,depression and anxiety, fear and grief.I attended a six months professional training program in DreamTending at Pacifica Graduate Institute where I deepened my understanding of archetypal medicine and indigenous methods of healing through the use of dreams and all that surrounds us in the natural world. People come to therapy seeking a deeper, more satisfying life. My approach is holistic, helping my clients integrate mind, body and spirit."
Relationship Issues
Sex Therapy
"I hope that I am the kind of therapist that I would want to assist me. I have an integrated approach based on theories of my profession. I started one of the local marriage and family counseling programs. My methods are based on unique theories that I have developed through the years. The methods of assessment I use are quick and I have a clearly defined unit of change. I wrote a book on relationships entitled "Conflict Means I Love You," and often hold seminars on issues in relationships."
Relationship Issues
Sex Therapy
San Antonio, Texas 78216
"I am a retired AF Chaplain who specializes in sexual dysfunction and relationship counseling. I also work with sexual addictions and sexual abuse. I have a strong faith but no need to preach. I begin therapy with where the client is rather than trying to figure out how they got there."
Relationship Issues
Sex Therapy
San Antonio, Texas 78229
"I have experience providing therapy services to adolescents, adults, couples, groups, and families in private practice, partial hospitalization, residential treatment centers, and outpatient agency settings. Common reasons for clients seeking therapy are wanting to address challenges related to communication problems, emotional disengagement, self-esteem, identity, work/life balance, coping and stress management, depression, anxiety, adjustment to life events, family transitions, couple relationships, conflict resolution, adolescent behaviors, and parenting concerns."
Relationship Issues
Sex Therapy
"We provide Individual and Couples Counseling, Sex Therapy, and Private Premarital Counseling services. The majority of clients that we see are couples and individuals experiencing personal and relationship difficulties, usually revolving around physical and sexual intimacy.Our therapeutic approach is brief and solution-oriented, meaning that while we do recognize the importance of how our clients' problems have come about, we place a higher value on offering our clients new and fresh solutions. We take into account what clients have tried in the past and help them to come up with changes that will be long-lasting and efficient."
Relationship Issues
Sex Therapy
"I'm here to help my clients discover personal strengths, adress life issues, find direction, increase hope and happiness. My goal is to help my clients reach their goals, resolve issues and move forward as quickly and effectively as possible. I work closely with those evaluating life, relationship, education or career changes. (I hold multiple licensures: Licensed Clinical Social Worker, Licensed Marriage & Family Therapist, Licensed Professional Counselor and also an Approved Supervisor for LPC's, LMFT's & LCSW's). I'm also author of "The Marriage Vampire" (addressing issues for those in relationship with a narcissistic personality)"
Relationship Issues
Sex Therapy
San Antonio, Texas 78248
"I prefer a highly motivated and interactive individual who takes personal responsibility for his or her behaviors. The ideal client is willing to be vulnerable with information in order to receive insight and feedback as a way to promote personal growth and change. I commit to my clients to provide a warm, comforting, and nonjudgmental environment."
Relationship Issues
Sex Therapy
San Antonio, Texas 78248
"If you need a safe, comfortable place to re-assess and re-tool, if you are thinking about giving up and calling a lawyer, if you have forgotten how to play and find pleasure together, or if you have lost the fun and closeness you used to have, counseling can help. If you want to come apart peacefully or are planning to share custody, if you want to avoid repeating same issues in your next relationship, I can also help with those issues. Counseling support, just a little time, attention and a few small changes can make a big difference."
Relationship Issues
Sex Therapy
San Antonio, Texas 78247
"I help clients seek balance in their life by using a comprehensive approach to therapy. I am a firm believer that it takes dedication and commitment on behalf of the client AND the therapist to create change. Together, we develop a specialized plan that is designed for you so that you can maximize your investment of time and money. Between relationships, families and jobs, life can be complicated and confusing which can lead to depression and/or anxiety. With my help, you can attempt to find a new perspective in a warm, caring, and often light-hearted environment."
Relationship Issues
Sex Therapy
San Antonio, Texas 78247
"As an experienced and dedicated therapist, I have worked with many clients with a wide range of concerns including relatively minor problems like adjusting to life changes, through and including assisting people cope with serious, chronic mental illnesses. Throughout both training and practice, I have come to wholeheartedly believe that relationships are inextricably linked to our sense of well-being and that the process of effective counseling begins with the creation of a professional, non-judgmental, and supportive connection. I encourage you to choose a therapist that is a good fit knowing that the client-counselor relationship is the gateway to alleviating distress or dissatisfaction."
Relationship Issues
Sex Therapy
San Antonio, Texas 78226
"During hard times or when emotions are so intense that they cloud your path, I want you to remember that you can get through it. Passing through those moments alone is exhausting. However, if someone else can stand beside you, share the load, and help navigate, then your journey is easier and shorter. It is an honor for me to help you when you need it. I enjoy seeing the inner strengths of people grow beyond their fears and negativity. We all deserve a stable, kind, genuine person that is available to aid us through life's challenges."
Relationship Issues
Sex Therapy
"Most of us, at one time or another, experience personal problems. Sometimes they affect one's overall performance, sometimes they don't. I am available for those times when situations in life cause personal problems and you need help to get you through them. You don't have to do it alone. I strive to provide a comfortable and trusting environment where you can relax and feel safe. I aim to make therapy a place where you like to go. I know that we are all very unique. I approach each client in a way that is specific to their needs."
Relationship Issues
Sex Therapy
San Antonio, Texas 78228
"I am a Doctor of Marriage and Family Therapy and Certified Sex Therapist. My therapeutic approach is brief and solution-oriented, meaning that while I do recognize the importance of how my clients' problems have come about I place a higher value on offering my clients new and fresh solutions. I take into account what clients have tried in the past and help them to come up with changes that will be long-lasting and efficient. I see most of my couples in both couples and individual sessions as needed. The average length of therapy is 6 to 12 sessions."
Relationship Issues
Sex Therapy
"It has been a privilage to have shared in the lives and the struggles of thousands of people during the last 20 years. Sessions can be in person at my office in Corpus Christi, or we can do Skype or phone counseling. Please visit me at www.acorncounseling.com and read the articles I posted there. I work with individual adults, couples, teenagers and children. Counseling involves listening, reflecting, analyzing, reframing and desensitizing. Role playing, rehearsal and relaxation training are often used. Healing emotional wounds and restoring damaged relationships are often the goals of psychotherapy."
Relationship Issues
Sex Therapy
Office is near:San Antonio, Texas 78280
"I am the Owner and Executive Director of the Institute for Couple and Family Enhancement, and a Licensed Marriage and Family Therapist with more than 15 years experience working with individuals, couples, and families who are facing a variety of challenges. My first priority is to ensure that each individual knows that I understand their perspective, needs, and struggles. Common problems that clients bring to me include: depression, anxiety, grief, marital problems, trauma history, divorce adjustment, and child behavior problems. Regardless of the problem that brings you to therapy, we can work together to find solutions for you."
Relationship Issues
Sex Therapy
"J. R. R. Tolkien once wrote in a letter to a friend, "No man can estimate what is really happening at the present. All we do know, and that to a large extent by direct experience, is that evil labours with vast power and perpetual success - in vain: preparing always only the soil for unexpected good to sprout in." Most of us readily identify with the first part of that statement but may not be so sure about the second part. We hope for truth, beauty and goodness and because of that hope we suffer."
Relationship Issues
Sex Therapy
San Antonio, Texas 78240
"My style is informal and the client's comfort is very important to me. I am serious when necessary, but feel that a sense of humour is essential when dealing with difficult,often painful subjects.Without it, we get too focused on problem solving & miss what is already working for us! Our ability to make changes in our lives is something I strongly believe in. Undertaking this task in therapy, in the shortest time possible, without sacrificing the quality of treatment is one of my goals. In sex therapy, I am enthusiastic about finding solutions that are unexpected or unanticipated."
Relationship Issues
Sex Therapy
San Antonio, Texas 78229
"Are you struggling with relationships, intimacy, and sexual expression? I offer short term therapy related to these issues...helping individuals and couples feel good about their intimacy experiences again! I have a substantial amount of training in trauma-informed care, but intimacy issues can arise for many different reasons. Medical diagnoses; pregnancy and post-partum issues; and the natural aging process can all affect our ability to enjoy that part of our lives and there is so much shame attached to these experiences we often don't seek help. I offer a safe space and practical solutions."
Relationship Issues
Sex Therapy
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Just days after it was announced that Jennifer Lopez and Casper Smart were no longer dating, it's been reported that Lopez is now seeing 'Dancing With the Stars' pro Maksim Chmerkovskiy.
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Jennifer Lopez's music video for her latest single 'First Love' proves that the experienced singer has still got the moves, the voice and the body.
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J. Lo called in to the Kidd Kraddick show to talk about her new album "AKA," its debut single "First Love" and her favorite singer to cover at karaoke.
Jennifer Lopez is gearing up to release her 10th studio album and is receiving the Icon Award at the Billboard Music Awards. She has also set a record in the process.
Jennifer Lopez hasn't announced a release date or a title for her next album, but the diva did reveal who else besides her 'I Luh Ya Papi' co-star French Montana features on the album. The guests are A-list, because of course they are.
Jennifer Lopez and Pitbull are bringing the heat and have teamed up once again! The duo has repeatedly proven its explosive musical and vocal chemistry and the partnership has served them well in the past. So it makes sense that they've linked up again, this time for 'We Are One (Ole Ola),' the 2014 FIFA World Cup Song.
Jennifer Lopez is normally a composed, in control diva, but even she makes a big verbal mistake and lets an 'F' bomb drop every now again. Only this time, the singer, actress, fashion designer, producer and reality show star did it on live TV during Wednesday's (March 26) episode of 'American Idol.'


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The Zepp Step
Have a peaceful weekend!
Hey lady--you got the love I need
Maybe more than enough.
Oh Darling... walk a while with me
You've got so much...
(Led Zeppelin)
Well cookiepuss, it's about that time--and not a moment too soon! Before I zepp to my step class (I gotta do it), I wanted to sneak one more post out to my fellow Minyans. I'm not sure what type of insight I can offer as to the last half hour but I will say that, despite my current posture, I'd be surprised if they waxed 'em hard. Stocks that are strong all day tend to finish that way and the breadth remains constructive.
Do I have concerns on the short side? I always have concerns when trading--not having concerns would be, well, a cause for concern. There is always the potential that Hoofy the hill climber will scale the wall of worry, there is something that resembles a reverse head and shoulders (positive) in the Dow Jones and the most unlikely scenario is a rally INTO a potential war (which intrigues me). Still, with those inputs acknowledged, I'm going to walk home with both legs in my metaphorical bear costume. Hey--I wonder if they'll let me into restaurants in this silly outfit?
I've been asked a bunch of times if expiration is holding up the market and I think it is. That should set us up for our Southside Johnny next week although I'll admit that scenario is almost too scripted for a contrarian like me. Hey, I'll make you a deal--if you promise that you'll focus for the next 15 minutes and then take the following two days to smile, I'll do the same. We have all of next week to fade, trade and get paid. We need to balance first.
I'm gonna go watch the tape and manicure my risk profile. Thanks again for allowing me to write to you every day--it's a rare treat to do something you love for a living while being in a position to give something back. Good luck into the close, my friends, and stay safe.
Have a peaceful weekend.
Todd Harrison is the founder and Chief Executive Officer of Minyanville. Prior to his current role, Mr. Harrison was President and head trader at a $400 million dollar New York-based hedge fund. Todd welcomes your comments and/or feedback at email@example.com.
The information on this website solely reflects the analysis of or opinion about the performance of securities and financial markets by the writers whose articles appear on the site. The views expressed by the writers are not necessarily the views of Minyanville Media, Inc. or members of its management. Nothing contained on the website is intended to constitute a recommendation or advice addressed to an individual investor or category of investors to purchase, sell or hold any security, or to take any action with respect to the prospective movement of the securities markets or to solicit the purchase or sale of any security. Any investment decisions must be made by the reader either individually or in consultation with his or her investment professional. Minyanville writers and staff may trade or hold positions in securities that are discussed in articles appearing on the website. Writers of articles are required to disclose whether they have a position in any stock or fund discussed in an article, but are not permitted to disclose the size or direction of the position. Nothing on this website is intended to solicit business of any kind for a writer's business or fund. Minyanville management and staff as well as contributing writers will not respond to emails or other communications requesting investment advice.
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September 4, 2009
CARLSON RESTAURANTS WORLDWIDE, INC. AND TGI FRIDAYS, INC., PLAINTIFFS-APPELLANTS,v.DESIGNLINE CONSTRUCTION SERVICES, INC. AND C.J. SCHMIDT & SONS, INC., DEFENDANTS-RESPONDENTS, AND JMS SERVICES, DEFENDANT/THIRD-PARTY PLAINTIFF-RESPONDENT, AND RESTAURANT SERVICES INTERNATIONAL, INC., RSI PARTNERS, LLC, DV8 DESIGN GROUP, SCOTT & GOBLE ARCHITECTS, INC. F/K/A TAYLOR SCOTT ARCHITECTS, INC., THIRD-PARTY DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-10276-06.
Argued January 14, 2009
Before Judges Rodríguez and Lyons.
Carlson Restaurants Worldwide, Inc. (Carlson) appeals from the grant of summary judgment to all defendants on the issue of liability. We reverse.
This lawsuit arose from a kitchen fire on February 1, 2003, at the Cherry Hill TGIF's restaurant Carlson owns. The fire started and caused damage to the restaurant. Carlson alleges that this fire was caused when a broiler table, which was either negligently installed or defectively manufactured, created a fire hazard, a condition which allegedly existed from the time of installation in 1999-2000.
At the time of the fire, Carlson carried a fire and property insurance policy underwritten by Lexington Insurance Company. As a result of the fire, Carlson sustained losses of $2,144,565, of which $500,000 was not covered by insurance. It is undisputed that Carlson entered into a contract with Designline Construction Services, Inc. (Designline) for construction of the restaurant for $1,229,855. Designline agreed that it would serve as the general contractor for the construction project. In Paragraph 11.3.6 of the contract, termed "Waivers of Subrogation," Carlson and Designline agreed to the following language:
The Owner and Contractor waive all rights against (1) each other and any of their Subcontractors, Sub-subcontractors, agents and employees, each of the other, and (2) the Architect, Architect's consultants, separate contractors . . ., if any, and any of their subcontractors, sub-subcontractors, agents and employees, for damages caused by fire or other perils to the extent covered by property insurance obtained pursuant to Paragraph 11.3. . . (emphasis added).
In Paragraph 126.96.36.199, Carlson was required to carry a property insurance policy on the restaurant with a $25,000 deductible until final payment had been made. Notwithstanding this requirement, pursuant to Paragraph 11.3.1:
Unless otherwise provided, the Owner shall purchase and maintain, in a company or companies lawfully authorized to do business in the jurisdiction in which the Project is located, property insurance in the amount of the initial Contract Sum as well as subsequent modifications thereto for the entire Work at the site on a replacement cost. Such property insurance shall be maintained, unless otherwise provided in the Contract Documents or otherwise agreed in writing buy [sic] all persons and entities who are beneficiaries of such insurance, until final payment has been made . . . or until no person or entity other than the Owner has an insurable interest in the property . . ., whichever is earlier. (emphasis added).
Moreover, Paragraph 11.3.5, addressing insurance requirements after final payment. It states:
If during the Project construction period the Owner insures properties, real or personal or both, adjoining or adjacent to the site by property insurance under policies separate from those insuring the Project, or if after final payment property insurance is to be provided on the completed Project through a policy or policies other than those insuring the Project during the construction period, the Owner shall waive all rights . . . for damages caused by fire or other perils covered by this separate property insurance. All separate policies shall provide this waiver of subrogation by endorsement or otherwise. (emphasis added).
This Paragraph does not require any minimum deductible. Paragraph 11.3.6 sets forth the extent of the required waiver of subrogation. The waiver is "for damages caused by fire or other perils to the extent covered by property insurance. . ." (emphasis added).
Designline entered into a subcontract with C.J. Schmidt & Sons, Inc. ("Schmidt") to provide plumbing services in connection with the installation of the kitchen equipment, and a subcontract with JMS Services ("JMS") to install the commercial kitchen equipment, including the broiler and broiler plate. The broiler and broiler plate were designed and manufactured by Restaurant Services, International, Inc. (Restaurant Services) pursuant to a direct contract with Carlson.
According to the General Conditions of the contract, a "Subcontractor" is defined as:
[A] person or entity who has a direct contract with the Contractor to perform a portion of the Work at the site. The term "Subcontractor" is referred to throughout the Contract Documents as if singular in number and means a Subcontractor or an authorized representative of the Subcontractor. The term "Subcontractor" does not include a separate contractor or subcontractors of a separate contractor. [Paragraph 5.1.1]
However, pursuant to Paragraph 6, Carlson can contract with others, subject to certain limitations.
The issue on appeal is the grant of summary judgment, and thus we must use the same standard as that which was used by the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). The summary judgment standard requires the moving party to establish that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 529 (1995). According to R. 4:46-2(c), summary judgment will only be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." A genuine issue of fact exists "only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." R. 4:46-2(c). The court, however, does not decide issues of fact, it should only determine if such issues exist. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed. 2d 202, 212 (1986); Brill, supra, 142 N.J. at 540.
The test for establishing whether there exists a genuine issue of fact was explained by the Court in Brill. The judge must weigh the evidence and determine if it is "sufficient to permit a rational fact-finder to resolve the alleged disputed issue in favor of the non-moving party." Brill, supra, 142 N.J. at 540. During the court's determination, it must view the evidence in the light most favorable to the non-moving party. Ibid. But, the court can clearly grant summary judgment "when the evidence 'is so one-sided that one party must prevail as a matter of law.'" Ibid. (quoting Liberty Lobby, supra, 477 U.S. at 252, 106 S.Ct. at 2512, 91 L.Ed. 2d at 214).
If no genuine issue of material fact has been presented, this court will determine whether the lower court's ruling on the law was correct. Prudential Prop. & Cas. Ins., supra, 307 N.J. Super. at 167. With regard to an appellate court's review of a trial court's interpretation of the law, no special deference is to be applied. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). However, a trial court's factual determinations should not be disturbed by this court unless necessary to avoid an injustice. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974).
On appeal, Carlson contends that "the waiver of subrogation in the construction contract does not apply to [its] deductible." Carlson argues that the judge erred when he found that Carlson did not have a cognizable cause of action to recover the $500,000 deductible, representing the amount of its uninsured losses from the fire.
There are no New Jersey cases which answer the question of whether a waiver of subrogation provision serves to bar the recovery of uninsured losses. Other jurisdictions, however, have been presented with this issue and have held unanimously that uninsured losses are recoverable when the contract only speaks to a bar for insured losses covered by property insurance.
For example, in Gap, Inc. v. Red Apple Cos., Inc., 725 N.Y.S.2d 312 (App. Div. 2001), a Supreme Court of New York, Appellate Division case, the court held that where a party is seeking to recover a loss not covered by property insurance, i.e., uninsured losses, "this uninsured segment of loss falls outside the ambit of 'risk insured against' for purposes of inclusion in the waiver of subrogation clause." Id. at 315. In that case, two tenants, the Gap and Rite-Aid, initiated an action to recover uninsured property losses resulting from a fire, which they alleged were not encompassed by the waiver of subrogation provision in their individual leases that precluded recovery for covered losses. Ibid. The court found such action cognizable since each lessee was entitled to recover that portion of the fire loss equal to their individual deductibles. Id. at 316. As the court stated:
While the parties to a commercial transaction are free to allocate the risk of liability to third parties through insurance and deployment of a waiver of subrogation clause, under the leases at issue the tenants were free to undertake the uninsured risk they did by assuming a substantial deductible. Having done so, there is no legal impediment to the tenants' seeking recourse for their uninsured loss from the landlord, assuming they can show liability therefor. [Ibid. (internal citations omitted).]
Unlike in Gap, Inc., the terms included in Carlson's contract with Designline set a specific deductible amount to be maintained on the property during the restaurant's construction and through the tender of final payment. The terms only specify that the $25,000 deductible be maintained through construction and up until final payment is made. There is no mention of any future mandatory obligation that Carlson maintain fire insurance or any level of deductible, although the contract does specify that a waiver of subrogation clause be included in all future insurance policies. That said, the difference between a requirement to carry property insurance of a specified amount, which is present in this case, and the absence of a similar requirement in Gap, Inc., does not remove from the realm of possibility that Carlson is entitled to recover the amount of its deductible. The bottom line principle still applies - deductibles are recoverable.
Similarly, in Stop & Shop Supermarket Co. v. ABCO Refrigeration Supply Corp., 842 A.2d 1194 (Conn. Super. Ct. 2003), a case which involved a waiver of subrogation provision in a construction contract, the Superior Court of Connecticut held that a deductible is not covered by a waiver of subrogation provision. Id. at 1200. In that case, a fire broke out during the construction of a superstore owned by Stop & Shop, causing extensive property damage and an interruption of business resulting in financial losses. Id. at 1195. Stop & Shop's insurer brought a subrogation action to recover the $6,382,682 it paid out directly to its insured and Stop & Shop brought a direct claim to recover the amount of its deductible, which was $250,000. Id. at 1195-96.
Although not involving a construction contract, the case of Federal Ins. Co. v. Honeywell, Inc., 663 N.Y.S.2d 247 (App. Div. 1997) is also helpful to our analysis. In that case, the Supreme Court of New York, Appellate Division, held that a waiver of subrogation provision did not serve as a bar to the recovery of a deductible not covered by the governing insurance policy. Id. at 248. This was true, despite the fact that the waiver of subrogation provision barred the recovery of insured losses. Ibid.
In Honeywell, a check cashing store was burglarized after its alarm system had been improperly installed, maintained and repaired by the alarm company. Ibid. Again, defendant argued that the claim was barred by the waiver of subrogation provision included in the terms of the parties' contract. Ibid. The court dismissed plaintiff's claim as to any damage covered by insurance, but found that it did not similarly bar the return of the $55,000 deductible not covered by the insurance policy. Ibid.
Here, Carlson acted as a self-insurer for the first $500,000 of their losses resulting from the kitchen fire at the TGI Friday's restaurant. This $500,000 was not covered by Carlson's insurance policy with Lexington. It was also not expressly included in the waiver of subrogation provision, which sought to bar Carlson from recovering insured losses against defendants. To the contrary, the waiver of subrogation is limited "to the extent covered by property insurance."
Therefore, it is clear that the judge was mistaken in ruling that the deductible was per se unrecoverable.
Looking at the terms of the contract, Paragraph 18.104.22.168 of the construction contract calls for Carlson to carry a property insurance policy with a maximum deductible of $25,000 through the construction period and up until final payment is made. Notwithstanding this provisional requirement, under 11.3.1:
Unless otherwise provided, the Owner shall purchase and maintain, in a company or companies lawfully authorized to do business in the jurisdiction in which the Project is located, property insurance in the amount of the initial Contract Sum as well as subsequent modifications thereto for the entire Work at the site on a replacement cost. Such property insurance shall be maintained, unless otherwise provided in the Contract Documents or otherwise agreed in writing buy [sic] all persons and entities who are beneficiaries of such insurance, until final payment has been made . . . or until no person or entity other than the Owner has an insurable interest in the property . . ., whichever is earlier.
Additionally, Designline, as general contractor, was obligated under the contract to purchase and maintain insurance to guard against claims against itself or any of its subcontractors.
Carlson argues that the requirement to maintain a $25,000 deductible terminated simultaneously when the parties' mutual obligations regarding property insurance expired. Thus, the continuing obligation regarding property insurance terminated upon the receipt of final payment at the end of the construction period. As stated in 11.1.2 of the contract, Designline "shall . . . maintain[] [insurance] without interruption from [the] date of commencement of the Work until [the] date of final payment and termination of any coverage required to be maintained after final payment." Here, it is undisputed that final payment has been made by Carlson. Accordingly, Carlson argues that it was allowed to alter the deductible amount thereafter without notification or permission from Designline once it tendered final payment. Because this fire occurred many years after the completion of construction, Carlson contends that there is no basis to find that it was required to still carry a $25,000 deductible on the property.
As for Designline's argument that a waiver of subrogation should have been included in Carlson's insurance policy, this issue bears no relevance to any argument raised on appeal. The issue Carlson brings to this Court's attention is whether it has a cognizable claim to recover the uninsured deductible amount, not damages covered by property insurance. The finding by the judge that Carlson is barred from suing to recover any amount of monetary damages covered under its Lexington insurance policy is not being challenged and the enforceability of such provision is not at issue. With respect to Designline's alternative argument that the $25,000 deductible would continue after final payment was received, one must analyze the contractual language of the agreement.
It is well settled that contract language must be given its clear, rational meaning "in keeping with the express general purpose" which drove contract formation between the parties. Tessmar v. Grosner, 23 N.J. 193, 201 (1957). If a genuine ambiguity exists, such ambiguity will be weighed against the drafter. Botti v. CNA Ins. Co., 361 N.J. Super. 217, 225 (App. Div. 2003). With respect to a waiver of subrogation provision, there is a general move by all jurisdictions to enforce such clauses to the fullest extent possible. See Sch. Alliance Ins. Fund v. Fama Constr. Co., 353 N.J. Super. 131 (Law Div. 2001), aff'd, 353 N.J. Super. 1 (App. Div. 2002); Town of Silverton v. Phoenix Heat Source Sys., Inc., 948 P.2d 9 (Colo. App. 1997); Colonial Props. Realty Ltd. P'ship v. Lowder Constr. Co., Inc., 567 S.E.2d 389 (Ga. App. 2002).
Thus, the judge correctly ruled that the waiver of subrogation in the construction contract survives final payment. There is no ambiguity in the contract with respect to the waiver of subrogation provision. It is limited to the extent covered by property insurance. According to the plain terms of the contract, Carlson is barred from recovering insured property losses. The judge, however, misinterpreted the breadth of the waiver.
What is not so clear is whether Carlson agreed to maintain a $25,000 deductible on the restaurant in perpetuity after the construction was completed. The only provision addressing future responsibilities is found in 11.3.5., which requires all policies to have a waiver of subrogation only.
Using a plain language analysis of the construction contract yields a finding that paragraphs 11.3.1 and 22.214.171.124 should be read and interpreted together. Both of these paragraphs speak to Carlson's and Designline's respective responsibilities to maintain property insurance on the property for the duration of the construction period and through the tender of final payment.
With respect to the waiver of subrogation provision governing the issues in this case, paragraph 11.3.5 mandates that a waiver of subrogation provision is a necessary term to be included in all future property insurance policies taken out on this property post-construction. Yet, no language, in the form of mandatory or permissive directives, was drafted into the language of the contract obligating Carlson to maintain a certain level of deductible going forward. In paragraph 220.127.116.11, a specific deductible of $25,000 is mentioned, but this is only until final payment is made, which occurred before the fire.
The judge found that the $500,000 deductible was not recoverable, but he never completely addressed the issue, only making a side comment that it should be barred. Otherwise, the judge concentrated his analysis on whether the waiver of subrogation clause was enforceable to post-construction losses, answering in the affirmative and foreclosing Carlson's ability to recover insured losses.
Again, it is generally true that jurisdictions overwhelmingly agree that a waiver of subrogation provision, which allocates risks and costs among parties to a given contract, bars the recovery for insured losses. This construction promotes certainty as to the liability of the respective parties upon any loss. Where the contract is silent as to uninsured losses, including deductibles, courts have held that they are recoverable. We interpret the contract as not requiring insurance at the time of the fire, but if insurance were obtained, than there is a waiver of subrogation to the extent that losses were covered by property insurance. Therefore, Carlson may proceed to attempt to collect the $500,000 loss not covered by insurance.
Carlson also argues on appeal that the judge erred in finding that Restaurant Services can enjoy the protection of the waiver of subrogation provision in the construction contract, despite the fact that it was not a "subcontractor" and was a non-signatory to the contract. According to Paragraph 5.1.1, which defines the term "subcontractor" as used throughout the contract, "subcontractor" "is a person or entity who has a direct contract with [Designline] to perform a portion of the Work at the site."
Here, Restaurant Services' involvement with the construction of the restaurant was limited to its sale of several pieces of commercial kitchen equipment, including the broiler and broiler plate, to Carlson. Clearly, Restaurant Services is a contractor of Carlson and not a subcontractor of Designline. However, Article 6 of contract - "Construction by Owner or by Separate Contractors" provides that the owner can hire other contractors to work on the project. Paragraph 6.1.1 provides that the owner must operate under the same conditions as the contract at issue. Particularly, it provides that such contracts must be "identical or substantially similar to these including those portions related to insurance and waiver of subrogation."
Moreover, Paragraph 6.1.4 provides, "Owner shall be deemed to be subject to the same obligations and to have the same rights which apply to the Contractor under the Conditions of the Contract . . . ."
Here, it is undisputed that, Restaurant Services had a contract with Carlson. Thus, based on a separate contractual provision, Carlson was obligated to include similar subrogation and insurance terms in its agreement with Restaurant Services. It was the intent of the parties that the general contractor, and others covered by this contract, would not be dragged into related litigation by third-parties.
Therefore, we conclude that Restaurant Services is a third-party beneficiary and has the right to enforce the obligation of the owner in this case. This conclusion is buttressed by Paragraph 11.3.6, which states that "the Owner and Contractor waive all rights against . . . each other and any of their Subcontractors . . . ." Therefore, Carlson waived its subrogation rights against its own subcontractors.
Finally, Restaurant Services argues that Carlson's claim is barred by the applicable statute of limitations. We reject this argument, concluding that it is unpersuasive and irrelevant.
The summary judgment against Carlson and in favor of Designline and Restaurant Services is reversed and remanded to the Law Division, Camden County.
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Unlike ten years ago, China offers a range of options to high end retail brands who want to open a store. Retail landlords are not only targeting international medium to high end brands, but are also giving attention to design, creative and artistic aspects. All of these malls have their own advantages, and brands have to determine which location is the best based on their brand image, including positioning and retail design, as well as their planned expansion strategy. The following are some of the many options that brands have today.
Shinkong Place is currently on the forefront and has changed the retail landscape in Beijing since its opening in 2007. It is a standalone mall with the highest reported single mall revenue in China since 2011. In 2012, its revenue reportedly exceeded 7 billion Yuan (approx. 1.13 billion USD), increasing 12% year-on-year. Despite appearing like a shopping mall, Shingkong Place is operated as a department store. The landlord has put tireless efforts in continuously upgrading the premises, moving designer brands to higher floors in order to create space for a new Dior store. A Louis Vuitton flagship store is scheduled to open there this month.
Also ranking high in terms of sales, Yansha Youyi Shopping Center which exceeds Shinkong Place in revenues. The Yansha group comprises Beijing Yansha Liangma Shopping Center, the Beijing Yansha Jinyuan store and its Department Store in Taiyuan city in Shanxi province.
Located in the heart of Beijing's Central Business District, at the bottom of the capital's tallest building (China World Tower 3), China World Mall occupies a premium location in the city. Thanks to being situated in a business district, the mall has a steady customer flow. Chinese brand Shang Xia, who is backed by Hermes, decided to open its Beijing flagship store here. The store features a spectacular store design created by world renowned Japanese architect Kengo Kuma.
In Shanghai, Hong Kong Hanglung groups's Plaza 66 undoubtedly lead the way as a first choice luxury retail location until IFC Mall opened. Plaza 66 is located at Shanghai's prestigious Nanjing Xi Lu shopping street, among other high end retail malls. Louis Vuitton recently redesigned and expanded its store space there with a huge store front which is a great branding opportunity in this busy upscale shopping area. The store design for the 16th Maison of Louis Vuitton was created by Peter Marino.
Also in Shanghai and owned by Hong Kong's Sun Hung Kai Properties, IFC Mall opened in 2010. The mall is located in Lujiazui financial district not far from the Pearl Tower, making it an interesting shopping destination for local affluent residents and tourists alike. Most top tier luxury brands have secured a store location in this mall.
Two groups who are operating shopping malls and should be watched are Charter and MIXC. Changchun-based Charter are a mainland Chinese group that have built up several successful malls in China's North, before acquiring a property in Beijing's West which is now also marketed under the Charter brand. In the cities in the North, Charter malls are first choice locations for high end brands.
MIXC are quite unique in their positioning, since they are one of the few landlords also targeting international medium and designer brands. Based in Shenzhen, the group has built successful malls in Hangzhou, Shenyang and Chengdu, and is developing in several other cities.
In the last few years, several new, exciting mall projects have been built. Two interesting examples are Parkview Green in Beijing and K11 in Shanghai, both exhibiting art pieces and attracting a new generation of international designer brands. By creating a flair of art and design, these malls successfully differentiate themselves and bring the shopping experience to a new level.
Barbara Seidelmann is based in China since 2005 and has been working with different luxury brands. At 5 Star Plus Retail Design she advises on the Chinese luxury retail market, setup of stores and visual identity.
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Dashboard Drummer made a sweeping move on the turn and ran down the front-runners in the stretch to capture the $100,000 Sapling Stakes (gr. III) at Monmouth Park on Saturday by 2 1/2 lengths.The winner, trained by Allen Iwinski and ridden by Jose Ferrer, stopped the timer in 1:10 4/5 for six furlongs on a sloppy track. Deputy Storm, the 7-10 favorite who set fast fractions of :21 1/5 for the first quarter and :43 4/5 for the half, finished second with Joey Bravo aboard. Charming Jim, who challenged for the lead most of the way with Eibar Coa riding, finished third, three lengths behind the winner.Dashboard Drummer, owned by Double S., Preferred Pals & E. Wachtel, is now unbeaten in three career races. The Oklahoma-bred gelded son of Alamocitos broke his maiden at Prairie Meadows in Iowa in May, and last time took the June 27 Prairie Gold Juvenile Stakes there.The owners acquired Dashboard Drummer after his first two starts for $200,000 and brought him East."I went out to Iowa to look at the horse," Iwinski said, "and at first I wasn't terribly impressed. Then I watched him train and I got excited. I didn't expect him to be that far back today, but I knew he'd be coming late."Ferrer said, "They were really going fast out there. I was planning on just sitting off the pace, but they were going way too quick, so I was in back. At the half-mile pole I asked him for run and he just took off."Iwinski indicated that the Hopeful Stakes (gr. I) at Saratoga on Aug. 30 is a possible next start for Dashboard Drummer. The winner, the third choice in the field of seven, paid $10.80, $3.60 and $2.10 across the board. Deputy Storm returned $2.40 and $2.10. Charming Jim showed for $2.10.(Chart, Equibase)
Dashboard Drummer Pounds Home in Sapling
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May 16, 2012
JAMES EMERY, PETITIONERv.JAMES MCCRADY, ET AL., RESPONDENTS
I. Introduction
On April 23, 2012, James Emery filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his 2008 convictions in the Court of Common Pleas of Dauphin County, Pennsylvania, for carrying a firearm without a license, possession with intent to deliver, unlawful possession of drug paraphernalia, simple assault and criminal conspiracy.*fn1 Named as Respondents are Jame McGrady, Superintendent of SCI-Retreat where Emery is incarcerated, and the Attorney General for the Commonwealth of Pennsylvania.
On preliminary review, we have decided that the petition may be untimely and will require Petitioner to address that issue. See Day v. McDonough, 547 U.S. 198, 209-10, 126 S.Ct. 1675, 1683-84, 164 L.Ed.2d 376 (2006)(district courts have the authority to consider, sua sponte, the timeliness of a state prisoner's habeas petition); United States v. Bendolph, 409 F.3d 155, 166-67 (3d Cir. 2005)(en banc)(district court may raise the one-year statute of limitations on its own motion, provided the petitioner is afforded notice and an opportunity to respond).
II. Background
On October 23, 2008, following a guilty plea, Emery was sentenced to serve an aggregate term of sixty-one months to twelve years in a state correctional institution. Doc. 2, Mem. in Supp. Habeas Corpus Pet. at pp. 10-11.*fn2 No post-sentence motions were filed and no direct appeal was taken. Id. at p. 11. On March 11, 2009, Emery filed a timely pro se petition for collateral relief under the Pennsylvania Post Conviction Relief Act (PCRA), 42 Pa. Con. Stat. Ann. §§ 9541-9546 (West 2007 & Supp. 2012). The trial court denied the PCRA petition on September 8, 2009. The superior court affirmed the dismissal on September 22, 2010. See Commonwealth v. Emery, No. 1638 MDA 2009 (Pa. Super. Ct.). Emery did not file a Petition for Allowance of Appeal with the Pennsylvania Supreme Court.
On October 26, 2010, Emery filed a second pro se PCRA petition. See Commonwealth v. Emery, CP-22-0001283-2008 (Pa. Common Pleas Ct. - Dauphin Cnty.).*fn3 On May 11, 2011, the Court advised Emery of its intent to dismiss his PCRA petition. The petition was dismissed on August 16, 2011, after Emery failed to file an Answer to the Court's May 11, 2011, order. See Doc. 2 at p. 24. Emery did not appeal the dismissal of his second PCRA petition to the superior court.
On April 23, 2012, Emery filed in the state supreme court a petition for leave to file a petition for allowance of appeal nunc pro tunc challenging the superior court's September 22, 2010, order affirming the denial of his first PCRA petition. See Doc. 2 at pp. 28-29 and p. 38.
III. Discussion
A. Statutory Framework
A petitioner confined under a state-court judgment has one year to file a 2254 petition challenging the judgment. See 28 U.S.C. § 2244(d)(1). As relevant here, the limitations period runs from the "date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." Id. In Pennsylvania, where no direct appeal is taken, the sentence becomes final thirty days after sentencing when the criminal defendant's opportunity to file a direct appeal with the superior court expires. See 42 Pa. Cons. Stat. § 9545(b)(3); Pa. R. App. P. 903; Pa. R. Crim P. 720(a)(3).
The one-year federal limitations period is subject to both statutory and equitable tolling. Statutory tolling for a federal habeas claim occurs during the time "a properly filed application for State post conviction or other collateral review with respect to the pertinent judgment or claim is pending . . . ." Swartz v. Meyers, 204 F.3d 417, 419 (3d Cir. 2000); 28 U.S.C. § 2244(d)(2). A properly filed state petition "is one submitted according to the state's procedural requirements, such as the rules governing the time and place of filing." Lovasz v. Vaughn, 134 F.3d 146, 148 (3d Cir. 1998); see also Pace v. DiGuglielmo, 544 U.S. 408, 417, 125 S.Ct. 1807, 1814, 161 L.Ed.2d 669 (2005)(where the state court rejects petitioner's PCRA petition as untimely, the petition "was not 'properly filed' and [petitioner is] not entitled to statutory tolling under § 2244(d)(2)"). Likewise, an untimely petition for allowance of appeal, filed nunc pro tunc, with the Pennsylvania Supreme Court is not "properly filed." See Douglas v. Horn, 359 F.3d 257, 262 (3d Cir. 2004).
The limitations period may be subject to equitable tolling when the petitioner shows that he "has been pursuing his rights diligently," and yet "some extraordinary circumstances stood in his way and prevented timely filing." Holland v. Florida, U.S. , , 130 S.Ct. 2549, 2562, 177 L.Ed.2d 130 (2010); see also Sistrunk v. Rozum, 674 F.3d 181, 191 (3d Cir. 2012)(also considering the possibility of equitable tolling by way of actual innocence). Specifically, the Third Circuit has identified four circumstances in which equitable tolling is justified: (1) when the defendant has actively misled the plaintiff; (2) when the plaintiff has in some extraordinary way been prevented from asserting his rights; (3) when the plaintiff has timely asserted his rights, but has mistakenly done so in the wrong forum; or (4) when the claimant received inadequate notice of his right to file suit, a motion for appointment of counsel is pending, or where the court has misled the plaintiff into believing that he had done everything required of him. See Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999); see also Urcinoli v. Cathel, 546 F.3d 269, 273 (3d Cir. 2008).
B. Calculation of Emery's Limitations Period
Emery's judgment of conviction became final on November 24, 2008, the expiration of the thirty-day period for filing a direct appeal with the superior court.*fn4
Therefore, absent any tolling, he had until November 24, 2009, to file his § 2254 petition.
The limitations period ran 107 days, or until March 11, 2009, when Emery filed his first PCRA petition. Emery's first PCRA was pending until October 22, 2010, when his opportunity to file a petition for allowance of appeal with the Pennsylvania Supreme Court expired. See Swartz, 204 F.3d at 419. Thereafter, Petitioner had 258 days, or until July 7, 2011, to file his habeas corpus petition. However, he did not file his petition until April 23, 2012, more than 291 days after the limitations period expired. The petition is thus untimely.
In reaching this conclusion, we have taken into account the fact that Emery filed a second PCRA petition which appears to have been dismissed as untimely filed. Unfortunate for Emery, an untimely filed PCRA petition is not considered "properly filed" for the purpose of tolling the limitations period. See Satterfield v. Johnson, 434 F.3d 185, 194 (3d Cir. 2006). Additionally, the statute of limitations is not tolled during the time a petition for allowance of appeal nunc pro tunc is pending in the Pennsylvania Supreme Court because such a petition is not procedurally proper under state law. See Douglas, 359 F.3d at 262.
IV. Conclusion It appears that Emery's 2254 petition is untimely. However, we must give him notice and an opportunity to oppose our sua sponte invocation of the statute of limitations. See Day, supra; Bendolph, supra.
We will issue an appropriate order.
William W. Caldwell United States District Judge
JAMES EMERY, Petitioner v. JAMES McCRADY, et al., Respondents
(Judge Caldwell)
AND NOW, this 16th day of May, 2012, it is ordered that:
1. Emery's Motions to Proceed In Forma Pauperis (Docs. 3 and 6) are granted.
2. The Clerk of Court is directed to serve a copy of Emery's Petition and Memorandum of Law (Docs. 1-2) and this order on the Superintendent of SCI-Retreat, the Attorney General for the Commonwealth of Pennsylvania, and the District Attorney of Dauphin County.
3. Within twenty-one (21) days of the date of this Order, Petitioner may file a brief opposing the court's determination that his § 2254 petition is time-barred.
4. Respondents shall have fourteen (14) days from receipt of Petitioner's brief to file a reply brief. Alternatively, if Petitioner fails to file a brief, Respondents may, within forty-five (45) days of this order, file a response to the court's determination that Petitioner's § 2254 petition is time-barred.
5. The Clerk of Court is to note the address of the District Attorney for Dauphin County on the front of the docket sheet in this case.
6. All documents filed by the parties and by the court shall be served upon the Superintendent of SCI-Retreat, the Attorney General for the Commonwealth of Pennsylvania, and the District Attorney for Dauphin County.
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Royal Sunset Island Resort
Atata Island | Nuku'alofa, Tongatapu Island, Tonga, Atata Island, Tonga Show Map
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Royal Sunset Island Resort: Find photos, reviews, information, amenities and compare prices for 3 stars hotels in Atata Island, Tonga.
Royal Sunset Island Resort offers free Wi-Fi and outdoor tennis courts, as well as rooms with private terraces. It also features babysitting/child services, massage services and luggage storage.
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Those staying at Royal Sunset Island Resort Atata Island have access to its wide variety of outdoor activities, including snorkeling, scuba diving and windsurfing. Guests are able to enjoy a book in the on-site library.
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