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The February 2011 earthquake literally sent Anton Heyrick spinning. The owner of Independent Roof Coatings in Christchurch fell off the roof he was working on, and watched as his van was crushed under rubble.
For eight months afterwards, Heyrick did not work while his injured body took time to recover. Held back by not having a van, he nevertheless needed to work to pay for a new one.
"Eventually, I decided enough was enough and I got stuck in on some jobs," he says. The demand in the private sector had dropped after the earthquake so it wasn't the most auspicious market to return to.
Many households were waiting for payouts from the Earthquake Commission. "Nobody in the private sector wanted to spend money on refurbishing their houses."
Luckily, Heyrick picked up some of his father's selling genes - he went door to door around Christchurch homes, telling Cantabrians that if they wanted to see the beleaguered city up and running again, everyone had to start spending again.
If they spent money on their homes, having their roof maintained, waterblasted and painted, for instance, Heyrick could spend in his community and everyone would benefit.
He was convincing. He told them: "The only way Christchurch is going to survive is, if people start spending money. If we all stop spending we will see our economy fail."
Slowly but surely the work came in again. Heyrick had people ready to refer him. He had set the business up in 2004. He also decided to take on jobs further afield, in Rangiora and Kaiapoi.
This year has been a remarkable year for the business. In April, Heyrick was introduced to Google AdWords, which are ads in the sponsored links section on Google search.
Heyrick came across Google AdWords when he won advertising over a one- to two-year period from Yellow, for becoming the face of their new digital toolbox in Christchurch.
As well as Google AdWords, Heyrick received help from Yellow by building an up-to-date website and website search optimisation, helping showcase his business online.
Independent Roof Coatings is regularly in the top five when people search for roof coating in Christchurch, sitting alongside the large companies who dominate the market.
His company's boosted image online has completely changed his business and the day-to-day running of it, says Heyrick. He no longer has to go door to door looking for work.
"I have not looked for work since April," he says.
He is now paying for Google AdWords himself and says the $250 monthly fee is well worthwhile.
"It's keeping me at the top of search optimisation on Google. We always ask how people find us and most people say on Google and with the website," he says.
"The winter months are normally a nightmare for roof repairers but this winter has been the best winter we've had on record," he says.
Heyrick's service of restoring roofs ensures includes a 15-year guarantee with the work. "It's a damn good option," says the roof expert.
With the growth in the business, Heyrick has gone from being a solo operator to having two contractors and a "sidekick". He has also employed his partner, Rebecca van der Kley, as fulltime administrator.
"We have grown exponentially, by four times our size," he says.
"We are looking at continuing to increase operations but we don't want to get too large," he adds.
As well as its residential business, Independent Roof Coatings does some commercial roofing. It has worked on the DA Lewis building in Christchurch, shopping complexes in Sumner and a number of butcher shops.
The majority of residential work in recent months has come from Avonhead, Redwood, and to a lesser extent, Halswell and Cashmere, says Heyrick.
"Some of these houses have been damaged and fixed. With some, the EQC has done the repairs but not the roof so we are recoating the roof. It's a good time to do this because the house has just been repaired."
Each residential job would cost around $2800 to $3500.
Having your house fixed up is a "massive commitment to Christchurch," says Heyrick.
The entrepreneur has strong optimism for his chosen city. "Christchurch is going to be an amazing city to live in in 10 years' time," he says.
Heyrick is happy to see his business survive the hard times and maintain his independence.
"I love being outdoors. Having the business has given me the freedom to spend more time with my family and children. I do enjoy that."


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1 Kanal Plot For Sale In D-13/3, Islamabad Margalla Road This Location provides an easy assessed to all life styles facilities including shopping areas, cafe, gym, parks, kids ground, hospital, schools, restaurants and much more. Features of area Security 24/7 Security Guards/Check Post. Current Facilities / Services, Electricity, Water Tanks, Petrol Station, Sector Utility Area, Educational Facilities, Family Park. Water Filtration Plant, Shopping Complex, Fire Fighting, few Km away from the International Air Port. For any Further Assistance please feel free to contact us AARZ.PK
Read More...
Azhar Chohan
Business Name:
Property Address:
D-13, Islamabad, Islamabad Capital Territory
Office Address:
|Property ID: 43083
|Type: Plot
|Status: Sell

subset: commoncrawl


text:
Author: Paulina Ann Rozenberg
StockholmKALO, Stockholm
""Bliss""Art, Moods, Self Portraits
Self PortraitSelf Portrait
Final for Time: Embodied course at Parsons the New School for Design.
KALO "Mock" MagazineKALO Mock Magazine
The final project for Studio: Fashion course at Parsons the New School for Design, Year 1 Semester 2.
Most articles are placement text excluding the Editor's Letter, Table of Contents, The Ultimate Guide to Vintage Fashion, Merce Cunningham, and Stephen Burrows.
Inspired by the 1960's, focusing on issues that define that period as well as the present decade/ decades to come. Satirical reference throughout.
Original cover.
Letter to the Editor and Contributors, original illustrations.
Drugs, Sex, and Religion?, Painful Plastic, Ode to Terry Richardson, Florence is the New Black, original photography.
The Ultimate Guide to Vintage Fashion, Merce Cunningham, Geoffrey Beene, Stephen Burrows, How to Peacock, The Classical Woman, original collage.
L'Oreal, Chanel, Max Factor, U by Kotex, original "made" advertisements.


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|"BitsOfInfo (JIRA)" <j...@apache.org>
|[jira] Updated: (MAPREDUCE-1176) Contribution: FixedLengthInputFormat and FixedLengthRecordReader
|Wed, 03 Feb 2010 14:35:28 GMT
[ https://issues.apache.org/jira/browse/MAPREDUCE-1176?page=com.atlassian.jira.plugin.system.issuetabpanels:all-tabpanel ] BitsOfInfo updated MAPREDUCE-1176: ---------------------------------- Status: Patch Available (was: Open) triggering hudson > Contribution: FixedLengthInputFormat and FixedLengthRecordReader > ---------------------------------------------------------------- > > Key: MAPREDUCE-1176 > URL: https://issues.apache.org/jira/browse/MAPREDUCE-1176 > Project: Hadoop Map/Reduce > Issue Type: New Feature > Affects Versions: 0.20.1, 0.20.2 > Environment: Any > Reporter: BitsOfInfo > Priority: Minor > Attachments: MAPREDUCE-1176-v1.patch, MAPREDUCE-1176-v2.patch, MAPREDUCE-1176-v3.patch, MAPREDUCE-1176-v4.patch > > > Hello, > I would like to contribute the following two classes for incorporation into the mapreduce.lib.input package. These two classes can be used when you need to read data from files containing fixed length (fixed width) records. Such files have no CR/LF (or any combination thereof), no delimiters etc, but each record is a fixed length, and extra data is padded with spaces. The data is one gigantic line within a file. > Provided are two classes first is the FixedLengthInputFormat and its corresponding FixedLengthRecordReader. When creating a job that specifies this input format, the job must have the "mapreduce.input.fixedlengthinputformat.record.length" property set as follows > myJobConf.setInt("mapreduce.input.fixedlengthinputformat.record.length",[myFixedRecordLength]); > OR > myJobConf.setInt(FixedLengthInputFormat.FIXED_RECORD_LENGTH, [myFixedRecordLength]); > This input format overrides computeSplitSize() in order to ensure that InputSplits do not contain any partial records since with fixed records there is no way to determine where a record begins if that were to occur. Each InputSplit passed to the FixedLengthRecordReader will start at the beginning of a record, and the last byte in the InputSplit will be the last byte of a record. The override of computeSplitSize() delegates to FileInputFormat's compute method, and then adjusts the returned split size by doing the following: (Math.floor(fileInputFormatsComputedSplitSize / fixedRecordLength) * fixedRecordLength) > This suite of fixed length input format classes, does not support compressed files. -- This message is automatically generated by JIRA. - You can reply to this email to add a comment to the issue online.
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Facts About Bietti's Crystalline Dystrophy
From family studies, we know that BCD is inherited primarily in an autosomal recessive fashion. This means that an affected person receives one nonworking gene from each of his or her parents. A person who inherits a nonworking gene from only one parent will be a carrier, but will not develop the disease. A person with BCD syndrome will pass on one gene to each of his or her children. However, unless the person has children with another carrier of BCD genes, the individual's children are not at risk for developing the disease. More about autosomal recessive inheritance.
In September 2000, NEI researchers reported that the BCD gene had been localized to chromosome #4. In this region of chromosome #4 there are hundreds of genes. Researchers are now looking for which of the genes in this region of chromosome #4 causes BCD. Finding the gene may shed light on the composition of the crystals found in the corneas of patients with BCD and on what causes the condition. More about finding disease genes.


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1. On appeal from the entry of summary judgment, an appellate court reviews the matter de novo using the same standards as the district court in order to determine whether the movant is entitled to judgment as a matter of law.
2. A claim is the aggregate of operative facts giving rise to a right enforceable by a court.
3. A demand is the assertion of a legal or procedural right. Such an assertion may be made once the necessary facts exist to support recovery on the asserted right.
4. A cause of action is a group of extant operative facts giving rise to one or more bases for bringing an action and obtaining relief in court.
5. The general rule is that a surety or guarantor must pay the principal's debt in full in order to assert a claim for subrogation.
6. A guarantor has an inherent right of subrogation against the guarantor's principal upon payment of the principal's debt. This right is not predicated upon a balancing of equities between principal and guarantor.
7. The principle of indemnity obliges a party to make whole any loss another suffers while acting at the behest, or for the benefit, of that party. Indemnity may be created by contract or by operation of law when one is compelled to pay what another party ought to pay.
8. Kansas law allows corporations, including limited liability companies, to indemnify corporate actors for actions against those actors by reason of the fact that they are or were corporate officers or agents.
9. Kansas' corporate indemnity law is modeled on Delaware's law on that subject. Cases interpreting Delaware corporate indemnity law provide persuasive guidance for Kansas courts.
10. Under the facts presented, a bank's actions to enforce personal guaranties, given to secure the debt of the limited liability company of which the guarantors were members, entitled the guarantors to be indemnified by the limited liability company against the bank actions.
11. A claim for contribution may be maintained between co-guarantors only when the aggrieved guarantor pays more than his or her pro rata share of the principal's debt.
12. Corporate officers and managers have a fiduciary duty to act in the best interests of their corporation. They are liable to the members and stockholders of the corporation for losses resulting from malfeasance, misfeasance, or their failure to discharge their corporate responsibilities.
13. The fiduciary duties a corporate officer or manager owes to the corporation's members and stockholders do not extend to a former member or stockholder for conduct occurring after the former member or stockholder surrendered his or her shares.
14. The doctrine of alter ego imposes personal liability on an individual who uses a corporation merely as an instrumentality to conduct his or her personal business. Liability arises from fraud or injustice perpetrated not on the corporation but on third persons dealing with the corporation. In applying the alter ego doctrine, courts disregard the corporate entity and hold the individual responsible for acts knowingly and intentionally done in the name of the corporation.
15. In determining whether a corporation is the alter ego of its owner, courts consider: (1) Undercapitalization of a one-person corporation, (2) the failure to observe corporate formalities, (3) nonpayment of dividends, (4) siphoning of corporate funds by the dominant stockholder, (5) the nonfunctioning of other officers or directors, (6) the absence of corporate records, (7) the use of the corporation as a facade for operations of the dominant stockholder or stockholders, and (8) the use of the corporate entity to promote injustice or fraud. Single ownership of the corporation is not determinative or sufficient by itself to prove that the corporation is the alter ego of its owner, nor is there a minimum number of factors which must be met.
16. Each case involving disregard of the corporate entity must rest upon its particular facts.
Appeal from Sedgwick District Court; DAVID J. KAUFMAN, judge. Opinion filed August 28, 2009. Affirmed in part, reversed in part, and remanded with directions.
Alan L. Rupe, of Kutak Rock, LLP, of Wichita, for appellants/third-party plaintiffs/cross-appellees.
Michael G. Jones and W. Rick Griffin, of Martin, Pringle, Oliver, Wallace & Bauer, L.L.P., of Wichita, for appellees/third-party defendants/cross-appellants.
Before McANANY, P.J., ELLIOTT and CAPLINGER, JJ.
McANANY, J.: This appeal arises out of Emprise Bank's suit against Drs. Gary S. Benton and John D. Rumisek to collect on personal guaranties they gave the bank to secure the debt of Mid America Surgical Associates, L.L.C. (MASA), the entity through which they conducted their specialty surgical practices. Benton and Rumisek, along with Drs. Badr Idbeis and Robert Fleming, owned and operated MASA. In response to the bank's suit, Benton and Rumisek asserted third-party claims against MASA, Idbeis, and Fleming for reimbursement, subrogation, contribution, and indemnity, as well as a claim that MASA was Idbeis' alter ego and, therefore, Idbeis was personally responsible for claims or judgments against MASA. Benton also asserted a third-party claim against Idbeis for breach of fiduciary duty.
Benton and Rumisek moved for summary judgment on their claims for reimbursement, subrogation, contribution, and indemnity. The third-party defendants moved for summary judgment on all third-party claims. In its letter opinion, the district court denied Benton and Rumisek's motion and entered summary judgment in favor of third-party defendants on all third-party claims.
Benton and Rumisek appeal, claiming the district court erred in denying summary judgment in their favor on their claims for reimbursement, subrogation, contribution, and indemnity. They also claim that the district court erred in granting summary judgment to the third-party defendants on all third-party claims.
MASA cross-appeals, claiming the district judge erred when he stated in his letter ruling: "I agree with 3PPs [third-party plaintiffs] that no equities need balancing in determining whether the right of subrogation exists for 3PPs. Such a right is inherent between a surety and his principal." MASA contends that while the district court did not err in granting summary judgment in its favor on Benton and Rumisek's subrogation claim on other grounds, the court also should have done so by weighing the equities and resolving the equities in favor of MASA.
In our de novo review of the respective summary judgment motions, we conclude:
The release signed by Benton and Rumisek did not release their claim for subrogation. Nevertheless, because Benton and Rumisek have not paid Emprise Bank for MASA's debt for which they gave their personal guaranties, they are not entitled to summary judgment on their subrogation claim but the third-party defendants are.
An overview of the background facts is necessary to understand the various claims. Benton, Fleming, Idbeis, and Rumisek formerly practiced together at Wichita Surgical Specialists, P.A. (WSS). Idbeis was discharged from WSS in March 2002. Promptly thereafter, Benton, Fleming, and Rumisek voluntarily left WSS and the four doctors formed MASA in order to continue their surgical practice in Wichita, notwithstanding the covenants not to compete each had given WSS. Idbeis was designated president of MASA and charged with its day-to-day management. Subject to certain limitations, MASA's articles of incorporation and its operating agreement provided for MASA to indemnify any member who was "made a party to a proceeding because he is or was a Member, officer, organizer, employee or agent of the Company."
In June 2002, MASA obtained an $800,000 line of credit from the Emprise Bank to fund the operation. The credit line was secured by, among other things, the personal guaranties of the four doctors, each in the amount of $200,000, representing each doctor's 25% interest in MASA. The credit line was used in part to pay the doctors their periodic draws and annual bonuses.
By December 2002, MASA needed to increase its line of credit. The bank increased the credit line to $1.5 million. The four doctors each gave the bank an additional $375,000 personal guaranty as security.
Faced with potential liability to WSS for violating their covenants not to compete, the four doctors commenced an action in the district court to enjoin enforcement of the covenants. The district court found that the restrictive covenants were valid and enforceable. On appeal, the Kansas Supreme Court agreed. Idbeis v. Wichita Surgical Specialists, P.A., 279 Kan. 755, 112 P.3d 81 (2005). Idbeis' contract with WSS permitted him to pay liquidated damages in lieu of discontinuing his competing practice. The contracts of Rumisek, Benton, and Fleming had no such provision. Accordingly, the district court ordered Rumisek, Benton, and Fleming to cease their competing practices for the 2-year duration of their covenants.
Benton left MASA in August 2005 and moved his practice to Hays. Fleming and Rumisek left MASA in October 2005. Fleming went to Salina, and Rumisek went to Louisville, Kentucky. They all left with the understanding that Idbeis would continue to operate MASA and with the hope that they would be able to rejoin Idbeis and MASA upon expiration of their covenants not to compete. To that end, they agreed that MASA should pay Idbeis' liquidated damages to WSS in order to permit him to continue the practice in competition with WSS. Fleming ultimately returned to practice with Idbeis. Benton and Rumisek never did.
When they left, Benton, Fleming, and Rumisek each executed the URA and surrendered their shares in MASA for a nominal sum. The URA contained a mutual release pursuant to which Benton, Fleming, and Rumisek released MASA and its members "from any and all claims, demands, or causes of action of whatever kind or nature, known or unknown" which Benton, Fleming, and Rumisek "may have had in the past or may now have against [MASA], [MASA's] members, employees, agents, affiliates, either individually or in their representative capacities."
In January 2007, Idbeis formed Cedar Surgical, L.L.C., with the expectation that he would shift his practice from MASA to this new entity and close MASA. The bank refused to renew MASA's loan. Idbeis and Fleming entered into forbearance agreements with the bank, again promising to honor their $375,000 personal guaranties. Apparently, the bank never commenced legal proceedings against Idbeis and Fleming, and Benton and Rumisek contend that Idbeis and Fleming have not honored their personal guaranties.
In March 2007, the bank commenced this action to collect from Benton and Rumisek on their personal guaranties. Their third-party action against MASA, Idbeis, and Fleming followed. Benton settled with the bank by agreeing to pay $375,000 plus interest on his guaranty. The court entered judgment against Rumisek on his personal guaranty. The parties then filed their competing summary judgment motions which are the subject of this appeal.
Standards of Review
The standards for considering summary judgment motions are well known and can be found in Korytkowski v. City of Ottawa, 283 Kan. 122, 128, 152 P.3d 53 (2007). We apply those same standards in our de novo review. See Cooke v. Gillespie, 285 Kan. 748, 754, 176 P.3d 144 (2008). To the extent the parties' claims require the interpretation of the terms and effects of their various contracts, our review is similarly unlimited. Conner v. Occidental Fire & Cas. Co., 281 Kan. 875, 881, 135 P.3d 1230 (2006).
Benton and Rumisek appeal adverse rulings on their claims based upon subrogation, indemnification, contribution, breach of fiduciary duties, and alter ego. We will first consider the subrogation claim.
Benton and Rumisek alleged in their third-party action that if the bank obtained judgments against them on their personal guaranties for MASA's debt, they would be entitled to reimbursement from MASA and would be subrogated to the bank's rights against MASA. In essence, they contend that under principles of subrogation they will stand in the shoes of the bank and be empowered to exercise all the rights and remedies which the bank could employ to collect on MASA's debt.
In August 2007, the district court entered judgment in favor of the bank and against Benton and Rumisek on their personal guaranties. Both third-party plaintiffs and third-party defendants moved for summary judgment on this theory of relief. All parties contend that there are no genuine issues of material fact in dispute which would preclude summary judgment.
The district court found that Benton and Rumisek had subrogation rights, but it denied them summary judgment and granted summary judgment to MASA because, according to the district court, Benton and Rumisek had released their subrogation rights by executing the release contained in the URA. The court found:
"c) The Mutual Release bars '. . . any and all claims, demands, or causes of action of whatever kind or nature, known or unknown, which Seller may have had in the past or may now have against the Company. . . .'
. . . .
"e) The Mutual Release, however, precludes 3PPs from asserting and seeking subrogation now. The subrogation right, which is the basis for the claim of 3PPs, existed at the time the URA was signed and in as much that a claim is an assertion of an existing right, 3PPs fail because no subrogation right exist post-October 2005 by virtue of the aforementioned release signed in October 2005."
The immediate issue addressed by the parties in this appeal is whether the district court erred in this legal conclusion. This issue does not turn on the validity of the release, but its scope. Ultimately, however, we must determine de novo whether summary judgment is warranted on this claim.
-- The Release: The Words Employed
The release provision relied upon by the third-party defendants and by the district court states:
"Seller does hereby release, acquit, and forever discharge Company, and Company's members, employees, agents, affiliates, in their representative capacities, and their respective heirs, personal representatives, successors and assigns, from any and all claims, demands, or causes of action of whatever kind or nature, known or unknown, which Seller may have had in the past or may now have against Company, Company's members, employees, agents, affiliates, either individually or in their representative capacities, and their respective heirs, personal representatives, successors and assigns, except as the same may relate to the failure of Company to fulfill Company's obligations pursuant to this Agreement."
The immediate question is whether the guarantors' right to be subrogated to the bank's position had matured into a claim, demand, or cause of action at the time the release was signed. Having examined the words of the release itself and the relevant cases, we conclude that it did not. First, we examine the words employed in the release.
(1) Claim
MASA argues that Benton and Rumisek had claims against MASA for subrogation at the time they gave their guaranties and that they released their claims upon signing the URA. The dictionary and Code of Civil Procedure definitions suggest otherwise. The primary definition of a claim, as set forth in Black's Dictionary 264 (8th ed. 2008), is "[t]he aggregate of operative facts giving rise to a right enforceable by a court." Benton and Rumisek did not release all of their "rights" in the URA, only those rights on which they could currently sue.
Likewise, K.S.A. 60-208 provides that a claim for relief consists of "(1) A short and plain statement of the claim showing that the pleader is entitled to relief; and (2) a demand for judgment for the relief to which the pleader deems such pleader's self entitled." Until their obligations pursuant to the guaranties are satisfied, Benton and Rumisek cannot demonstrate an entitlement to relief. Thus, the release does not affect the currently claimed right of subrogation.
However, MASA argues that Benton and Rumisek's use of third-party practice under K.S.A. 60-214 confirms that they had claims for subrogation rights upon giving the bank their guaranties, claims which were released in the URA. We view this as an overbroad reading of the term "claim." K.S.A. 60-214 sets forth the procedure for third-party practice:
"At any time after commencement of the action a defending party, as a third-party plaintiff, may cause a summons and petition to be served upon a person not a party to the action who is or may be liable to the third-party plaintiff for all or part of the plaintiff's claim against the third-party plaintiff."
Here, Benton and Rumisek had neither the right nor a claim to be subrogated to the rights of the bank against MASA at the time the URA was signed in 2005. As we shall see momentarily, their claim of subrogation arises only by reason of having honored their guaranties. If MASA had paid its debt to the bank, the bank would have no recourse against Benton and Rumisek on their personal guaranties, and Benton and Rumisek would have no claim to be subrogated to the bank's rights. Had MASA paid its debt, the court certainly would not entertain an independent claim by Benton and Rumisek to subrogation rights. Third-party practice under K.S.A. 60-214 is simply a procedural device to avoid circuitous and piecemeal litigation. See Alseike v. Miller, 196 Kan. 547, 412 P.2d 1007 (1966). Benton and Rumisek did not have a claim for subrogation rights when they signed the release.
(2) Demand
Next, MASA argues that "to the extent [Benton and Rumisek's] subrogation rights constituted a demand against or relating to MASA, they too were released." As a noun, "demand" is defined as "[t]he assertion of a legal or procedural right"; as a verb, it means "[t]o claim as one's due; to require; to seek relief. . . . To summon; to call into court." Black's Dictionary 462 (8th ed. 2008). Obviously, the notion of a demand is predicated upon the existence of a legally recognized right. At the time the release was signed, did Benton and Rumisek have the right to demand that they be subrogated to the rights of the bank against MASA? Clearly not. The bank had taken no action against them on their personal guaranties. The release, which applies only to demands in existence at the time of execution of the release, does not bar Benton and Rumisek's demand in their third-party action that, if the bank obtained a judgment against them on their guaranties, they should be subrogated to the bank's rights against MASA.
(3) Cause of Action
MASA argues that the term "cause of action" in the URA release encompasses Benton and Rumisek's third-party action for subrogation. A "cause of action" has long been defined as a "state of facts that entitles a party to maintain an action in a judicial tribunal." Bryant, The Law of Pleading Under the Codes of Civil Procedure 170 (2d ed. 1899). It is currently defined as "[a] group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in court from another person." Black's Dictionary 235 (8th ed. 2008); see Schmidt v. Shearer, 26 Kan. App. 2d 760, 768-70, 995 P.2d 381 (1999).
As explained earlier, Benton and Rumisek clearly had no cause of action against MASA when they executed their guaranties or when they later executed the URA release. A sine qua non of Benton and Rumisek's cause of action for subrogation is the bank's action to recover against them on their guaranties. The bank's action against Benton and Rumisek commenced long after the execution of the URA.
As a final point regarding the language of the release, MASA points to the phrase "of whatever kind or nature." We view this phrase as rather redundant since the release already applies to all claims, demands, and causes of action. Further, we are not persuaded by MASA's argument that there can be "varying degrees" of causes of action, and the release covered all. Much like being dead or pregnant, one either is or is not. A cause of action either exists or it does not. The addition of this phrase does not alter our analysis.
--The Release: Cases
Turning to the cases, MASA cites a number of cases from foreign jurisdictions in which the court upheld a release in circumstances MASA claims are comparable to those before us. We do not find any of them to apply. The releases at issue in MASA's cited cases were in settlement of an existing claim (most were personal injury claims arising from automobile collisions) which covered all claims arising out of the accident or the incident which was the subject of the dispute. Brown v. Eakin, 137 A.2d 385 (Del. Super. 1957); Rakowski v. Lucente, 104 Ill. 2d 717, 472 N.E.2d 791 (1984); and Norton v. Benjamin, 220 A.2d 248 (Me. 1966), all involved releases in settlement of personal injury claims. The releases in all these cases released all claims, now or in the future, arising out of the accident referred to in the release. Here, however, Benton and Rumisek specifically released only existing claims against MASA, not claims that may arise in the future.
MASA also relies on Sword & Shield Restaurant v. Amoco Oil Co., 420 N.E.2d 32 (Mass. App. 1981). Sword involves a claim for contribution, not subrogation. In Sword, the restaurant sued Amoco when its gasoline leaked from an underground storage tank into the restaurant's basement. Six days after the leak occurred, Amoco and its tenant, who occupied the service station where the leak originated, exchanged comprehensive mutual releases. After settling with the restaurant, Amoco brought an action for contribution against its former tenant. The court denied Amoco's contribution claim, noting that even though the claim was unknown to the tortfeasors at the time of the release, the release covered all known or unknown, then-existing claims. 420 N.E.2d at 33-34.
Sword fails MASA because Amoco's release ran from "the beginning of time" until 6 days after the leak occurred. 420 N.E.2d at 33. The restaurant's claim against Amoco arose on the day of the leak. The release was simply an arrangement between the joint tortfeasors as to who would pay the plaintiff's claim. Here, Benton and Rumisek's subrogation claim did not exist at the time they executed the URA, and the URA covered only then-existing claims against MASA.
Finally, in Lady Corinne Trawlers, Inc. v. Zurich Ins. Co., 507 So. 2d 915 (Ala. 1987), the insured owner of a damaged fishing boat made claims for the loss against Sanders who made defective repairs as well as against plaintiff's own insurance company on the policy. The insured boat-owner settled with Sanders and gave Sanders a release which applied to "all claims, damages, actions, causes of action, suits at law, or in equity, arising, or to arise as a result of said allegedly faulty and defective repairs . . . ." 507 So. 2d at 916-17. Giving the release violated plaintiff's insurance policy because it constituted an agreement to release a subrogation right which, on payment of the claim by the insurance company, would belong to the insurance company. The trial court granted summary judgment to the insurer, finding the insured breached the policy. The Alabama Supreme Court affirmed. 507 So. 2d at 918.
In Lady Corinne, the insurer's subrogation right provided for in the policy did not mature into a claim or cause of action until after execution of the release. The Alabama Supreme Court stated: "Zurich's subrogation rights had not yet ripened . . . . Thus, at the time the plaintiff executed the agreement with Saunders, [plaintiff] was still the owner of any claims against Saunders." 507 So. 2d at 918. Lady Corinne is not helpful to MASA.
The Tenth Circuit Court of Appeals addressed the issue in Allen v. Sybase, Inc., 468 F.3d 642 (10th Cir. 2006). Allen involved claims for violation of the Worker Adjustment and Retraining Notification Act (WARN), 29 U.S.C. § 2101 et seq. WARN imposes liability on an employer who fails to give the required notice to certain employees who lose their jobs as part of a plant closing or mass layoff. The Act and its implementing regulations require that terminated employees (including the first employee terminated during the relevant period) who are aggregated during a 90-day period so as to constitute a mass layoff are entitled to notice under the Act.
Plaintiffs were terminated without notice prior to October 31, 2001. They accepted severance packages from their employer in exchange for releases of all claims they had against their employer. Plaintiffs sued for relief pursuant to WARN, and the employer raised the release as a bar to the claims. The district court granted summary judgment to plaintiffs, and the Tenth Circuit affirmed. 468 F.3d at 663. The court determined that the number of terminated employees reached the WARN threshold on October 31, 2001. Plaintiffs were within that aggregation that reached the threshold number of laid-off employees and, therefore, were entitled to notice under the Act. While plaintiffs had the right under WARN to notice of their terminations once the aggregate number of laid-off employees reached the WARN threshold, their rights under WARN did not mature into an actionable claim until October 31, 2001, which was after they signed the releases. The release applied to "any claims, liabilities, demands or causes of action, known or unknown, that I ever had, now have or may claim to have had against the Company . . . as of the date of this release." 468 F.3d at 646. The court concluded:
"Because the plaintiffs' WARN claims did not accrue until the mass layoff occurred on October 31, 2001, those claims were not in existence 'as of the date of [the] Release.' Id. at 280. Therefore, plaintiffs did not waive their rights to sue defendants for violation of their WARN Act rights." 468 F.3d at 655.
Narans v. Paulsen, 803 P.2d 358 (Wyo. 1990), is very much on point. In Narans, Paulson was the co-maker of a partnership's promissory note. When Paulsen left the partnership the firm bought out his interest, including his obligation on the note. Paulsen gave the firm a release. However, the bank did not release him from the note. The partnership, defaulted on the note, and Paulsen was required to pay the note. He then sued the partnership and the firm raised the release as a defense. The release applied to "any and all claims demands and causes of action which may now exist, whether presently known or unknown." 803 P.2d at 362. The Wyoming Supreme Court held that the release did not bar Paulsen's claim because at the time of the buyout, the partnership had not defaulted, nor had the bank sought payment from Paulsen. Therefore, Paulsen's claim did not exist at the time he left the firm and gave his release. 803 P.2d at 362.
Based upon the language of the release and the case law from other jurisdictions, we conclude that Benton and Rumisek's subrogation rights had not matured into a claim, demand, or cause of action at the time they executed the release contained in the URA. Therefore, Benton and Rumisek did not release their subrogation claims through the URA, and the district court erred in its contrary conclusion.
As an alternate basis for summary judgment, third-party defendants assert that Benton and Rumisek have no subrogation rights because they have not paid MASA's debt to the bank. This argument is based upon the exact opposite of the theory used to support their release defense. They find support in Halpin v. Frankenberger, 231 Kan. 344, 350, 644 P.2d 452 (1982), the same case relied upon by Benton and Rumisek. In Halpin the court stated:
"A surety or guarantor, on paying the debt of the principal, is entitled to be subrogated to the rights of the creditor in all or any of the securities, means or remedies which the creditor has for enforcing payment against the principal debtor or against other sureties or guarantors." 231 Kan. 231, Syl. ¶ 4.
In their statement of uncontroverted facts, third-party defendants assert that while the bank has obtained judgments against Benton and Rumisek on their personal guaranties, neither has satisfied the judgment against him (let alone the entirety of the MASA's debt to the bank). Benton and Rumisek concede that they have not satisfied the judgments but assert without reference to the record that Benton has paid interest on the judgment against him and Rumisek has paid part of his judgment. Supreme Court Rule 141(b) (2008 Kan. Ct. R. Annot. 222) requires Benton and Rumisek to make precise references to the record of the evidence which they claim controverts the claimed uncontroverted facts of the third-party defendants. See Ruebke v. Globe Communications Corp., 241 Kan. 595, 603-04, 738 P.2d 1246 (1987). They have not done so. This assertion by third-party defendants remains uncontroverted.
Part payment will not create a right of subrogation; nor will unsatisfied judgments against Benton and Rumisek on their personal guaranties. See Haysville U.S.D. No. 261 v. GAF Corp., 233 Kan. 635, 646, 666 P.2d 192 (1983). Otherwise, the bank would be required to relinquish its creditor position to Benton and Rumisek under the principle of subrogation while MASA's debt to the bank remains unpaid. See Standard Surety & Cas. Co. v. Standard Acc. Ins. Co., 104 F.2d 492, 497 (8th Cir. 1939).
The fact that at some time in the future Benton and Rumisek may pay MASA's debt to the bank so as to place them in the shoes of the bank with respect to the bank's claims against MASA does not support a claim that Benton and Rumisek are entitled to judgment today declaring they have subrogation rights against MASA. Refusing to judicially declare in these proceedings that Benton and Rumisek may in the future become subrogated to the bank's rights against MASA does not undermine the judicial economy envisioned by third-party proceedings pursuant to K.S.A. 60-214.
Based on the uncontroverted facts now before us, the third-party defendants are entitled to summary judgment on the claim that Benton and Rumisek are subrogated to the bank's rights against MASA by virtue of the bank having obtained judgments against them on their personal guaranties. Benton and Rumisek's rights to be subrogated to the bank's position vis-a-vis MASA is predicated upon full payment of MASA's debt to Emprise, not merely upon being obligated to pay.
--The Cross-Appeal
As a final point on the issue of subrogation, MASA contends in its cross-appeal that the district court erred in finding that Benton and Rumisek had an inherent right of subrogation, rather than requiring a balancing of equities which, if properly done, would have favored MASA and led to the conclusion that under equitable principles Benton and Rumisek had no subrogation rights. The district judge found: "I agree with 3PPs that no equities need balancing in determining whether the right of subrogation exists for 3PPs. Such a right is inherent between a surety and his principal." We agree in principle with the district court on the inherent right of subrogation. However, as discussed earlier, that right is predicated upon payment by the guarantors, a condition which is yet to be satisfied.
As MASA correctly notes, modern subrogation is a creature of equity. However, Benton and Rumisek's rights as guarantors to be subrogated to the bank's rights against MASA do not arise from the modern expansion of subrogation based upon equitable principles. As explained by the Kansas Supreme Court in Fenly v. Revell, 170 Kan. 705, 709, 228 P.2d 905 (1951):
"In the beginning the doctrine of subrogation was somewhat strictly and narrowly applied and was limited to transactions between principals and sureties. As the years went by it was liberalized and expanded to the extent it can now be said that it is a favorite of the law and applied to almost every kind of a situation where it will subserve the ends of justice and equity. [Citations omitted.] . . .
"'. . . Since the doctrine was first ingrafted on equity jurisprudence, it has been steadily expanding and growing in importance and extent, and is no longer, as formerly, limited to sureties and quasi sureties, but is now broad and expansive and has a very liberal application.'"
The absolute right of subrogation as between surety and principal has been affirmed by several other Kansas cases. See Benschoter v. First National Bank of Lawrence, 218 Kan. 144, 154-55, 542 P.2d 1042 (1975), appeal dismissed 425 U.S. 928 (1976); Mountain Iron & Supply Co. v. Jones, 201 Kan. 401, 408, 441 P.2d 795 (1968); Blitz v. Metzger, 119 Kan. 760, 768, 241 Pac. 259 (1925); Western Surety Co. v. Loy, 3 Kan. App. 2d 310, 312-14, 594 P.2d 257 (1979). Accordingly, we conclude that the district court did not err, as MASA claims in its cross-appeal, in recognizing that the equities need not be weighed in determining a guarantors' subrogation rights.
In the operating agreement, MASA agreed to hold harmless its manager, board of directors, and its members from any and all losses or claims incurred "by reason of the fact that an Indemnitee is or was a Member," subject to conditions which are not relevant here. (Emphasis added.) In denying Benton and Rumisek's motion for summary judgment and granting MASA's motion, the district court made no specific mention of the indemnification claims. This is of no moment since our consideration of the motions is de novo.
Indemnity is "an obligation resting on a party to make good any loss another has incurred while acting at his request or for his benefit." Missouri Pacific Railroad Co. v. City of Topeka, 213 Kan. 658, 662, 518 P.2d 372 (1974). Indemnity generally arises from either an expressed contract of indemnity or an implied right of indemnity "when one is compelled to pay what another party ought to pay." Haysville U.S.D. No. 261, 233 Kan. at 642.
If there is an ambiguity in a contract of express indemnity, we apply the general rules of contract construction. Chetopa State Bancshares, Inc. v. Fox, 6 Kan. App. 2d 326, 332, 628 P.2d 249, rev. denied 229 Kan. 669 (1981). Generally, "the important question to be determined is the intention of the parties, and effect should be given to that intention if such can be done consistently with legal principles. [Citations omitted.]" Missouri Pacific, 213 Kan. at 662.
K.S.A. 17-6305(a) permits a corporation to indemnify persons with respect to actions against such persons "by reason of the fact that such person is or was a director, officer, employee or agent of the corporation." This broad indemnity power is also available to limited liability companies pursuant to K.S.A. 17-7670(a) and may apply to "any and all claims and demands whatsoever."
There is no Kansas case law that directly addresses the issue of whether MASA's promise in its operating agreement to hold its members harmless from claims incurred "by reason of the fact that an Indemnitee is or was a Member" of MASA applies to the bank's claims against Benton and Rumisek on their personal guaranties of MASA's debt. However, because Kansas corporate indemnity law is modeled after Delaware's law on the subject, see Fleischer v. F.D.I.C., 70 F. Supp. 2d 1238, 1243 (D. Kan. 1999), we look to Delaware for guidance.
Witco Corp. v. Beekhuis, 38 F.3d 682 (3d Cir. 1994), considered Delaware's similar indemnity principles. In Witco, the court stated that Delaware's indemnification provisions are to be interpreted broadly in order to fulfill the public policy of encouraging "'capable men to serve as corporate directors, secure in the knowledge that expenses incurred by them in upholding their honesty and integrity as directors will be borne by the corporation they serve.' [Citations omitted.]" 38 F.3d at 691. The court held that a corporate officer has the right, as a matter of law, to be indemnified by the corporation if there is a close nexus between the lawsuit filed against the officer and his status as a corporate officer. 38 F.3d at 692-93.
In Heffernan v. Pacific Dunlop GNB Corp., 965 F.2d 369, 372 (7th Cir. 1992), the court broadly interpreted Delaware's "by reason of the fact" indemnity provisions. Heffernan, a member of the company's board of directors, sold his personal stock in the company to Pacific without disclosing certain liabilities the company faced. When Pacific sued Heffernan pursuant to § 12(2) of the Securities Act of 1933, 15 U.S.C. § 77l, for material misrepresentations in the sale of his stock, Heffernan sought indemnification from the company. In finding that the suit against Heffernan was "by reason of the fact" that he was a director of the corporation, the court noted:
"Delaware is no neophyte in corporate law matters. Had it desired to limit permissible indemnification solely to those suits in which a director is sued for breaching a duty of his directorship or for certain enumerated causes of action, it would have jettisoned the supple 'by reason of the fact that' phrase in favor of more specific language. Had Delaware desired to so limit its indemnification statute, we are confident that it could have found the words. [Defendants] have given us no reason to doubt that Delaware's choice of language was anything but purposeful and strategic. We believe that Delaware's 'by reason of the fact that' phrase is broad enough to encompass suits against a director in his official capacity as well as suits against a director that arise more tangentially from his role, position or status as a director." 965 F.2d at 375.
The nexus between the bank's claims against Benton and Rumisek and their status as members of MASA is clear and close. The need for operating funds for the new venture was immediate. The Bank provided those funds. The bank's loan was conditioned upon personal guaranties from the principals as additional security. The personal guaranties of Benton and Rumisek were a sine qua non for MASA's operation. MASA was unable to meet its loan obligation, and Benton and Rumisek were called upon to honor their guaranties. There is a clear and close nexus between the bank's actions to enforce these guaranties and Benton and Rumisek's participation in MASA. They are entitled to indemnification from MASA.
MASA argues, however, that Benton and Rumisek released their right to indemnity when they signed the URA. For the reasons discussed earlier in the subrogation context, we disagree. Until MASA defaulted on the loan and the bank took action against Benton and Rumisek, there was no claim upon which to predicate a right to indemnity. Benton and Rumisek had no claim, demand, or cause of action for indemnity against MASA at the time they executed the URA. Since then the bank has obtained judgments against Benton and Rumisek on their guaranties of MASA's debt. MASA is obligated to indemnify Benton and Rumisek with respect to those judgments. The district court erred in entering judgment in favor of MASA on this claim and in denying summary judgment to Benton and Rumisek for indemnity.
Benton and Rumisek contend that although the four principals of MASA each guaranteed an equal amount of MASA's debt to the bank, Benton and Rumisek have been ordered to pay more than their proportionate share. Thus, they contend they are entitled to contribution from Idbeis and Fleming to the extent this disproportionate share of MASA's debt has been imposed on them. The district court rejected this claim, finding that "[n]o one doctor is liable beyond 25% of the total debt."
Under Kansas law, a guarantor may seek contribution from a co-guarantor. Even absent an explicit agreement to do so, "it is clear that one co-guarantor has a common law right to contribution from his co-guarantors." Halpin, 231 Kan. at 350. This obligation is not based on the guaranty agreement itself, but "on an implied agreement that if the guaranty is enforced, each guarantor will contribute his or her just proportion of the amount for which he or she might be held liable." Kee v. Lofton, 12 Kan. App. 2d 155, 159, 737 P.2d 55 (1987). Each co-guarantor's obligation of repayment and subsequent contribution "must be equally and ratably made." 12 Kan. App. 2d at 159. However, a co-guarantor's right to contribution "does not arise until a guarantor has paid more than his or her share of the common obligation." 12 Kan. App. 2d at 160. Until such payment is made, this right to contribution is merely contingent. 12 Kan. App. 2d at 160.
The record supports Benton and Rumisek's allegation that they have been ordered to pay more than their 25% proportionate shares of MASA's debt. The district court entered a judgment in favor of the bank and against Rumisek on his guaranty for $375,000 plus interest and fees. Prior to the entry of judgment against Benton, he settled with the bank and agreed to pay the bank $375,000 plus interest. As a result, Benton and Rumisek are together responsible for $750,000 of the $1,232,315.24 principal (approximately 30.4% each) due on MASA's credit line. Their pro rata share was only 25% each.
The district court erred in concluding that each co-guarantor was only asked to pay 25% of the Emprise debt. Nevertheless, Benton and Rumisek have not yet made payments to the bank that exceeded their 25% proportionate share of MASA's debt. Until they do so, they have no claim against Idbeis and Fleming for contribution. See Kee, 12 Kan. App. 2d at 160. Thus, the court did not err in entering judgments in favor of Idbeis and Fleming and against Benton and Rumisek on these claims.
Fiduciary Duty
Next, Benton argues that the district court erred in granting summary judgment to Idbeis on the ground that Benton's fiduciary duty claim was moot. Benton further alleges that if the district court had reached the merits of his claim, he would have prevailed because Idbeis breached fiduciary duties under the operating agreement and the LLC resolution.
Once again, the district court's lack of specificity in its ruling does not present a hurdle because our review is de novo. Idbeis was designated the manager of the firm's operation. As such, he owed a fiduciary duty to the other members of MASA, including Benton. See Reebles, Inc. v. Bank of America, N.A., 29 Kan. App. 2d 205, 208, 25 P.3d 871, rev. denied 272 Kan. 1419 (2001) (holding that a fiduciary relationship exists, by contract or by operation of law, "where there has been a special confidence reposed in one who, in equity and good conscience, is bound to act in good faith and with due regard to the interests of the one reposing the confidence"). Kansas law "'imposes a very strict fiduciary duty on officers and directors of a corporation to act in the best interests of the corporation and its stockholders.' [Citation omitted.]" Burcham v. Unison Bancorp, Inc., 276 Kan. 393, 416, 77 P.3d 130 (2003). As a consequence of this duty, corporate officers and directors "'are liable to the corporation and the stockholders for losses resulting from their malfeasance, misfeasance or their failure or neglect to discharge the duties imposed by their offices.' [Citations omitted.]" 276 Kan. at 416.
Benton points to the following provision in the operating agreement: "The Manager/President shall be imposed with a fiduciary duty to conduct the business and affairs of the Company in the best interests of the Company and of the Members." Further, he cites the LLC resolution given to the bank at the origination of the loan. In it, MASA's principals promised to "do all things necessary to preserve and to keep in full force and effect [MASA's] existence, rights and privileges, and shall comply with all regulations, rules, ordinances, statutes, orders and decrees of any governmental or quasi-governmental authority or court applicable to the Company and the Company's business activities." Benton argues that he relied on Idbeis as a fiduciary in handling matters related to the Emprise loan.
Upon signing the URA and surrendering his shares in MASA, Benton ended his membership in MASA. Accordingly, any fiduciary duties Idbeis owed to Benton as a member of MASA ended. While Benton is entitled to reimbursement from MASA for payments he makes on MASA's debt to the bank, Benton is not entitled to damages for breach of fiduciary duties based upon Idbeis' conduct occurring after Benton surrendered his shares and was no longer a member of MASA.
Further, to the extent that Benton claims Idbeis failed to meet his fiduciary duties while Benton was a member of MASA, those claims were released when Benton signed the URA in which he released MASA and its members "from any and all claims, demands, or causes of action of whatever kind or nature, known or unknown, which [Benton] may have had in the past or may now have."
Idbeis is entitled to summary judgment on Benton's breach of fiduciary duties claim.
Alter Ego
Finally, Benton and Rumisek argue that the district court erred in granting summary judgment to Idbeis on their alter ego claim, finding the claim to be moot. In our de novo review we must determine whether, viewing the facts in the light more favoring Benton and Rumisek, there is a genuine issue of material fact requiring a trial on this claim
As stated in Kilpatrick Bros., Inc. v. Poynter, 205 Kan. 787, 797, 473 P.2d 33 (1970):
"[T]he doctrine of alter ego fastens liability on the individual who uses a corporation merely as an instrumentality to conduct his own personal business, such liability arising from fraud or injustice perpetrated not on the corporation but on third persons dealing with the corporation. Under it the court merely disregards corporate entity and holds the individual responsible for his acts knowingly and intentionally done in the name of the corporation. [Citation omitted.]"
See Mr. Cinnamon of Kansas, Inc. v. Hall, 41 Kan. App. 2d 457, Syl. ¶ 4, 202 P.3d 734 (2009).
In State ex rel. Graeber v. Marion County Landfill, Inc., 276 Kan. 328, 355, 76 P.3d 1000 (2003), our Supreme Court identified eight factors for courts to consider in resolving whether to pierce the corporate veil and hold the corporation's owner personally accountable:
"'(1) Undercapitalization of a one-man corporation, (2) failure to observe corporate formalities, (3) nonpayment of dividends, (4) siphoning of corporate funds by the dominant stockholder, (5) nonfunctioning of other officers or directors, (6) absence of corporate records, (7) the use of the corporation as a facade for operations of the dominant stockholder or stockholders, and (8) the use of the corporate entity in promoting injustice or fraud.' [Citation omitted.]"
Single ownership of a corporation is not sufficient by itself to call the corporation an alter ego of the owner and pierce the corporate veil. Poynter, 205 Kan. 787, Syl. ¶ 6. The cases do not enumerate how many factors must be present before a corporation is determined to be an alter ego of its owner.
MASA and Idbeis argued that Benton and Rumisek produced no evidence to substantiate any of the Graeber factors. However, Benton and Rumisek focused on four of the Graeber factors in responding to MASA and Idbeis' summary judgment motion: undercapitalization, siphoning, using the corporation as a facade, and promoting injustice. They also cited facts "general to all the Graeber factors." Obviously, to create a genuine issue of material fact, the facts giving rise to this claim must have occurred after Fleming, Benton, and Rumisek left MASA in the summer and fall of 2005.
We are mindful that whether MASA is Idbeis' alter ego is a question of fact. See Doughty v. CSX Transportation, Inc., 258 Kan. 493, 498-99, 905 P.2d 106 (1995). It is well established that "[e]ach case involving disregard of the corporate entity must rest upon its special facts." Sampson v. Hunt, 233 Kan. 572, 579, 665 P.2d 743 (1983); Golconda Screw, Inc. v. West Bottoms Ltd., 20 Kan. App. 2d 1002, 1011, 894 P.2d 260 (1995).
In support of the undercapitalization factor, Benton and Rumisek point out that although MASA could afford to pay Idbeis' salary and judgment to WSS, Idbeis informed the bank in 2006 that MASA was not generating enough money to make its monthly payments. They also point out that Idbeis lent MASA money from his personal checking account so that MASA could make payroll without issuing promissory notes for the loans, though this is more of a failed formalities fact than an undercapitalization fact.
In support of the siphoning factor, Benton and Rumisek cite Idbeis' 2006 payment of WSS's judgment against him using the proceeds from MASA's bank loan. MASA points out that Benton and Rumisek agreed before they left that MASA should bear this expense. But, Benton and Rumisek cite Idbeis' payment of a second portion of the judgment out of MASA's loan proceeds, and they take issue with the accounting practices Idbeis used to report these payments.
In support of the facade factor, Benton and Rumisek cite Idbeis' use of MASA funds and corporate facilities to conduct the business of a separate company Idbeis owns, Cardiovascular Hospitals of America. However, they do not cite any specific, post-2005 instances or events in this regard.
In support of the promoting injustice factor, Benton and Rumisek cite the creation of Cedar Surgical and the transfer of MASA's physical, financial, and personnel assets, including the Emprise loan proceeds, to Idbeis' new company in 2006. They argue that by this transaction, Idbeis is attempting to avoid MASA's Emprise loan obligation.
We express no opinion regarding the ultimate merit of this claim. Nevertheless, viewing the facts in the light most favorable to Benton and Rumisek, we are unable to declare as a matter of law that there is no genuine issue of material fact and that MASA and Idbeis are entitled to judgment on this claim. Summary judgment is not appropriate on this claim since it is predicated on disputed facts which must be resolved at trial.
Based upon our de novo review, we summarize our conclusions as follows:
Affirmed in part, reversed in part, and remanded for trial.


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J-Roll's Ride
As every baseball fan knows, Jimmy Rollins' historic hitting streak ended at 38 games yesterday. It was quite a ride.
It also was a ride filled with various emotions. Such as this e-mail response from an unnamed person:
"It was a nice thing when Jimmy Rollins ended last year with a 36 game hitting streak, but no way it should be continued into the season. The players with the longest streaks in history all accomplished this feat within the length of one season. They did this while dealing with the wear and tear of the long season, they didn't have the benefit of a 6 month layoff to heal injuries and to recharge their batteries. The 36 game streak was fantastic but let's use yesterday's (April 3) hit to start a new streak not continue an old one."
There are arguments as to whether Jimmy had an advantage or a disadvantage with the six-month break. He was in a groove when the 2005 season ended and after six months, it was going to be tough to get back in that groove again.
True, the other hit streaks all came in one season and it could create wear and tear. Joe DiMaggio (56 games), Willie Keeler (44), Bill Dahlen (45), George Sisler (41) and Ty Cobb (40) didn't face the media explosion that hit Jimmy. Pete Rose (44) and Paul Molitor (39) did face a little of the media mass.
Here's what Jimmy faced since the start of spring training: ESPN TV (SportsCenter, Cold Pizza, Classics Now, Baseball Tonight), ESPN Radio, ESPN.com, Jim Rome Show, This Week with George Stephanopoulos on ABC TV, USA Today, New York Times, San Francisco Chronicle, ESPN The Magazine, Sports Illustrated plus the Philadelphia media. Rollins handled all of that very well. It could have been a distraction. Instead, he fed off it.
ESPN TV was going to have a crew follow him daily once the streak reached 40. As Catie DeVito, ESPN MLB Assignment Editor, e-mailed: "We jinxed him." Major League Baseball Productions was also prepared to become a daily media addition. Probably tons of other media would have also joined the chase.
The ride also contained some confusion.
According to Elias Sports Bureau, the official statisticians of Major League Baseball, the two-season streak is a bit unknown. Rollins finished at 38. Willie Keeler had a hit in his final game in 1896 and the first 44 games of 1897. Is Rollins second with 38? "We just don't know if
there are any other players who may have hit in 20 games at the end of one season and 20 at the start of the next," explained Ken Hirdt, one of the historians at Elias Sports Bureau.
Rollins will go down in the record book with having the eighth-longest streak. That's a fact.
Karol Silverstein, a Phillies fan in the Los Angeles area, summed up the ride in an e-mail earlier this week:
"On Monday, when Jimmy got his hit in the eighth inning, my household exploded with excitement, as did the fans who'd remained at Citizens Bank Park despite the weather and the score. We all earned the right to share in Jimmy's victory by virtue of our loyalty."
1 Comment
Nice. But Rollins was ruined by people jinxing him, and that's a fact.


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Dad gum it! I missed the premiere! I can watch it on Friday when they replay it. (CNBC?)And Omarosa is back?
I had a dream last night that I was at the hospital and Omarosa was my nurse... She walked out of the room because she had to go deliver a baby but the mother refused to let Omarosa in the room because she thought Omarosa was going to kill the baby. Sorry, not really related.
Dennis Rodman does not bring any form of entertainment
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Emma Stone Destroys Jimmy Fallon in the Latest Lip Sync Battle
Oh, Jimmy Fallon, you just don't stand a chance. Sure, your lip sync skills are above average, better than what most normal people could show off, and you should be proud. Really! But, let's be honest, 'The Amazing Spider-Man 2' star Emma Stone is perhaps the most accomplished lip sync artist to ever hit the 'Tonight Show' stage.
Fallon challenged his guest to an epic round of lip sync battling last night, and although he certainly started off feeling strong and in charge, that crumbled within mere seconds of Ms. Stone hitting the stage. Can Fallon pull it out for this second attempt? Take a look.


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In The Handbook of Medway History, 1713-1913 by Orion T. Mason (1913), I came across the following interesting tidbit:
"For many years all newly-married men were elected "Hog Reives" at the annual April meeting." This item was dated 1800.
Of course, one of the challenges with this is that there are no parameters with which to frame the tradition. The text doesn't say when the practice started or ended. There may, however, be more information about that in the Medway Town Record Books.
Also, one would think that if a gentleman was elected a Hog Reave that his marriage had been recorded in the town record book. You would think the marriage record was one of the factors in getting him appointed.
However, genealogy being the quirky discipline that it is, you may just find this works as a marriage substitute in some cases.
I wonder if this was a common tradition in other Massachusetts towns. Let me know if you have come across traditions like this for newlyweds in your research.
Source: Orion, T. Mason, The Handbook of Medway History, 1713-1913. (Medway: G.M. Billings, Printer, 1913), 27.
Sunday, January 16, 2011
"Hog Reives" and Newlyweds
Posted by Marian at 9:54 PM
1 comment:
Hi Marian,ReplyDelete
I haven't come across this tradition, but in letters to my grandmother from "the old country" (i.e. Austro-Hungary before it became Romania), she was chastised by her former employer for rushing off so quickly to get married to my grandfather who had come to America first. The boss claimed her marriage wouldn't be valid unless it had been officially announced in their home church! Not as quirky as what you describe, but an interesting idea. I've blogged several of my grandfather's letters on the 100th anniversary of their writing (November & December) and will be adding more this year -- the 100th anniversary of Josef Gärtz arriving in America.
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5 Passenger, 4 Baggage, 4 Doors, Air Conditioning, Manual Transmission
Fuel consumption: 39.2 m/g
CO2 emission: 172 g/km


text:
TMC wrote:What a confusing thread.
What a retarded thread, actually.
Learn something about Dungy's life before speaking about him, particularly about his personal life.
Oh, and money doesn't matter to him. He's gonna get paid nonetheless, as a HC, analyst or whatever... so if he ever comes back, it will be because he feels like he has something else to do as a HC. Although he'll probably return, at some point, as a team president or something.
like I said, he will return. He is good and he will be paid a lot more than
he would as an analyst.
Money matters to everyone, even if Saint Tony
gives it to his church.


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Chris had been a Weight Watchers meetings member when she got pregnant with twins. Then, after she gave birth to daughters in November 2000, she was eager to get back on the Plan. After six weeks, her doctor gave her the go-ahead, and she went straight to her meeting room to try to get back on track.
Weight loss while nursing is individual. "Some women become thin while lactating," says Lauren Outland, a Santa Monica, California, certified nurse midwife and doctor of public health. "And some will maintain five to 10 pounds that won't go away until after they stop nursing."
You will feel hungry! "The increased appetite during lactation is almost universal," says Outland. "Women who are weaning their children will notice that their appetite slows down tremendously."
It's a great time to start losing weight. "Capture the advantages that this time of life brings," says Miller-Kovach. Chris, the mom of twins, says she had a relatively easy time losing weight while nursing: "The weight seemed to come off fairly quickly, plus I felt satisfied. I also knew that I was eating healthy being on the Plan, which was good for all three of us!"
Healthy Baby, Healthy Weight Loss
What is "too exuberant"? If you're losing too much weight, says Miller-Kovach, it will affect your milk production, which could affect your baby's health. She says: "An average loss of one pound per week can successfully achieve weight loss without affecting the quantity or quality of milk."
Weight Watchers has designed guidelines for its meetings members and online subscribers for adapting the Plan to the special nutritional requirements of nursing moms. Once you've had your baby, check with your doctor to see what he or she thinks about your plans to lose weight while nursing.
If you're a breastfeeding mom losing weight with Weight Watchers, your PointsPlus Target can be adjusted. While nursing, your body needs more nutrients than before your pregnancy. You also need to adjust some of your Good Health Guidelines while breastfeeding. Increase your milk servings from two to three and bump up your fruit and vegetable servings from five to eight. You should also increase your servings of lean proteins and healthy oils to three and make sure to have eight glasses of liquids per day.
If you attend meetings, you'll be able to receive personal support with your special weight loss concerns. Online members can also share ideas with other new moms on our Calling All Moms message board.
A good thing to note: If you're a meetings member before you get pregnant, it is possible to freeze your membership while you're pregnant (you cannot lose weight with the Weight Watchers plan during pregnancy). Check with your Leader for more information.


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What's inside? Here are the questions answered in today's reader mailbag, boiled down to five word summaries. Click on the number to jump straight down to the question.
1. Building website skills
2. Which credit counseling service?
3. Serious mortgage trouble
4. Thermostats, nighttime temperatures, and kids
5. Shady credit union practices
6. Direct stock purchasing
7. Frozen interest rates?
8. Which debt to pay first?
9. Huge student loan debts
10. Company cuts 401(k) match
Somewhere during the last week or so, I picked up a pretty vicious cold. I'm not surprised – the stress level around here (with lots and lots and lots of things going on) has been pretty high.
I might just spend the afternoon drinking tea, eating some toast, and not doing much at all other than resting.
Q1: Building website skills
I've come up with a few website ideas that I think are really good.
The problem is that my developer skills are both incomplete and rusty. I took a basic web design class in high school (10 years ago), and a couple basic programming classes in college (6 years ago).
The only way I can think to learn this is to take some courses at a community/technical college. But I have no money to put into it. Are you aware of any free resources (books I can probably find at the library, online resources) to learn how to build a functional website?
– Julia
It really depends on what you're trying to build.
If you're trying to start a blog, the content matters way more than the design does, especially at first. Just start a blog at blogger or WordPress and get started with one of the default templates. If it takes off, then invest the money and get someone who can actually design a template do the work for you (I did my own here, but I will probably revise it soon with some help).
If you're thinking of something else – a static site, or something like that – you have a couple of options. You can stick to something really basic and teach yourself using online web documentation, but there's a bit of an upper limit on what's feasible if you're approaching this from an "on the side" angle. On the other hand, you could simply get a copy of Adobe Dreamweaver and learn how to use that.
Q2: Credit counseling services
A recent posting mentioned Consolidated Credit Counseling Services. If you were thinking of using a service like that, which one would you use?
– Kathy
I don't recommend any particular credit counseling services, as I don't have experience with enough of them to recommend any. However, I can tell you what I would look for in such a service if I were looking for one.
I would start with my state's Consumer Protection Office and ask for a list of recommended agencies – i.e., ones that are in good standing with the state. I would make sure that they're affiliated with the NFCC or the AICCCA, meaning they're at least accreditable to some larger entity. I would meet with at least a few of these agencies and determine which ones meet my needs. Ask them for a full disclosure of all of their fees.
Remember, though, with credit counseling, the odds are not in your favor. According to Liz Weston, only a third of people who meet with credit counseling services wind up in their program, and those programs have a 45% dropout rate. You have about a 1 in 6 chance of actually being helped from a consumer credit counseling service.
Q3: Serious mortgage trouble
My nephew and his girlfriend are in deep trouble with their mortgage and finances. They bought a house for $489,000 couple of years ago and got a mortgage paying 8.5% interest only, which will change in a couple years and will have to start paying principal too. The house appraised @ #350,000 or so last year (probably worth less now). They both have good managerial jobs in retail & newspaper, but have not been frugal in saving. My other concern is that the industry that they are in is not stable. They have brought alot of luxury things, so they have other bills as well and don't have much savings. Plus they have a baby along it's way. My question is where do they get help. They have tried to refinace their mortgage but the mortgage company is not of much help. Should they walk away from this mortgage or is there some kind of government help that they can pursue?
– Grace
I'm really surprised that their mortgage company isn't of much help. The government is strongly encouraging mortgage lenders to get bad mortgages off of their books and this certainly sounds like a bad mortgage. Have they tried to refinance in the last six to nine months? If not, they should try again.
If the company truly won't work with you, they should take a serious look as to what happens with the mortgage when they have to begin paying principal. Since this is not a standard mortgage, does the interest rate adjust? How much principal are they going to have to pay?
In the next two years, they're going to simply have to make some hard choices. Are they willing to give up their luxury goods? Are they willing to give up their home? One of those is going to have to give.
Q4: Thermostats, nighttime temperatures, and kids
My husband and I have had a programable thermostat for years, and always had the temp go down when we are at work or when we're asleep. However, last year we had twins. They were born in November, and since they were tiny and fragile, and since we were home 24/7 and up all hours of the night, we just sort of let the thermostat stay at a constant 68 degrees. (which is pretty much as low I am willing to go, I truly dislike being cold.) We swaddled the babies as long as we could, then employed fleece sleep-sacks and layered onesies/footed jammies and hats at night. Now they are almost a year old, which is when those authorities who approve such things say you can put blankets in the crib, etc. The boys do sleep all night most nights, and we still use the PJ's and sleep sacks. However, I am hesitant to use the thermostat to drop the temperature down during the night again because they move around so much at night, I don't think they would keep a blanket on, and even with the sleep sacks and layered pajamas, they always have ice cold hands and feet when they are sleeping, even with the temp staying solid at 68 degrees. Also, we do still occasionally have middle-of-the-night wakings, when we are forced to be up and about and tend to babies. Usually we just throw extra blankets on the bed hen the real cold comes, but I am at a loss of what we can do about the babies. They are no longer frail little peanuts, they are solid, healthy, almost-one-year olds, but I don't want them to be cold or uncomfortable at night. I would, however, like to save where I can with the heating bill. We live in a decently-insulated, modest 3-bedroom house near Chicago. Winters can be pretty brutal. We no longer have periods of time during the day when no one is here like we used to. We have someone come to our house to take care of them when we work, and when we don't we're often here all day anyway. What do you do to keep your kids warm at night, and let the temperature in the house drop down to save money? What about when someone is home all day? Or should we just suck it up to another essential expense of having kids until they are able to stay put in bed?
– Jennifer
As I've mentioned before, the benefit of dropping the temperature in your home comes when there's no one active in your home – during the day if it's empty and at night when everyone is sleeping.
Your note obviously eliminates the daytime drop as there are people at home and active. You've also noted a lot of different reasons why you don't want to drop it at night.
If it's personally important to you, then don't drop the temperature at night. Simple as that. We drop the temperature some at night (down to 60F), even with three kids under five at home. There's never been a problem with it.
Q5: Shady credit union practices
I am buying a house, thanks in no small part to you and your helpful blog, which I have been reading for years. For seven years I have banked at a wonderful, friendly credit union. They know all their clients by name. They have a lot of clients who have been through homelessness, addiction, etc and are only now (in their 40's and 50's, etc) opening their checking or savings account with them, and they are wonderful with these clients. They give tiny loans for $300-500 for clients to buy bikes to get to and fro from work, etc. In short, I have always thought this was the most progressive and wonderful credit union.
When I went to look at my credit report, however, I found that they had erroneously reported that I had paid my tiny revolving credit line 90 or more days late, multiple times. Of course this was an error — I've never been late on a payment, so I took all my records in and expected that they would clear the problem up right away. I was horrified when they basically acted like it was my fault, like I had made lots of late payments, and they casually told me they'd "look into it" and acted insulted when I asked for a manager or someone else to help me.
The mortgage broker had suggested I stand firm and insist on speaking with someone in charge, so I did — but they acted put off and angry. The person they finally brought out for me made me wait a long time and then did not call me for more than a week (she said she would call the next day.) When they found it was indeed an error, they insisted that I do all the work to call Experian and Equifax, formally dispute the charges and then they would "work on it." One of those companies wants me to pay $10 to get their report before I can make an online dispute!
This makes me really sad. Personally, if someone came into my job and told me I would make a mistake, I would drop everything and research the issue until it was resolved. Especially if it was a good, long-term customer! I felt I had a personal relationship with the staff at this credit union, and now feel like they think I'm just some delinquent. Is this sort of behavior normal for a bank? Should I find a new credit union? Or am I just putting way too much personal feeling into a relationship that never existed?
– Linda
This doesn't sound like an overall credit union problem. This sounds like an employee of a credit union who doesn't want to put in any legwork.
If I were you, I would go to the credit union and escalate this. Bring in every evidence you can of your on-time payments. If the person at the counter won't help you, escalate. If that person won't help you, escalate.
If your story is accurate, the credit union is having some personnel issues that need to be addressed. Those aren't good practices for any financial institution.
Q6: Direct stock purchasing
I've been reading your blog for the past few months and love it. I have a question about buying stock direct from an S&P-500 company. Right now, I have a few shares of company X in a Sharebuilder account. SB charges $9.95 (or something like that) per transaction, whereas if I buy stock directly through company X it only costs me $1 + $0.10 per share transaction. I plan on buying $20 or so per month in a buy-and-hold type of strategy because of the steady dividend payments on the stock. Do you think this is a good idea to avoid "high" brokerage fees? Secondly, the information on company X's website indicates that it is possible to transfer shares from a brokerage to an account with them, but in order to do that – the shares must be assigned to me. How would I go about doing this so that I may transfer the shares to company X's account?
– Josh
This is a good plan if you're looking at it from the narrow perspective of investing just in the stock of one company.
However, you should keep in mind that a single company's stock is a very poorly diversified investment. If that company fails, you lose most of – if not all of – your invested money. You should be counterbalancing this investment with investments in other things.
You also need to check and see what the policy is for selling the shares should you choose to do so. If they make it difficult in any way, that's another red flag.
Q7: Frozen interest rates?
I just tried to use your blog post about calling the credit card company and asking for a rate reduction. I spoke with two people and was told that my credit union has frozen their ability to lower interest rates until February of 2011 because of the recent changes in government policy. Now, this definitely sounds like a [fishy story] to me, bit could there be any truth to it?
This might very well be the credit union's policy. I'm not involved in the business analysis at that credit union, so I don't know.
However, I will say that such a policy isn't directly mandated by any government source that I'm aware of or that I could find while researching it.
Most likely, this is a temporary policy of the credit card company while they try to figure out their new game plan after the new credit card act that was just passed.
Q8: Which debt to pay first?
I just finished (re)filling my emergency fund to a level that gives me comfort – just around 10k.
I have about 1000 per month in free cash flow that I can use to pay down debt.
A) 17k private student loan @8% variable 18 / 20 years remaining. $150 monthly
B) 7k auto loan @ 6% fixed with 24 payments left. $350 per month.
I save more money over the long run with option a, as well as reduce my risk of the variable rate increasing. But with b, I can change my cash flow situation rather quickly (e.g. extra 350 per month in a matter of 6 to 8 months). My brain tells me to go with a because of the long term savings, but my gut with b because the vehicle has a shorter usable life than the education, and the cash flow change is dramatic.
What are your thoughts?
– Chris
You've pretty much hit the nail on the head with your description of the two options.
I would look at other factors for the decision. How stable is your current employment? The more stable it is, the more I would lean towards option (a). How about your personal life? Is there marriage or a move or a child coming up? Again, the more stable things are, the more I would lean towards option (a).
Cash flow helps the most when you're getting ready for changes because you can bolster your short term savings with it. If things are stable, then option (a) puts more cash in your pocket in the long run.
Q9: Huge student loan debts
I am almost 27 years old and I have a HUGE amount of debt. HUGE. After graduating from high school in 2002, I was accepted into a highly competitive 6year medical program that took students from high school and put them directly into medical school without having to get a degree before applying. The first 4 years of school went fine and I was successful academically. Everything changed for me in my 5th year when my father passed away suddenly from small cell lung cancer. I got way off track emotionally and let my school take a back seat to my bereavement. I took a sabbatical from school for 1 year to study for Step 1 of the boards and deal with my family issues. Needless to say, I didn't study enough and I failed boards. Then I came back to school and retook the boards and failed them again. The school I was attending sent me to the Doctoral Candidate Review Board and I was dismissed from the program. At that point, I had had no job or income and was living off of student loans for school and for living costs. In total, I was taking out an average of $50,000/year split between private and public loans. After that career opportunity ended, I knew that I needed to get a job as quickly as possible and was hired in a supervisor role make $35,000/year. I have done Financial Peace, religiously read your blog along with an assortment of other personal finance blogs, and put myself on a very strict budget. I have worked with my loan companies and got an academic deferment for my public loans (I am now pursuing an MBA which my company is graciously paying for) and an economic hardship payment plan with my private loans. I have created a debt snowball and have eliminated any other kinds of debt ie credit card or small student loans (sub $5000). Recently, the most amazing and frightening thing happened to me and I was blessed with a beautiful baby girl. Prior to my daughter's arrival in my life, I was barely making ends meet and planning for the future that I wanted. I was investing 10% of my income in my 401K, and putting $200 of every paycheck into my emergency fund, car repair fund, and xmas/birthday fund. Now, with Lila entering the daycare stage of her life, I am incurring costs that I never had the forethought to plan for. My big question is, what course of action would you recommend for me to get out from under this debt and keep my mistakes from negatively impacting the quality of my daughter's life?
Pertinent numbers
Total Public Student loans: approx $225,000 at 5.375% interest – deferred till 2012
Total Private Student Loans: approx $85,000 at 4.20% interest – economic hardship, making $575 payments monthly
Rent/Utilities – $900
Avg costs for my daughter: $500
Bi-weekly take home pay is $950
From what I have read, you cannot declare bankruptcy on student loans but I feel like I have my back against a wall.
– Cary
That is backbreaking debt, no doubt about it. It is stories like these that make me very nervous to encourage people to incur a lot of student debt. If something goes wrong, you're buried for a very long time without anything to help you out. Even if you make it, it slurps up a hefty chunk of your income for a very long time.
As for your problem, your best bet (that doesn't involve trashing your credit, wage garnishments, and probable lawsuits) is to focus hard on that MBA and get yourself in the best position you possibly can by 2012. Every single dollar choice you make will impact this – you can't afford any more debt and you need an emergency fund to protect yourself against that possibility. It's time for used cars, beans, rice, and salad, my friend.
The problem with student loans is that they don't go away. You can get sued at any time for an unpaid student loan. They can wage garnish you at any time for an unpaid loan. They just stick around until you pay them off. Your best approach over the long run is to face this challenge head on with everything you've got.
Q10: Company cuts 401(k) match
I am aggressively funding my emergency fund for 6 months of expenses following graduation but I have another question. You, and many other finance books, suggest only funding your 401(k) to the company match and using any excess to fund your Roth IRA. Due to the recession, my company has not matched at all for 2010 but may start again in 2011. Nevertheless, I continue to put 6% into my 401(k) and zero into my Roth IRA. This is in addition to funding my emergency fund. Should I re-direct the 6% to my Roth IRA until my company decides to match or keep things the way they are now?
– Lacey
I would start a Roth and contribute to that until the match returns. There are two big reasons for this. One, you're almost always going to find better investment opportunities in a Roth due to the freedom of choice. Two, the money in the Roth is after-tax money – you won't have to pay taxes on it when you take it out later.
As for whether the matching will return, I would bet on "no." If a company realizes they can get away without matching, there will have to be a good reason for them to bring back retirement matching. From their bottom line, cutting matching looks like a "free" savings on wages – you're not actually cutting anyone's income, so they won't mind.
The best thing you can do, though, is to just keep saving. The 6% you're saving is far more important than where you're saving it.
Got any questions? Email them to me or leave them in the comments and I'll attempt to answer them in a future mailbag. However, I do receive hundreds of questions per week, so I may not necessarily be able to answer yours.