alea-institute/kl3m-data-sample-004-shuffled huggingface dataset:
#### George W. Philipps, Respondent, v Carole J. Philipps, Appellant.

In an action, *inter alia,*to impress a constructive trust on real property previously owned by the parties as tenants by the entirety (improperly denoted as a cause of action for a declaratory judgment), the defendant appeals from an order of the Supreme Court, Suffolk County, dated May 13, 1977, which denied her motion for summary judgment. Order reversed, on the law, with $50 costs and disbursements, and motion granted. The complaint, which in effect seeks the imposition of a constructive trust, fails to allege the necessary elements and is defective. No allegation is made as to any promise by the defendant; nor is there any allegation of detrimental reliance thereon by the plaintiff (see *Vassel v Vassel,*40 AD2d 713). In addition, the conclusory statements made by plaintiff’s counsel in his opposing affidavit is the only proof submitted by plaintiff. Such proof falls woefully short of the requirements of CPLR 3212 (subd [b]). The claim by plaintiff which seeks to rescind the Sheriffs sale at which the defendant wife obtained his interest in the marital home for a bid of $300, and his claim seeking a money judgment for one half the equity in the home at the time of the sale, must also be dismissed. Such relief is properly made by way of motion pursuant to CPLR 5240 and not by a plenary action (see *Levine v Berlin,*46 AD2d 902). We make no determination as to whether CPLR 5240 authorizes a court to credit a judgment debtor with the market value of property sold on execution (cf. *Wandschneider v Bekeny,*75 Misc 2d 32). Accordingly, the motion by defendant for summary judgment dismissing the complaint should have been granted (see *Philipps v Philipps,*61 AD2d 979). Shapiro, J. P., Cohalan, Margett and Hawkins, JJ., concur.
### §23. Repealed. Pub. L. 86–649, title II, §202(b), July 14, 1960, 74 Stat. 507

Section, act Feb. 14, 1931, ch. 187, 46 Stat. 1118, prescribed fees for depositions in hearings in Bureau of Land Management. See section 1371 of this title. Similar provisions were contained in the following prior appropriation acts:

Mar. 3, 1925, ch. 462, 43 Stat. 1145.

June 5, 1924, ch. 264, 43 Stat. 395.

Jan. 24, 1923, ch. 42, 42 Stat. 1179.

May 24, 1922, ch. 199, 42 Stat. 558.

Mar. 3, 1915, ch. 75, 38 Stat. 855.
### §304. Director of the Government Publishing Office: vacancy in office

In case of the death, resignation, absence, or sickness of the Director of the Government Publishing Office, the Deputy Director of the Government Publishing Office shall perform the duties of the Director of the Government Publishing Office until a successor is appointed or the Director's absence or sickness ceases; but the President may direct any other officer of the Government, whose appointment is vested in the President by and with the advice and consent of the Senate, to perform the duties of the vacant office until a successor is appointed, or the sickness or absence of the Director of the Government Publishing Office ceases. A vacancy occasioned by death or resignation may not be filled temporarily under this section for longer than ten days, and a temporary appointment, designation, or assignment of another officer may not be made except to fill a vacancy happening during a recess of the Senate.

(Pub. L. 90–620, Oct. 22, 1968, 82 Stat. 1239; Pub. L. 113–235, div. H, title I, §1301(c), (e)(1), (i)(1), Dec. 16, 2014, 128 Stat. 2537, 2538.)

#### Historical and Revision Notes

Based on 44 U.S. Code, 1964 ed., §32 (Jan. 12, 1895, ch. 23, §36, 28 Stat. 606; May 27, 1908, ch. 200, §1, 35 Stat. 382.)

#### **Editorial Notes**

#### Amendments

2014—Pub. L. 113–235, §1301(i)(1), substituted "or the Director's" for "or his".

Pub. L. 113–235, §1301(e)(1), substituted "Deputy Director of the Government Publishing Office" for "Deputy Public Printer".

Pub. L. 113–235, §1301(c), substituted "Director of the Government Publishing Office" for "Public Printer" in section catchline and wherever appearing in text.
#### ELY, Respondent, v. MODES FASHION & PATTERN CO., Appellant.

(Supreme Court, Appellate Division, First Department.

March 24, 1905.)

Action by Arthur H. Ely against the Modes Fashion & Pattern Company. G. P. Cowles, for respondent. No opinion. Order affirmed, with costs.
#### In the Matter of Norbert Vest, an Infant, by Wolfgang Vest, His Father, Appellant, v Darryl D. Simcoe, as Town Justice of the Town of Van Etten, Respondent.

Appeal from a judgment of the Supreme Court at Special Term, entered May 6, 1977 in Chemung County, which dismissed petitioner’s application in a proceeding pursuant to CPLR article 78, seeking to prohibit respondent from conducting a nonjury trial in a pending criminal action. On July 19, 1976, petitioner was arrested and charged with the misdemeanor of driving while intoxicated. Subsequently, he appeared before respondent, a nonlawyer Town Justice, and demanded a jury trial, but respondent determined that, pursuant to relevant provisions of the Criminal Procedure Law (CPL 340.40, subd 7; 720.20, subd 1, par [b]), he must be tried before a single Judge without a jury because he was a youth of 17 years of age who had no prior criminal record or adjudication as a youthful offender and who was being tried for a misdemeanor in a local criminal court. Accordingly, the demand for a jury trial was denied, and petitioner commenced the instant article 78 proceeding to challenge said denial and prevent respondent from conducting a nonjury trial of the pending action. Finding that respondent’s determination was proper, however, Special Term dismissed the petition, and this appeal ensued. We agree with Special Term *870that the petition should be dismissed. In so ruling, however, we rely on an alternative ground and do not reach the merits of the controversy. The relief sought by petitioner, i.e., a writ of prohibition, is an extraordinary remedy which is issued only in the sound discretion of the court and which will not lie, "even if there has been an excess of jurisdiction or power” if an adequate remedy at law, such as an appeal, is available *(Matter of State of New York v King,*36 NY2d 59, 62; see, also, *Matter of Dondi v Jones,*40 NY2d 8). In this instance, since petitioner will be able to satisfactorily challenge on appeal his being tried without a jury before a nonlawyer Town Justice, prohibition would not be appropriate. Judgment affirmed, without costs. Greenblott, J. P., Sweeney, Kane, Mahoney and Main, JJ., concur.
NO. 07-06-0298-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

OCTOBER 25, 2006

______________________________

PARADISE VILLAGE, INC., APPELLANT

V.

FINOVA CAPITAL CORPORATION, APPELLEE

_________________________________

FROM THE 341ST DISTRICT COURT OF WEBB COUNTY;

NO. 2005CVQ001130D3; HONORABLE ELMA TERESA SALINA ENDER, JUDGE

_______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

MEMORANDUM OPINION

Appellant Paradise Village, Inc. brings this restricted appeal from a default judgment

entered in favor of appellee Finova Capital Corporation. 

On August 14, 2006, appellant filed its brief on appeal. In its brief, appellant argued,

among other things, that the trial court erred in granting a default judgment against

appellant because the court lacked jurisdiction. Specifically, appellant referred this court

to Benefit Planners, L.L.P. v. RenCare, Ltd., 81 S.W.3d 855 (Tex.App.–San Antonio 2002,

pet. denied) in support of its argument that the judgment of the trial court was void because
2

the return of citation did not establish that (1) the person served was in fact the

corporation’s agent for service and (2) the corporate defendant was served.

On September 15, 2006, appellee filed a “motion to reverse default judgment and

remand,” in which appellee noted, “[a]fter review of Appellant’s brief and supporting case

law, Appellant has correctly cited the case law and statutory law as it relates to service of

process and the default judgment. Service of process as obtained by Appellee in the trial

court was, if not void, voidable.” After reviewing the record, we agree the judgment must

be reversed. See Uvalde Country Club v. Martin Linen Supply Company, Inc., 690 S.W.2d

884, 885 (Tex. 1985) (per curiam); Benefit Planners, 81 S.W.3d at 858-59 (and cases cited

therein) (noting there are no presumptions in favor of valid issuance, service, and return

of citation in the face of a direct attack on a default judgment). 

We reverse the trial court’s judgment and remand the cause to the trial court for

further proceedings. TEX. R. APP. P. 43.2(d). Appellee’s motion to reverse default

judgment and remand is dismissed as moot.

James T. Campbell

 Justice
#### The Plastic Surgery Group of Rochester, LLC, Appellant, v Stephen M. Evangelisti, M.D., Defendant and Counterclaim Plaintiff-Respondent. Ralph P. Pennino, M.D., et al., Counterclaim Defendants-Appellants.

(Appeal No. 2.)

[832 NYS2d 840]

Appeal from an order of the Supreme Court, Monroe County (Kenneth R. Fisher, J.), entered September 29, 2006. The order, among other things, conditionally granted defendant’s motion to hold a nonparty witness in contempt and granted defendant’s cross motion to compel the production of certain documents.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Same memorandum as in *Plastic Surgery Group of Rochester, LLC v Evangelisti*(39 AD3d 1265 [2007]). Present—Scudder, P.J., Centra, Lunn, Peradotto and Pine, JJ.
### §§120, 121. Omitted

#### **Editorial Notes**

#### Codification

Section 120, act July 5, 1932, ch. 421, §1, 47 Stat. 576, related to equipment necessary on ocean-going vessels using ports in the Canal Zone.

Section 121, act July 5, 1932, ch. 421, §2, 47 Stat. 576, related to jurisdiction of violations and penalties for ocean-going vessels not properly equipped.
TABLE OF CONTENTS     ARTICLE 1. DEFINITIONS  3      ARTICLE 2. OPERATIONAL SUPPORT  3      ARTICLE 3. OBLIGATIONS OF PARTY B  4      ARTICLE 4. CONSIDERATION FOR PROVIDING OPERATIONAL SUPPORT  4      ARTICLE 5. REPRESENTATIONS AND WARRANTIES  4      ARTICLE 6. CONFIDENTIALITY  4      ARTICLE 7. GOVERNING LAW AND OBLIGATIONS UPON DEFAULT  5      ARTICLE 8. DISPUTE RESOLUTION  5      ARTICLE 9. EFFECTIVENESS  5      ARTICLE 10. NO SUBSEQUENT OBLIGATION  5      ARTICLE 11. AMENDMENT  5      ARTICLE 12. COUNTERPARTS  5      ARTICLE 13. MISCELLANEOUS  6      EXHIBIT 1 CONSIDERATION FOR OPERATION GUARANTEE  7 
 
2

 
OPERATION AGREEMENTThis Operation Agreement (“this Agreement”) is entered into in Beijing, People’s Republic of China(the “PRC”) on November 25, 2009 between:Party A: Guangzhou Boxin Investment Advisory Co., Ltd.
ARMED SERVICES BOARD OF CONTRACTAPPEALS Appeals of

-- ) ) CACI International, Inc. ) ) Under Contract No. N00140-06-C-0040 et al. ) APPEARANCE FOR THE APPELLANT:

APPEARANCES FORTHE GOVERNMENT: ASBCA Nos. 59799, 59800

J. William Koegel, Jr., Esq.

Executive Vice President, General

Counsel & Corporate Secretary E. Michael Chiaparas, Esq.

DCMA ChiefTrial Attorney Joseph D. Keller, Esq.

Trial Attorney Defense Contract Management Agency Arlington Heights, IL ORDER OF DISMISSAL The dispute has been settled. The appeals are dismissed with prejudice. Dated: 23 February 2016

Administrative Judge Acting Chairman Armed Services Board ofContract Appeals
I certify that the foregoing is a true copy ofthe Order ofDismissal ofthe Armed Services Board ofContract Appeals in ASBCA Nos. 59799, 59800, Appeals ofCACI International, Inc., rendered in conformance with the Board's Charter. Dated:

JEFFREY D. GARDIN Recorder, Armed Services Board ofContract Appeals
§ 104.2 Pattern criteria. ( a ) At least once each year, MSHA will review the compliance and accident, injury, and illness records of mines to determine if any mines meet the pattern of violations criteria. MSHA's review to identify mines with a pattern of S&S violations will include: ( 1 ) Citations for S&S violations;
( 2 ) Orders under section 104(b) of the Mine Act for not abating S&S violations;
( 3 ) Citations and withdrawal orders under section 104(d) of the Mine Act, resulting from the mine operator's unwarrantable failure to comply;
( 4 ) Imminent danger orders under section 107(a) of the Mine Act;
( 5 ) Orders under section 104(g) of the Mine Act requiring withdrawal of miners who have not received training and who MSHA declares to be a hazard to themselves and others;
( 6 ) Enforcement measures, other than section 104(e) of the Mine Act, that have been applied at the mine;
( 7 ) Other information that demonstrates a serious safety or health management problem at the mine, such as accident, injury, and illness records; and
( 8 ) Mitigating circumstances.
( b ) MSHA will post the specific pattern criteria on its Web site.
Exhibit
      32.2




**CERTIFICATION**




I,
      Joseph
      Restivo, Chief Financial Officer of GVI Security Solutions, Inc. (the
“Company”), hereby certify, pursuant to 18 U.S.C. § 1350 adopted pursuant to
      Section 906 of the Sarbanes-Oxley Act of 2002, that to my
      knowledge:




(i)
      The
      Company’s accompanying Quarterly Report on Form 10-Q for the six months ended
      June 30, 2007 fully complies with the requirements of Section 13(a) or Section
      15(d) of the Securities Exchange Act of 1934; and




(ii)
      The
      information contained in such report fairly presents, in all material respects,
      the financial condition and results of operations of the Company.




/s/
                Joseph RestivoJoseph
              RestivoChief
              Financial OfficerDated:
              August 13, 2007
### §10508. General penalties

(a) A master who carries a seaman on a voyage without first making the agreement required by section 10502 of this title shall pay to the seaman the highest wage that was paid for a similar voyage within the 3 months before the time of engagement at the port or place at which the seaman was engaged. A seaman who has not signed an agreement is not bound by the applicable regulations, penalties, or forfeitures.

(b) A master engaging a seaman in violation of this chapter or a regulation prescribed under this chapter is liable to the United States Government for a civil penalty of not more than $5,000. The vessel also is liable in rem for the penalty.

(Pub. L. 98–89, Aug. 26, 1983, 97 Stat. 572; Pub. L. 103–206, title IV, §416, Dec. 20, 1993, 107 Stat. 2438.)

| Revised section | Source section (U.S. Code) |
| --- | --- |
| 10508 | 46:575 |

Section 10508 provides for a fair wage to be paid to a seaman who was engaged without a shipping agreement, and also exempts the seaman under certain conditions from applicable regulations, penalties or forfeitures. It also provides a penalty for violation of its provisions.

#### **Editorial Notes**

#### Amendments

1993—Subsec. (b). Pub. L. 103–206 substituted "not more than $5,000" for "$20".
### §401. Enforcement provisions

#### (a) Jurisdiction

The district courts of the United States shall have jurisdiction, upon application of the Attorney General of the United States at the request of the Commission, alleging a failure to comply with or a violation of any of the provisions of this chapter by any person, to issue a writ or writs of mandamus commanding such person to comply with the provisions of this chapter.

#### (b) Orders of Commission

If any person fails or neglects to obey any order of the Commission other than for the payment of money, while the same is in effect, the Commission or any party injured thereby, or the United States, by its Attorney General, may apply to the appropriate district court of the United States for the enforcement of such order. If, after hearing, that court determines that the order was regularly made and duly served, and that the person is in disobedience of the same, the court shall enforce obedience to such order by a writ of injunction or other proper process, mandatory or otherwise, to restrain such person or the officers, agents, or representatives of such person, from further disobedience of such order, or to enjoin upon it or them obedience to the same.

#### (c) Duty to prosecute

Upon the request of the Commission it shall be the duty of any United States attorney to whom the Commission may apply to institute in the proper court and to prosecute under the direction of the Attorney General of the United States all necessary proceedings for the enforcement of the provisions of this chapter and for the punishment of all violations thereof, and the costs and expenses of such prosecutions shall be paid out of the appropriations for the expenses of the courts of the United States.

(June 19, 1934, ch. 652, title IV, §401, 48 Stat. 1092; June 25, 1948, ch. 646, §1, 62 Stat. 909; Pub. L. 93–528, §6(a), Dec. 21, 1974, 88 Stat. 1709.)

#### **Editorial Notes**

#### References in Text

This chapter, referred to in subsecs. (a) and (c), was in the original "this Act", meaning act June 19, 1934, ch. 652, 48 Stat. 1064, known as the Communications Act of 1934, which is classified principally to this chapter. For complete classification of this Act to the Code, see section 609 of this title and Tables.

#### Amendments

1974—Subsec. (d). Pub. L. 93–528 repealed subsec. (d) which provided that the provisions of sections 28 and 29 of title 15, section 345(1) of title 28, and sections 44 and 45 of title 49, shall be held to apply to any suit in equity arising under sections 201 to 222 of this title, wherein the United States is complainant.

#### **Satutory Notes and related Subsidiaries**

#### Change of Name

Act June 25, 1948, eff. Sept. 1, 1948, substituted "United States attorney" for "district attorney" in subsec. (c). See section 541 of Title 28, Judiciary and Judicial Procedure, and Historical and Revision Notes thereunder.
Editorial Note on Part 1206
Editorial Note: Nomenclature changes to part 1206 (formerly part 206) appear at 67 FR 19111, Apr. 18, 2002.

§ 1206.103 What publications does ONRR approve? ( a ) ONRR will periodically publish on *www.onrr.gov* a list of ONRR-approved publications for the NYMEX price and ANS spot price based on certain criteria including, but not limited to: ( 1 ) Publications buyers and sellers frequently use.
( 2 ) Publications frequently mentioned in purchase or sales contracts.
( 3 ) Publications that use adequate survey techniques, including development of estimates based on daily surveys of buyers and sellers of crude oil, and, for ANS spot prices, buyers and sellers of ANS crude oil.
( 4 ) Publications independent from ONRR, other lessors, and lessees.
( b ) Any publication may petition ONRR to be added to the list of acceptable publications.
( c ) ONRR will specify the tables that you must use in the acceptable publications.
( d ) ONRR may revoke its approval of a particular publication if we determine that the prices or differentials published in the publication do not accurately represent NYMEX prices or differentials or ANS spot market prices or differentials.
### §10314. Advances

(a)(1) A person may not—

(A) pay a seaman wages in advance of the time when the seaman has earned the wages;

(B) pay advance wages of the seaman to another person; or

(C) make to another person an order, note, or other evidence of indebtedness of the wages, or pay another person, for the engagement of seamen when payment is deducted or to be deducted from the seaman's wage.

(2) A person violating this subsection is liable to the United States Government for a civil penalty of not more than $500. A payment made in violation of this subsection does not relieve the vessel or the master from the duty to pay all wages after they have been earned.

(b) A person demanding or receiving from a seaman or an individual seeking employment as a seaman, remuneration for providing the seaman or individual with employment, is liable to the Government for a civil penalty of not more than $500.

(c) This section applies to a foreign vessel when in waters of the United States. An owner, charterer, managing operator, agent, or master of a foreign vessel violating this section is liable to the Government for the same penalty as an owner, charterer, managing operator, agent, or master of a vessel of the United States for the same violation.

(d) The owner, charterer, managing operator, agent, or master of a vessel seeking clearance from a port of the United States shall present the agreement required by section 10302 of this title at the office of clearance. Clearance may be granted to a vessel only if this section has been complied with.

(e) This section does not apply to a fishing or whaling vessel or a yacht.

(Pub. L. 98–89, Aug. 26, 1983, 97 Stat. 567; Pub. L. 99–640, §10(b)(4), Nov. 10, 1986, 100 Stat. 3550.)

| Revised section | Source section (U.S. Code) |
| --- | --- |
| 10314 | 46:599 |

Section 10314 forbids advance payment of wages to seamen prior to the commencement of the seaman's employment. It provides a civil penalty of $500 for any person making such a payment, and for any person demanding or receiving remuneration for providing a seaman with employment. This means that the use of employment agencies for hiring seamen is prohibited. It also requires compliance with section 10302 regarding the signing of articles of agreement before a vessel can be cleared from a United States port. This section applies to foreign vessels in United States waters but not to fishing vessels, whaling vessels or yachts.

#### **Editorial Notes**

#### Amendments

1986—Subsec. (e). Pub. L. 99–640 struck out last sentence which read as follows: "However, this section applies to a vessel taking oysters."
<PAGE>   1



                                                                EXHIBIT - 11.01



STATEMENT REGARDING COMPUTATION OF PER SHARE DATA



                        FIREARMS TRAINING SYSTEMS, INC.
          STATEMENT REGARDING COMPUTATION OF EARNINGS PER COMMON SHARE
                                 (In thousands)




<TABLE>
<CAPTION>
                                           BASIC EARNINGS         DILUTED EARNINGS
                                            PER SHARE(1)            PER SHARE(1)
                                         THREE MONTHS ENDED      THREE MONTHS ENDED
                                              JUNE 30,                JUNE 30,
                                         -------------------     -------------------
                                          2000        1999         2000        1999
                                         -------     -------     -------     -------
<S>                                      <C>         <C>         <C>         <C>

Weighted average common and common
  shares outstanding                      21,117      20,734      21,117      20,734

Shares issued upon assumed exercise
  of outstanding options                      --          --          --          --
                                         -------     -------     -------     -------
Weighted average common and common
  equivalent shares outstanding           21,117      20,734      21,117      20,734
                                         =======     =======     =======     =======

Net income                               $(3,275)    $  (195)    $(3,275)    $  (195)
                                         =======     =======     =======     =======

Earnings per share                       $ (0.16)    $ (0.01)    $ (0.16)    $ (0.01)
                                         =======     =======     =======     =======
</TABLE>