alea-institute/kl3m-data-sample-004-shuffled huggingface dataset:
(78 South. 637)

#### LUM MACHINERY & SUPPLY CO. v. SHORT.

(4 Div. 525.)

(Court of Appeals of Alabama.

April 9, 1918.)

Trial &wkey;>143 — Instructions — Affirmative Charge.

Where the evidence is in sharp conflict, the affirmative charge is properly refused.

Appeal from Circuit Court, Covington County; A. B. Foster, Judge.

Detinue by the Lum Machinery & Supply Company against D. M. Short. __ Judgment for defendant, and plaintiff appeals.

Affirmed.

The following charges were refused to plaintiff:

(2) If you are reasonably satisfied from the evidence that defendant had John Stanley read the contract as testified to by him, and after it was so read defendant never offered to dis-affirm the contract or rescind the same, your verdict must be for plaintiff.

(3) Although you majr be reasonably satisfied from the evidence that the contract was obtained by fraud, still, if after discovering the fraud you are reasonably satisfied that defendant never offered to rescind the contract, your verdict should be for plaintiff.

Henry Opp and Powell, Albritton & Albritton, all of Andalusia, for appellant. J. Morgan Prestwood.and W. L. Parks, both of Andalusia, for appellee.

SAMFORD, J.

The plaintiff contended that it sold defendant certain machinery at a stipulated price, retaining the title until paid, and took a contract in writing to that effect, to which defendant assented by affixing his mark; that the purchase price had not been paid; that default had been made; and that demand had been made for the return of tbe property. The defendant admitted a balance due, but contended that the, purchase was a straight sale, without retention of title in plaintiff, and that his mark had been obtained to the written contract by fraud. The evidence was in sharp conflict. Where this is the case, the affirmative charge is properly refused.

*440The question of rescission is not involved in this case. The contract in its inception was either a sale reserving the title or it was a sale transferring the title, and the fact that the defendant discovered some ten months after the sale that plaintiff was-claiming title to the property under a contract to which defendant’s mark had been obtained by fraud would not make it necessary for defendant to offer to rescind, as, according to defendant’s contention, that contract never existed. Hence charges 2 and 3 were properly refused, and objections to questions to witnesses raising this question were properly sustained.

There is no error in the record, and the judgment is affirmed-

Affirmed.
#### § 778.404 Purposes of exemption.

The exception to the requirements of section 7(a) provided by section 7(f) of the Act is designed to provide a means whereby the employer of an employee whose duties necessitate irregular hours of work and whose total wages if computed solely on an hourly rate basis would of necessity vary widely from week to week, may guarantee the payment, week-in, week-out, of at least a fixed amount based on his regular hourly rate. Section 7(f) was proposed and enacted in 1949 with the stated purpose of giving express statutory validity, subject to prescribed limitations, to a judicial “gloss on the Act” by which an exception to the usual rule as to the actual regular rate had been recognized by a closely divided Supreme Court as permissible with respect to employment in such situations under so-called “Belo” contracts. See *McComb* v. *Utica Knitting Co.,* 164 F. 2d 670, rehearing denied 164 F. 2d 678 (C.A. 2); *Walling* v. *A. H. Belo Co.,* 316 U.S. 624; *Walling* v. *Halliburton Oil Well Cementing Co.,* 331 U.S. 17; 95 Cong. Rec. 11893, 12365, 14938, A2396, A5233, A5476. Such a contract affords to the employee the security of a regular weekly income and benefits the employer by enabling him to anticipate and control in advance at least some part of his labor costs. A guaranteed wage plan also provides a means of limiting overtime computation costs so that wide leeway is provided for working employees overtime without increasing the cost to the employer, which he would otherwise incur under the Act for working employees in excess of the statutory maximum hours standard. Recognizing both the inherent advantages and disadvantages of guaranteed wage plans, when viewed in this light, Congress sought to strike a balance between them which would, on the one hand, provide a feasible method of guaranteeing pay to employees who needed this protection without, on the other hand, nullifying the overtime requirements of the Act. The provisions of section 7(f) set forth the conditions under which, in the view of Congress, this may be done. Plans which do not meet these conditions were not thought to provide sufficient advantage to the employee to justify Congress in relieving employers of the overtime liability section 7(a).
### Delta’s request to Boeing for a NTO

DESCRIPTION: Based on a conference call with Boeing on October 15, Delta would like to request a NTO allowing an operational waiver to the WIFI restriction in the B737 cockpit. Delta is conducting a demonstration with the FAA where better turbulence information is provided in the cockpit to improve safety, efficiency and airspace capacity. The goal of the demo is to provide a tablet in the cockpit using the onboard WIFI to view a National Center for Atmospheric Research (NCAR) web site. This site has a very robust turbulence forecast model overlaid with automated turbulence reports generated from the B737 fleet using an algorithm to objectively generate the state of the atmosphere. Since the only aircraft at Delta that has WIFI and the turbulence algorithm is the B737NG, it would provide the best test platform for the demo. As Boeing is aware, the Phase 3 display had some issues during qualification tests with exposure to several Radio Frequencies. In conjunction with a STC (ST02541CH) obtained by AirCell LLC, Delta's WIFI provider, a restriction for using WIFI devices in the cockpit was issued for the B737NG. In information presented to Delta from Boeing, it appears a risk mitigation strategy using operational procedu res can be put in place for any safety concerns. Delta is working primarily with the weather group in the Air Traffic Organization (ATO) and flight standards group of the FAA who helped develop the approach shown below: Delta, Boeing and the FAA in Washing ton have done independent Safety Risk Assessments on the issue with all three parties endorsing the use of WIFI in the cockpit. Background:
 All Phase 3 failures in service have been attributed to causes other than RF interference.
 During laboratory qual ification testing, the Phase 3 display recovered after the RF threats were removed, so the susceptibility findings were not considered failures.
 It appears the Airworthiness Directive (AD) being considered for the display issue is for an external threat un related to WIFI, although there seems to be some confusion with some of the Aircraft Cert. Offices (ACO) on this difference. Results

 Typical WIFI RF emitting devices are not likely to disturb the displays.
 Worst case can be completely avoided by keeping the device a minimum distance of 7 inches from the face of the Phase 3 display unit.
 A single typical tablet device cannot affect all six devices at once. Additional Mitigation strategy

 The crews will keep the tablet device a minimum of 7 inches from any display and discontinue its use and stow the device if any problems occur.
 Delta will only use 40 of its most highly qualified Line Check Pilots who will be thoroughly briefed on the strategy.
 The tablet will not be used during critical phases of flight and will be stowed with WIFI off below 10,000 feet. Boeing engineering had No Technical Objection (NTO) to Delta's proposed plan of action in the "Description" above.
#### § 794.125 Grace period of 1 month for compliance.

Where it is not practicable to compute the annual gross volume of sales under § 794.123 or § 794.124 in time to determine obligations under the Act for the current quarter, an enterprise may use a 1-month grace period. If this 1-month grace period is used, the computations made under those sections will determine its obligations under the Act for the 3-month period commencing 1 month after the end of the preceding calendar or fiscal quarter. Once adopted the same basis must be used for each successive 3-month period.
**EXHIBIT      32.1**

**CERTIFICATION      PURSUANT TO**

**18      U.S.C. SECTION 1350,**

**AS      ADOPTED PURSUANT TO**

**SECTION      906 OF THE SARBANES-OXLEY ACT OF 2002**

|   | • | the                Quarterly Report of the Company on Form                10-Q for the quarter ended March 31, 2007, (the “Report”) fully complies                with the requirements of Section 13(a) or Section 15(d) of the Securities                Exchange Act of 1934; and |
|--------|---------|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|   |    |                                                                                                                                                                                                                                                                                             |
|   | • | the                information contained in the Report fairly                presents, in all material respects, the financial condition and results                of                operations of the Company.                                                                                 |

|   |                                                   |                                                     |
|--------|--------------------------------------------------------|----------------------------------------------------------|
|   |                                                   | /s/ DENNIS                L.                SHOGREN |
|   | Dennis                  L. Shogren                     |
|   | President                  and Chief Executive Officer |

----
EXHIBIT 32.2



CERTIFICATION PURSUANT TO

18 U.S.C. SECTION 1350,

AS ADOPTED PURSUANT TO

SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002



The undersigned hereby certifies, in his capacity as Chief Executive Officer of Modtech Holdings, Inc. (the Company), for purposes of 18
U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that based on his knowledge:



| |  |  | the Quarterly Report of the Company on Form 10-Q for the quarter ended June 30, 2005, (the Report) fully complies with the requirements of Section 13(a) or Section 15(d)
of the Securities Exchange Act of 1934; and
| | - |  | -----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------



| |  |  | the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
| | - |  | ----------------------------------------------------------------------------------------------------------------------------------------------------



Dated: August 9, 2005



/s/ DENNIS L. SHOGRENDennis L. ShogrenChief Financial Officer and Chief Accounting Officer
UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 22-7210

JOE LEE FULGHAM,

 Plaintiff - Appellant,

v.

UNKNOWN,

 Defendant - Appellee.

Appeal from the United States District Court for the Eastern District of Virginia, at 

Norfolk. Arenda L. Wright Allen, District Judge. (2:20-cv-00637-AWA-RJK)

Submitted: May 26, 2023 Decided: June 8, 2023

Before NIEMEYER, WYNN, and QUATTLEBAUM, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Joe Lee Fulgham, Appellant Pro Se. 

Unpublished opinions are not binding precedent in this circuit.

USCA4 Appeal: 22-7210 Doc: 13 Filed: 06/08/2023 Pg: 1 of 2
2

PER CURIAM:

Joe Lee Fulgham appeals the district court’s order denying his motion for a jury 

trial. We have reviewed the record and find no reversible error. Accordingly, we affirm 

the district court’s order. Fulgham v. Unknown, No. 2:20-cv-00637-AWA-RJK (E.D. Va. 

Sept. 12, 2022). We deny Fulgham’s motion for damages. We dispense with oral argument 

because the facts and legal contentions are adequately presented in the materials before this 

court and argument would not aid the decisional process.

AFFIRMED

USCA4 Appeal: 22-7210 Doc: 13 Filed: 06/08/2023 Pg: 2 of 2
#### § 794.114 The enterprise must be “independently owned and controlled.”

Another requirement for exemption under section 7(b)(3) is that the enterprise must be “independently owned and controlled”. Since this requirement is in the conjunctive, it must be established that the enterprise which is engaged in the wholesale or bulk distribution of petroleum products is both independently owned and independently controlled. (*Wirtz* v. *Lunsford,* 404 F. 2d 693 (C.A. 6).) At the hearing before the Senate Labor Subcommittee, when the amendment was proposed which eventually was incorporated in the Act as section 13(b)(10) by the 1961 amendments (later repealed by the 1966 amendments to the Act and replaced by section 7(b)(3)), a spokesman for proponents of the amendment made the following statement, which bears on this requirement for exemption:

The designation “independent” as applied to an oil jobber means that he owns his own office, bulk storage, and delivery facilities; pays his own personnel, and in all respects conducts his business as any other independent businessman.

It also means that the jobber is not a subsidiary of nor controlled by any so-called major oil company, although the jobber may sell the branded products of such a company.

Some jobbers own service stations which they lease to independent dealers and a small percentage of jobbers may operate one or more service stations with their own salaried personnel. (Senate Hearings on the Amendments to the Fair Labor Standards Act, 87th Cong., first session, p. 411.)

It appears, therefore, that the purpose of the requirement limiting the exemption to the enterprises which are “independently owned and controlled,” is to confine the exemption to those petroleum jobbers who own their own facilities and equipment and who are not subsidiaries nor controlled by any producer, refinery, terminal supplier or so-called major oil company. (See *Wirtz* v. *Lunsford,* cited above.) The fact that the petroleum jobber sells a branded product of a major oil company will not, of itself, affect the status of his enterprise as one which is “independently owned and controlled”. So also the fact that the jobber owns gasoline service stations, which he leases or which he operates himself, will not affect the status of his enterprise as being “independently owned and controlled”.
EX-10.36



 Exhibit 10.36 

First Amendment to 

Combination Agreement 

This First Amendment to Combination Agreement (this “Amendment”) is entered into as of March 4, 2015 by Fenix Parts,
Inc., a Delaware corporation (“Fenix”), Donald Beagell, Jr., Cynthia Howard, Gregory Beagell and Michael Colsten (each a “Shareholder” and together the “Shareholders”), and Don’s Automotive
Mall, Inc., a New York corporation (the “Company”). 
 Whereas, the Parties have entered into a Combination Agreement dated
as of August 27, 2014 (the “Combination Agreement”); and 
 Whereas, the Parties desire to amend the Combination
Agreement as set forth herein, 
 It is agreed as follows: 
  

	 	1.	Capitalized terms without definition shall have the same meaning as given in the Combination Agreement. 

  

	 	2.	Section 9.1(a)(3) of the Combination Agreement shall be deleted and replaced in its entirety with the following: 

  

	 	(3)	Closing has not occurred by May 15, 2015 (the “Outside Date”) (other than as a result of Fenix’s breach of or failure to perform its obligations under this Agreement); 


 

	 	3.	Section 9.1(b)(3) of the Combination Agreement shall be deleted and replaced in its entirety with the following: 

  

	 	(3)	Closing has not occurred by May 15, 2015 (the “Outside Date”) (other than as a result of the Shareholders’ breach of or failure to perform their obligations under this Agreement);


  

	 	4.	The definitions of “Interim Balance Sheet” and “Interim Financial Statements” shall be modified to include the Company’s balance sheet and financial statements as of and for the period ended
December 31, 2014. 

  

	 	5.	Except as expressly amended by the terms of this Amendment, the Combination Agreement is in all respects ratified and confirmed. 


Signatures appear on the following page 

  
 1 








 In witness, the Parties have executed this Amendment. 

 

			
	Fenix Parts, Inc.
		
	By		 /s/ Kent Robertson

			Kent Robertson
			Chief Executive Officer
		
			 /s/ Donald Beagell, Jr.

			Donald Beagell, Jr.
		
			 /s/ Cynthia L. Howard

			Cynthia Howard
		
			 /s/ Gregory D. Beagell

			Gregory Beagell
		
			 /s/ Michael Colsten

			Michael Colsten
	  
 Don’s Automotive Mall, Inc.

		
	By		 /s/ Cynthia L. Howard

	Name:		Cynthia L. Howard
	Title:		Secretary


 Signature page to First Amendment to Combination Agreement 

  
 2
###### Editorial Note on Part 8

#### Editorial Note:

Nomenclature changes to part 8 appear at 61 FR 19985, May 3, 1996.

#### § 8.18 Public information.

Subject to the provisions of part 70 of this title, all papers and documents made a part of the official record in the proceedings of the Board and decisions of the Board shall be made available for public inspection during usual business hours at the Office of the Administrative Review Board, U.S. Department of Labor, Washington, DC 20210.
#### In the Matter of the Claim of Theressia C. Love, Respondent, against Thatcher Manufacturing Company, Employer, and State Insurance Fund, Appellant. State Industrial Board, Respondent.

Submitted July 13, 1937;

decided July 13, 1937.

*John E. Sullivan*for motion.

*Walter D. Smith*opposed.

Motion granted and appeal dismissed, with costs and ten dollars cost of motion.
Order entered March 14 , 2022

In The 

### Court of Appeals **Fifth District of Texas at Dallas**
No. 05
- 22
- 00116
- CR
JEREMIAH ROBINSON , Appellant
V.
THE STATE OF TEXAS , Appellee On Appeal from the Crimi nal District Court No. 5 Dallas County, Texas Trial Court Cause No. F 17
- 33830
- L
O RDER
We REINSTATE this appeal. We abated fo r the appointment of counsel. On February 22, 2022, Valencia Bush filed a docketing statement indicating she had been appointed as co unsel for appellant. We DIRECT the Clerk to list Valencia Bush as counsel. All future correspondence shal l be sent to Ms. Bush at the address on file with the Court

. The clerk ’ s and reporter ’ s record s are due on June 9, 2022

.We DIRECT the C lerk to send co pie s of this order to t he Honorable Carter Thompson , Presiding Judge, C riminal District Court No. 5 ; to Felicia Pitre , Dallas County Distr ic t Cle rk ; to Victoria Franklin, official cou rt reporter, C riminal District Court No. 5 ; to Valencia Bush; and to the Dallas County District
Attor ney’s Office , Appellate Divisi on
.

/s/ LANA MYERS JUSTICE
* Pursuant to Local Rule 47.5, the court has determined

that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 96-40497 Conference Calendar

JAMES L. SWEED, Plaintiff-Appellant,

versus TDCJ-ID, Board Policy Makers, Defendant-Appellee.

- - - - - - - - - - Appeal from the United States District Court for the Eastern District of Texas

USDC No. 9:96-CV-29

- - - - - - - - - - August 22, 1996 Before KING, DUHÉ, and DeMOSS, Circuit Judges.
PER CURIAM: * James L. Sweed, # 661010, appeals the dismissal of his civil rights action brought pursuant to 42 U.S.C. § 1983. Sweed contends that he was prejudiced by TDCJ-ID’s mail policy because he had to prove that he had mailed his petition for rehearing in a timely manner. We have reviewed the record and the district court's opinion and find no reversible error. Sweed v. TDCJ Board Members , C.A. No. 9:96cv29 (E.D. Tex. May 10, 1996).No. 96-40497 - 2 - Further, we hold that this appeal is frivolous and dismiss it accordingly. See 5th Cir. R. 42.2. Sweed previously has been warned by this court that he may be sanctioned for filing further frivolous pleadings. Accordingly, Sweed is hereby BARRED from filing any pro se , in forma pauperis , civil appeal in this court, or any pro se , in forma pauperis , initial civil pleading in any court which is subject to this court's jurisdiction, without the advance written permission of a judge of the forum court; the clerk of this court and the clerks of all federal district courts in this Circuit are directed to return to Sweed, unfiled, any attempted submission inconsistent with this bar.
APPEAL DISMISSED AS FRIVOLOUS; SANCTION IMPOSED.
#### § 793.5 What determines application of the exemption.

The exemption applies only to an employee who is “employed as” an announcer, news editor, or chief engineer under the conditions specified in section 13(b) (9). Although the nature of the employer's business is important in applying the exemption to a particular employee in one of the named occupations, employment in the named occupation is an essential prerequisite for exemption. Whether an employee is exempt therefore depends upon an examination of his duties as well as the nature of the employer's activities. Some employees of the employer may be exempt and others may not.
#### § 794.132 “Petroleum products”.

A sale by an enterprise engaged in the wholesale or bulk distribution of petroleum products will be included in the 25 percent limitation under the exemption only if it is made to a customer who engages in the distribution, in bulk and for resale, of “petroleum products”. The term “petroleum products” as used in section 7(b)(3) includes such products as gasoline, kerosene, diesel fuel, lubricating oils, fuel oils, greases, and liquified-petroleum gas. Sales to customers who are not engaged in the distribution of petroleum products will not be included in the 25 percent limitation.
#### § 780.603 What determines application of exemption.

The application of the section 13(b)(13) exemption depends largely upon the nature of the work performed by the individual employee for whom exemption is sought. The character of the employer's business also determine the application of the exemption. Whether an employee is exempt therefore depends upon his duties as well as the nature of the employer's activities. Some employees of the employer may be exempt in some weeks and others may not.