alea-institute/kl3m-data-sample-004-shuffled huggingface dataset:
#### MBW Advertising Network, Inc., et al., Appellants, v Century Business Credit Corp., Respondent.

Order, Supreme Court, New York County (Irma Vidal Santaella, J.), entered January 23, 1990, which, *inter alia,*granted defendant’s motion for partial summary judgment pursuant to CPLR 3212 (e) and dismissed the first cause of action of the amended complaint, unanimously affirmed, without costs.

Plaintiff MBW hired defendant, Century Business Credit Corp., as its credit collector. Due to dissatisfaction with defendant’s performance under the contract, plaintiff terminated the contract. Aside from the breach of contract claims, plaintiff seeks damages for fraud alleging that defendant overstated both the nature of its services and its ability to perform, in order to obtain the contract, and subsequently misrepresented the services it was rendering in order to avoid or delay termination of the contract.

While we recognize that the same acts which give rise to a cause of action for fraud may also form the basis for a breach of contract claim *(Davis v Dime Sav. Bank,*158 AD2d 50, 52), a cause of action for fraud will not arise if the alleged fraud merely relates to the breach of contract. *(Miller v Volk & Huxley,*44 AD2d 810.) In this case, the record demonstrates *307that all the causes of action stem from a failure to perform a contract. There has been no breach of a duty owed to plaintiff apart from that arising under the contract. Accordingly, dismissal of the first cause of action sounding in fraud was warranted. Concur—Sullivan, J. P., Carro, Rosenberger, Kupferman and Rubin, JJ.
* Pursuant to 5TH CIR. R. 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that this opinion should not be published and is not precedent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 5TH CIR.

R. 47.5.4.

. IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 99-10161 

Conference Calendar

 

JAMES D. BOSWELL,

Plaintiff-Appellant,

versus

WILLIAM COHEN, The Secretary of Defense; ET AL.,

Defendants,

TEXAS CHRISTIAN UNIVERSITY; WILLIAM E. TUCKER, DR.,

Chancellor; MICHAEL D. McCRACKEN, Dean,

Defendants-Appellees.

--------------------

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:98-CV-168-Y

--------------------

December 16, 1999

Before JOLLY, HIGGINBOTHAM, and BARKSDALE, Circuit Judges. 

PER CURIAM:*

This court must examine the basis of its jurisdiction on its

own motion if necessary. Mosley v. Cozby, 813 F.2d 659, 660 (5th

Cir. 1987). A timely notice of appeal is a prerequisite for the

exercise of jurisdiction by this court. United States v. Carr,

979 F.2d 51, 55 (5th Cir. 1992). A petitioner has 60 days from 
No. 99-10161

-2-

the entry of judgment to appeal from the dismissal of a civil

action in which the Government, its agencies, or officers are

parties. FED. R. APP. P. 4(a)(1). “A document filed in the

period prescribed by Fed. R. App. P. 4(a)(1) for taking an appeal

should be construed as a notice of appeal if the document

‘clearly evinces the party’s intent to appeal.’” Mosley, 813

F.2d at 660. A pleading that seeks reconsideration of an order

of the district court is not effective as a notice of appeal,

even if labeled a notice of appeal. Id.

In his notice of appeal and accompanying memorandum, James

Boswell requested that the district court compel discovery,

vacate the order denying him an extra day to respond to the

defendants’ summary judgment motion, and schedule a hearing on

the summary judgment motion. Boswell’s notice of appeal did not

clearly evince his intent to appeal, and Boswell filed no

pleading subsequent to his notice of appeal that could be

construed as a notice of appeal. We lack jurisdiction over

Boswell’s appeal. Finally, Boswell’s motion to supplement his

reply brief with an appendix is DENIED.

APPEAL DISMISSED.
# Washoe Tribe 

# of 

# Nevada 

# and California

Mr. Jared Blumenfeld United States EnvironmentalProtection Agency Region 

### IX Regional Administrator 75Hawthorne Street San Francisco, 

### CA 94105-3901 Dear

### Mr. Blumenfeld: SUBJECT: NAAQS 

### FOR

### NITROGEN DIOXIDE DESIGNATIONRECOMMENDATIONFOR WASHOE TRIBAL 

### LANDS This letter

### is in response tothe letteryou sent on November 12,2010providing the Tribe an opportunityto engage in formal or informal consultation on the designationareas under the recently revised primary National Ambient 

### Air QdtyStandard 

### (NAAQS) for Nirrogen Dioxide 

# (m). The Washoe Tribe of Nevada and 

### California has fractionated lands 

### in Wornia and Nevada throughout several counties. Although the Tribe has had an Environmental Department for over 10

### years and applied for funding under the Clean 

### Air Act 

### (CAA) we have never received CAA funk to establish air monitoring stations on Washoe lands. The Washoe Tribe of Nevada and California supports the efforts of the USEPA to strengthenair quality standards to protect public health and 

### is recommending that areas that fa1

### within the Washoe Tribe of Nevada and California's lands be designated at 

### this time as ccunclassifiable" for

### NONAAQS. 

### This recommendation is based on insufficient data to determine whether or not the areas are attaining the revised 1-hourNQ NAAQS. The Tribe is not requesting at 

### this time formal consultation but would 

### like to be 

### kept informed 

### with this action. Please contact

### Marie Barry, Environmental Director at (775)

### 265-8682 or 

### marie.barr@washoetribe.us 

### if you have anyquestions regarding our designation recommendation.

Lloyd 

### L. Wyatt, Vice Chairman cc: Marie Baq Environmental Director Lynelle Hartway, General Counsel



## 919 

## Highway 395 

## South, Gardnerville, Nevada 89410 (775) 265-4191 (775) 883-1446 (530) 694-2339 

### FAX (7%) 

### 265-3211
#### Tina MARTINEZ, et al., Plaintiffs and Respondents, v. Johnny A. LOVATO, Defendant and Appellant.

No. 19428.

Supreme Court of Utah.

Sept. 30, 1987.

Ted Cannon, Randall Skeen, Salt Lake City, for plaintiffs and respondents.

Edward K. Brass, Salt Lake City, for defendant and appellant.

STEWART, Associate Chief Justice:

Johnny Lovato appeals the ruling of the trial court that he is the natural father of a child born to Ernestina Martinez on the claim that the trial court erred in admitting HLA tests without a proper foundation having been laid.

Lovato admits to having had sexual intercourse with Martinez, but claims that it occurred after she had already conceived. Lovato asserts that Martinez told him she had had sexual intercourse with her old boyfriend at a time that would approximate a more probable date of conception, given the child’s birth date, than the date he had had intercourse with her. She claims that he was her only consort during the time conception could have occurred.

At trial, expert testimony was received based on human leukocyte antigen (HLA) tests that were conducted on Martinez, Lo-vato, and the child. The expert testified that the probability of Lovato’s being the father is 99 percent. If other consorts are included in the calculation, the probability of paternity drops. For example, if Martinez had had five consorts, including Lova-to, the probability of his being the father is 95 percent, a difference much more significant than appears on the face of the percentages.

*1365The trial court’s lone finding of fact simply states that it found Lovato to be the child’s father. No findings were made that Lovato was Martinez’s only consort or that based on evidence apart from the HLA tests Lovato is the child’s father. Thus, it is impossible to know the impact the HLA test evidence had on the trial court’s finding.

Today in *Kofford v. Flora,*744 P.2d 1343 (Utah, 1987), this Court has established standards that must be met before HLA evidence may be admitted in judicial proceedings. The record establishes that the necessary foundational requirements and other standards established by *Kofford*have not been met. In light of *Kofford,*a new trial is required.

Reversed and remanded. Costs to appellant.

HALL, C.J., and HOWE, DURHAM and ZIMMERMAN, JJ., concur.
#### The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Matthew Ben JEWETT, Defendant-Appellant.

No. 82CA1384.

Colorado Court of Appeals, Div. III.

Sept. 27, 1984.

Rehearing Denied Oct. 18, 1984.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., John Milton Hutchins, Asst. Atty. Gen., Denver, for plaintiff-ap-pellee.

David F. Vela, Colorado State Public Defender, Gerald E. Piper, Rachel A. Beilis, Deputy State Public Defenders, Denver, for defendant-appellant.

BABCOCK, Judge.

Defendant, Matthew Ben Jewett, appeals from the sentence imposed upon a judgment of conviction entered following defendant’s plea of guilty to attempted theft. The defendant contends that the trial court improperly ordered him to make restitution to the victims of his crime in the amount of $1,507.50 as a condition of parole. Defendant argues that because the victims had been reimbursed for all but $100 of their loss by their insurance company, the court could only order him to pay restitution in the amount of $100. We affirm.

Payment of restitution is a required condition of parole, and the amount of such restitution is based only, in part, on the “actual, pecuniary damages sustained by the *victim."*Section 16-11-204.5(1), C.R.S. (1983 Cum.Supp.) (emphasis added).

In *People v. King,*648 P.2d 173 (Colo.App.1982), we held that restitution payments must be made “to the party immediately and directly aggrieved by the criminal act, and not to others who suffer loss because of some relationship, contractual or otherwise, to the directly aggrieved party.” However, that holding does not imply that a defendant should enjoy a reduction in his restitution obligation because the victim happened to be insured. *See People in Interest of P.J.N,*664 P.2d 245 (Colo.1983).

Accordingly, the fact that the victims’ loss here was partially covered by insurance is irrelevant to a determination of the amount of defendant’s restitution obligation.

Judgment affirmed.

BERMAN and METZGER, JJ., concur.
1 The Honorable Susan Webber Wright, Chief Judge, United States District Court

for the Eastern District of Arkansas.



## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 99-4155

___________ Heather Patrice Hogrobrooks, * * Movant-Appellant, * * David Rogers; Janice M. Rogers, * * Plaintiffs, * Appeal from the United States * District Court for the v. * Eastern District of Arkansas. * Bobby Carter, Individually and in his * [UNPUBLISHED] official capacity as a Forrest City Police * Officer; City of Forrest City, Arkansas, * * Appellees. *

___________ Submitted: December 1, 2000 Filed: December 22, 2000

___________ Before BEAM, FAGG, and LOKEN, Circuit Judges.

___________ PER CURIAM. This appeal was filed by attorney Heather Hogrobrooks, purportedly on behalf of plaintiff David Rogers and herself, challenging the district court’s 1 dismissal of-2-

Rogers’s 42 U.S.C. § 1983 action after it was settled out of court, because Hogrobrooks was not awarded attorney’s fees under 42 U.S.C. § 1988. We agree with the district court that the client, not the attorney, has the right to seek an award of attorney’s fees under section 1988, and the client may waive that right in a settlement. See Evans v. Jeff D. , 475 U.S. 717, 730-31 & n.19 (1986) (§ 1988 vests right to attorney’s fees in prevailing party and not party’s lawyer); Wray v. Clarke , 151 F.3d 807, 809 (8th Cir. 1998) (although attorneys’ fees are available to civil rights complainant

who prevails through settlement in lieu of litigation, such fees may be waivedas part of settlement process); Brownv. Gen. Motors Corp. , 722 F.2d 1009, 1010-11 (2d Cir. 1983) (where client fired attorney prior to settlement, attorney could not claim fees in his own name under § 1988; attorney’s entitlement to fees depends upon contractual arrangement between attorney and client).
Inthis case, client Rogers made no application to the district court for an attorney’s fee award under section 1988. Hogrobrooks does not now represent Rogers, nor did she represent him when the case was settled, and she has no independent right to seek a section 1988 attorney’s fee award. Thus, as the district court recognized, whatever right Hogrobrooks may have to a portion of the settlement proceeds by reason of her representation of Rogers earlier in the lawsuit is a matter of state law. The district court did not abuse its discretion in dismissing the settled case in its entirety, leaving Hogrobrooks to pursue any such state law remedies in a separate action. Accordingly, we affirm. See 8th Cir. R. 47B. We grant Rogers’s motion to remove the designation of him as “appellant.”-3-

A true copy.
Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
* Pursuant to 5 TH CIR. R. 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 5 TH C IR. R. 47.5.4.

### IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-50524 Conference Calendar UNITED STATES OF AMERICA Plaintiff-Appellee v. DAVID RAY MILLER Defendant-Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 3:05-CR-1958-ALL Before JOLLY, BENAVIDES, and STEWART, Circuit Judges. PER CURIAM: * Theattorney appointed torepresent David Ray Miller has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967). Miller has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5 TH C IR. R. 42.2. United States Court of Appeals Fifth Circuit 

### F I L E D October 25, 2007 Charles R. Fulbruge III Clerk
COURT OF APPEALS

	SECOND DISTRICT OF TEXAS

	FORT WORTH

	NO. 2-08-038-CV

IN THE INTEREST OF K.J.M., K.H.M., AND A.K.M.	

	------------

	FROM THE 362ND DISTRICT COURT OF DENTON COUNTY

	------------

	MEMORANDUM OPINION1

	------------

	Appellant Bobbi J. M. is attempting to appeal the trial court’s order sustaining a contest to her claim of indigence filed in connection with a child support enforcement action.  Because this order is not appealable, we dismiss the appeal for want of jurisdiction.

	On August 8, 2007, the trial court entered an “Order of Enforcement by Contempt and Suspension of Commitment” against appellant; appellant subsequently asked the trial court to appoint her an attorney to file a petition for writ of habeas corpus.  The trial court found that appellant was indigent and signed an order appointing her counsel on September 27, 2007.  Appellant’s ex-husband then filed a contest to her claim of indigence.  The trial court heard the contest on November 15, 2007, and found that appellant is not indigent and is not entitled to a court-appointed attorney to pursue a writ of habeas corpus with regard to the contempt order.  Appellant then filed a notice of appeal challenging the trial court’s refusal to provide her with a court-appointed attorney.2

	On February 4, 2008, this court notified appellant of our concern that the court lacked jurisdiction over this appeal because the order does not appear to be an appealable order or judgment.  We informed appellant that unless she or any party desiring to continue the appeal filed a response showing grounds for continuing the appeal, the appeal would be dismissed for want of jurisdiction.  See Tex. R. App. P. 42.3(a).  We have received no response.

	A party may appeal only from a final judgment or an interlocutory order specifically made appealable by statute or rule.  Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 & n.12 (Tex. 2001); see, e.g., Tex. Civ. Prac. & Rem. Code Ann. § 51.014 (Vernon Supp. 2007) (listing appealable interlocutory orders).  The trial court’s “Order Sustaining Contest to Finding Regarding Indigence” for purposes of appellant’s contemplated habeas proceeding is not a final judgment, nor is there any statute or rule authorizing an appeal from such an order.3  Therefore, because there is no final judgment or appealable interlocutory order, we dismiss this case for want of jurisdiction.  See Tex. R. App. P. 42.3(a), 43.2(f).

							PER CURIAM

PANEL D:	MCCOY, J.; CAYCE, C.J.; and LIVINGSTON, J.

DELIVERED: March 13, 2008
Document Headings

                    Document headings vary by document type but may contain                    the following:                  
                -                       the agency or agencies that issued and signed a document                    
                -                       the number of the CFR title and the number of each part                      the document amends, proposes to amend, or is directly                      related to                    
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                    See the                                          Document Drafting Handbook                                        for more details.                  

###### Millennium Challenge Corporation

          - [MCC FR 12-03]

# AGENCY: 

Millennium Challenge Corporation.

# TIME AND DATE: 

3 p.m. to 5 p.m., Wednesday, March 22, 2012.

# PLACE: 

Department of State, 2201 C Street NW., Washington, DC 20520.

# FOR FURTHER INFORMATION CONTACT:

                        Information on the meeting may be obtained from Melvin F. Williams, Jr., Vice President, General Counsel and Corporate Secretary via email at                         *corporatesecretary@mcc.gov*                         or by telephone at (202) 521-3600.                    

# STATUS: 

Meeting will be closed to the public.

# MATTERS TO BE CONSIDERED: 

The Board of Directors (the “Board”) of the Millennium Challenge Corporation (“MCC”) will hold a meeting to discuss Candidate Country Report for FY2012, the Niger Threshold Program, the Zambia Compact and an update on Malawi. The agenda items are expected to involve the consideration of classified information and the meeting will be closed to the public.

Dated: March 7, 2012.

Melvin F. Williams, Jr.,

VP/General Counsel and Corporate Secretary, Millennium Challenge Corporation.

[FR Doc. 2012-5947 Filed 3-9-12; 11:15 am]

BILLING CODE 9211-03-P
EXHIBIT 10.38





AMENDMENT NO. 1 TO THE


CENTURY ALUMINUM COMPANY AMENDED AND RESTATED


SUPPLEMENTAL RETIREMENT INCOME BENEFIT PLAN


(As Amended and Restated Effective June 22, 2009)








WHEREAS, Century Aluminum Company (the “Company”) adopted and maintains the Century Aluminum Company Amended and Restated Supplemental Retirement Income Benefit Plan, as amended and restated effective June 22, 2009 (the "Plan"); and




WHEREAS, the Company, with the approval of the Compensation Committee of the Company, is authorized to amend the Plan under Section 13(a) of the Plan; and




WHEREAS, the Company, with the approval of the Compensation Committee desires to clarify that cash awards under a long term incentive plan are excluded in the calculation of a participant’s enhanced retirement benefit under the Plan;




NOW, THEREFORE, effective as of the date hereof, the Plan shall be amended as follows:




1.           The first sentence of Section 5(b) Enhanced Retirement Benefit (“ERB”) shall read in full as follows:




At the time an executive is designated as a Participant, the Compensation Committee shall, if applicable, also specify in writing the percentage to be used by the Company to estimate the Participant’s Targeted Retirement Income and, using the percentage specified with respect to the Participant, the Company shall estimate the excess of (A) over (B) based on the Participant’s current annual base pay plus his most recent cash bonus (excluding cash awards under a long term incentive plan), assuming 5% annual increases in such pay until Target Retirement Age, where:




(A) is the Participant’s Targeted Retirement Income at Target Retirement Age; and




(B) is the Participant’s Nonenhanced Pension Plan Income at Target Retirement Age.




2.           Subparagraph (i) of Section 5(b) Enhanced Retirement Benefit (“ERB”) shall read in full as follows:




(i) Increased to the extent the Participant’s ERB would be higher if his Targeted Retirement Income had been based on actual pay (base pay and cash bonuses, excluding cash awards under a long term incentive plan) during any three calendar years out of his last ten calendar years of employment with the Company that produces the highest average annual pay; and







1










IN WITNESS WHEREOF, an authorized officer of the Company has caused this Amendment No. 1 to the Plan to be executed this 22nd day of February, 2010.




CENTURY ALUMINUM COMPANYRETIREMENT COMMITTEEBy:
/s/ William J. LeatherberryTitle:
William J. Leatherberry, Chairman













2
Court of Appeals of the State of Georgia Clerk's Office, Atlanta, November 30, 2023. I certify that the above is a true extract from the minutes of the Court of Appeals of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written. , Clerk. 

# Court of Appeals of the State of Georgia
ATLANTA, November 30, 2023 The Court of Appeals hereby passes the following order A24D0147. JIMMY CHATMAN v. THE STATE.
Upon consideration of the Application for Discretionary Appeal, it is ordered that it be hereby GRANTED. The Appellant may file a Notice of Appeal within 10 days of the date of this order. The Clerk of Superior Court is directed to include a copy of this order in the record transmitted to the Court of Appeals.
LC NUMBERS: SU2020CR443
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 96-2126
NEGUSSIE SADO, Plaintiff - Appellant, versus LELAND MEMORIAL HOSPITAL, Defendant - Appellee, andRONALD MARX; EDMUND PETERS; TED LEWIS; CHRISTOPHER PICKWICK; LINDA HERFORD; WASHINGTON ADVENTIST HOSPITAL, Defendants.
Appeal from the United States District Court for the District ofMaryland, at Greenbelt. Peter J. Messitte, District Judge. (CA94-2959-PJM) Submitted: October 29, 1996 Decided: November 19, 1996 Before HALL, NIEMEYER, and WILLIAMS, Circuit Judges. Affirmed by unpublished per curiam opinion. Negussie Sado, Appellant Pro Se. R. Dennis Osterman, LERCH, EARLY & BREWER, Bethesda, Maryland, for Appellee.2 Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c).3 PER CURIAM:Appellant appeals the district court's order granting Appellee's motion for summary judgment and dismissing Appellant's suit filed pursuant to Title VII of the Civil Rights Act of 1964, as amended , 42 U.S.C. § 2000e-2 (1994). We have reviewed the record and the district court's opinion and find no reversible error. Accordingly, we affirm on the reasoning of the district court. Sado v. Marx , No. CA-94-2959-PJM (D. Md. July 26, 1996). We dispensewith oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

AFFIRMED