alea-institute/kl3m-data-sample-004-shuffled huggingface dataset:
Exhibit 99.5


 Report of Ehrhardt, Keefe, Steiner & Hottman PC, Independent Auditors of Miaco



Board of Directors
Miaco Corporation (Miaco)
Englewood, Colorado


We have audited the balance sheet of Miaco Corporation (the Company) as of March
31, 1996,  and the related  statements of operations,  changes in  stockholders'
equity and cash flows for the year then ended (not presented separately herein).
These financial  statements are the responsibility of the Company's  management.
Our responsibility is to express an opinion on these financial  statements based
on our audit.

We conducted our audit in accordance with generally accepted auditing standards.
Those standards  require that we plan and perform the audit to obtain reasonable
assurance   about  whether  the  financial   statements  are  free  of  material
misstatement.  An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements.  An audit also includes
assessing the  accounting  principles  used and  significant  estimates  made by
management,  as well as evaluating the overall financial statement presentation.
We believe that our audit provides a reasonable basis for our opinion.

In our opinion,  the financial  statements  referred to above present fairly, in
all material  respects,  the financial position of Miaco Corporation as of March
31, 1996, and the results of its operations and its cash flows for the year then
ended in conformity with generally accepted accounting principles.





                                             Ehrhardt Keefe Steiner & Hottman PC



May 29, 1996
Denver, Colorado
# Fourth Court of Appeals

**San Antonio, Texas**

MEMORANDUM OPINION

No. 04

- 13

- 00443

- CV

IN RE ALFARO OIL & GAS, LLC, Pinnacle Financial Partners Corporation, and Brian Alfaro

Original Mandamus Proceeding 1

PER CURIAM

Sitting: Sandee Bryan Marion, Justice Marialyn Barnard, Justice Luz Elena D. Chapa, Justice

Delivered and Filed: August 7, 2013

PETITION FOR WRIT OF MANDAMUS DENIED

On July 12 , 2013

, Relators Alfaro Oil & Gas, LLC, Pinnacle Partners Financial

Corporation and Brian Alfaro filed a petition for writ of mandamus. On July 22, 2013, Relators

filed a motion for stay of the sanctions order pending a ruling on the mandamus petition. The court

has considered the p etition for writ of mandamus and is of the opinion that Relators are not entitled

to the relief sought. Accordingly, the petition for writ of mandamus and the motion to stay the

sanctions order are denied

. See T EX

. R. A PP

. P . 52.8(a).

PER CURIAM

1 This proceeding arises out of Cause No. DC

- 12

- 315, styled Leland Rogness v. Alfaro Oil & Gas, LLC, Pinnacle Partners Financial Corporation, and Brian Alfaro, Individually , pending in the 229th Judicial District Court, Duval County, Texas, the Honorable Ana Lisa Garza presiding.
#### Mac A. Haddad et al., Appellants, v Samuel Salzman et al., Respondents.

In an action for a judgment declaring the defendants’ rights to make certain building alterations at their premises and for injunctive relief, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Dowd, J.), dated July 7, 1989, as granted that branch of defendants’ motion for a protective order which was to vacate a notice dated March 15, 1989, to permit entry on the defendants’ property for the purpose of inspection and survey and denied that branch of the plaintiffs’ cross motion to compel disclosure which was to compel the defendants to comply with that notice.

Ordered that the order is reversed insofar as appealed from, as a matter of discretion, without costs or disbursements, that branch of the defendants’ motion which was for a protective order to vacate the plaintiffs’ notice dated March 15, 1989, to permit entry onto the property is denied, and the plaintiffs’ cross motion is granted to the limited extent that the plaintiffs’ attorney or other agents may inspect the defendants’ premises and take measurements, and it is further,

Ordered that the defendants are directed to comply with the plaintiffs’ notice to permit the inspection and survey within 20 days after service upon them of a copy of this decision and order with notice of entry and a notice of the time at which the inspection is to occur, or at such other time as the parties may agree; and it is further,

Ordered that plaintiffs shall not personally participate in the inspection.

In this dispute between neighbors over whether the defendants’ alterations and additions to their home are in keeping with their building permit and with the applicable zoning laws, the defendants did not contest before the Supreme Court the relevance of the sought-after inspection *(see,*CPLR 3101 [a]; *Bruno v Dellwood Foods,*124 AD2d 773). Moreover, nei*523ther the fact that the plaintiffs can view the defendants’ premises from their own property nor the fact that plaintiffs may have made an informal pre-action inspection is sufficient to defeat the right afforded the plaintiffs by CPLR 3120 (a) (1) (ii) *(see, Marcus & Sons v Federal Ins. Co.,*24 AD2d 922). The Supreme Court thus should have allowed the inspection and measurements sought, limiting the plaintiffs’ request only by the requirement that the plaintiffs be prohibited from personally participating in the inspection so as to avoid embarrassment, annoyance, and an increase in tension between the litigants *(see,*CPLR 3103 [a]). Kooper, J. P., Sullivan, Harwood and Rosenblatt, JJ., concur.
#### The People of the State of New York, Respondent, v Robert Byrd, Appellant.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Clabby, J.), rendered December 21, 1988, convicting him of rape in the first degree, sodomy in the first degree, sexual abuse in the first degree, robbery in the first degree, robbery in the third degree, and grand larceny in the fourth degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress identification testimony.

Ordered that the judgment is affirmed.

We agree with the defendant that the trial court improperly instructed the jury that no unfavorable inference should be drawn from the defendant’s failure to testify when no such charge was requested by the defendant. However, under the circumstances of this case, we find that error to be harmless *(see, People v Vereen,*45 NY2d 856).

The defendant’s contention that the court improperly denied suppression of two showup identifications by the complainant is without merit. The first showup identification was spontaneously made by the complainant and was not the result of a police-arranged identification procedure *(see, People v Whisby,*48 NY2d 834; *People v Harris,*171 AD2d 882; *People v Webster,*169 AD2d 796; *People v Boyd,*161 AD2d 719, 720; *People v Rios,*156 AD2d 397). The second showup, made shortly thereafter, was merely confirmatory since the complainant had already spontaneously identified the defendant as the perpetrator *(see, People v Johnson,*169 AD2d 779; *People v Griffin,*161 AD2d 799; *People v Brown,*161 AD2d 721; *People v Jackson,*159 AD2d 640).

The trial court’s *Sandoval*ruling, permitting the prosecutor to cross-examine the defendant concerning his prior convictions for assault, criminal trespass, and attempted grand larceny, as well as two pending criminal trespass indictments, was, in all respects, proper. These offenses were relevant to the defendant’s credibility as a witness and his willingness to place his interests above those of society *(see, People v Sandoval,*34 NY2d 371, 377).

We find the defendant’s remaining contention to be without merit. Thompson, J. P., Brown, Eiber and O’Brien, JJ., concur.
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###### Department of the Treasury

# DATES:

Comments should be received on or before February 13, 2012 to be assured of consideration.

# ADDRESSES:

                        Send comments regarding the burden estimate, or any other aspect of the information collection, including suggestion for reducing the burden, to (1) Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for Treasury, New Executive Office Building, Room 10235, Washington, DC 20503, or email at                         *OIRA_Submission@                                  ( print page 2133)                                OMB.EOP.GOV*                         and (2) Treasury PRA Clearance Officer, 1750 Pennsylvania Ave. NW., Suite 11020, Washington, DC 20220, or on-line at                         *www.PRAComment.gov.*

# FOR FURTHER INFORMATION CONTACT:

                        Copies of the submission(s) may be obtained by calling (202) 927-5331, email at                         *PRA@treasury.gov,*                         or the entire information collection request maybe found at                         *www.reginfo.gov.*

## Financial Management Service (FMS)

*OMB Number:*                         1510-0057.                    

*Type of Review:*                         Revision of a currently approved collection.                    

*Title:*                         Annual Letters—Certificate of Authority (A) and Admitted Reinsurer (B).                    

*Abstract:*                         Annual letters sent to insurance companies providing surety bonds to protect the U.S. or companies providing reinsurance to the U.S. information needed for renewal of certified companies and their underwriting limitations, and of admitted reinsurers.                    

*Affected Public:*                         Private Sector: Businesses or other for-profits.                    

*Estimated Total Burden Hours:*                         13,555.                    

Dawn D. Wolfgang,

Treasury PRA Clearance Officer.

[FR Doc. 2012-579 Filed 1-12-12; 8:45 am]

BILLING CODE 4810-35-P
#### Michael Rhodes, Respondent, v George Bauer, Individually and as Administrator of the Estate of Robert H. Bauer, Deceased, et al., Respondents, and Town of Huntington, Appellant.

In an action to recover damages for personal injuries, the defendant Town of Huntington appeals from so much of an order of the Supreme Court, Suffolk County (Copertino, J.), dated November 27, 1989, as denied its cross motion for summary judgment dismissing the complaint and cross claims insofar as asserted against it.

Ordered that the order is affirmed insofar as appealed from, with costs.

On March 29, 1985, at approximately 2:45 a.m., the plaintiff Michael Rhodes, who was a passenger in an automobile owned by the defendant George Bauer and operated by Robert H. Bauer, since deceased, was injured when the right wheels of the vehicle left an eight-to-ten inch drop-off from the paved portion of Daly Road in the Town of Huntington, apparently causing the operator of the car to lose control. As a result, the vehicle rolled over several times. The plaintiff alleges that the defendant Town was negligent because of its failure to post proper warnings, reflective devices, or signs with respect to the unpaved shoulder under construction at the time of the accident. The Town has conceded that nine white road delineators which it had installed previously were missing from the construction site for two months prior to the accident. The *453Town cross-moved for summary judgment contending that it did not create the alleged defect in the excavated area and that the action was barred pursuant to the Town’s prior notice statute. The Town also claimed that its alleged negligence was not the proximate cause of the accident as a matter of law.

We find that claims alleging a failure to construct proper barriers and warnings as alleged by the plaintiff do not fall within the purview of the Town’s prior notice statute (Town of Huntington Code § 173-18), and consequently, no prior written notice was required *(see, Hughes v Jahoda, 75*NY2d 881, 883; *see also, Burgess v Town of Hempstead,*161 AD2d 616, 617-618). In any event, we note that the Town did in fact receive prior written notice through one of its employees.

In addition, it cannot be said as a matter of law that the Town’s alleged failure to replace the nine white road delineators, which, according to the deposition testimony of a Town employee, had been installed by the Town to define the roadway edge during construction, could not have been a contributing cause of the accident *(see, Alexander v Eldred,*63 NY2d 460, 467). Accordingly, the Supreme Court properly denied the Town’s cross motion of summary judgment.

We have considered the Town’s other contention and find it to be without merit. Kooper, J. P., Sullivan, Lawrence and Ritter, JJ., concur.
(May 21, 1991)

#### The People of the State of New York, Respondent, v Tracy Brown, Appellant.

Judgment, Supreme Court, Bronx County (Fred Eggert, J.), rendered April 12, 1989, convicting defendant, after a jury trial, of murder in the second degree and robbery in the first degree, and sentencing him, as a second violent felony offender, to consecutive indefinite prison terms of 25 years to life and 6 to 12 years, respectively, unanimously affirmed.

On September 26, 1987, defendant and an accomplice, both armed with guns, forcefully robbed Caris Townes in a basement apartment, where marijuana was often sold. The next evening, defendant knocked on the basement door and an*319nounced his presence. After waiting a moment, defendant fired a shot into the door at chest level. After another pause, defendant fired again. As a result, Hector Roman was killed.

Defendant asserts that his guilt of second degree murder, on a theory of depraved indifference to human life (Penal Law § 125.25 [2]), was not proven beyond a reasonable doubt, and that the conviction should consequently be reduced to manslaughter in the second degree, because the People failed to demonstrate that defendant knew anyone was inside the apartment when he shot through the door. There was no need for the People to prove that defendant knew someone was inside the apartment when defendant fired into it. The People only had to prove that when defendant fired into the apartment and killed Hector Roman, he was aware of, and consciously disregarded, the grave risk of killing another person. *(See, People v Register,*60 NY2d 270, 274, *cert denied*466 US 953.)

We find no abuse of discretion or impropriety in the sentence imposed. Concur—Murphy, P. J., Sullivan, Ellerin, Ross and Rubin, JJ.
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#### The People of the State of New York, Respondent, v Rudy Steans, Appellant.

Judgment, Supreme Court, New York County (Ira Beal, J., at suppression hearing; Martin Rettinger, J., at trial), rendered November 28, 1989, convicting defendant after a jury trial of two counts of robbery in the second degree, and sentencing him to concurrent, indeterminate terms of imprisonment of seven and one-half to fifteen years, to run consecutively to a previously imposed sentence, unanimously affirmed.

Defendant’s conviction was not against the weight of the evidence. *(People v Bleakley,*69 NY2d 490.) Defendant’s guilt of the robbery of the bar was amply established by the in-court and lineup identifications made by the bartender, who had ample opportunity to view him. Although the bartender did identify the photograph of another person as a possible suspect shortly after the robbery, his later identifications of defendant were unequivocal. Defendant was also tied to the robbery by the missing water gun, which the police recovered at the time of defendant’s arrest.

The redirect examination of the bartender was not overly broad *(People v Melendez,*55 NY2d 445). Any possible prejudice to defendant on account of a comment by the prosecutor in summation (to the effect that defendant should have produced the photograph of the person identified by the bartender as a possible suspect) was cured by the court’s prompt intervention and curative instructions. *(People v Galloway,*54 NY2d 396.) Concur—Murphy, P. J., Carro, Wallach and Rubin, JJ.
II 

111TH CONGRESS 

1ST SESSION S. 1941 

To suspend temporarily the duty on certain acrylic synthetic staple fiber. 

IN THE SENATE OF THE UNITED STATES 

OCTOBER 28, 2009 

Mr. ISAKSON introduced the following bill; which was read twice and referred 

to the Committee on Finance 

A BILL 

To suspend temporarily the duty on certain acrylic synthetic 

staple fiber. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. CERTAIN ACRYLIC STAPLE FIBER. 

4 (a) IN GENERAL.—Subchapter II of chapter 99 of 

5 the Harmonized Tariff Schedule of the United States is 

6 amended by inserting in numerical sequence the following 

7 new heading: 


wwoods2 on DSK1DXX6B1PROD with BILLS
2 

•S 1941 IS

‘‘ 9902.01.00 Acrylic staple fiber undyed 

(polyacrylonitrile staple) not 

carded, combed, or otherwise 

processed for spinning, containing by weight a minimum 

of 92 percent 

polyacrylonitrile, not more 

than .01 percent zinc and 

from 2 to 8 percent water, 

imported in the form of staple fiber with a filament 

decitex of 4.0 decitex to 6.7 

decitex (plus or minus 10 

percent) with a fiber shrinkage of 0 to 22 percent (plus 

or minus 10 percent) and a 

cut fiber length of 89 mm to 

140 mm with a target length 

of 115 mm (provided for in 

subheading 5503.30.00) ........ Free No change No change On or before 

12/31/2011 ’’. 

1 (b) EFFECTIVE DATE.—The amendment made by 

2 subsection (a) applies to articles entered, or withdrawn 

3 from warehouse for consumption, on or after the 15th day 

4 after the date of the enactment of this Act. 

Æ 


wwoods2 on DSK1DXX6B1PROD with BILLS
#### Brook Plaza Ophthalmology Associates, P. C., Appellant, v Fink, Weinberger, Fredman, Berman & Lowell, P. C., et al., Respondents.

Order, Supreme Court, New York County (Charles Ramos, J.), entered July 12, 1990, which, *inter alia,*granted defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.

Plaintiff, a medical corporation, hired the defendants, pursuant to a written retainer agreement, to assist it in filing an application with the New York State Department of Health ("DOH”) to construct and operate a free-standing ambulatory surgical center ("ASC”). While the agreement provided that the application was to be filed on or before April 15, 1985, it also provided if plaintiff failed to provide defendants "with such financial, architectural or other relevant information as [defendant] may require, then the anticipated filing date shall be extended”.

As a result of recent changes in the law, defendants suggested that plaintiff’s application would fare better if it were to seek approval for a multi-specialty facility. Plaintiff agreed, and as a result the application was delayed. Additional delays resulted from DOH’s establishment of a new set of forms which related to the new regulations pertaining to ASC’s.

On January 28, 1986, after plaintiff approved all the various agreements prepared for the application, the application was filed. Due to some minor problems, the application was stayed for fifteen (15) days so that the problems could be cured. *171However, plaintiff discharged defendants on March 4, 1986 and began this lawsuit for legal malpractice and breach of contract. Defendants moved for summary judgment. The IAS court determined that there were no triable issues of fact requiring a trial and granted the motion.

The record demonstrates that defendants were not negligent in their representation of plaintiff, nor did they breach the retainer agreement. Defendants’ conduct clearly did not fall " 'below the ordinary and reasonable skill and knowledge commonly possessed by a member of his profession’ ”. *(Beer v Florsheim,*96 AD2d 485, 486.) While other options may have been available to defendants, their choice of one of several reasonable alternatives certainly does not amount to malpractice. *(Rosner v Paley,*65 NY2d 736, 738.)

As to the breach of contract claim, there were no express promises in the retainer agreement which defendants breached. *(See, Pacesetter Communications Corp. v Solin & Breindel,*150 AD2d 232, 236, *lv dismissed*74 NY2d 892.) Indeed, the very reasons for the delay in filing the application were specifically addressed in the retainer agreement. Finally, the written retainer agreement is unambiguous. Plaintiff cannot defeat the summary judgment motion with conclusory assertions that the written agreement does not properly express the oral agreement reached during negotiations. *(See, Chimart Assocs. v Paul,*66 NY2d 570, 571.) Concur—Milonas, J. P., Rosenberger, Smith and Rubin, JJ.
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 an officer of Diedrich Coffee, 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 to the best of his knowledge:



| |  |  | the Annual Report of the Company on Form 10-K for the period ended June 28, 2006 (the Report) fully complies with the requirements of Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934, as amended; and
| | - |  | ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------



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



|                             |  |                                                                                          
|---------------------------- |  | -----------------------------------------------------------------------------------------
|Dated:    September 26, 2006 |  | /s/ Sean M. McCarthy                                                                     
|                             |  | Sean M. McCarthy Vice President and Chief Financial
Officer (Principal Financial Officer)



| | Note: A signed original of this written statement required by Section 906 has been provided to Diedrich Coffee, Inc. and will be retained by Diedrich Coffee, Inc. and furnished
to the Securities and Exchange Commission or its staff upon request.
| | -----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------