alea-institute/kl3m-data-sample-004-shuffled huggingface dataset:
#### State of New York, Appellant, v Daniel Boutin et al., Respondents. (And Two Other Related Actions.)

Kane, J. P.

Appeal from an order of the Supreme Court (Ford, J.), entered July 22, 1988 in Saratoga County, which denied plaintiffs motion for summary judgment.

This action is one of three civil actions joined for trial which stem from the tragic events of November 26, 1985 when defendant Daniel Boutin drove a tractor trailer owned by, among others, defendant J.C. Transport, Inc. into the rear of a State Police vehicle parked behind a disabled truck located partially in the far right southbound lane of Interstate Route 87 in Saratoga County. The police vehicle was crushed between the disabled truck and the tractor trailer, killing the occupants, Trooper Thomas Hudson and Yvan Lemieux, the driver of the disabled truck. The action at issue herein was commenced by plaintiff to recover for damages sustained by the police vehicle as a result of Boutin’s negligence. Defendants’ answer denied any negligence on Boutin’s part and asserted the affirmative defense of negligence on the part of Hudson which caused the damage. Plaintiff thereafter moved for summary judgment which Supreme Court subsequently denied, finding issues of fact as to the negligence of Hudson. This appeal ensued.

We affirm. There is presented the question of whether Hudson’s actions were reasonable under all the circumstances, *698since there is evidence that the police vehicle was stopped partially in the highway *(see, Andre v Pomeroy,*35 NY2d 361). Thus, plaintiff could not escape liability under the theory of impermissible imputation of negligence to an absentee owner, as argued by plaintiff, but in fact, is liable for any culpable conduct of its employee in the course of his employment *(see,*Court of Claims Act § 8; *State of New York v Popricki,*89 AD2d 391, 393-394). Accordingly, summary judgment was properly denied.

Order affirmed, without costs. Kane, J. P., Weiss, Mikoll, Yesawich, Jr., and Harvey, JJ., concur.
* Local Rule 47.5 provides: "The publication of opinions

that have no precedential value and merely decide particular

cases on the basis of well-settled principles of law imposes

needless expense on the public and burdens on the legal

profession." Pursuant to that Rule, the court has determined

that this opinion should not be published. 

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 95-10062

 Conference Calendar 

__________________

VINCENT LEE BAKER,

 Petitioner-Appellant,

versus

WAYNE SCOTT, Director,

Texas Dept. of Criminal Justice,

Institutional Division,

 Respondent-Appellee.

- - - - - - - - - -

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:94-CV-445-Y

- - - - - - - - - -

June 29, 1995

Before JONES, WIENER, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Texas prisoner Vincent Lee Baker appeals the dismissal of

his habeas corpus petition as an abuse of the writ pursuant to

Rule 9(b), Rules Governing Section 2254 Cases in the U.S.

District Courts.

"A second or successive petition may be dismissed . . . if

new and different grounds are alleged, [if] the judge finds that

the failure of the petitioner to assert those grounds in a prior

petition constituted an abuse of the writ." Rule 9(b), Rules
No. 95-10062

-2-

Governing Section 2254 Cases in the U.S. District Courts. "To

excuse his failure to raise [a] claim earlier, [a habeas

petitioner] must show cause for failing to raise it and prejudice

therefrom as those concepts have been defined in [the Supreme

Court's] procedural default decisions." McCleskey v. Zant, 499

U.S. 467, 494 (1991). 

Baker does not challenge the district court's finding that

he did not contend in his previous petitions that his conviction

was invalid. In his petition, Baker indicated that he had raised

only jury misconduct as an issue in his second petition. This

court's order denying Baker a certificate of probable cause in

his previous appeal indicates that he did not contend that his

enhancement conviction was invalid.

Baker does not contend in his initial appellate brief that

he could show cause for not having raised in his previous

petitions his contention regarding the invalidity of his prior

conviction. This court will not review issues that are initially

raised in a reply brief. United States v. Prince, 868 F.2d 1379,

1386 (5th Cir.), cert. denied, 493 U.S. 932 (1989). This court

need not consider the contentions in Baker's reply brief.

 Baker has not shown cause for his failure to raise in his

previous petitions his contention that his enhancement conviction

is invalid. Nor has he made a colorable showing of factual

innocence. Baker does not allege that he is innocent of

aggravated robbery, only that he should not have been convicted

of the car-theft offense used to enhance the robbery sentence. 

Because Baker's appeal is frivolous, it is DISMISSED. 
No. 95-10062

-3-
No. 95-10062

-4-

Additionally, and for the same reasons, Baker's petition for

mandamus also is DISMISSED.
<PAGE>
                           DEP CORPORATION AND SUBSIDIARIES
                         CONSOLIDATED CONDENSED STATEMENTS OF
                          COMPUTATION OF EARNINGS PER SHARE
                        (IN THOUSANDS, EXCEPT PER SHARE DATA)


<TABLE>
<CAPTION>
                                                          Years ended July 31,
                                                 -------------------------------------
                                                   1996           1995          1994
                                                 ---------     ---------      ---------
<S>                                              <C>           <C>             <C>
Net loss                                         ($7,958)      ($26,958)       ($3,583)
                                                 ---------     ---------      ---------
                                                 ---------     ---------      ---------
Shares:
 Weighted average shares outstanding               6,250          6,244          6,227
 Shares issuable from assumed exercise of
   outstanding options                                 -              -             23
                                                 ---------     ---------      ---------

 Adjusted weighted average shares outstanding      6,250          6,244          6,250
                                                 ---------     ---------      ---------
                                                 ---------     ---------      ---------
Loss per share                                    ($1.27)        ($4.32)        ($0.57)
                                                 ---------     ---------      ---------
                                                 ---------     ---------      ---------
</TABLE>

Fully diluted shares are not shown because there is no difference between 
primary and fully diluted.

                                           Exhibit 11



                                                62
### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 24
- 00157
- CV

In re Phillip “ Baby Shark ” Scott

OR I GINAL PROCEEDING FROM COMAL COUNTY

M E M O R A N D U M O P I N I O N

Relator Phillip Scott , an inmate in the Comal County Jail, has file d an ambiguously captioned pro se appellate submission with this Court entitled “Abuse

- of

Discretion & Clear Er ror Review,” complaining of an ex p arte hearing allegedly hel d pursuant to Cha pter 46B of t he Code of Criminal Proc edure in cause number CR202 3

- 3 82 , and asking us to vacate a civil commitment order allegedly entered in that case on July 19, 2023 . Having reviewed the filing, we treat the submission as a p etition for writ of mandamus and deny the petition. See Tex. R. App. P. 52.8(a). To the ext ent S cott seeks reli ef that is within this Court ’ s jurisdiction to grant, it is relator’s burden to properly request and show entitlement to mandamus relief. Walker v. Packer , 827 S.W.2d 833, 837 (Tex. 1992); In re Davidson , 153 S.W.3d 490, 491 (Tex. App.

–Am ar illo 2004, orig . proceeding); see also Barnes v. State , 832 S.W.2d 424, 426 (Tex. App.

– Houston [1st Dist.] 1992, orig. proceeding) (per curiam) (“Even a pro se applicant for a writ of mandamus must show himself entitled to the extraordinary relief he see ks ”). In this re gard, the relator must2 provide the reviewing court with a record sufficient to establish his right to mandamus relief. See Walker , 827 S.W.2d at 837; In re Blakeney , 254 S.W.3d at 661

– 62; see also Tex. R. App. P. 52.7(a)(1) (relator mu st fi le with petitio n “a certified or sworn copy of every document that is material to the relator’s claim for relief and that was filed in any underlying proceeding”), 52.7(a) (specifying required contents for record), 52.3(k) (specifying required content s f

or appendix).
Bas ed on his failure to provide any record, we conclude that Scott has failed to show an entitlement to relief. Accordingly, we deny the petition for writ of mandamus and dismiss the pending motion as moot. S ee Tex. R. App. P. 52.8(a).

__ ___ _______ ______________________________ Dar lene Byrne , Chief Justice Before Chief Justice Byrne, Justices Sm ith and Theofanis Filed: March 1 4 , 2024
#### Ex parte TEPLITZ.

No. 26555.

Court of Criminal Appeals of Texas.

Oct. 21, 1953.

No attorney on appeal for appellant. .

Wesley Dice, State’s Atty., of Austin, ior the State. ■

DAVIDSON, Commissioner.

Does the respondent in an extradition •case make out a prima facie case authorizing extradition by the introduction in evidence of the executive warrant of the Gov■ernor of this state, which is in all things regular upon its face?

This is the sole question presented by this record.

The requisition of the Governor of the demanding state for relator’s extradition -was not offered in evidence.

Ex parte Norris, 154 Tex.Cr.R. 68, 225 S.W.2d 193, is direct authority requiring that the question be answered in the affirmative. See, also, Ex parte Berry, 139 Tex.Cr.R. 67, 138 S.W.2d 813; Ex parte McMillan, Tex.Cr.App., 242 S.W.2d 384.

The judgment remanding relator to the custody of the transfer agent in extradition is affirmed.

Opinion approved by the Court.
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  In connection with the Quarterly Report of Unico, Incorporated (the "Company") on Form 10-QSB for the period ending August 31, 2007, as filed with the Securities and Exchange Commission on the date hereof (the "Report"), I, Kenneth C. Wiedrich, Chief Financial Officer of the Company, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that, to the best of my knowledge and belief:  (1) the Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and  (2) the information contained in the Report fairly presents, in all material respects, the financial condition and results of the operation of the Company.  Date: October 11, 2007/s/ Kenneth C. Wiedrich
Kenneth C. Wiedrich
Chief Financial Officer
#### C. T. WALKER et al., Appellants, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

May 20, 1955.

*817Lyttle & White, Roy W. House, Manchester, for appellants.

J. D. Buckman, Jr., Atty. Gen., William F. Simpson, Asst. Atty. Gen., for appellee.

MONTGOMERY, Judge.

The appellants, C. T. Walker and Dick Wagers, Jr., were convicted for having moonshine whiskey in possession for the purpose of sale, and each received a $100 fine and thirty days in jail. A motion for appeal has been filed by each.

The sole question involved is whether a sheriff serving a temporary restraining order to abate an alleged liquor nuisance issued without notice under the provisions of KRS Chapter 242 is authorized to search the premises named therein.

The indictment charged that the appellants had in possession one-half pint of untaxed whiskey, commonly known as moonshine whiskey, for the purpose of sale. This whiskey was obtained by a search of the premises of the appellant, C. T. Walker, upon the occasion of the service of a temporary restraining order issued against him. The sheriff of Clay County and other officers, upon arrival at the premises, found appellant Dick Wagers, Jr., in charge. Appellant Walker was a short distance away, but came to the premises upon request of the sheriff. He was then informed of the sheriff’s mission. It is admitted that the sheriff did not have a search warrant for the premises and had not made an arrest prior to the time the whiskey'was found.

The restraining order of the Clay Circuit Court directed the: sheriff to padlock all entrances to the building. , He discussed the matter with Walker and advised Walker to take any meats or anything else that might spoil out of the house. At no time was permission requested or granted to search the premises. It was while the sheriff was checking inside the building to see if anything had been left that might be damaged that he discovered beer in a Coca Cola box, three jars of whiskey in a paper box under the table, one jar in a dresser drawer, and another one-half pint somewhere about the premises.

It may readily be seen that the whiskey was discovered by the sheriff by an invasion of the rights of the appellant in violation of Section 10 of the Constitution of Kentucky, providing:

> “The people shall be secure in their persons, houses, papers and possessions, from unreasonable search and seizure; and no warrant shall issue to search any place, or seize any person or thing, without describing them as nearly as may be, nor without probable cause supported by oath or affirmation.”

The temporary restraining order was issued under KRS 242.350 relating to the abatement of an alleged liquor nuisance, but this statute is a special proceeding which is to be used as a preventive measure rather than as a punitive measure - in its nature and effect. A search of the premises is not authorized by such an order. Commonwealth v. Covington, 313 Ky. 458, 231 S.W.2d 67.

On the trial, the motion to suppress the evidence should have been sustained and the testimony excluded. The motions for appeal are sustained and the judgments are reversed.
#### CHAMBERS v. COMMONWEALTH.

Court of Appeals of Kentucky.

Dec. 4, 1953.

Rehearing Denied Feb. 19, 1954.

Caswell P. Lane, Mt. Sterling, for appellant.

J. D. Buckman, Jr., Atty. Gen., Squire N. Williams, Jr., Asst. Atty. Gen., for ap-pellee.

STEWART, Justice.

Appellant, Clifton Chambers, was indicted at the February term, 1952, of the Montgomery Circuit Court for the crime of malicious shooting and wounding with intent to kill. KRS 435.170(1). He was tried, found guilty and his punishment fixed at confinement in the penitentiary for ten years. The one point urged for reversal is that the lower court erred in overruling 'his motion for a new trial on the ground of newly discovered evidence.

On this appeal no question of fact is raised. A brief summary of the evidence discloses that on Sunday, October 14, 1952, Chambers, accompanied by Albert Estes, drove his automobile up to a filling station operated by one Boone Lee and ordered gasoline. Chambers and Estes were admittedly drunk and, following an argument over payment for the gasoline, Chambers and Lee fired one shot from a shotgun at each other and each claimed the other fired first. Lee testified he was struck by a shot in the finger and leg. Each introduced testimony that tended to corroborate his version of the affray.

Chambers presented the affidavits of Ruth Manning Chambers, his sister-in-law, and Doctor R. S. White, a chiropractor in the city of Mt. 'Sterling, in support of his motion. The purport of these affidavits would have been merely to rebut the testimony of Lee and his wife that Lee had been struck in the finger and leg by pellets from Chambers’ shotgun. The affidavit of Chambers averred that he had made a diligent effort to discover “all evidence for my defense,” but he failed to allege facts to establish that such diligence was actually exercised.

Section 271 of the Criminal Code of Practice authorizes the granting of a new trial when important, newly-found evidence indicates a manifest injustice has been done. We have held many times, however, that where the newly discovered evidence is merely cumulative, and such is the case here, it will not warrant the granting of a new trial. See Herd v. *62Commonwealth, 294 Ky. 154, 171 S.W.2d 32. At most, the two affidavits first mentioned amount in the main to an attack upon the credibility of Lee and his wife as witnesses and in no way do they refute the actual circumstances of the shooting. Aside from this, Chambers’ affidavit is fatally defective because it failed to set forth sufficient facts to support his allegation that due diligence was exercised by him. Spurlock v. Commonwealth, 311 Ky. 238, 223 S. W.2d 910; Hamilton v. Commonwealth, 292 Ky. 307, 167 S.W.2d 56; Ellis v. Commonwealth, 146 Ky. 715, 143 S.W. 425.

Wherefore, the judgment is affirmed.
**EXHIBIT
      32**




**CERTIFICATION
      PURSUANT TO**




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




**AS
      ADOPTED PURSUANT TO**




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




In
      connection with the Quarterly Report of eRoomSystem Technologies, Inc. (the
      "Company") on Form 10-QSB/A for the period ending March 31, 2006, as filed with
      the Securities and Exchange Commission on the date hereof (the "Report"), David
      A. Gestetner, Chief Executive Officer (Principal Executive Officer), President
      and Chief Financial Officer (Principal Accounting and Financial Officer) of
      the
      Company, certifies, pursuant to 18 U.S.C. Section 1350, as adopted pursuant
      to
      Section 906 of the Sarbanes-Oxley Act of 2002, that:




(1)          The
      Report fully complies with the requirements of section 13(a) or 15(d) of the
      Securities Exchange Act of 1934; and




(2)          The
      information contained in the Report fairly presents, in all material respects,
      the financial condition and result of operations of the Company.






By:
                /s/ David A. Gestetner
            
            President,
                Chief Executive Officer andChief
                Financial Officer
            
            June
                22, 2006David
                A. Gestetner
            
            (Principal
                Executive Officer and PrincipalFinancial
                and Accounting Officer )
Exhibit 99.2  -  Report of Management as to compliance with minimum
		 servicing standards for the year ended December 31, 2005

	    	                      [OCWEN logo]

	MANAGEMENT ASSERTION ON COMPLIANCE WITH USAP

February 27, 2006

As of and for the year ended December 31, 2005, Ocwen Loan Servicing, LLC
("OLS"), as successor to Ocwen Federal Bank FSB (the "Bank"), except as
specifically noted below, has complied in all material respects with the
minimum servicing standards set forth in the Mortgage Bankers Association
of America's ("MBA's") Uniform Single Attestation Program for Mortgage
Bankers ("USAP")

Standard: Reconciliations shall be prepared on a monthly basis for all custodial
bank accounts and related bank clearing accounts. These reconciliations shall
be mathematically accurate, be prepared within forty five (45) calendar days of
the cutoff date; be reviewed and approved by someone other than the person
who prepared the reconciliation; and document explanations for reconciling
items. These reconciling items shall be resolved within ninety (90) calendar
days of their original identification.

We have complied with all aspects of this standard with the exception of certain
reconciling items which arose during the year ended December 31. 2005 were
not cleared within 90 days of their original identification. All items
identified were subsequently cleared within 6 months. As of December 31, 2005,
there was exactly 1 reconciling item totaling $431.07 that had not cleared
within 90 days of identification.

Standard Adjustments on ARM loans shall be computed based on the related
mortgage note and any ARM rider.

Certain ARM loans serviced by OLS were transferred in with an incorrect look
back date due to errors in prior servicer records. These certain loans had ARM
adjustments shortly after servicing transfer, but prior to OLS receiving the
related mortgage documents from the prior servicer. When OLS received the
mortgage documents and these errors were identified, OLS did not adjust the
principal and interest payment amount. OLS has subsequently made
adjustments to their procedures when they identify an error in prior servicer
data to analyze the affect on the customer's account and make the appropriate
adjustment.

As of and for this same period, OLS had in effect a fidelity bond in the amount
of $20,000,000 and an errors and omissions policy in the amount of $5,000,000.

/s/  Ronald M. Faris
Ronald M. Faris
President

/s/ Scott W. Anderson
Scott W. Anderson
SeniorVice President of
Residential Assets

/s/  Brian J. LaForest
Brian J. LaForest
Director of Investor Reporting

/s/  Thomas Vickers
Thomas Vickers
Director and Servicing Controller
Exhibit 21.1       List of Subsidiaries
                   --------------------

                                                  State in
                                                   Which
Subsidiaries of IPALCO Enterprises, Inc.          Organized

 Indianapolis Power & Light Company (IPL)         Indiana

   Subsidiaries of IPL

     Property and Land Company, Inc.              Indiana
     Fort Ben Energy Management Corp.             Indiana
     IPL Funding Corporation                      Indiana

 Mid-America Capital Resources, Inc.              Indiana
    (Mid-America)

   Subsidiaries of Mid-America

     Indianaplis Campus Energy, Inc. (ICE)        Indiana
     Store Heat and Produce Energy, Inc. (SHAPE)  Indiana
     Mid-America Energy Resources, Inc.
       (Energy Resources)                         Indiana

     Subsidiaries of Energy Resources

       Cleveland Thermal Energy Corporation       Ohio
       Cleveland District Cooling Corporation     Ohio

   Both IPL and Mid-America are wholly owned by IPALCO Enterprises, Inc.
Each of the subsidiaries listed for IPL, Mid-America and Energy
Resources is wholly owned except for SHAPE, which is 80% owned by Mid-
America.  Both Cleveland Thermal Energy Corporation and Cleveland
District Cooling Corporation conduct business under the name Cleveland
Energy Resources.