alea-institute/kl3m-data-sample-004-shuffled huggingface dataset:
#### Douglas Boles et al., Respondents, v Dormer Giant, Inc., Doing Business as Dormers Are Us, Defendant and Third-Party Plaintiff-Appellant. Personal Touch Home Improvements, Inc., Third-Party Defendant-Respondent.

[772 NYS2d 612]

*418In an action to recover damages for personal injuries, etc., the defendant third-party plaintiff appeals from an order of the Supreme Court, Nassau County (McCarty, J.), entered March 27, 2003, which granted the plaintiffs motion for partial summary judgment on the issue of liability pursuant to Labor Law § 240 (1) and granted the third-party defendant’s separate motion for summary judgment dismissing the third-party complaint.

Ordered that the order is affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs.

This action arises from an accident which occurred when the plaintiff Douglas Boles was working for the third-party defendant subcontractor, Personal Touch Home Improvements, Inc. (hereinafter Personal Touch), installing vinyl siding on a one-family house. The scaffold on which Boles was standing collapsed, causing him to fall to the ground and sustain injuries.

On a claim pursuant to Labor Law § 240 (1), “[p]roof of a collapse of a safety device constitutes a prima facie showing that the statute was violated and that the violation was a proximate cause of the worker’s injuries” *(Dos Santos v State of New York,*300 AD2d 434 [2002]; *see also Panek v County of Albany,*99 NY2d 452, 458 [2003]; *Saeed v NY/Enterprise City Home Hous. Dev. Fund Corp.,*303 AD2d 484 [2003]). The defendant third-party plaintiff, Dormer Giant, Inc., doing business as Dormers Are Us (hereinafter Dormer) failed to raise a triable issue of fact as to its liability.

The Supreme Court properly granted the separate motion of Personal Touch for summary judgment dismissing the third-party complaint. The evidence relied on by Personal Touch demonstrated that it was Boles’s employer, since it had hired him for continuous, full-time work, paid him a salary each week based on an hourly rate, and had the power to control the means of completing the work (see *Matter of Ted Is Back Corp.,*64 NY2d 725 [1984]; *Sikes v Chevron Cos.,*173 AD2d 810 [1991]; *Commissioners of State Ins. Fund v Lindenhurst Green & White Corp.,*101 AD2d 730 [1984]). In response to the prima facie showing of entitlement to summary judgment by Personal Touch, Dormer failed to raise a triable issue of fact. Therefore, since Boles did not sustain a “grave injury,” the third-party action by Dormer against Personal Touch for contribution or indemnity is barred as a matter of law *(see*Workers’ Compensation Law § 11; *Schuler v Kings Plaza Shopping Ctr. & Mar.,*294 AD2d 556 [2002]). That statutory bar, unlike the bar on personal *419injury actions by employees, is not affected by the failure of Personal Touch to secure the payment of workers’ compensation for Boles (see Workers’ Compensation Law § 11). Santucci, J.P., Florio, Schmidt and Townes, JJ., concur.
VINSON CORROSION CONTROL SERVICES, INC. and Nathan D. Vinson, Appellants v. WALKER COUNTY, Texas, Appellee

No. 10-17-00337-CV

Court of Appeals of Texas, Waco.

Order issued and filed February 21, 2018

Christopher A. Beck, Baker & Beck PLLC, Conroe, TX, for Appellant/Relator.

Frank Blazek & Alvin Martin, Smither Martin Henderson & Blazek PC, Huntsville, TX, for Appellees/Respondents.

Before Chief Justice Gray, Justice Davis, and Justice Scoggins

**ORDER GRANTING REHEARING AND WITHDRAWAL OF OPINION**

PER CURIAM

On January 31, 2018, we dismissed this appeal filed by appellants, Vinson Corrosion Control Services, Inc. and Nathan D. Vinson, for failing to pay or make arrangements to pay the clerk's fees for preparation of the record.1*See generally**Vinson Corrosion Control Servs. v. Walker County* , No. 10-17-00337-CV, 2018 WL 683756, 2018 Tex. App. LEXIS 888 (Tex. App.-Waco Jan. 31, 2018, no pet. h.) (mem. op.). On February 7, 2018, appellants paid for the Clerk's Record and filed a motion to reinstate this appeal. We grant appellants' motion to reinstate this appeal and withdraw our memorandum opinion and judgment issued on January 31, 2018.

1

The record reflects that the Clerk's Record was originally due on November 27, 2017. On December 12, 2017, we informed appellants that they had not paid or made arrangements to pay: (1) the clerk's fees for preparation of the record; and (2) this Court's filing fee. As such, we warned appellants that this appeal would be dismissed for want of prosecution, unless they paid or made arrangements to pay the appropriate fees and notified this Court of the actions taken within twenty-one days of December 12, 2017. Despite an untimely January 5, 2018 notice stating that they were making arrangements to pay for the Clerk's Record, the Clerk's Record still had not been filed by the date we issued our original opinion in this matter.
### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 16

- 40249 Conference Calendar

UNITED STATES OF AMERICA , Plaintiff

- Appellee

v.
RAFAEL MORENO

- ORNELLAS , Defendant

- Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 7:14

- CR

- 1714

- 1

Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges. PER CURIAM: * Appealing the judgment in a criminal case, Rafael Moreno

- Ornellas raises argument s that are foreclosed by United States v. Rodriguez , 711 F.3d 541, 562

- 63 & n.28 (5th Cir. 2013) (en banc), in which we held that the generic, contemporary definition of sex ual abuse of a minor does not require the age of consent to be below 17 years old and does not include an age

- differential requirement . He also raises an argument that is foreclosed by United States

* Pursuant to 5 TH C IR

. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances se t forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED October 18 , 2016

Lyle W. Cayce Clerk Case: 16-40249 Document: 00513722248 Page: 1 Date Filed: 10/18/2016No. 16

- 40249

2 v. Elizondo

- Hernandez , 755 F.3d 779, 781

- 82 (5th Cir. 20 14), which held that the Texas offense of indecency with a child by contact satisfied the generic definition of sexual abuse of a minor. Finally, he raises an argument that is foreclosed by United States v. Teran

- Salas , 767 F.3d 453, 458

- 62 (5th Cir.
2014 ) , in which we determined that the appellant was not entitled to relief based merely on the existence of a theoretical possibility that a defendant could be convicted under Texas Health & Safety Code § 481.112(a) for conduct that would not qualify as a fed eral drug trafficking offense. Accordingly, the motion for summary disposition is GRANTED, and the judgment of the district court is AFFIRMED. Case: 16-40249 Document: 00513722248 Page: 2 Date Filed: 10/18/2016
EXHIBIT
      23














**Consent
      of Independent Registered Public Accounting Firm**








Capitol
      Bancorp Ltd.


Lansing,
      Michigan








We
        hereby
        consent to the incorporation by reference in Registration Statements Nos.
        333-122278, 333-104665, 333-84009, and 333-41215 on Form S-3, Registration
        Statements Nos.
 333-139235,
        333-137910, 333-137367, 333-129778, 333-128850, 333-124417, 333-116571,
        333-113931, and 333-115110 on Form S-4 and Registration Statements Nos.
        333-137092, 333-126206, 333-105339, 333-105314, 333-99175, 333-97189, and
        333-30521 on Form S-8 of Capitol Bancorp Ltd. of our reports dated March
        14,
        2007, relating to the consolidated financial statements and the effectiveness
        of
        Capitol Bancorp Ltd.'s internal control over financial reporting, which appear
        on pages F-34 - F-36 in the Annual Report to shareholders (Financial Information
        Section), which is incorporated in this Annual Report on Form 10-K for the
        fiscal year ended December 31, 2006.





/s/
      BDO
      Seidman, LLP








March
      14,
      2007


Grand
      Rapids, Michigan
Exhibit 32

# CERTIFICATION PURSUANT
TO 18 U.S.C. SECTION 1350 AS ADOPTED PURSUANT TO

SECTION 906 OF THE
SARBANES-OXLEY ACT OF 2002

The following statement is provided
by the undersigned to accompany the Quarterly Report on Form 10-QSB/A for the period ended
April 30, 2004 of American Goldfields Inc. pursuant to Section 906 of the Sarbanes-Oxley
Act of 2002 (18 U.S.C. 1350) and shall not be deemed filed pursuant to any provision of
the Exchange Act of 1934 or any other securities law.

The undersigned certifies that the
foregoing Report on Form 10-QSB fully complies with the requirements of Section 13(a) or
15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m); and that the information
contained in the Form 10-QSB fairly presents, in all material respects, the financial
condition and results of operations of American Goldfields Inc..

/s/ Donald NealDonald Neal Chairman, President,
Chief Executive Officer and Principal Financial OfficerDate: September 10, 2004

This certification accompanies the
Report pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 and shall not, except to
the extent required by the Sarbanes-Oxley Act of 2002, be deemed filed by the Company for
purposes of Section 18 of the Securities Exchange Act of 1934, as amended.

A signed original of this written
statement required by Section 906 of the Sarbanes-Oxley Act of 2002 has been provided to
the Company and will be retained by the Company and furnished to the Securities and
Exchange Commission or its staff upon request.
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                    
                -                       the agency docket number / agency internal file number                    
                -                       the RIN which identifies each regulatory action listed in                      the Unified Agenda of Federal Regulatory and Deregulatory                      Actions                    

                    See the                                          Document Drafting Handbook                                        for more details.                  

###### Department of Homeland Security

###### Coast Guard

          - 33 CFR Part 110
          - [Docket No. USCG-2008-0155]
          - RIN 1625-AA01

# AGENCY:

Coast Guard, DHS.

# ACTION:

Final rule; correction.

# SUMMARY:

                        The Coast Guard is correcting the preamble to a final rule that appeared in the                         **Federal Register**                         of March 11, 2009 (74 FR 10484). The preamble incorrectly referred to Department of Homeland Security Management Directive 5100.1, instead of Department of Homeland Security Management Directive 0023.1.                    

# DATES:

Effective April 10, 2009.

# FOR FURTHER INFORMATION CONTACT:

LT Edward Munoz, Chief, Waterways Management Division, telephone 718-354-2353.

# SUPPLEMENTARY INFORMATION:

                    In FR Doc. E9-5095 appearing on page 10484 of the                     **Federal Register**                     of Wednesday, March 11, 2009, the following correction is made:                

1. On page 10486, in the second column, correct the “Environment” section to read: “We have analyzed this rule under Department of Homeland Security Directive 0023.1 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2-1, paragraph 34(f), of the Instruction. This rule involves a regulation reducing the size of an anchorage ground.

Under figure 2-1, paragraph (34)(f), of the Instruction, an environmental analysis checklist and a categorical exclusion determination are not required for this rule.”

Dated: March 12, 2009.

Steve G. Venckus,

Chief, Office of Regulations and Administrative Law.

[FR Doc. E9-5757 Filed 3-16-09; 8:45 am]

BILLING CODE 4910-15-P
CHARLESTON.

#### John Gillespie, *Admr., v.*Monarch Carbon Company *et al.*

(No. 5203.)

Submitted February 5, 1925.

Decided March 17, 1925.

Landlord and *Tenant*— Landlord *Liable for Irújury to Tenant From, Acts, of Misfeasance.*

Tlie landlord is liable for acts of misfeasance committed by bim on the premises, causing injury to the tenant.

Lively and Hatcher, Judges, absent.

*486Error to Circuit Court, Fayette County.

Action by John Gillespie, as administrator of Martba Beda Gillespie, his infant child, against the Monarch Carbon Company and another. At close of evidence, on motion, named defendant was dismissed from suit. Judgment was for plaintiff as against defendant Kanawha & Hocking Coal & Coke Company, and it brings error.

*Affirmed.*

*Conley & Johnson,*for plaintiff in error.

*John L. Gillespie,*and *George Love,*for defendant in error.

Litz, Judge:

The plaintiff sues for the alleged wrongful death of his infant child, Martha Beda, resulting from the negligence of defendant, Monarch Carbon Company and Kanawha & Hocking Coal & Coke Company. She and her twin sister, Mary Freda, seven months of age, were burned to death December 22, 1921, in a fire which consumed the house' occupied by the plaintiff and his family at Carbondale, Fayette County. The fire is alleged to have been caused by gas escaping from a defective gas meter, installed under the house by the coal company, acting in behalf of the gas company. At the close of the evidence, on motion of defendant Monarch Carbon Company, it was dismissed from.the suit. A verdict was returned against the defendant Kanawha & Hocking Coal & Coke Company for $2000.00,- and judgment entered thereon. The defendant coal company prosecutes error.

This is a companion to the case of *John Gillespie, Admr.,*v. *Monarch Carbon Company,*decided contemporaneously herewith, involving substantially the same state of facts. There is no new question except the defense of the coal company that it is not liable by reason of the relation of landlord and tenant between it and plaintiff under the rule:

> “A landlord is not bound to keep the leased premises in repair, nor is he responsible to the tenant for injuries resulting to the latter from the non-repair of the leased premises. He is liable only for acts of misfeasance, and not of non-feasance.”

*487The defendant having installed the defective meter, an act of misfeasance on its part, the rule relied on therefore does not apply.

The judgment of the circuit court will he affirmed.

*Affirmed.*
#### Christine Schiavone, Individually and as Executor of Rita Schiavone, Deceased, Respondent, v Victory Memorial Hospital et al., Defendants, and Amalanathan Gabriel, Appellant.

[719 NYS2d 592]

In an action to recover damages for medical malpractice, etc., the defendant Gabriel Amalanathan, s/h/a Amalanathan Gabriel, appeals from an order of the Supreme Court, Kings County (Levine, J.), dated March 1, 2000, which denied his motion to dismiss the complaint insofar as asserted against him.

Ordered that the order is reversed, on the law, with costs, the motion is granted, the complaint is dismissed insofar as asserted against the appellant, and the action against the remaining defendants is severed.

*465The appellant made out a prima facie case establishing, as a matter of law, that he did not commit medical malpractice in his treatment of the decedent. This shifted the burden to the plaintiffs to show by way of admissible evidentiary proof the existence of a triable issue of fact. The assertion in the affidavit of the plaintiffs’ expert that the appellant may have been negligent in treating the decedent was based solely upon speculations and conjecture and thus was insufficient to raise a triable issue of fact. Accordingly, the Supreme Court should have granted the motion *(see, Alvarez v Prospect Hosp.,*68 NY2d 320; *Winegrad v New York Univ. Med. Ctr.,*64 NY2d 851). Ritter, J. P., S. Miller, Goldstein and Smith, JJ., concur.
No. 09-8512.

#### Dwane Ingalls, Petitioner v. The AES Corporation.

559 U.S. 1072, 130 S. Ct. 2096,

176 L. Ed. 2d 730,

2010 U.S. LEXIS 3277.

April 19, 2010.

Petition for writ of cer-tiorari to the United States Court of Appeals for the Seventh Circuit denied.

Same case below, 347 Fed. Appx. 246.
Non-Employee Director Compensation Schedule



 EXHIBIT 10.43 
 NON-EMPLOYEE DIRECTOR COMPENSATION SCHEDULE 
 Overview 

 A summary of our non-employee director compensation is provided below: 
  

					
	 Annual Board Retainer
	  	$	  60,000	  
		
	 Chairman’s Retainer
	  	$	100,000	(1) 
		
	 Meeting Fees
	  	 
  
	No separate fees for board or
 committee meetings
	  
   

		
	 Committee Retainer
	  			
	 Audit
	  	$	  12,000	  
	 Compensation
	  	$	  10,000	  
	 Nominating and Corporate Governance
	  	$	  10,000	  
		
	 Committee Chair Retainer
	  			
	 Audit
	  	$	    7,500	  
	 Compensation
	  	$	    7,500	  
	 Nominating and Corporate Governance
	  	$	    7,500	  
		
	 Equity Awards
	  			
	 Stock Options
	  	$	  60,000	(2) 
	 Restricted Stock Units
	  	$	  60,000	(3) 

  

	(1)	The Chairman’s retainer includes, and is not in addition to, the standard board retainer. 

  

	(2)	Upon being elected or continuing as a director, each non-employee director will receive such number of restricted stock units as is determined by dividing $60,000 by
the closing price of our common stock on the grant date. 

  

	(3)	Upon being elected or continuing as a director, each non-employee director will receive a stock option having $60,000 in value. The number of shares for which the
option may be exercised will be determined by dividing $60,000 by a binomial valuation of an option of one share of our common stock on the grant date. 

 Vesting 
 Stock options and restricted stock units will vest 100% on the earlier of
(i) the first anniversary of the grant date or (ii) immediately prior to the first annual meeting of shareholders following the grant date. 
 Deferred Compensation Plan 
 We have a non-employee director deferred compensation plan. This plan allows directors to
defer all or a part of their cash retainers until after their service on the board has ended. Funds in deferred accounts are invested in hypothetical shares of our common stock. 
 Restricted stock units are hypothetical shares of our common stock that are converted into actual shares upon settlement. Under the deferred compensation plan, directors may defer receipt of shares
issuable pursuant to the restricted stock units until after their service on the board has ended.
Exhibit 32.1

CERTIFICATION OF CHIEF EXECUTIVE OFFICER PURSUANT TO 18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

I, James W. Bernau, certify, pursuant to 18 U.S.C. Section 1350, as adopted
pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that the Annual
Report of Willamette Valley Vineyards Inc. on Form 10-KSB for the annual
period ended December 31, 2006 fully complies with the requirements of Section
13(a) or 15(d) of the Securities Exchange Act of 1934 and that information
contained in such 10-K fairly presents in all material respects the financial
condition and results of operations of Willamette Valley Vineyards Inc.

Date: April 2, 2007
By:   /s/ James W. Bernau
Name: James W. Bernau
Title:   Chief Executive Officer
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                    
                -                       the agency docket number / agency internal file number                    
                -                       the RIN which identifies each regulatory action listed in                      the Unified Agenda of Federal Regulatory and Deregulatory                      Actions                    

                    See the                                          Document Drafting Handbook                                        for more details.                  

###### National Credit Union Administration

# FOR FURTHER INFORMATION CONTACT:

Mary Rupp, Secretary of the Board, Telephone: 703-518-6304 

Mary Rupp, 

Board Secretary.

 [FR Doc. E9-5739 Filed 3-12-09; 4:15 pm] 

BILLING CODE 7535-01-P
IN the INTEREST OF: T.R.A.-M., A.F.A., & A.J.A.;

Juvenile Officer, Respondent,

Department of Social Services, Children's Division, Respondent, v. A.M.M., Appellant.

WD 80694

Missouri Court of Appeals, Western District.

Filed: December 26, 2017 Motion for Rehearing and/or Transfer to Supreme Court Denied January 30, 2018 Application for Transfer to Supreme Court Denied April 3, 2018

Sara H. Harrison, for Respondent

Kimberly A. Carrington, for Respondent

Matt Branson, for Appellant

Before Division Three: Lisa White Hardwick, Presiding Judge, Victor C. Howard, Judge, and Alok Ahuja, Judge

***ORDER***

PER CURIAM:

A.M.M. (Father) appeals the judgment of the Jackson County Circuit Court terminating his parental rights. He presents two points on appeal. First, he claims the trial court erred in requiring him to request counsel in writing for his termination hearing. Second, he claims the trial court erred in proceeding with termination of Father's parental rights without counsel for Father or a waiver of counsel. Because a published opinion would have no precedential value, a memorandum has been provided to the parties. The judgment is affirmed. Rule 86.16(b).
David BAER, Respondent, v. Teresa BAER, Appellant.

No. ED 105289

Missouri Court of Appeals, Eastern District, DIVISION THREE.

Filed: February 27, 2018

Lawrence G. Gillespie, 120 South Central Avenue, Suite 650, Clayton, MO 63105, Julie K.H. McCarver, 307 E. Karsch Blvd., P.O. Box 790, Farmington, MO 63640, for Appellant.

Suzan Kay Ponder-Bates, P.O. Box 99, Festus, MO 63028, Thomas P. Duggan, Jr., 1001 Main Street, P.O. Box 909, Imperial, MO 63052, Respondent.

Before Gary M. Gaertner, Jr., P.J., Robert M. Clayton III, J., Angela T. Quigless, J.

*ORDER*

PER CURIAM.

Teresa Baer appeals the judgment denying her motion to set aside the judgment dissolving her marriage to David Baer. We find no error has occurred.

No jurisprudential purpose would be served by a written opinion. We have, however, provided the parties a memorandum setting forth the reasons for our decision. The judgment of the trial court is affirmed under Rule 84.16(b).