alea-institute/kl3m-data-sample-004-shuffled huggingface dataset:
#### ALVIN G. ALEXANDER and SHIRLEY A. ALEXANDER, Appellants, v. SYLVIA A. SIMMONS, Respondent.

No. 7291

January 17, 1974

518 P.2d 160

*M. Gene Matteucci,*of Las Vegas, for Appellants.

*Alan R. Johns,*of Las Vegas, for Respondent.

*24OPINION

*Per Curiam:*

Sylvia Simmons brought an action against the appellants for money damages allegedly resulting from the latter’s failure to perform certain repairs on residential premises sold to her. Appellants alleged that an agreement dated February 21, 1970 explained the complete understanding of the parties and that the appellants had performed each and every covenant and condition on their part. Sylvia in turn denied that the written contract between the parties represented their entire agreement and claimed that she had relied upon oral representations of the appellants to her detriment.

The lower court admitted evidence of collateral oral agreements, found that they were relied upon to the detriment of the respondent and awarded damages accordingly.

1. The appellants now contend that the trial court erred in admitting evidence of the oral agreements. The case law is clear that the mere existence of a written contract is insufficient to prevent a party from showing a separate and independent contemporaneous oral agreement. Douglass v. Thompson, 35 Nev. 196, 127 P. 561 (1912). Undoubtedly the existence of a separate oral agreement as to any matter on which a written contract is silent, and which is not inconsistent with its terms, may be proven by parol, if under the circumstances of the particular case it may properly be inferred that the parties did not intend the written paper to be a complete and final statement of the whole of the transaction between them. Seitz v. Brewers’ Refrigerating Machine Co., 141 U.S. 510, 517 (1891).

2. We are unable to decide whether under the facts of this case the admission of parol evidence was erroneous because this *25court has not been favored with a transcript of the proceedings in the district court, nor have the appellants submitted a settled and approved statement of the evidence or proceedings. Turner v. Staggs, 89 Nev. 230, 510 P.2d 879 (1973); NRAP 10(c) (e). There has been no showing by the appellants that the judgment of the trial court was clearly erroneous or that it was not based upon substantial evidence. B & C Enterprises v. Utter, 88 Nev. 433, 498 P.2d 1327 (1972).

Affirmed.
#### In the Matter of the Arbitration between REEFER EXPRESS LINES PTY., LTD., Petitioner, and GENERAL AUTHORITY FOR SUPPLY COMMODITIES (GASC), Respondent.

No. 88 Civ. 7833 (RWS).

United States District Court, S.D. New York.

June 19, 1989.

MEMORANDUM OPINION

SWEET, District Judge.

The General Authority for Supply Commodities (“GASC”), a department in the Ministry of Supply of the government of Egypt, opposes pre-judgment interest on an arbitrator’s award rendered against it and in favor of Reefer Express Lines (“Reefer”).

Pre-judgment interest on an arbitration award is at the discretion of the district court, but is usually permitted, and should be granted “in the absence of exceptional circumstances.” *See Larsen v. A. C. Carpenter, Inc.,*620 F.Supp. 1084, 1125 (E.D.N.Y.1985), *aff'd,*800 F.2d 1128 (2d Cir.1986); *Mitsui & Co. v. American Export Lines, Inc.,*636 F.2d 807, 823 (2d Cir.1981); *Waterside Ocean Navigation Co. v. International Navigation Ltd.,*737 F.2d 150, 154 (2d Cir.1984). The GASC argues that there are exceptional circumstances here which preclude an award of prejudgment interest, for currency controls delayed it from obtaining the money to pay the award.

Courts that have considered the question of what constitutes “exceptional circumstances” have stated that cases where the party *requesting*interest has delayed the proceedings or has made a bad faith estimate of damages, exceptional circumstances exist which justify exclusion of pre-judgment interest. *See, e.g., Larsen,*620 F.Supp 1084 (exceptional circumstances exist “where the party requesting the prejudgment interest has unreasonably delayed prosecuting its claim, has made a bad *700faith estimate of its damages which precludes settlement or has not sustained any actual damage”) (citing *United States v. Peavey Barge Line,*748 F.2d 395, 402 (7th Cir.1984)); *Dow Chemical Pacific Ltd. v. Rascator Maritimes S.A.,*640 F.Supp. 882, 886 (S.D.N.Y.1986) (“it is not the bad faith of the party from whom the interest is sought that is important, but rather, the bad faith of the party seeking the interest.”).

Here, there is no charge of bad faith on the part of Reefer Express Lines, and the currency control problems of the Government of Egypt do not constitute exceptional circumstances by which the pre-judgment interest should be denied. Moreover, the purpose of pre-judgment interest is to compensate the party harmed, not to penalize the wrongdoer, *U.S. v. Seaboard Surety Co.,*817 F.2d 956 (2d Cir.), *cert. denied,*— U.S.-, 108 S.Ct. 161, 98 L.Ed.2d 115 (1987), and part of the reasoning behind the presumption in favor of pre-judgment interest is that “[i]n these days in which all of us feel the effects of inflation, it is almost unnecessary to reiterate that only if such interest is awarded will a person wrongfully deprived of his money be made whole for the loss.” *Waterside Ocean Navigation Co.,*737 F.2d at 154.

Given this, it is appropriate to sign Healy & Baillie’s judgment, which includes prejudgment interest on the arbitration award.

It is so ordered.
Exhibit 31.1 CERTIFICATION  I, John Swallow, the Chief Executive Officer and Principal Financial Officer, certify that:  1. I have reviewed this quarterly report on Form 10-QSB of Timberline Resources Corporation;  2. Based on my knowledge, this report does not contain any untrue statements of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;  3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;  4. The small business issuer's other certifying officers and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the small business issuer and have:  (a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the small business issuer, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;  (b) Evaluated the effectiveness of the small business issuer's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and  (c) Disclosed in this report any change in the small business issuer's internal control over financial reporting that occurred during the small business issuer's most recent fiscal quarter (the small business issuer's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonable likely to materially affect, the small business issuer's internal control over financial reporting; and  5. The small business issuer's other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the small business issuer's auditors and the audit committee of the small business issuer's board of directors (or persons performing the equivalent functions):  (a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the small business issuer's ability to record, process, summarize and report financial information; and  (b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the small business issuer's internal control over financial reporting.   Date: August 20, 2007  /s/ John Swallow _______________________ John Swallow (CEO, Principal Financial Officer and Chairman of the Board of Directors)
----

|   | (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 operations of the Company. |
|--------|-----|------------------------------------------------------------------------------------------------------------------------------------------------------|

| Dated:  November 15, 2010 | By:    | /s/ Louis E. Ryan                  |
|-------------------------------------|--------|------------------------------------|
|                                |   | Louis E. Ryan                      |
|                                |   | Chief Executive Officer and        |
|                                |   | Chairman of the Board of Directors |
#### WILLIAM PATRICK NOBLES, Appellant, v. WARDEN, NEVADA DEPARTMENT OF PRISONS, Respondent.

No. 20715

February 22, 1990

787 P.2d 390

*William Patrick Nobles,*In Proper Person, Appellant.

*Brian McKay,*Attorney General, Carson City, for Respondent.

*68OPINION

*Per Curiam:*

In September of 1988, appellant was convicted, pursuant to a guilty plea, of one count of attempted sexual assault and was sentenced to serve twenty years in the Nevada State Prison. Appellant did not file a direct appeal challenging his conviction. On November 13, 1989, however, appellant filed in the district court the instant post-conviction petition for a writ of habeas corpus. The district court denied the petition summarily without requiring the state to answer the allegations therein. This appeal followed.

Appellant alleged in his petition that his twenty-year sentence was based on mistakes of fact that were contained in the presen-tence report. We note, however, that appellant failed to point out to the district court the alleged errors that were contained in the presentence report. Under these circumstances, this constituted only a naked claim for relief. Therefore, the district court did not err when it denied this claim for relief without an evidentiary hearing. *See*Hargrove v. State, 100 Nev. 498, 686 P.2d 222 (1984).

Appellant also contended below that his twenty-year sentence was cruel and unusual because his co-defendant received only eight years in prison for his role in the crime. He contended that this court held in Biondi v. State, 101 Nev. 252, 699 P.2d 1062 (1985), that such disparity in sentencing of co-defendants violates due process. We note, however, that *Biondi*was a death case in which this court conducted a proportionality review of the death sentence pursuant to former NRS 177.055(2)(d). Thus, the issues facing the *Biondi*court differed substantially from the issues presented in this case. We also note that sentencing is an individualized process; therefore, no rule of law requires a court to sentence co-defendants to identical terms. *See*People v. Walford, 716 P.2d 137 (Colo.App. 1985). Thus, appellant’s allegations, without more, were insufficient to state a claim for relief from his sentence. Therefore, the district court did not err when it denied this claim for relief without an evidentiary hearing. *See*Hargrove v. State, 100 Nev. 498, 686 P.2d 222 (1984).

Having reviewed the record on appeal, and for the reasons set forth above, we conclude that appellant cannot demonstrate error in this appeal, and that briefing and oral argument are unwarranted. *See*Luckett v. Warden, 91 Nev. 681, 682, 541 P.2d 910, 911 (1975), *cert. denied,*423 U.S. 1077 (1976). Accordingly, we affirm the order of the district court.
EXHIBIT 32.2

                            CERTIFICATION PURSUANT TO
            RULE 13A-14(1) OR RULE 15D-14(B) AND 18 U.S.C. SEC. 1350,
                    AS ADOPTED PURSUANT TO SECTION 906 OF THE
                           SARBANES-OXLEY ACT OF 2002


     In connection with the quarterly report of Petrosearch Energy Corporation,
(the "Company") on Form 10-QSB for the quarter ended June 30, 2006 as filed with
the Securities Exchange Commission on the date hereof (the "Report"), I, David
Collins, Chief Financial Officer of the Company, certify pursuant to 18 U.S.C.
Sec. 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 results of operation of
          the  company.


Date: August 14, 2006


By:   /s/ David Collins
      -----------------
      David Collins
      Chief Financial Officer
#### UNITED STATES of America, Plaintiff, v. Mariano VENTURA, Defendant.

Crim. No. 90-211 (JP).

United States District Court, D. Puerto Rico.

Jan. 17, 1991.

*36José R. Gaztambide, Asst. U.S. Atty., Hato Rey, P.R., for plaintiff.

Rachel Brill, Asst. Federal Public Defender’s Office, Old San Juan, P.R., for defendant.

ORDER

PIERAS, District Judge.

The Court has before it the defendant’s Sentencing Memoranda which contests the net weight of cocaine involved for sentencing purposes, and the government’s response thereto. What follows is the Court’s written record of its findings pursuant to Fed.R.Crim.Proc. 32(c)(3)(D). At issue is whether the cocaine hydrochloride and leather in this case should be considered a mixture or substance in and of itself, under 21 U.S.C. § 841(b).

Based upon the chemical expert testimony that was presented at the sentencing hearing and due consideration of the sentencing memoranda, the Court concludes that the chemical material involved in this case is cocaine adhered to leather rather than mixed with the leather. In effect the cocaine and leather are two separate substances and not a mixture, because the leather can be soaked in water to separate the cocaine. The leather acts as a container for the cocaine rather than becoming part of the substance, as leather impregnated by cocaine does. In this case the leather and cocaine are like water frozen in a garden hose. Only once the water has melted can it be ingested. The water cannot be ingested frozen inside a rigid garden hose. Similarly, once the cocaine is dissolved in water from the capillaries of the leather it loses its rigidity like a soft garden hose.

“How much mingling of the drug with something else is essential to form a ‘mixture or substance’? The legislative history is silent, but ordinary usage is indicative.” *United States v. Marshall,*908 F.2d 1312, 1317 (7th Cir.1990). As cocaine hydrochloride cannot be ingested unless dissolved in water first, this common usage indicates that the cocaine in this case could not have been ingested with the leather in which it was contained. Therefore the relevant cocaine hydrochloride weight at issue in this case is 1.1 kilograms, rather than the 6.3 kilograms weight which included the weight of the leather.

IT IS SO ORDERED.
**Exhibit 31.1****CERTIFICATIONS**I, C. Dean Metropoulos, Chairman & Chief Executive Officer of Pinnacle Foods Group Inc. (the“Registrant”), certify that:1. I have reviewed this quarterly report on Form 10-Q of Pinnacle Foods Group Inc.; 2. Based on my knowledge, this report does not contain any untrue statement of a material factor omit to state a material fact necessary to make the statements made, in light of thecircumstances under which such statements were made, not misleading with respect to the periodcovered by this report; 3. Based on my knowledge, the financial statements, and other financial information included inthis report, fairly present in all material respects the financial condition, results ofoperations and cash flows of the Registrant as of, and for, the periods presented in thisreport; 4. The Registrant’s other certifying officer(s) and I are responsible for establishing andmaintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and15d-15(e)) for the Registrant and have: (a) Designed such disclosure controls and procedures, or caused such disclosurecontrols and procedures to be designed under our supervision, to ensure that materialinformation relating to the Registrant, including its consolidated subsidiaries, ismade known to us by others within those entities, particularly during the period inwhich this report is being prepared;  (b) Evaluated the effectiveness of the Registrant’s disclosure controls andprocedures and presented in this report our conclusions about the effectiveness of thedisclosure controls and procedures, as of the end of the period covered by this reportbased on such evaluation; and  (c) Disclosed in this report any change in the Registrant’s internal control overfinancial reporting that occurred during the Registrant’s most recent fiscal quarterthat has materially affected, or is reasonably likely to materially affect, theRegistrant’s internal control over financial reporting; and5. The Registrant’s other certifying officer(s) and I have disclosed, based on our most recentevaluation of internal control over financial reporting, to the Registrant’s auditors and theaudit committee of the Registrant’s board of directors (or persons performing the equivalentfunctions): (a) All significant deficiencies and material weaknesses in the design or operationof internal control over financial reporting which are reasonably likely to adverselyaffect the Registrant’s ability to record, process, summarize and report financialinformation; and  (b) Any fraud, whether or not material, that involves management or other employeeswho have a significant role in the Registrant’s internal control over financialreporting.     Date: November 8, 2005         /s/ C. DEAN METROPOULOS C. Dean Metropoulos    Chairman and Chief Executive Officer
(LOGO)AMERICAN CITY MORTGAGE CORPORATION


Katz, Katz & Sparks
3075 E. Thousand Oaks Blvd, Ste 101
Westlake Village, CA 91362


January 21, 1999

In connection with your examination of our assertion that American City Mortgage
Corporation  complied  with our  minimum  servicing  standards  in the  Mortgage
Bankers Association of America's Uniform Single Attestation Program for Mortgage
Bankers  (USAP) as of and for the year ended October 31, 1998, we recognize that
obtaining  representations from us concerning the information  contained in this
letter is a  significant  procedure  in  enabling  you to  express an opinion on
management's  assertion about compliance with the minimum  servicing  standards.
Accordingly,  we make the following representations,  which are true to the best
of our knowledge and belief in all material aspects:

1. We are responsible for complying with the minimum servicing  standards in the
USAP.

2. We are responsible  for  establishing  and maintaining an effective  internal
control structure over compliance with the minimum servicing standards.

3. We have  performed an  evaluation  of American  City  Mortgage  Corporation's
compliance with the minimum servicing standards.

4. As of and for the  year  ended  October  31,  1998,  American  City  Mortgage
Corporation has complied with the minimum servicing standards.

5. We have disclosed to you all known  noncompliance  with the minimum servicing
standards.

6. We have made available to you all  documentation  related to compliance  with
the minimum servicing standards.

7. We have  discussed any  communications  from  regulatory  agencies,  internal
auditors,  and other practitioners  concerning  possible  noncompliance with the
minimum servicing standards.

8. We have  disclosed to you any known  noncompliance  occurring  subsequent  to
October 31,1998 through the date of this communication.


Pasquale J. Theodora

Lee Gross
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




In connection with the accompanying Quarterly Report on Form 10-Q/A of Excellency Investment Realty Trust, Inc. for the fiscal quarter ending June 30, 2010, I, Gorica Adduci, Chief Executive Officer of Excellency Investment Realty Trust, Inc., hereby certify pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, to the best of my knowledge and belief, that:




1.  Such Quarterly Report on Form 10-Q/A for the fiscal quarter ending June 30, 2010, 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 such Quarterly Report on Form 10-Q/A for the fiscal quarter ending June 30, 2010, fairly presents, in all material respects, the financial condition and results of operations of Excellency Investment Realty Trust, Inc.




Dated: August 27, 2010




/s/ Gorica Adduci


Gorica Adduci, Chief Executive Officer of


Excellency Investment Realty Trust, Inc.
#### AD-ART, INC., A California Corporation, Appellant, v. JACK DENISON and ALIBI ROOM, INC., A Nevada Corporation, Respondents.

No. 8924

February 15, 1978

574 P.2d 1016

*Roger L. Wright,*Reno, for Appellant.

*Smith & O’Brien,*Las Vegas, for Respondent, Jack Denison.

*Embry, Shaner and Lang,*Las Vegas, for Respondent, Alibi Room, Inc.

OPINION

*Per Curiam:*

The sole issue presented in this appeal is whether appellant’s action was “brought to trial” within the five-year limitation prescribed by NRCP 41(e).1

Appellant sought damages arising from respondents’ alleged breach of contract. Within five years of the date the action was filed a trial was commenced and appellant called three witnesses before the district court declared a mistrial. Subsequently, after numerous continuances, respondents moved for *74a dismissal of the action for want of prosecution. The district court granted respondents’ motion on the ground “the . . . action was not brought to trial within five years after ... filing.”

We have previously held that NRCP 41(e) is clear and unequivocal: any action not brought to trial within five years must, upon proper motion, be dismissed. See Thran v. District Court, 79 Nev 176, 380 P.2d 297 (1963). Respondents contend the mistrial was the equivalent of no trial at all, and therefore, since the five-year limitation expired before further trial proceedings were commenced, the action was not “brought to trial” within the prescribed limitation. We disagree.

For purposes of complying with NRCP 41(e), one way an action may be “brought to trial” is by calling one witness who testifies. See Weeks v. Roberts, 442 P.2d 361 (Cal. 1968). Here, three witnesses testified before the mistrial was declared. Under these circumstances, we believe appellant has satisfied the mandate of NRCP 41(e) and dismissal was improper. Accordingly, the district court order must be vacated and the cause remanded for proceedings consistent with this opinion.2

1

 NRCP 41(e) provides, in pertinent part: “Any action heretofore or hereafter commenced shall be dismissed by the court in which the same shall have been commenced or to which it may be transferred on motion of the defendant, after due notice to plaintiff or by the court upon its own motion, unless such action is brought to trial within five years after the plaintiff has filed his action, except where the parties have stipulated in writing that the time may be extended.”

2

 The Governor designated Peter I. Breen, Judge of the Second Judicial District, to sit in place of Hon. Gordon Thompson, Justice, who was disabled. Nev. Conts. art. 6, § 4.