posted November 24, 2010 by Terry Hart.
On Monday, I discussed the Combating Online Infringement and Counterfeits Act, which had recently been unanimously approved by the Senate Judiciary Committee. Among the typical litany of complaints, critics claim that the bill lacks due process.
Public Knowledge has posted a letter from NetCoalition opposing COICA, raising several concerns revolving around due process.
Does COICA lack due process? To answer this question, let’s take a closer look at what we mean by “due process” and then see if the bill lacks it.
“Notice” and a “hearing” are important components of due process of law. COICA provides for both of these. Let’s look at the hearing first.
In order to block the domain name of a site “dedicated to infringing activities,” the Attorney General must commence an in rem proceeding in a federal district court. As I said on Monday, an in rem proceeding is a full-blown lawsuit, except the defendant is property rather than a person.
That means the Attorney General has to present evidence to a judge and establish — by a preponderance of the evidence 118 USC §983(c). — that the particular site is “dedicated to infringing activities” as defined in the bill. This is how any lawsuit works. The idea that COICA provides some kind of automatic process where the AG can blacklist any site at will, as some critics seem to suggest, is entirely off-base. Courts are not in the business of “rubber-stamping” legal claims, even those made by the government.
But if the defendant in an in rem proceeding is property, do we truly have an adversarial hearing? Contrary to David Post’s odd statement that the property itself would have to show up for an adversarial hearing, it is the owners of the property in an in rem proceeding who intervene in court to argue the case. Generally, anyone with a colorable ownership or possessory interest in the property can appear in an in rem proceeding. 2US v. 8 Gilcrease Lane, Quincy Florida 32351, 641 F. Supp. 2d 1, 4-6 (DC Dist, 2009).
On application of the Attorney General following the commencement of an action pursuant to subsection (c), the court may issue a temporary restraining order, a preliminary injunction, or an injunction against the domain name used by an Internet site dedicated to infringing activities to cease and desist from undertaking any further activity in violation of this section, in accordance with rule 65 of the Federal Rules of Civil Procedure.
Again, the court would issue any of these orders the same way it would issue them in any other case — no due process infirmaries present. But some critics have suggested that the legal obligations these orders trigger cause due process concerns.
Once an injunction is issued under this provision of COICA for a non-US domain, the Attorney General can serve the order on internet service providers, financial transaction providers, and online advertising providers. Those providers are than required to block the domain or prevent it from using their services.
These requirements are very limited. Service providers need only take “technically feasible and reasonable steps” to comply with the order and are not required “(aa) to modify its network or other facilities to comply with such order; (bb) to take any steps with respect to domain name lookups not performed by its own domain name system server; or (cc) to continue to prevent access to a domain name to which access has been effectively disabled by other means.” The other providers are also only required to take “reasonable” measures. Any entity receiving one of these court orders is granted legal immunity from any cause of action arising out of the reasonable measures taken to comply with the order.
Given all of the above, it’s difficult to see how the charge that any party affected by COICA won’t get the chance to be heard can hold up.
Due process requires the government to provide notice, or notification, to anyone whose life, liberty, or property is subject to deprivation in a legal proceeding. The notice must be sufficient; “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” 3Mennonite Bd. of Missions v. Adams, 462 US 791, 795 (1983).
COICA requires the Attorney General to both send “a notice of the alleged violation and intent to proceed under this subsection to the registrant of the domain name at the postal and e-mail address provided by the registrant to the registrar, if available” and publish “notice of the action as the court may direct promptly after filing the action.” These notice provisions are sufficient under existing law.
Some critics have raised the concern of a website whose domain name registrant is different from the owner or operator, leading to the problem that the owner of a website wouldn’t receive notice of a COICA action. It is difficult to see how this is relevant for due process. COICA provisions are limited to an in rem proceeding against the domain name itself, not the website. The universe of people aside from the registrant who can show a colorable ownership or possessory interest in the domain name to intervene in the in rem action would likely be very small.
I believe COICA satisfies due process under existing law. But you don’t have to take my word for it.
The Anticybersquatting Consumer Protection Act, passed in 1999, provides for in rem actions against domain names. That’s over ten years where courts have heard due process challenges, many of which are similar to the ones being raised concerning COICA. 4See, for example, Porsche Cars North America, Inc. v. Porsche. Net, 302 F. 3d 248 (4th Circ., 2002); Caesars World, Inc. v. Caesars-Palace. com, 112 F. Supp. 2d 502 (ED Va. 2000). The provisions in COICA reflect that experience and are written in a way to ensure the due process of law.
1. ↑ 18 USC §983(c).
2. ↑ US v. 8 Gilcrease Lane, Quincy Florida 32351, 641 F. Supp. 2d 1, 4-6 (DC Dist, 2009).
3. ↑ Mennonite Bd. of Missions v. Adams, 462 US 791, 795 (1983).
4. ↑ See, for example, Porsche Cars North America, Inc. v. Porsche. Net, 302 F. 3d 248 (4th Circ., 2002); Caesars World, Inc. v. Caesars-Palace. com, 112 F. Supp. 2d 502 (ED Va. 2000).
Somehow, I’m still thinking that the due process is being undermined so long as government officials have a lower barrier to take down websites. As it’s coming out, even before COICA is coming out, the government has ramped up the takedown of websites.
So obviously, something is not adding up in regards to the takedowns. What IS happening is that the government is going directly to ICANN in response to the takedowns, and not going through the people at the links. Is this a sign of things to come? Surely, we can agree that this all needs to be reviewed BEFORE a site is taken down for any reason.
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§ 105.7 Use of alcohol and drugs.
§ 105.13 Radio equipment and use requirements.
§ 105.15 Information required and notice of cancellation or postponement of a parachute operation.
§ 105.17 Flight visibility and clearance from cloud requirements.
§ 105.19 Parachute operations between sunset and sunrise.
§ 105.21 Parachute operations over or into a congested area or an open-air assembly of persons.
§ 105.23 Parachute operations over or onto airports.
§ 105.25 Parachute operations in designated airspace.
§ 105.43 Use of single-harness, dual-parachute systems.
§ 105.45 Use of tandem parachute systems.
§ 105.47 Use of static lines.
§ 105.49 Foreign parachutists and equipment.
Amdt. 105-13, 73 FR 69526, November 19, 2008, effective December 19, 2008.
Amdt. 105-12, 66 FR 23543, May 9, 2001, effective July 9, 2001.
Amdt. 105-11, 60 FR 67254, Dec. 28, 1995.
Amdt. 105-10, 56 FR 65663, Dec. 17, 1991.
Amdt. 105-9, 51 FR 21907, June 17, 1986.
Authority: 49 U.S.C. 106(g), 40113-40114, 44701-44702, 44721.
Approved parachute means a parachute manufactured under a type certificate or a Technical Standard Order (C-23 series), or a personnel-carrying U.S. military parachute (other than a high altitude, high speed, or ejection type) identified by a Navy Air Facility, an Army Air Field, and Air Force-Navy drawing number, an Army Air Field order number, or any other military designation or specification number.
Automatic Activation Device means a self-contained mechanical or electro-mechanical device that is attached to the interior of the reserve parachute container, which automatically initiates parachute deployment of the reserve parachute at a pre-set altitude, time, percentage of terminal velocity, or combination thereof.
Direct Supervision means that a certificated rigger personally observes a non-certificated person packing a main parachute to the extent necessary to ensure that it is being done properly, and takes responsibility for that packing.
Drop Zone means any pre-determined area upon which parachutists or objects land after making an intentional parachute jump or drop. The center-point target of a drop zone is expressed in nautical miles from the nearest VOR facility when 30 nautical miles or less; or from the nearest airport, town, or city depicted on the appropriate Coast and Geodetic Survey World Aeronautical Chart or Sectional Aeronautical Chart, when the nearest VOR facility is more than 30 nautical miles from the drop zone.
Foreign parachutist means a parachutist who is neither a U.S. citizen or a resident alien and is participating in parachute operations within the United States using parachute equipment not manufctured in the United States.
Freefall means the portion of a parachute jump or drop between aircraft exit and parachute deployment in which the parachute is activated manually by the parachutist at the parachutist's discretion or automatically, or, in the case of an object, is activated automatically.
Main parachute means a parachute worn as the primary parachute used or intended to be used in conjunction with a reserve parachute.
Object means any item other than a person that descends to the surface from an aircraft in flight when a parachute is used or is intended to be used during all or part of the descent.
Parachute drop means the descent of an object to the surface from an aircraft in flight when a parachute is used or intended to be used during all or part of that descent.
Parachute jump means a parachute operation that involves the descent of one or more persons to the surface from an aircraft in flight when a aircraft is used or intended to be used during all or part of that descent.
Parachute operation means the performance of all activity for the purpose of, or in support of, a parachute jump or a parachute drop. This parachute operation can involve, but is not limited to, the following persons: parachutist, parachutist in command and passenger in tandem parachute operations, drop zone or owner or operator, jump master, certificated parachute rigger, or pilot.
Parachutist means a person who intends to exit an aircraft while in flight using a single-harness, dual parachute system to descend to the surface.
Parachutist in command means the person responsible fro the operation and safety of a tandem parachute operation.
Passenger parachutist means a person who boards an aircraft, acting as other than the parachutist in command of a tandem parachute operation, with the intent of existing the aircraft while in-flight using the forward harness of a dual harness tandem parachute system to descend to the surface.
Pilot chute means a small parachute used to initiate and/or accelerate deployment of a main or reserve parachute.
Ram-air parachute means a parachute with a canopy consisting of an upper and lower surface that is inflated by ram air entering through specially designed openings in the front of the canopy to form a gliding airfoil.
Reserve parachute means an approved parachute worn for emergency use to be activated only upon failure of the main parachute or in any other emergency where use of the main parachute is impractical or use of the main parachute would increase risk.
Single-harness, dual parachute system: means the combination of a main parachute, approved reserve parachute, and approved single person harness and dual-parachute container. This parachute system may have an operational automatic activation device installed.
Tandem parachute operation: means a parachute operation in which more than one person simultaneously uses the same tandem parachute system while descending to the surface from an aircraft in flight.
Tandem parachute system: means the combination of a main parachute, approved reserve parachute, and approved harness and dual parachute container, and a separate approved forward harness for a passenger parachutist. This parachute system must have an operational automatic activation device installed.
No person may conduct a parachute operation, and no pilot in command of an aircraft may allow a parachute operation to be conducted from an aircraft, if that operation creates a hazard to air traffic or to persons or property on the surface.
(b) Any drug that affects that person's faculties in any way contrary to safety.
The Administrator may inspect any parachute operation to which this part applies (including inspections at the site where the parachute operation is being conducted) to determine compliance with the regulations of this part.
(ii) Radio communications have been established between the aircraft and the air traffic control facility having jurisdiction over the affected airspace of the first intended exit altitude at least 5 minutes before the parachute operation begins. The pilot in command must establish radio communications to receive information regarding air traffic activity in the vicinity of the parachute operation.
(i) Continuously monitor the appropriate frequency of the aircraft's radio communications system from the time radio communications are first established between the aircraft and air traffic control, until the pilot advises air traffic control that the parachute operation has ended for that flight.
(ii) Advise air traffic control when the last parachutist or object leaves the aircraft.
(b) Parachute operations must be aborted if, prior to receipt of a required air traffic control authorization, or during any parachute operation in or into controlled airspace, the required radio communications system is or becomes inoperative.
(1) The date and time the parachute operation will begin.
(2) The radius of the drop zone around the target expressed in nautical miles.
(ii) the nearest airport, town, or city depicted on the appropriate Coast and Geodetic Survey World Aeronautical Chart or Sectional Aeronautical Chart, when the nearest VOR facility is more than 30 nautical miles from the drop zone target.
(4) Each altitude above mean sea level at which the aircraft will be operated when parachutists or objects exist the aircraft.
(5) The duration of the intended parachute operation.
(6) The name, address, and telephone number of the person who requests the authorization or gives notice of the parachute operation.
(7) The registration number of the aircraft to be used.
(8) The name of the air traffic control facility with jurisdiction of the airspace at the first intended exit altitude to be used for the parachute operation.
(b) Each holder of a certificate of authorization issued under §§ 105.21(b) and 105.25(b) of this part must present that certificate for inspection upon the request of the Administrator or any Federal, State, or local official.
(c) Each person requesting an authorization under §§ 105.21(b) and 105.25(a)(2) of this part and each person submitting a notice under § 105.25(a)(3) of this part must promptly notify the air traffic control facility having jurisdiction over the affected airspace if the proposed or scheduled parachute operation is canceled or postponed.
(a) No person may conduct a parachute operation, and no pilot in command of an aircraft may allow a person to conduct a parachute operation from an aircraft between sunset and sunrise, unless the person or object descending from the aircraft displays a light that is visible for at least 3 statute miles.
(b) The light required by paragraph (a) of this section must be displayed from the time that the person or object is under a properly functioning open parachute until that person or object reaches the surface.
(a) No person may conduct a parachute operation, and no pilot in command of an aircraft may allow a parachute operation to be conducted from that aircraft, over or into a congested area of a city, town, or settlement, or an open-air assembly of persons unless a certificate of authorization for that parachute operation has been issued under this section. However, a parachutist may drift over a congested area or an open-air assembly of persons with a fully deployed and properly functioning parachute if that parachutist is at a sufficient altitude to avoid creating a hazard to persons or property on the surface.
(2) Contain the information required in § 105.15(a) of this part.
(c) Each holder of, and each person named as a participant in a certificate of authorization issued under this section must comply with all requirements contained in the certificate of authorization.
(d) Each holder of a certificate of authorization issued under this section must present that certificate for inspection upon the request of the Administrator, or any Federal, State, or local official.
(1) Prior approval has been obtained from the management of the airport to conduct parachute operations over or on that airport.
(2) Approval has been obtained from the control tower to conduct parachute operations over or onto that airport.
(3) Two-way radio communications are maintained between the pilot of the aircraft involved in the parachute operation and the control tower of the airport over or onto which the parachute operation is being conducted.
(b) For airports without an operating control tower, prior approval has been obtained from the management of the airport to conduct parachute operations over or on that airport.
(c) A parachutist may drift over that airport with a fully deployed and properly functioning parachute if the parachutist is at least 2,000 feet above that airport's traffic pattern, and avoids creating a hazard to air traffic or to persons and property on the ground.
(3) Except as provided in paragraph (c) and (d) of this section, within or into Class E or G airspace area unless the air traffic control facility having jurisdiction over the airspace at the first intended exit altitude is notified of the parachute operation no earlier than 24 hours before or no later than 1 hour before the parachute operation begins.
(b) Each request for a parachute operation authorization or notification required under this section must be submitted to the air traffic control facility having jurisdiction over the airspace at the first intended exit altitude and must include the information prescribed by § 105.15(a) of this part.
(c) For the purposes of paragraph (a)(3) of this section, air traffic control facilities may accept a written notification from an organization that conducts parachute operations and lists the scheduled series of parachute operations to be conducted over a stated period of time not longer than 12 calendar months. The notification must contain the information prescribed by § 105.15(a) of this part, identify the responsible persons associated with that parachute operation, and be submitted at least 15 days, but not more than 30 days, before the parachute operation begins. The FAA may revoke the acceptance of the notification for any failure of the organization conducting the parachute operations to comply with its requirements.
(d) Paragraph (a)(3) of this section does not apply to a parachute operation conducted by a member of an Armed Force within a restricted area that extends upward from the surface when that area is under the control of an Armed Force.
This subpart prescribed rules governing parachute equipment used in civil parachute operations.
(a) The main parachute must have been packed within 120 days before the date of its use of a certificated parachute rigger, the person making the next jump with that parachute, or a non-certificated person under the direct supervision of a certification parachute rigger.
(iv) Has successfully completed a tandem instructor course given by the manufacturer of the tandem parachute system used in the parachute operation or a course acceptable to the Administrator.
(v) Has been certified by the appropriate parachute manufacturer or tandem course provider as being properly trained on the use of the specific tandem parachute system to be used.
(i) Has briefed the passenger parachutist before boarding the aircraft. The briefing must include the procedures to be used in case of an emergency with the aircraft or after exiting the aircraft, while preparing to exit and exiting the aircraft, freefall, operating the parachute after freefall, landing approach, and landing.
(ii) Uses the harness position prescribed by the manufacturer of the tandem parachute equipment.
(1) The main parachute has been packed by a certificated parachute rigger, the parachutist in command making the next jump with that parachute, or a person under the direct supervision of a certificated parachute rigger.
(2) The reserve parachute has been packed by a certificated parachute rigger in accordance with § 105.43(b) of this part.
(ii) Be armed during each tandem parachute operation.
(4) The passenger parachutist is provided with a manual main parachute activation device and instructed on the use of that device, if required by the owner/operator.
(5) The main parachute is equipped with a single-point release system.
(6) The reserve parachute meets Technical Standard Order C23 specifications.
(1) Be long enough to allow the main parachute container to open before a load is placed on the device.
(i) At one end, to the static line above the static-line pins or, if static-line pins are not used, above the static-line ties to the parachute cone.
(ii) At the other end, to the pilot chute apex, bridle cord, or bridle loop, or, if no pilot chute is used, to the main parachute canopy.
(b) No person may attach an assist device required by paragraph (a) of this section to any main parachute unless that person is a certificated parachute rigger or that person makes the next parachute jump with that parachute.
(c) An assist device is not required for parachute operations using direct-deployed, ram-air parachutes.
(1) The parachute system is worn by a foreign parachutist who is the owner of that system.
(2) The parachute system is of a single-harness dual parachute type.
(3) The parachute system meets the civil aviation authority requirements of the foreign parachutist's country.
(i) The main parachute must be packed by the foreign parachutist making the next parachute jump with that parachute, a certificated parachute rigger, or any other person acceptable to the Administrator.
(ii) The reserve parachute must be packed in accordance with the foreign parachutist's civil aviation authority requirements, by a certificated parachute rigger, or any other person acceptable to the Administrator.


Upon the filing of a petition or motion (petition) under G.L. c. 112, § 12S , inserted by St. 1980, ch. 240 (a copy of which is attached), the Clerk-Magistrate (clerk) shall immediately bring the matter to the attention of the Regional Administrative Justice or His/Her Designee who will either hear the petition in his/her session or, through the clerk, assign it for a hearing in another session.
If the petition is filed in a county in which no session is being held, the clerk of court who received the petition shall immediately notify the Chief Justice of the Superior Court by telephone of the pending petition. The Chief Justice shall then take such action as is necessary to reach a decision promptly and without delay so as to serve the best interests of the pregnant woman.
Although § 12S permits a pregnant woman less than eighteen years of age to participate in proceedings in the Superior Court Department in her own behalf, it is preferable that the minor be represented by counsel. The statute requires that the court advise her that she has a right to court-appointed counsel and that the court shall, upon her request, provide her with such counsel.
Also, the court may appoint a guardian ad litem to represent the minor or may make such other orders as necessary pursuant to Mass. R. Civ. P. 17(b). The compensation for counsel and/or for the guardian ad litem shall be certified by the justice as an expense incident to the operation of the court. If the minor requests waiver of costs and fees, as provided by St. 1980, c. 539, such costs and fees are to be waived.
As provided by § 12S, all proceedings shall be confidential and all pleadings and other papers filed shall be designated anonymously. For example, the proceedings shall be titled Mary Moe, Mary Doe, etc. If the minor files papers which do not insure her anonymity, the court shall have the papers processed in a manner which will insure anonymity and shall return the defective papers to the minor or her counsel. An affidavit shall accompany the papers in the case. Such affidavit shall reveal the minor's true identity. The affidavit shall be sealed in an envelope which will be identifiable by having the docket number of the case inscribed upon it. All such envelopes shall be kept in a separate file by the clerks of the various courts. All papers in the proceeding shall be impounded.
The clerks of the various courts should undertake to insure that the minor's contact with the clerk's office is confidential and expeditious to the fullest extent practicable. For example, assistance in filing a petition should be provided in a confidential setting, such as a private office. Similarly, one or more persons in the clerk's office should be at all times available to answer questions asked by a minor, either in person or by phone, and to assist the minor in expeditiously presenting her petition to the court. Each clerk shall designate one or more persons to receive and process § 12S petitions and shall insure that one such person is available to insure prompt treatment.
All proceedings under c. 112, § 12S , shall be conducted jury-waived with a court reporter present. The statute requires the court to make in writing specific factual findings and legal conclusions supporting his or her decision and to order that a record of evidence be maintained which includes his or her own findings and conclusions.
Suggested guidelines, originally emanating from a memorandum of the Single Justice for Suffolk County in Planned Parenthood League of Massachusetts v. Bellotti, No. 81-124 Civil (Supreme Judicial Court for Suffolk County; Liacos, J. Single Justice) (June 16, 1981), are attached hereto.
The following guidelines for handling § 12S petitions ("petitions") are suggested to the Superior Court. These guidelines are intended to supplement amended Superior Court Standing Order No. 5-81 and not to replace it.
1. Petitions should ordinarily be heard on any day the court is in session.
2. Petitions should be heard as expeditiously as possible upon filing with the Clerk/Magistrate's office, and on the same day if practical.
3. All technical defects in the proceedings and in the pleadings and papers should ordinarily be disregarded by the Court and by the Clerk/Magistrate.
4. Hearings must be confidential and should be held in the judge's lobby except where physically impossible. The petitioner ("minor") should be permitted to have present any person she desires (social worker, counselor, parent, friend), but the judge should exclude all unnecessary court personnel or others. The minor should be free to choose whether to go forward without counsel.
5. The minor should not be required to state her true name. After explaining the impoundment procedures used to ensure confidentiality, the judge may wish to ask the minor her true first name in order to address her by it during the hearing. The transcript should not contain the minor's full true name since she will have previously stated her identity on a sealed affidavit held by the Clerk/Magistrate pursuant to Superior Court Standing Order 5-81.
6. It is contemplated that the judge will conduct the hearing on a "two-tier" basis with "maturity" determined first, and "best interest" addressed only if maturity is not found.
7. As to the "maturity" finding, inquiry may be appropriate in such areas as the minor's age and school and work experience, any history of mental illness or other treatment relating to mental competence, and whether the abortion decision is a personal decision and not one forced upon the minor by another and whether the minor has discussed her decision with other persons. In any inquiry as to the minor's maturity and her understanding of the nature, consequences and significance of her abortion choice, or in any inquiry as to her best interests, it is suggested that the judge should avoid the creation of the appearance of seeking to promote a particular set of moral values by inquiring into the minor's or her parents' views as to the morality of abortion; or into whether the minor considers a fetus to be an "unborn child," as to whether the minor believes she is in some way taking or destroying life.
8. Where the court finds a minor is not mature, it must make a determination of whether the abortion or childbirth alternative is in her "best interest". The court may be guided in making such a determination by the substantially coextensive doctrine of substituted judgment. That doctrine essentially requires a court to determine what an incompetent person would choose were she fully competent, while bearing in mind her expressed choice and partial competency. Various considerations may be relevant to a "best interest" determination. As to this finding, the court may inquire into the minor's reasons for not seeking her parents' consent. Where the minor is accompanied by one parent who supports her petition, that support should be given great if not dispositive weight.
9. Where the court preliminarily concludes that the minor is mature, appointment of a guardian ad litem should ordinarily be unnecessary. Where the court preliminarily concludes that the minor is not fully mature, it should consider whether such an appointment is necessary to assure protection of the minor's best interest or whether it would lead to unnecessary delay, particularly if the minor is represented by counsel, or has been counseled by competent professionals, or is accompanied by a parent or other adult.
10. In view of the statutory mandate for expeditious decisions, petitions may be decided in chambers and should, in any event, be decided as promptly as possible, and ordinarily within twenty-four hours or less. The Clerk/Magistrate should inform the minor of the decision as soon as possible and in the manner which the minor requests.
11. The Judge or Clerk/Magistrate should give the minor a copy of an order under § 12S bearing the court's docket number, and a copy of her sealed affidavit bearing the same docket number. Where the decision can be made immediately, the Judge may choose to have the minor wait, deliver the order and a copy of the affidavit to her, and seal the original affidavit in her presence.
12. A petition should not be denied or a hearing delayed solely because the minor has not selected a particular clinic, hospital or doctor for performance of the abortion. If the judge authorizes an abortion for an immature minor on the "best interest" basis, he may inquire into her contemplated plans in order to assure himself that the particular course of medical treatment she intends to follow will be in her best interests.
13. Appointed counsel in § 12S proceedings should be paid for in the same fashion as in criminal cases or in such other fashion as the Chief Administrative Justice of the Trial Court finds is best suited for such proceedings.


text:
[306 U.S. 539, 540] Mr. Robert B. Honeyman, of New York City, for appellant.
Messrs. John J. Bennett, Jr., of New York City, Henry Epstein, of Albany, N.Y., and John F. X. McGohey and Benjamin Heffner, both of New York City, for appellees.
This case, coming here on appeal from the state court, presents the question of the validity under the contract clause of the Federal Constitution, U.S.C.A.Const. art. 1, 10, of Section 1083-a of the Civil Practice Act of New York (Chapter 794 of the Laws of 1933, Ex.Sess.)1 under which the appellant, a mortgagee of real [306 U.S. 539, 541] property, was denied a deficiency judgment in a foreclosure suit, where the state court found that the value of the property purchased by the mortgagee at the foreclosure sale was equal to the debt secured by the mortgage.
The mortgage was executed in February, 1928, that is, prior to the legislation in question, to secure a bond for $15,000, with interest, payable in February, 1931. On default in payment, appellant, the holder of the bond and mortgage, brought suit for foreclosure and judgment for foreclosure and sale was entered in April, 1938. The property was then sold to appellant for the sum of $7,500 In the referee's report of sale the amount due on the bond and mortgage was stated to be $15,771.17, and the taxes, fees and expenses amounted to $1,319.03, leaving a deficiency of $9,590.20.
Section 1083-a of the Civil Practice Act required that the right to a deficiency judgment should be determined in the foreclosure suit. Honeyman v. Hanan, 275 N.Y. 382, 9 N.E.2d 970; Id., 302 U.S. 375, 378 , 58 S.Ct. 273, 274. Accordingly, appellant made his motion in that suit to confirm the sale and for deficiency judgment. Proof was submitted to the court that the present value of the property was $25,318. It does not appear that the correctness of this valuation was contested. The court thereupon confirmed the sale and denied the motion for deficiency judgment upon the ground 'that the value of the property is equal to the debt of the plaintiff'. Appellant's contention that Section 1083-a as thus applied violated the contract clause of the Constitution was overruled and this ruling was sus- [306 U.S. 539, 542] tained by the Court of Appeals. Honeyman v. Clark, 278 N.Y. 467, 17 N.E.2d 131 The court followed its earlier decisions, citing Honeyman v. Hanan, 275 N.Y. 382, 9 N.E.2d 970; Klinke v. Samuels, 264 N.Y. 144, 190 N.E. 324; City Bank Farmers' Trust Co. v. Ardlea Incorporation, 267 N.Y. 224, 196 N. E. 34.
Appellant invokes the principle that the obligation of a contract is impaired by subsequent legislation which under the form of modifying the remedy impairs substantial rights. See Sturges v. Crowninshield, 4 Wheat. 122, 200; Von Hoffman v. City of Quincy, 4 Wall. 535, 553, 554; Antoni v. Greenhow, 107 U.S. 769, 775 , 2 S.Ct. 91, 96; Home Building & Loan Association v. Blaisdell, 290 U.S. 398, 430 , 434 S., and cases cited, note 13, 54 S.Ct. 231, 237, 238; W. B. Worthen Co. v. Thomas, 292 U.S. 426, 433 , 54 S.Ct. 816, 818, 93 A.L.R. 173; W. B. Worthen Co. v. Kavanaugh, 295 U.S. 56, 60 , 55 S. Ct. 555, 556, 97 A.L.R. 905. As we said in Richmond Mortgage Corporation v. Wachovia Bank, 300 U.S. 124, 128 , 57 S.Ct. 338, 339, 108 A.L.R. 886, 'The Legislature may modify, limit, or alter the remedy for enforcement of a contract without impairing its obligation, but in so doing, it may not deny all remedy or so circumscribe the existing remedy with conditions and restrictions as seriously to impair the value of the right'.
We have heretofore decided that the requirement of Section 1083-a that the right to a deficiency judgment must be determined in the foreclosure suit raises no substantial question under the contract clause. Honeyman v. Hanan, 302 U.S. 375 , at page 378, 58 S.Ct. 273, 274. The question is whether in the instant case the denial of a deficiency judgment substantially impaired appellant's contract right. The bond provided for the payment to him of $15,000 with the stipulated interest. The mortgage was executed to secure payment of that indebtedness. The contract contemplated that the mortgagee should make himself whole, if necessary, out of the security but not that he should be enriched at the expense of the debtor or realize more than what would repay the debt with the costs and expenses [306 U.S. 539, 543] of the suit. Having a total debt of $15,771.17, with expenses, etc., of $1, 319.03, appellant has obtained through his foreclosure suit the property of the debtor found without question to be worth over $25,000. He has that in hand. We know of no principle which entitles him to receive anything more. Assuming that the statute before its amendment permitted a recovery of an additional amount through a so-called deficiency judgment, we cannot say that there was any constitutional sanction for such a provision which precluded the legislature from changing it so as to confine the creditor to securing the satisfaction of his entire debt.
Section 1083-a in substance assured to the court the exercise of its appropriate equitable powers. By the normal exercise of these powers, a court of equity in a foreclosure suit would have full authority to fix the terms and time of the foreclosure sale and to refuse to confirm sales upon equitable grounds where they were found to be unfair or the price bid was inadequate. Home Building & Loan Association v. Blaisdell, supra, 290 U.S. at pages 446, 447, and cases cited, note 18, 54 S.Ct. at page 243, Richmond Mortgage Corporation v. Wachovia Bank, supra, 300 U.S. at page 129, 57 S.Ct. at page 339, 108 A.L.R. 886. In this control over the foreclosure sale under its decree, the court could consider and determine the value of the property sold to the mortgagee and what the mortgagee would thus realize upon the mortgage debt if the sale were confirmed. See Monaghan v. May, 242 App.Div. 64, 67, 273 N.Y.S. 475; Guaranteed Title & Mortgage Co. v. Scheffres, 247 App.Div. 294, 285 N.Y.S. 464.
The reasoning of this Court in Richmond Mortgage Corporation v. Wachovia Bank, supra, is applicable and governs our decision. There, a statute of North Carolina, enacted after the execution of notes secured by a deed of trust, provided that where a mortgagee caused the sale of mortgaged property by a trustee and, becoming the purchaser for a sum less than the amount of the debt, [306 U.S. 539, 544] thereafter brought an action for a deficiency, the defendant was entitled to show, by way of defense and set-off, that the property sold was fairly worth the amount of the debt or that the sum bid was substantially less than the true value of the property, and thus defeat the claim in whole or in part. Under the former law of that State, when the mortgagee became the purchaser at the trustee's sale under a power in the deed of trust, he might thereafter in an action at law recover the difference between the price he had bid and the amount of the indebtedness. We found that the other remedy by bill in equity to foreclose the mortgage was still available. And that in such a proceeding the chancellor could set aside the sale if the price bid was inadequate, and, in addition, he might award a money decree for the amount by which the avails of the sale fell below the amount of the indebtedness but that 'his decree in that behalf would be governed by well-understood principles of equity'. The Court was of the opinion that the statute modifying one of the existing remedies for realizing the value of the security could not 'fairly be said to do more than restrict the mortgagee to that for which he contracted, namely, payment in full'. The act recognized the obligation of his contract and his right to its full enforcement but limited that right 'so as to prevent his obtaining more than his due. By the old and well-known remedy of foreclosure a mortgagee was so limited because of the chancellor's control of the proceeding'. That 'classical method' of realization upon a mortgage security through a foreclosure suit had always been understood 'to be fair to both parties to the contract and to afford an adequate remedy to the mortgagee'. In that view it appeared that the new law as to proceedings for a deficiency judgment after the exercise of a power of sale 'merely restricted the exercise of the contractual remedy to provide a procedure which, to some extent, renders the remedy by a trustee's sale consistent [306 U.S. 539, 545] with that in equity'. And that did 'not impair the obligation of the contract'.
We reach a similar result here upon the same ground-that under the finding of the state court the mortgagee has obtained satisfaction of his debt and that the denial by the statute of a further recovery does not violate the constitutional provision.
'1083-a. Limitation Upon Deficiency Judgments During Emergency Period. No judgment shall be granted for any residue of the debt remaining unsatisfied as prescribed by the preceding section where the mortgaged property shall be sold during the emergency, except as herein provided. Simultaneously with the making of a motion for an order confirming the sale or in any event within ninety days after the date of the sale, the party to whom such residue shall be owing may make a motion in the action for leave to enter a deficiency judgment upon notice to the party against whom such judgment is sought or the attorney o shall have appeared for such party in such action. Such notice shall be served personally or in such other manner as the court may direct. Upon such motion the court, whether or not the respondent appears, shall determine, upon affidavit or otherwise as it shall direct, the fair and reasonable market value of the mortgaged premises as of the date of sale or such nearest earlier date as there shall have been any market value thereof and shall make an order directing the entry of a deficiency judgment. Such deficiency judgment shall be for an amount equal to the sum of the amount owing by the party liable as determined by the judgment with interest, plus the amount owing on all prior liens and encumbrances with interest, plus cost and disbursements of the action including the referee's fee and disbursements, less the market value as determined by the court or the sale price of the property whichever shall be the higher. If no motion for a deficiency judgment shall be made as herein prescribed the proceeds of the sale regardless of amount shall be deemed to be in full satisfaction of the mortgage debt and no right to recover any deficiency in any action or proceeding shall exist'.

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CHICAGO — Two men who claimed that a federal judge in Illinois erred when dismissing their class action lawsuit accusing Menard Inc. of violating the Illinois Consumer Fraud Act (ICFA) by selling lumber with deceptive labels about the product’s dimensions dismissed their appeal in the Seventh Circuit U.S. Court of Appeals on May 7 (Michael Fuchs, et al. v. Menard Inc., No. 17-3260, 7th Cir.).
SEATTLE — A trial court judge’s ruling awarding summary judgment to a developer’s successor based on the statute of limitations was reversed May 14 by a Washington appeals panel that found that a condominium association’s lawsuit under the Washington Condominium Act (WCA) was filed within the four-year statute of limitations because the declarant controlled the association until 2014 (Burien Town Square Condominium Association v. Burien Town Square Parcel 1 LLC, et al., No. 76502-7-I, Wash. App., 1st Div., 2018 Wash. App. LEXIS 1137).
ALLENTOWN, Pa. — Pella Corp. says in a May 11 notice of removal that a man’s state court lawsuit over windows and doors that were allegedly defective because they leaked belongs in federal court in Pennsylvania because he is seeking damages in excess of the $75,000 jurisdictional threshold and because complete diversity exists between the parties (Edward Melhem v. Pella Corp., et al., No. 18-cv-2007, E.D. Pa.).
BATON ROUGE, La. — A couple’s redhibition claim stating that windows manufactured by Jeld-Wen Inc. that were installed in their home are defective is not prescribed by the statute of limitations, a federal judge in Louisiana ruled May 11, because they did not learn about the alleged defect until 2015 (Ronald Leo, et al. v. Jeld-Wen Inc., No. 16-00605-BAJ-EWD, M.D. La., 2018 U.S. Dist. LEXIS 80179).
CARSON CITY, Nev. — The Nevada Supreme Court on May 10 reversed two rulings denying U.S. Home Corp.’s motion to compel arbitration, finding that the arbitration provisions in sales agreements and covenants, conditions and restrictions (CC&Rs) between the builder and buyer are enforceable under the Federal Arbitration Act (FAA) (U.S. Home Corp. v. Miguel Medina, et al., No. 64604, Nev. Sup., 2018 Nev. Unpub. LEXIS 400).
PROVIDENCE, R.I. — A release agreement between a general contractor and Lumber Liquidators Inc. resolving warranty claims stemming from bamboo flooring that buckled due to the lack of expansion spaces requires the contractor to indemnify the company for allegations brought by the developer of a condominium complex, a Rhode Island trial court judge ruled May 10, finding that terms of the release are unambiguous and enforceable (Providence Capital LLC v. Lumber Liquidators Inc., et al., No. PC-2015-0995, R.I. Super., Providence Co., 2018 R.I. Super. LEXIS 48).
PATTERSON, N.J. — A New Jersey woman sued a contractor in state court on May 4 complaining that his breach of a construction contract and failure to perform work pursuant to architectural designs caused the home to be uninhabitable for over two years (Dori La Cap v. Peco Nikoloski, et al., No. PAS-L-001462-18, N.J. Super., Passaic Co.).
DENVER — A Colorado appellate panel on May 3 upheld a trial court judge’s ruling denying a contractor’s motion for summary judgment in an action brought by a couple accusing it of construction defects, finding that the plaintiffs’ initial lawsuit was timely because it was filed within the two-year limitations period (Brock Curry, et al. v. Zag Built LLC, et al., No. 18CA0018, Colo. App., 2018 Colo. App. LEXIS 647).
ORLANDO, Fla. — A homeowners association and 29 individual homeowners sued Lennar Homes LLC and a general contractor in a Florida state court April 18 on behalf of a putative class of residents of a 191-home development, contending that stucco on their homes was improperly installed (Emerson Park Homeowners Association Inc., et al. v. Lennar Homes LLC, et al., No. 2018-CA-003910-O , Fla. Cir., Orange Co.).
SPOKANE, Wash. — A couple could have determined that the trusses installed on their custom-built home were defective in 2007 after receiving the engineer-stamped designs, a Washington appeals court ruled May 8, upholding a trial court’s decision that the plaintiffs’ breach of warranty and Washington Consumer Protection Act (CPA) claims were barred by the four-year statute of limitations (Terry Schilling, et al. v. ProBuild Co. LLC., et al., No. 34435-5-III, Wash. App., 3rd Div., 2018 Wash. App. LEXIS 1102).
ST. PAUL, Minn. — A subcontractor accused of construction defects waived its argument that it was not properly served with a third-party complaint by a general contractor and an amended complaint from a homeowners association, a Minnesota Court of Appeals panel ruled May 7, holding that the subcontractor waived its argument because it did not pursue it as a means to dismiss the actions (Village Homes of Grandview Square II Association, et al. v. R.E.C. Inc., et al., No. A17-1747, Minn. App., 2018 Minn. App. Unpub. LEXIS 342).
CHICAGO — Two men who argue that a federal judge in Illinois erred when dismissing their class action suit accusing Menard Inc. of violating the Illinois Consumer Fraud Act (ICFA) by misrepresenting the size of dimensional lumber tell the Seventh Circuit U.S. Court of Appeals in an April 30 brief that contrary to the retailer’s argument, the industry standards that establish that 4x4s are not actually that size are not common knowledge (Michael Fuchs, et al. v. Menard Inc., No. 17-3260, 7th Cir.).
NEWARK, N.J. — A federal judge in New Jersey on April 13 entered final approval of a settlement for claims brought by purchasers of decking material made by Azek Building Products Inc. that allegedly faded and warped before the expiration of the product’s warranty and awarded plaintiffs’ counsel $5.25 million in fees, holding that the terms of the agreement are fair and reasonable (In re: Azek Building Products Inc.; Marketing and Sales Practices Litigation, MDL 2506, D. N.J.).
CHICAGO — A federal judge in Illinois’ failure to provide the leader of a putative class with ways to amend his lawsuit accusing Home Depot Inc. of violating the Illinois Consumer Fraud Act (IFCA) when selling lumber that is inaccurately labeled gives the Seventh Circuit U.S. Court of Appeals jurisdiction over his request to review the ruling, the man says in a jurisdictional brief filed April 26 (Mikhail Abramov, et al. v. Home Depot Inc., No. 18-1779, 7th Cir.).
WILMINGTON, Del. — A couple seeking to lead a class for the owners of 63 townhomes that were defectively built say in an April 26 reply brief in support of certification filed in Delaware state court that the defendants’ opposing arguments regarding damage caused by the problems are premature and not part of the class inquiry (Jason Jones, et al. v. BPG Residential Partners IV LLC, et al., No. N15C-10-131 WCC, Del. Super., New Castle Co.).
LAKE CHARLES, La. — A Louisiana appeals panel on April 25 affirmed a ruling awarding summary judgment to a builder and his insurer, holding that a man was unable to show that alleged defects in the construction of his home warranted his refusal to pay for the work (Lynton O. Hester IV v. Burns Builders, et al., No. 17-824, La. App., 3rd Cir., 2018 La. App. LEXIS 782).
SANTA ANA, Calif. — A California appellate court on April 13 affirmed a trial court judge’s ruling awarding $458,482 in damages and $250,000 in attorney fees and costs to the buyer of a commercial property after finding that the contractor who installed a foundation could be liable for breach of warranty when misplacing plumbing and electrical conduits, holding that the rights of the previous owner passed on to the new owner (New Pacific Carlyle LLC v. White Residential Inc., No. G051437, Calif. App., 4th Dist., 3rd Div., Calif. App. Unpub. LEXIS 2513).
CARSON CITY, Nev. — The Nevada Supreme Court on April 12 applied its earlier ruling in U.S. Home Corp. v. The Michael Ballesteros Trust, et al. to reverse a motion to compel arbitration, holding that the arbitration provision in the covenants, conditions and restrictions (CC&Rs) between a developer accused of construction defects and homeowners in a common interest community are enforceable under the Federal Arbitration Act (FAA) (Greystone Nevada LLC v. Oliver M. McCoy Jr., et al., No. 68769, Nev. Sup., 2018 Nev. Unpub. LEXIS 302).
BEAUFORT, S.C. — A federal judge in South Carolina on April 26 denied a woman’s motion to certify a class for homeowners who claim that a builder improperly installed stucco on their homes, finding that individual issues, such as the extent of damages and the statute of limitations defense, predominated over classwide issues (Jacqueline L. Craft, et al. v. South Carolina Plastering LLC, et al., No. 15-cv-05080-PMD, D. S.C., 2018 U.S. Dist. LEXIS 70048).
BOISE, Idaho — The Idaho Supreme Court on April 24 reinstated a couple’s negligence claim based on a plumber’s failure to properly install a bathtub in their vacation home, holding that the plaintiffs did not need to strictly comply with the notice requirements of the state’s Notice and Opportunity to Repair Act (NORA) (Scott Davison, et al. v. DeBest Plumbing Inc., No. 44625, Idaho Sup., 2018 Ida. LEXIS 98).

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Justia US Law US Codes and Statutes Missouri Revised Statutes 2005 Missouri Revised Statutes Title XXXI — TRUSTS AND ESTATES OF DECEDENTS AND PERSONS UNDER DISABILITY Chapter 473 — Probate Code--Administration of Decedents\' Estates § 473.360. — Limitations on filing of claims--when claims barred.
2005 Missouri Revised Statutes - § 473.360. — Limitations on filing of claims--when claims barred.
473.360. 1. Except as provided in section 473.370, all claims against the estate of a deceased person, other than costs and expenses of administration, exempt property, family allowance, homestead allowance, claims of the United States and claims of any taxing authority within the United States, whether due or to become due, absolute or contingent, liquidated or unliquidated, founded on contract or otherwise, which are not filed in the probate division of the circuit court within six months after the date of the first published notice of letters testamentary or of administration or, if notice was actually mailed to, or served upon, such creditor, within two months after the date such notice was mailed, or served, whichever later occurs, or which are not paid by the personal representative, within six months after the first published notice of letters testamentary or of administration, are forever barred against the estate, the personal representative, the heirs, devisees and legatees of the decedent. No contingent claim based on any warranty made in connection with the conveyance of real estate is barred under this section. This six-month period does not extend any other applicable limitation periods.
2. Unless written notice of actions instituted or revived under section 473.363 or 473.367 is filed in the probate division within six months after the first published notice of letters, no recovery may be had in any such action on any judgment therein against the personal representative out of any assets being administered upon in the probate division or from any distributee or other person receiving the assets. Timely filing of the claim against the estate, under this section, within six months after the first published notice of letters, whether said claim is filed before or after the institution or revival of an action against the personal representative or the estate shall satisfy the requirement of written notice herein imposed.
3. Nothing in this section affects or prevents any action or proceeding to enforce any mortgage, pledge or other lien upon property of the estate; except that attachment, judgment, and execution liens shall be enforced as provided in this chapter and not otherwise.
(1960) Where suit on personal injuries claim was filed within the nine months but notice thereof was not filed in the probate court within that time the suit would be dismissed because barred by the nonclaim statute. The 1959 amendment with respect to making the bar applicable only to assets of the estate discussed. Smith v. Maynard (Mo.), 339 S.W.2d 737.
(1960) Where claim for compensation for services as originally filed was based on alleged contract to make provision for such compensation by will, the claim could be amended after expiration of nonclaim period to proceed on quantum meruit. Reighley v. Fabricius Estate (A.), 332 S.W.2d 76.
(1961) A proceeding could be instituted in the circuit court for an accounting and distribution of an escrow fund between the parties entitled thereto notwithstanding a claim therefor had previously been filed in a probate court. Stark v. Moffit (A.), 352 S.W.2d 165.
(1962) Actions against administrator of estate for personal injuries were barred where actions had been barred under nonclaim statute prior to statute's amendment since amendment did not extend new privileges granted therein to bringing of new actions which had been extinguished prior to effective date of amendment. State ex rel. Whitaker v. hall (Mo.), 358 S.W.2d 845, Potts v. Vadnais (Mo.), S.W.2d 543.
(1963) Suit to enforce contractual right of surviving partner under partnership agreement to purchase deceased partner's interest did not constitute a claim against the deceased partner's estate within the meaning of the nonclaim statutes. Strumberg v. Mercantile Trust Co. (Mo.), 367 S.W.2d 535.
(1963) Nunc pro tunc order of probate court to correct record to show the filing of copy of petition and duplicate copy of summons in personal injury suit against administratrix of estate based solely on oral testimony of attorney that he handed instruments to probate clerk on certain date was error. In re Grooms' Estate (A.), 370 S.W.2d 709.
(1964) Where condemnation proceeding was pending at time of condemnor's death, the fact that condemnor did not file notice of the action in probate court did not call for dismissal of condemnor's exceptions to commissioners' report and payment to condemnor of difference between the commissioners' award and smaller jury verdict was not recovery on a "judgment" within meaning of this section. Condemnation damages were not assets to be administered in probate court until administrators exercised their right to draw down amount deposited. St. Louis Housing Authority v. Barnes (Mo.), 375 S.W.2d 144.
(1967) This section is mandatory and its purpose is to terminate all claims, whether due, not due, or contingent. In re Estate of Bierman (A.), 410 S.W.2d 342.
(1985) Held, due process does not require any more than publication notice to a creditor that a decedent's estate is being administered and the notice provisions of sections 473.360 and 473.033, RSMo, are constitutional. Estate of Busch v. Ferrell Duncan Clinic (Mo. banc) 700 S.W.2d 87.


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Missouri Court of Appeals,Eastern District,Division Four.
ADBAR, L.C., Appellant, v. NEW BEGINNINGS C-STAR, Respondent.
Jonathan T. Baum, Clayton, MO, for appellant. Gary K. Burger, Jr., St. Louis, MO, for respondent.
Adbar, L.C. appeals the judgment in favor of New Beginnings C Star on Adbar's claim for breach of lease. We reverse in part and affirm in part.
New Beginnings provides rehabilitation services for alcohol and drug abuse to both adults and adolescents. In the fall of 1999, New Beginnings was searching for a new location and entered into negotiations with Adbar for lease of a building in the City of St. Louis. New Beginnings received a preliminary indication from the City's zoning administrator that its use of the property constituted a permitted use under the zoning regulations. New Beginnings and Adbar subsequently entered into a three-year lease. The total rent due for the three-year term was $273,000.
After the lease was executed, the City denied New Beginnings' application for an occupancy permit on the grounds that the operation constituted a nuisance use under the zoning regulations. At trial, Alderman Freeman Bosley, Sr. testified that due to his opposition to New Beginnings moving into his Ward, he had called the zoning administrator and asked him to reverse his preliminary indication that New Beginnings' operation constituted a permitted use.
New Beginnings appealed the denial of the occupancy permit to the board of adjustment. Alderman Bosley and other neighborhood residents testified in opposition to New Beginnings at the board's hearing. The board affirmed the denial of the permit. New Beginnings then sought a writ, which was granted by the circuit court, and New Beginnings was issued an occupancy permit. Alderman Bosley contacted the judge who issued the writ and asked him to reverse his decision. The judge declined. A few weeks later, at the City counselor's request, the City revoked New Beginnings' occupancy permit. New Beginnings filed a motion for contempt with the circuit court. The motion was granted, and the City re-issued the occupancy permit.
After the permit was reissued, New Beginnings began preparing to move in, including having some construction done on the building. At this same time, Alderman Bosley contacted then State Representative Paula Carter, chairwoman of the appropriations committee responsible for New Beginnings' state funding. Alderman Bosley asked Representative Carter to “pull the funding” for New Beginnings. Alderman Bosley did not get a commitment from Representative Carter, but told her that “if you don't get their funding, you are going to have trouble running” for re-election.
New Beginnings alleges that it was then contacted by Michael Couty, director of the Missouri Division of Alcohol and Drug Abuse, who threatened to rescind all state contracts with New Beginnings if it moved into the new location. New Beginnings convened a meeting of its board of directors to conduct a conference call with Director Couty. New Beginnings alleges that during that conference call Director Couty repeated his threat to rescind funding if it moved into the new location. At the end of the meeting, New Beginnings' board decided not to occupy the building they had leased from Adbar. At trial Director Couty denied making any such threats to New Beginnings.
Adbar filed a petition for breach of the lease. New Beginnings asserted a defense of legal impossibility. On the first day of the trial, New Beginnings was granted leave to amend its answer to add the defense of commercial frustration. Following a bench trial, the trial court ruled that New Beginnings was excused from its performance under the lease because of commercial frustration. This appeal follows.
On review of this court-tried case, we will sustain the judgment of the trial court unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We accept the evidence and inferences favorable to the prevailing party and disregard all contrary evidence. Kassebaum v. Kassebaum, 42 S.W.3d 685, 692 (Mo.App. E.D.2001). We will defer to the factual findings of the trial judge, who is in a superior position to assess credibility; however, we independently evaluate the court's conclusions of law. Id.
In its first point on appeal, Adbar asserts that the trial court erroneously applied the law when it excused New Beginnings' performance under the lease due to the doctrine of commercial frustration. We agree.
The doctrine of commercial frustration grew out of demands of the commercial world to excuse performance under contracts in cases of extreme hardship. Kassebaum, 42 S.W.3d at 699. Under the doctrine of commercial frustration, if the occurrence of an event, not foreseen by the parties and not caused by or under the control of either party, destroys or nearly destroys the value of the performance or the object or purpose of the contract, then the parties are excused from further performance. Id. If, on the other hand, the event was reasonably foreseeable, then the parties should have provided for its occurrence in the contract. Werner v. Ashcraft Bloomquist, Inc., 10 S.W.3d 575, 577 (Mo.App. E.D.2000). The absence of a provision in the contract providing for such an occurrence indicates an assumption of the risk by the promisor. Id. In determining foreseeability, courts consider the terms of the contract and the circumstances surrounding the formation of the contract. Id. at 577-578. The doctrine of commercial frustration should be limited in its application so as to preserve the certainty of contracts. Id. at 578.
New Beginnings alleged that the troubles it faced obtaining its occupancy permit, along with the actions of Alderman Bosley and Director Couty, combined to rise to commercially frustrate the lease agreement with Adbar. Ultimately, New Beginnings' funding was never rescinded. In this case the intervening event was merely the possibility that the funding may be rescinded. For an organization that receives funding from the State, the possibility that their funding may be reduced or even completely rescinded is foreseeable. Furthermore, while the zeal with which Alderman Bosley attempted to keep New Beginnings out of his ward may have been surprising to the parties, it is certainly foreseeable that a drug and alcohol abuse treatment facility might encounter neighborhood resistance when attempting to move into a new location. At trial, the CEO of New Beginnings admitted that both the elimination of New Beginnings' funding and opposition from neighborhood groups were foreseeable.
This court has addressed similar intervening events before. In Conlon Group, Inc. v. City of St. Louis, this Court found that structural defects in a 100 year-old building were foreseeable and, despite increased development costs, the agreement with the City's redevelopment authority remained intact. 980 S.W.2d 37, 40-41 (Mo.App. E.D.1998). In Shop'N Save Warehouse Foods, Inc. v. Soffer, this Court found that a lessor could foresee that its supermarket tenant might bring an action to enforce a radius restriction in the lease to keep him from leasing property to another supermarket chain. 918 S.W.2d 851, 863 (Mo.App. E.D.1996). The Court noted that, while neither party wanted the eventual result, the doctrine of commercial frustration did not provide a means to avoid a bad result. Id. The possibility that New Beginnings' funding may be threatened was foreseeable. Yet, New Beginnings did not provide for that possibility in the lease. Therefore, New Beginnings assumed the risk that their funding may be threatened and that it might frustrate the purpose of the lease.
In addition to this event being foreseeable, neither the value of the performance nor the purpose of the lease was destroyed. The purpose of the lease was to allow New Beginnings to operate a rehabilitation center at the location of the property. New Beginnings' funding was never rescinded or even restricted. Alderman Bosley's continued interference with New Beginnings efforts to provide rehabilitation treatment to addicts of drugs and alcohol certainly made, and would have continued to make, business difficult for New Beginnings. However, neither the value of the performance nor the object or purpose of the lease was destroyed or nearly destroyed.
Therefore, the doctrine of commercial frustration does not excuse New Beginnings performance under the lease. Point I is granted.
In its second point on appeal, Adbar asserts that the trial court erred when it allowed New Beginnings leave to amend its answer to add the defense of commercial frustration. In its third point on appeal, Adbar asserts that the trial court's finding that the state threatened to revoke New Beginnings' funding and that New Beginnings' funding would have been revoked had they moved into the building were against the weight of the evidence. Because we hold that the affirmative defense of commercial frustration is not applicable, there is no reason for us to address Adbar's Points II and III on appeal.
In its petition for breach of lease, Adbar alleged that the building sustained property damage that was the fault of New Beginnings. Adbar asked the trial court to award it the cost of restoring the property. The trial court found that Adbar had failed to prove by a preponderance of the evidence the nature and extent of any damages to the property caused by New Beginnings.
In its fourth point on appeal, Adbar alleges that this finding was against the weight of the evidence. “Appellate courts should exercise the power to set aside a decree or judgment on the ground that it is ‘against the weight of the evidence’ with caution and with a firm belief that the decree or judgment is wrong.” Murphy, 536 S.W.2d at 32. Conflicts in the evidence are for the trial court to resolve. Trenton Trust Co. v. Western Surety Co., 599 S.W.2d 481, 483 (Mo. banc 1980). The trial court, when sitting as the trier of fact, may believe all, part or none of the testimony of any witness. Id.
The trial court heard testimony from an architect hired by Adbar concerning how much it would cost to the restore the property to its original condition. However, on cross-examination the architect testified that he had not seen the building prior to the work done by New Beginnings. The trial court also heard testimony concerning damage done to the building by vandals. After hearing all of this testimony, the trial court determined that Adbar had not proved by a preponderance of evidence the nature and extent of any damages to the property caused by New Beginnings.
The trial court's finding that Adbar did not prove property damages to the building attributable to New Beginnings is supported by substantial evidence and is not against the weight of the evidence.
The judgment that New Beginnings is excused from the lease under the defense of commercial frustration is reversed and the cause is remanded for a new trial in accordance with this opinion. The judgment in all other respects is affirmed.
WILLIAM H. CRANDALL, P.J., and SHERRI B. SULLIVAN, J., concurring.

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Filed under: Medication, Discovery, Service, Mental Health. Location: Nevada.
Brian Faile is a Nevada state prisoner. He sued the Upjohn company claiming that their product Xanax, a prescription drug, caused him depression and violent outbursts which resulted in his being severely wounded by police and imprisoned. The district court dismissed Faile's suit because his opposition to Upjohn's motion to dismiss was late. Faile submitted a tardy opposition and a motion that the court hear it. The court refused to consider Faile's opposition as a sanction for Faile allegedly being late in responding to Upjohn's court ordered discovery requests. The district court dismissed Faile's suit.
The discovery requests in question were post marked two days after the deadline date the court had set. Faile contended he had delivered the discovery materials to prison officials for mailing well before the deadline.
The court of appeals for the ninth circuit reversed and remanded the case.
The appeals court ruled that discovery responses are deemed served and filed the day a Pro Se prisoner gives them to prison officials to mail, not the actual date the materials are mailed or received by the opposing party or court. The court gave a good explanation of the important policy reasons behind this rule and cites numerous cases from other circuits, and Houston v. Lack, 487 US 266, 108 S. Ct. 2379 (1988), which have supported this rule. The rule is necessary because prisoners lack control over any delays between prison officials receipt of pleadings, discovery responses, appeals, etc., and any delays that may occur after that.
The court ruled: "When a Pro Se prisoner alleges that he timely complied with a procedural deadline by submitting a document to prison authorities, the district court must either accept that allegation as correct or make a factual finding to the contrary upon a sufficient evidentiary showing by the opposing party." See: Faile v. Upjohn Company, 988 F.2d 985 (9th Cir. 1993).
 Appeal from the United States District Court for the District of Nevada. D.C. No. CV 90-398-LDG. Lloyd D. George, Chief District Judge, Presiding.
 Brian S. Faile, Pro per, Indian Springs, Nevada, for the plaintiff-appellant.
 Daniel F. Polsenberg, Beckley, Singleton, DeLanoy, Jemison & List, Las Vegas, Nevada, for the defendant-appellee.
 Before: Alfred T. Goodwin, Dorothy W. Nelson, and Stephen Reinhardt, Circuit Judges. Opinion by Judge Reinhardt.
 This case requires us to decide whether an incarcerated pro se litigant completes "service" of discovery responses at the time he submits the responses to prison authorities for forwarding to the party being served. We hold that he does, and reverse and remand.
 On August 8, 1991, the district court, under the belief that Faile, despite an extension, had not filed an opposition to Upjohn's motions to dismiss and for summary judgment, dismissed the complaint. On August 15, 1991, Faile moved to reconsider. The motion was timely under Fed. R. Civ. P. 59(e).
 On October 1, 1991, the court, noting that Faile had in fact filed opposition, albeit tardy, to Upjohn's motions, indicated that it was inclined to reconsider the earlier dismissal. However, the court added that Upjohn had also urged dismissal on the basis of plaintiff's failure to comply with a magistrate Judge's order requiring Faile to respond to defendant's interrogatories and requests for production. The court gave Faile 15 days to "fully comply with the magistrate's order." The court indicated that its earlier order of dismissal would stand if Faile did not so comply. Upjohn was to file a status report within 20 days of the court's order. On October 17, 1991, Upjohn reported to the district court that it had received nothing from Faile. As a consequence, on October 22, 1991, the court denied Faile's motion to reconsider dismissal.
 Asserting that the court had made a mistake of law, Faile moved to vacate the October 22, 1991 order under Fed. R. Civ. P. 60(b). On December 3, 1991, the district court denied the motion, and Faile appeals. Faile contends that he timely complied with the district court's October 1 order by turning over his discovery responses, within the 15 days allowed, to prison officials for forwarding to Upjohn. The district court apparently concluded that compliance required receipt of the responses by Upjohn within the time allowed.
 We review the denial of a motion under Fed. R. Civ. P. 60(b) for an abuse of discretion. Browder v. Director, Dept. of Corrections of Illinois, 434 U.S. 257, 263, 54 L. Ed. 2d 521, 98 S. Ct. 556 n.7 (1978). If its Conclusion that Faile had not timely complied rested upon an erroneous view of the law, the district court abused its discretion. See Yniques v. Cabral, 985 F.2d 1031, slip ops. at 1201, 1205 (9th Cir. 1993) (legal error is "mistake" warranting relief under Fed. R. Civ. P. 60(b)). Cf. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 110 S. Ct. 2447, 2461, 110 L. Ed. 2d 359 (1990) (district court abuses its discretion in basing decision on erroneous view of law).
 The magistrate Judge's order, with which Faile was to fully comply by October 16, 1991, required him to respond to Upjohn's interrogatories and requests for production. Under Fed. R. Civ. P. 33 and 34, a party is to "serve" discovery responses upon the requesting party. "Service" may be accomplished by mail, and "service by mail is complete upon mailing." Fed. R. Civ. P. 5(b). Under these rules, the district court erred in determining that full compliance with the magistrate Judge's order required receipt of the responses by Upjohn. Rather, Faile could timely comply with the order by mailing the responses within 15 days.
 In Houston v. Lack, 487 U.S. 266, 101 L. Ed. 2d 245, 108 S. Ct. 2379 (1988), the Supreme Court held that an incarcerated pro se habeas petitioner "files" his notice of appeal on the day he delivers it to prison authorities for forwarding to the district court. In so holding, the Court barred application of the general rule that, in determining the timeliness of appeal under Fed. R. App. P. 4(a)(1), "filing" occurs only upon receipt by the district court.
 The Court noted that, for the ordinary civil litigant, receipt rather than formal "filing" determines timeliness because the litigant lacks control over the notice once it is in the district court's possession. Houston, 487 U.S. at 273. The pro se prisoner, with neither the freedom to deliver the notice himself, nor counsel to deliver it for him, surrenders control even earlier in the process than the ordinary litigant. Id. at 271, 273-74. Absent the rule in Houston, the pro se prisoner's right to appeal would depend entirely upon the diligence both of the prison authorities in promptly mailing the notice and of the postal service in timely delivering it. Id. at 275-76. Thus, the rule in Houston relies on policy concerns surrounding the pro se prisoner's lack of control over delays between prison authorities' receipt of the notice and its formal "filing" by the district court.
 Recognizing that these policy concerns apply to other procedural deadlines, courts in other circuits have held that delivery to prison authorities constitutes "filing" under rules in addition to Fed. R. App. P. 4(a)(1) governing notices of appeal. See Simmons v. Ghent, 970 F.2d 392, 393 (7th Cir. 1992) (Houston "applies to other filings, including a Rule 59(e) motion"); Lewis v. Richmond City Police Dept., 947 F.2d 733 (4th Cir. 1991) (filing of complaint for purposes of statute of limitations); Dunn v. White, 880 F.2d 1188, 1190 (10th Cir. 1989) (filing of plaintiff's objections to magistrate's report and recommendation), cert. denied, 493 U.S. 1059 (1990); Smith v. Evans, 853 F.2d 155, 161-62 (3d Cir. 1988) (Rule 59(e) motion for reconsideration); Moskovits v. Drug Enforcement Agency, 774 F. Supp. 649 (D.D.C. 1991) (response to agency regarding claim to currency under forfeiture).
 In this circuit, we have not yet held that Houston applies to procedural deadlines other than for civil notices of appeal. Nonetheless, our decisions have evinced a pragmatic approach in applying the decision's rule in circumstances other than those presented in Houston itself - a pro se prisoner appealing the denial of a writ of habeas corpus. In our subsequent cases, our main concern has been whether the circumstances involve the same lack of control over timeliness described in Houston.
 For example, focusing on "the broad language of Houston and its important policy concerns," and noting that "pro se prisoners experience similar difficulties in filing appeals from non-habeas civil suits," we have held that the rule in Houston cannot be confined to habeas petitioners. See Hostler v. Groves, 912 F.2d 1158, 1160-61 (9th Cir. 1990), cert. denied, 111 S. Ct. 1074 (1991). We have also concluded that a prisoner whose counsel has not been technically discharged may nonetheless invoke the rule in Houston if he can show that his counsel has abandoned him; the decision rested on our Conclusion that the inmate abandoned by counsel is "in the same position as the pro se prisoners described in Houston." See Vaughan v. Ricketts, 950 F.2d 1464, 1467 (9th Cir. 1991).
 When we have declined to apply Houston, we have similarly looked to the presence or absence of the policy concerns underlying the Supreme Court's decision. In holding that a prisoner who deposits his notice of appeal in a public mailbox may not rely on the rule in Houston, we stated that such a prisoner is distinct from the inmate who "has no choice but to entrust the forwarding of his notice of appeal to prison authorities whom he cannot control and whose interests might be adverse to his." Miller v. Sumner, 921 F.2d 202, 203 (9th Cir. 1990).*fn3 Thus, our cases addressing Houston have consistently demonstrated a concern with the pro se prisoner's lack of control relative to the ordinary litigant.
 With this preeminent concern in mind, we see no reason to treat other civil "filing" deadlines differently than the deadline for filing a civil appeal. In each case, the prisoner proceeding without counsel lacks the ability to ensure prompt receipt by the district court. Under each rule setting out a "filing" deadline, "the moment at which pro se prisoners necessarily lose control over and contact with their [documents] is at delivery to prison authorities, not receipt by the clerk." See Houston, 487 U.S. at 275. The policy reasons for deeming submission to prison authorities "filing" apply with equal persuasive force to required filings other than notices of appeal.
 Faile therefore fully complied with the magistrate Judge's order when he submitted his discovery responses to prison officials. When a pro se prisoner alleges that he timely complied with a procedural deadline by submitting a document to prison authorities, the district court must either accept that allegation as correct or make a factual finding to the contrary upon a sufficient evidentiary showing by the opposing party. The district court erred in denying reconsideration of dismissal in the absence of a finding that Faile did not submit his responses to prison authorities until after October 16.
 Because the district court denied Faile's motion for reconsideration under an erroneous view of the law governing "service" by an incarcerated pro se, Faile was entitled to have the order denying his motion for reconsideration vacated under Fed. R. Civ. P. 60(b). On remand, the district court should grant the motion for reconsideration unless it determines, based upon an adequate factual showing, that Faile did not submit his responses to prison officials until after October 16.
 *fn* The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir. R. 34-4.
 *fn1 The district court had jurisdiction over Faile's complaint on the basis of diversity of citizenship. See 28 U.S.C. § 1332.
 *fn2 We refer in this opinion only to "service" under Fed. R. Civ. P. 5, and not to service of summons and complaint, which is governed by Fed. R. Civ. P. 4.
 *fn3 Of course, our decision in Miller neglects to recognize that a pro se prisoner who uses a public mailbox in connection with his filing of an appeal is still not in the same position as an ordinary civil litigant. "If other litigants do choose to use the mail, . . . they can follow its progress by calling the court . . ., knowing that if the mail goes awry they can personally deliver notice at the last moment . . . ." Houston, 487 U.S. at 271. Noting that when a prisoner submits his notice of appeal to prison authorities it is recorded in a log, we were apparently concerned in Miller about the difficulty of verifying when the notice was placed in the public mailbox. 921 F.2d at 203-04. Such concerns are not present here because Faile contends that he submitted his discovery responses to prison officials for mailing. Moreover, because "service" is complete upon mailing, the prisoner who uses a public mailbox is, as to service deadlines, in exactly the same position as the ordinary litigant.
 *fn4 As a technical matter, because service is complete upon mailing, we hold that a pro se prisoner completes the "mailing" of a document being served under Fed. R. Civ. P. 5(b) by submitting it to prison authorities.