A warrant of attorney executed by the maker of a note and authorizing, in case of nonpayment, an attorney to appear, waive process, confess judgment, waive error and right of appeal in favor of the "holder" of the note, must be construed strictly in favor of the maker, and does not, in the absence of express terms, authorize the confession of judgment in favor of the original payee after it ceases to be the owner of the note, even though he may have the note in his possession. A judgment so entered would be a personal judgment without service of process or appearance, the the court would have no authority or jurisdiction to enter it, and the proceedings would be wanting in due process of law. Such a judgment can be attacked collaterally without violating the full faith and credit clause of the federal Constitution in an action thereon in a state other than that in which it was entered, on the ground that the party in whose favor it was rendered was not in fact the holder, because not the owner of the note, and that therefore the court entering the judgment was without jurisdiction.
This is an action upon a judgment rendered in one of the courts of Ohio, and the question to be considered is whether the final judgment under review gave to the proceedings in the Ohio court such faith and credit as are required by the Constitution and laws of the United States.
and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may, by general laws, prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof."
The Wiley Construction Company, a Massachusetts corporation, and Wiley, the defendant in error, executed and delivered to the National Exchange Bank, the plaintiff in error, a written instrument, being a note with warrant of attorney annexed, dated Tiffin, Ohio, April 26, 1884, in which, for value received, they jointly and severally promised to pay to that bank, or order, on the first day of October, 1884, at its office in that city, $10,000, with eight percent interest after maturity. The instrument authorized N. L. Brewer, or any attorney at law in the United States, or elsewhere, to appear before any court of record, after such obligation became due, waive the issuing and service of process, and confess judgment against the obligors or either of them "in favor of the holder" for the amount then appearing to be due, together with the cost of suit, and thereupon to release all errors and writs of error, and, in behalf of the obligors or either of them, waive all right to appeal and stay of execution.
1887 at eighth percent. Upon it was credited a payment of $6,311.75, as of May 9, 1887.
It may be here stated that there was no indorsement on the note showing that it had ever been assigned or transferred by the original payee.
With the petition in that suit were filed copies of the paper constituting the note and warrant of attorney. With it was also filed an answer in which an attorney, assuming by virtue of the above warrant and not otherwise, to be the attorney of the construction company and of Wiley, confessed judgment against them for the full amount claimed by the bank.
On the very day of the bringing of that suit, judgment was entered against the defendants therein for $11,419.68, being the amount of the obligation with interest as eight percent from May 9, 1887, the judgment reciting that the attorney who acted under the warrant of attorney, naming him in person, by virtue of that warrant, entered the appearance of the defendants, waived the issuing and service of process, confessed judgment, and released and waived all exceptions, errors, and right of appeal.
The present action was by the National Exchange Bank against Wiley on the judgment rendered in the Ohio suit. The defendant disputed the plaintiff's right to recover upon several grounds, one of which was that, prior to the institution of the Ohio suit and more than twelve years before the commencement of the present action, the note had been fully discharged, so far as he was concerned, pursuant to an agreement between him and the holder. But on this writ of error, we are concerned only with the part of the defense which distinctly raises a federal question.
became the holder of the obligation, and thereafter remained and still was the holder; that therefore the attorney professing to act in behalf of the defendants in the Ohio suit had no authority, in virtue of such warrant of attorney, to represent them in that suit or to confess judgment in favor of the National Exchange Bank; that the defendant was neither served with process in the Ohio suit nor had any notice thereof; that the Ohio court was entirely without authority or jurisdiction to render judgment against him in favor of the plaintiff bank, and that its authority or jurisdiction could not be upheld consistently with the Fourteenth Amendment of the Constitution of the United States.
The plaintiff insisted that it was the holder of the note when put in suit; further, that the court in Ohio had full power and jurisdiction to render the judgment in question, and that neither personal service of process, on nor notice to the obligors was necessary in order to give that court jurisdiction of the parties and subject matter.
Both at the trial and in the Supreme Court of Nebraska, the bank contended that full faith and credit, as required by the Constitution and laws of the United States, would not be given to the proceedings in the Ohio suit if the judgment in its favor was held not to be conclusive in respect of the authority of the Ohio court to render such judgment.
It is unnecessary to set out all the instructions. It is sufficient to say that the jury were, in substance, instructed that the warrant of attorney authorized a confession of judgment in favor of the holder of the note; that it was to be presumed upon the showing made by the record of the Ohio court that it had jurisdiction to render the judgment sued on, and that such presumption continued throughout this case unless the defendant, by a preponderance of evidence, proved that the plaintiff bank was not, in fact the holder of the note when put in suit in Ohio. The jury were also instructed that, if the plaintiff was found not to be such holder, the verdict should be for the defendant.
The jury's verdict was for the defendant, and the judgment thereon was affirmed. Upon the issue as to the ownership of the note at the time it was sued on in Ohio, there was, as the Supreme Court of Nebraska held, proof both ways.
Did the Ohio court have jurisdiction to render the judgment in question? It is a settled doctrine, Chief Justice Marshall said in Rose v. Himely, 4 Cranch 269, that the effect of every judgment must depend upon the power of the court to render that judgment. In determining whether the Ohio court had authority to render the judgment against the obligors in the note, we must look first into the decisions of the highest court of that state.
"The power of attorney is not negotiable, and when the legal title to the note is transferred, the power of attorney becomes invalid, and no power whatever can be exercised under it, for the benefit of the indorsee, and he holds the note as if no such power had ever been attached to it."
130, that a warrant of attorney to confess judgment, attached to a note, and forming a part of the same instrument, is not negotiable, and when the note is transferred becomes invalid and inoperative. It is true, the report of that case does not inform us whether the warrant of attorney in that case purported to authorize the confession of a judgment in favor of the payee of the note alone, or whether its terms extended, as in this case, to any holder of the note after due. But, however this may have been in that case, we suppose that, if this judgment rested upon the confession under the warrant of attorney alone, it would be very questionable whether the court of common pleas had any rightful jurisdiction of the defendants in the judgment."
only 'in favor of the legal holder' of the note. The plaintiff below was not the 'legal' holder of the note, for the note had not been indorsed to him. He could become the 'legal holder' of the note only 'by indorsement thereon,' as authorized by the statute. S. & C.Stat. 862; Avery v. Latimer, 14 Ohio 542. The waiving of process, and confession of judgment in favor of the plaintiff below, was not, then, within the authority conferred by the power of attorney. Under the rule of interpretation applicable to such instruments, we must conclude that the jurisdiction of the defendants below, obtained through the warrant of attorney only, and the confession of judgment by means thereof, exceeded the authority conferred by the defendants in their power of attorney, and that the court therefore erred in overruling their motion to set aside the judgment, irregularly obtained against them."
In Watson v. Paine, 25 Ohio St. 340, which was an action upon a judgment based on a warrant of attorney attached to a promissory note, and which authorized any attorney at law to confess judgment in favor of the holder of the note, the point was made that the warrant of attorney did not authorize the waiving of process or an appearance for the defendants in an action brought by an indorsee. The members of the Supreme Court of Ohio were divided in opinion on that point, and it was left undecided. The case went off upon another ground, but McIlvaine, J., delivering the judgment of the court, expressed his individual opinion that a power to confess judgment in favor of any holder of the note may be exerted as well in favor of an indorsee as of the payee.
judgment in favor of the holder of said note,' and we think these words were intended, and should be construed, to embrace any holder who might lawfully prosecute an action on said note, in his own name and for his own use."
holder or holder of the note. The decisions have all been based upon a strict interpretation of the power granted, without aiding any omission or defect in its terms by liberal intendment or construction. In accordance with the views which we have expressed, our conclusion is that the warrant of attorney attached to the note sued on did not authorize a confession of judgment in favor of defendant in error, and, there having been no summons or other notice to the plaintiff in error of the bringing of the original action, the court of common pleas acquired no jurisdiction over the person of the plaintiff in error, and erred in rendering a judgment against him."
its name and for its own use. Here, the confession of judgment was in behalf of the payee bank, which was not entitled to sue for its own use or to receive the proceeds if it sold the note in 1885, and never afterwards became the owner. The words, in the warrant of attorney, "in favor of the holder of this instrument," ought not, as between the National Exchange Bank and the obligors, to be construed as embracing the former after it ceased to be the owner of the note, but at most, as only authorizing a confession of judgment in favor of the party who had become its real owner. It should not be supposed that the obligors intended, or that the payee bank ever understood them as intending, to authorize a confession of judgment in favor of one who was not entitled, or right, to demand payment from the obligors. That view accords with justice, and, not being inconsistent with the words in the warrant of attorney, it should be adopted.
" holder is a general word, applied to anyone in actual or constructive possession of the bill, and entitled at law to recover or receive its contents from the parties to it."
"by the holder of negotiable paper is meant, in law, the owner of it, for if it be in his possession without title or interest he is, in general, considered only as the agent of the owner."
person or by an attorney authorized to represent him. If law and usage in Ohio were to the contrary, then such law and usage would be in conflict with the Constitution of the United States; for it is thoroughly settled that a personal judgment against one not before the court by actual service of process, or who did not appear in person or by an authorized attorney, would be invalid as not being in conformity with due process of law.
"did not make the judgments of other states domestic judgments to all intents and purposes, but only gave a general validity, faith, and credit to them, as evidence,"
proceeding in another state, notwithstanding the provision of the fourth article of the Constitution and law of 1790 [Rev.Stat. § 905, et seq. ], and notwithstanding the averments contained in the record of the judgment itself."
There has been no departure in the decisions of this Court from the doctrines announced in Thompson v. Whitman, whether the question related to courts of general or to courts of limited or special jurisdiction. It has been repeatedly affirmed. Knowles v. Logansport Gaslight & Coke Co., 19 Wall. 58, 86 U. S. 61 ; Hall v. Lanning, 91 U. S. 160 , 91 U. S. 165 ; Pennoyer v. Neff, 95 U. S. 714 , 95 U. S. 732 ; Cole v. Cunningham, 133 U. S. 107 , 133 U. S. 112 ; Grover & Baker Machine Co. v. Radcliffe, 137 U. S. 287 , 137 U. S. 295 ; Thormann v. Frame, 176 U. S. 350 , 176 U. S. 356 ; Bell v. Bell, 181 U. S. 175 , 181 U. S. 178 ; Andrews v. Andrews, 188 U. S. 14 , 188 U. S. 34 . The general jurisdiction of the Ohio court undoubtedly embraced such a cause of action as was set forth in the suit on the note. But we are of opinion that that court had not authority or jurisdiction to render judgment against the obligors if the National Exchange Bank had in fact sold the note, and ceased, before the commencement of that suit, to own it or to be entitled to receive the proceeds to its own use. It was, in such case, in legal effect, a personal judgment without service of process upon the defendants, and without their appearance in person or by an authorized attorney. The proceedings were wanting in due process of law. The obligors never consented to judgment by confession in favor of one who was not the owner of the note or entitled to receive its proceeds, and the warrant of attorney cannot be held to have authorized such a confession.
Perceiving no error of law in the record the judgment must be affirmed.


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Analytical cookies collect information about how visitors use a website overall, for example which pages they access most often and whether they receive error messages from websites. These cookies do not collect data that could identify their visitors. Data collected with these cookies is not combined with other information about our visitors. All information collected with the help of these cookies is used exclusively to understand and improve the functionality and service on the website. For the analysis of our website we use Google Analytics, a web analysis service of Google Inc. The information about your use of this website generated by the use of Google Analytics is usually transferred to a Google server in the USA and stored there. If IP anonymisation is activated on this website, however, then your IP address is first abbreviated by Google within European Union member states or in other countries that are party to the Agreement on the European Economic Area. Google will use this information to analyse your use of the website in order to compile reports about website activities for the website operators and to provide further services associated with website and Internet usage. Google will also transfer this data to third parties where this is required by law or if third parties process this data on behalf of Google.
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October 26, 2015 August 4, 2017 / David Peyerwold, Esq.
Our last blog post was about mistakes that are made on common types of corporate filings, resulting in having them kicked back by the Secretary of State. We continue that theme with mistakes that are made on corporate merger documents. Avoid these errors or risk rejection.
You messed up on the corporate merger agreement or officers’ certificate.
Including only one, rather than both, of the required officer signatures on the merger agreement for each corporation involved. See Corp C §1102.
Including the corporation’s name on, above, or near the officer signature blocks on the officers’ certificate. Officers must sign in their individual capacities, not on behalf of the corporation. Corp C §1102.
Submitting a file-stamped copy of the merger document when the surviving corporation is a foreign corporation. The filing in California must be a certified copy of the original document filed in the foreign jurisdiction. Corp C §1108(d).
Failing to clearly identify the consideration being paid. If any shares of any constituent corporation won’t be converted solely into shares, interests, or other securities of the surviving party, the merger agreement must specify the consideration being paid for those shares (or that the shares will be cancelled without consideration). Corp C §1101(d).
Having an insufficient number of authorized shares to consummate the merger. Remember, the surviving corporation must have enough authorized, but not yet issued or outstanding shares, to accommodate any new shares to be issued in consideration for the merger.
You messed up on the certificate of merger.
Submitting a certificate of merger without the required attachments. The certificate of merger must be accompanied by both (i) a copy of the merger agreement and (ii) officers’ certificates for the surviving corporation and for each merging entity. Corp C §§1113(g)(1), 1113(j)(4). See Corp C §1113(g)(2) for the exception to this rule.
Filling out items in the certificate of merger that aren’t applicable to the merger.
If the merger involves a foreign entity, failing to identify the foreign law authorizing the merger in the certificate of merger. See Corp C §1113(g).
Failing to include the proper signatories. The certificate of merger must be executed and acknowledged by both (i) the surviving entity and (ii) each other merging business entity.
For more details on these common merger filing mistakes, check out the featured article Common Reasons the California Secretary of State Rejects Corporate Filings in the July 2015 issue of CEB’s California Business Law Reporter. Also check out CEB’s Sales and Mergers of California Businesses, chap 2.


Late claim motion, Claimant alleges that he was harassed and retaliated against due to his religious beliefs while incarcerated at the Five Points Correctional Facility. Intentional torts statute of limitations expired. Also correction law 610 provides claim to be brought in Supreme Court.
The following papers were read and considered by the Court on this motion: Claimant's "Affidavit in Support of Notice of Motion File a Late Claim" with annexed Exhibits; and Defendant's Affirmation in Opposition with annexed Exhibits.
Claimant, Juan Martinez, a pro se inmate, has brought this motion seeking permission to file a late claim pursuant to Court of Claims Act (CCA) § 10 (6). Defendant, the State of New York, has opposed this application.
The proposed claim states that the claim is for the violation of claimant's New York State Constitutional rights under Article 1, § 3. Claimant alleges that he has been harassed and retaliated against by various correction officers due to his religious beliefs. He alleges that these instances of harassment occurred on several occasions beginning on October 14, 2015 and continuing up until he served his notice of intention to file a claim upon defendant on December 9, 2015.
Claimant does not offer any legally acceptable excuse for the delay in filing the claim. It is well settled that ignorance of the law is not an acceptable excuse for the delay in filing a claim (Borawski v State of New York, 128 AD3d 628 [2d Dept 2015]; Olsen v State of New York, 45 AD3d 824 [2d Dept 2007]). The next three factors, notice, an opportunity to investigate and prejudice are interrelated and as such will be considered together. Claimant served a notice of intention to file a claim upon defendant on December 9, 2015. The allegations raised in the notice of intention only concern events which took place between October 12, 2015 and December 9, 2015. Consequently, defendant was made aware of those claims. It is unclear as to whether any formal grievance process was commenced by claimant concerning these claims as well as those mentioned in his letters to the facility. The most significant issue to be considered is that of merit. To permit the filing of a legally deficient claim would be an exercise in futility (Savino v State of New York, 199 AD2d 254 [2d Dept 1993]).
Claimant has failed to establish that the claim is meritorious. It is well settled that there is no independent common-law cause of action to recover damages for harassment in the State of New York (Wells v Town of Lenox, 110 AD3d 1192 [3d Dept 2013]; Monreal v New York State Department of Health, 38 AD3d 1118 [3d Dept 2007]; Daulat v Helms Bros. Inc., 18 AD3d 802 [2d Dept 2005]). Corrections Law § 610 provides that claims based on freedom of worship may be asserted "in the supreme court of the district where [the correctional] institution is situated," which is the specific court the Legislature "authorized and empowered to enforce the provisions of this section" (Oppenheimer v State of New York, 152 AD3d 1006 [3d Dept 2017]). By its terms, the statute creates a cause of action that may only be asserted in Supreme Court and not the Court of Claims (id.).
Additionally, the Court of Claims should not imply a state constitutional remedy when an alternative remedy is available to claimant (id.; see also Peterec v State of New York, 124 AD3d 858 [2d Dept 2015]; Deleon v State of New York, 64 AD3d 840 [3d Dept 2009]; Waxter v State of New York, 33 AD3d 1180 [3d Dept 2006]; Martinez v City of Schenectady, 97 NY2d 78 ). Since claimant could assert his claim as a federal constitutional claim in federal court or in State Supreme Court under Correction Law § 610, a state constitutional remedy is not warranted (Oppenheimer v State of New York, 152 AD3d 1006 [3d Dept 2017]).
Further, to the extent claimant is attempting to bring claims based on intentional torts which occurred between October 12, 2015 and December 9, 2015, claimant's motion was presented after the expiration of the applicable one-year statute of limitations period contained within CPLR 215. Accordingly, it is well-settled that this Court is without authority to grant that portion of claimant's motion (Miles v City Univ. of N.Y., 126 AD3d 609 [1st Dept 2015]; Dolberry v State of New York, 71 AD3d 948 [2d Dept 2010]; Roberts v City Univ of N.Y., 41 AD3d 825 [2d Dept 2007]; Crum & Foster Ins. Co. v State of New York, 25 AD3d 643 [2d Dept 2006]).
Lastly, the Court cannot permit the filing of a claim which does not meet the jurisdictional requirements of Court of Claims Act § 11 (b). Court of Claims Act § 11 (b) requires, inter alia, that the claim state the time when the incident occurred. To the extent claimant is attempting to put forth claims that occurred on dates other than October 14, 2015, November 24, 2015 and December 1, 2015, the claim runs afoul of this jurisdictional requirement (Lepkowski v State of New York, 1 NY3d 201 ).
Therefore, based upon the foregoing and having considered the statutory factors enumerated in Court of Claims Act § 10 (6), claimant's motion is denied.


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THIS was an action of assumpsit brought on a policy insuring the ship Henry, and her freight, 'at and from Teneriffe to the Havanna, and at and from thence to New-York, with liberty to stop at Matanzas.' At the trial the plaintiff gave in evidence the representation on which the policy was made, which contained this expression: 'We are to stop at Matanzas to know if there are any men of war off the Havanna.' The vessel sailed from Teneriffe on the 7th of April, 1807, and on the 7th of June following, put into Matanzas, in the island of Cuba, to avoid British cruizers, who were then cruizing on her way to, and off the port of, Havanna, and who were then in the practice of capturing American vessels sailing from one Spanish port to another. On the 6th of July, as soon as the passage was clear, she proceeded to the Havanna, whence, on the 14th of July, she sailed on her voyage to New-York. On the 28th of that month she foundered at sea, and was totally lost. The action was for the insurance on the vessel and freight from the Havanna. The underwriters gave in evidence, that while at Matanzas she unladed her cargo, and insisted that this was a deviation, by which they were discharged. To repel this evidence, the plaintiffs showed that the stopping and delay at Matanzas were necessary to avoid capture, and, therefore, allowed by the policy; that no delay was occasioned by discharging the cargo; that the risk was not increased, but diminished by it; and that an order from the Spanish government had made this act necessary.
The court instructed the jury, that unlading the cargo at Matanzas was a deviation which discharged the underwriters, unless it was rendered necessary by the order of the Spanish government at the Havanna. That in this case the order did not justify such unlading, and that the underwriters were, consequently, discharged. Under these directions the jury found a verdict for the defendants. The plaintiff having excepted to the opinion of the court, the judgment which was rendered in favour of the defendants was brought before this court on writ of error.
Mr. Harper, for the plaintiff, argued, that the unlading at Matanzas was by a mandate, and not a permission from the Spanish government, which being a vis major, excused the master. That in this case the risk was not increased but diminished, by stopping at Matanzas. Neither party is at liberty to vary the risk; but this rule applies to cases where the change may produce some inconvenience to the insurer, not where it does actually produce it merely. Unnecessary deviation always discharges the underwriters, because it may increase the risk. But here the policy permitted the stopping and delay at Matanzas; and the risk not only could not be increased, but was actually diminished by discharging the cargo, and proceeding with the vessel close along the shore to the Havanna. This doctrine is not impugned, in the Maryland Insurance Company v. Le Roy et al.  That case went on the ground of variation from the terms of the policy. The taking on board the jack asses might have increased the risk; but whether in point of fact it did, or not, the court said was immaterial. But in the present case there is no variation from the terms of the contract; the risk neither was, nor could be, increased, by unlading the cargo. In Raine v. Bell,  the court of K. B. determined that a ship may trade at a port where she has liberty to touch and stay, provided this occasions no delay, nor any increase or alteration of the risk. It has also been held in the courts of our own country, that selling a part of the cargo during a necessary detention, does not discharge the insurers.
Mr. Winder, and Mr. Jones, contra, argued, that the proceedings of the Spanish authorities were a mere permission, which the party might use or not at his pleasure, and not an imperious mandate which he was compelled to obey. It is an elementary principle of insurance law, that whether the deviation increase the risk or not, it discharges the underwriters.  The case of the Maryland Insurance Company v. Le Roy et al. illustrates the rule, and the jury there found that taking on board the jackasses did not increase the risk. Discharging the cargo at a place where permission is only given to touch, is a deviation,  It is immaterial whether the risk be increased, or diminished, or remain the same in quantum. In Raine v. Bell, the jury found that the vessel would have otherwise been necessarily detained while she was taking in the cargo; and that case proves nothing more than that, while so detained, the master may take in cargo, but not break bulk. Staying to unlade increases the risk; but taking cargo on board, while necessarily detained, does not increase or alter the risk.
Mr. D. B. Ogden, in reply, contended that the question was whether during the necessary detention of the vessel the master had a right to land the cargo. The authority of Kane v. The Columbia Insurance Company is conclusive to show that he had. If according to cargo at a port of necessity, neither is it a deviation to land the cargo at a port of necessity. The case of the Maryland Insurance Company v. Le Roy, et al. is distinguishable. Where the master deviates from necessity, his subsequent conduct, if bona fide, cannot discharge the insurers. But in this case he acted in good faith for the benefit of all parties.
^2 9 East, 195. Marshall on Ins. App. No. VIII. 834. a.
^3 1 Emerigon, Des Assurances, 558. 1 Marshall on Ins. 185. et infra.
^4 Marshall on Ins. 208. 275, and the cases there collected.

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It is already half a century that the Tyumen Region has been, first of all, an oil and gas brand form the whole world. What new features the region has added to its image in the recent years, how oil extraction and processing, petroleum chemistry and oil and gas industry develop today – is described in the interview of the Tyumen Region Governor Vladimir Yakushev.
Ed.: What events became landmark in the oil and gas sector in 2012?
V. YAKUSHEV: The whole year of 2012 passed in the Tyumen Region under the sign of the hundredth anniversary of Victor I. Muravlenko – the first Head of Glavtyumen-neftegas (Tyumen Main Oil and Gas Department), founder of the Western-Siberian Fuel and Energy Complex (FEC), a man of legend.
I am convinced that present and future generations must know and remember the names of Tyumen oil and gas virgin fields pioneering explorers – Muravlenko, Ervier, Salmanov, and many-many others. This is part of our history, its colorful page. For more than half a century, this country has been taking advantage of their labor results.
Speaking about production performance, last year, oil workers produced more than seven tons of oil in the Uvatsky District, what exceeds the level of 2011 by one million. A new perspective deposit – Malouimskoye – was discovered. By the way, “black gold” extraction in the Tyumen Region Southern area was also mentioned in Victor Muravlenko’s strategic plans.
This growth is secured by active use of innovative technologies, materials, and equipment, what will allow, in particular, to reach in the near future an almost 100% level of associated petroleum gas utilization (while quite recently, it did not exceed one third).
Commissioning of “Tobolsk-Polymer” – the biggest in Russia polypropylene production complex – will become this year’s landmark event.
On the basis of “SIBUR Holding” enterprises located in Tobolsk, a petroleum chemistry cluster is being formed, which can give an impetus to many perspective investment projects development. In particular, processing of polymers, manufacturing of products from polypropylene and polyethylene, including packing materials, cargo containers, household goods, home appliances parts.
We are interested in investors that will create new enterprises on the territory of the Tobolsk petroleum chemistry zone. For this purpose, a land plot has been allotted; the problem of its comprehensive infrastructural support is being settled: connection to power, gas, heat, water supply and drainage networks will be provided, there are already a motor road and a railway near the plot. We must take advantage of the new production to the full extent, for the benefit of our region and its population.
Ed.: And how does the region interact with the investors in the oil and gas complex development?
V. YAKUSHEV: The Tyumen Region Government organizes its work in such a way so that it could focus on the main priorities and actually enhance the region economic performance. Investors are provided with state support, irrespectively of the industry or sphere of activities.
What I mean is, first of all, tax exemption. Exemptions are granted for profit, property, and transport tax. We also support industrial, wood enterprises, small and medium-scale business, including by way of reimbursement of credit interests and equipment leasing costs.
As to the oil and gas sector proper, products manufactured in the Tyumen Region can be 8% more demanded than the competitors’ products, as the region compensates to oil and gas companies operating in the Russian Federation 8% of the value of the equipment ordered from Tyumen enterprises.
Ed.: What are the main vectors of the region development in the oil and gas sector, oil and gas and petroleum chemistry industry?
V. YAKUSHEV: The Tyumen Region has played and is playing the role of the main base for exploration of the West-Siberian oil and gas province with a great industrial and scientific and technical potential.
In the region oil production, the leading positions are held by company ТНК-ВР implementing a project involving development of an oil-producing complex in the Tyumen Region with exploration of hard-to-recover hydrocarbon reserves in the Uvatsky District.
The region enjoys favorable conditions for development of hydrocarbon processing productions. Such conditions include: proximity of the raw material base, availability of electrical power capacities, utility, transport, and industrial infrastructure, considerable water resources.
Today, enterprises, on the base of which modernization, expansion and construction of new productions of a higher value-added level is being performed or planned, operate on the region territory.
The first group is constituted by oil processing enterprises. They, first of all, include the modern Antipinsky Oil Refinery. The refinery is actively developing, in prospect, it plans to expand processing capacities (the 3rd and 4th workflow phases) up to 7 MIO tons per year. Its programs provide for manufacturing of a wide specter of petroleum products of a higher value-added level with modern technological configuration and processing depth up to 95% conforming to EURO standards environmental requirements, as well as associated modern products and materials demanded in the market.
Petroleum chemistry enterprises belonging to the second group of processing industries are represented by the industry leader – Tobolsk-Neftechim LLC.
Light hydrocarbons – broad fraction complex processing has become the main trend in production activities of the Tobolsk petroleum chemistry integrated plant.
A whole complex of industrial enterprises manufactures products for the oil and gas complex. They include reputed world leaders – Schlumberger, Bentek, Baker Hughes, Dina Energetics, strong regional enterprises – Sibneftemash, Neftemash, Gazturboservice, etc.
Besides, the Tyumen Region is a historically formed major educational and technological center for education in the field of oil and gas comprising educational institutions, leading oil and gas companies scientific research institutes, the Tyumen Technopark – West-Siberian Innovation Center.
Ed.: What are the dynamics of the oil and gas service development? What new productions are opened in this sphere?
V. YAKUSHEV: In 2013, several major investment projects in this sphere will enter the final straight.
American oil service company Baker Hughes is implementing an investment project for organization of cable production and production of equipment for well completion. State-of-the-art technologies will be used for products manufacturing. It is planned to create about 200 jobs. The investments amount to more than 1.5 billion rubles.
The enterprise will produce up to 8 thousand kilometers of oil submersible cable per year. Today, the company considers a possibility for construction of the second workflow phase and creation of a training center.
Dina Energetics company is constructing a plant for manufacturing of no-plug jet charges and special detonating cords in the Tyumen Region Nizhnetavdinsky Municipal Formation. Commissioning period is the 2nd or 3rd quarter of 2013.
The new production provides for up to 60 one-shift jobs and up to 100 people working in 2 shifts. The total estimated investments amount to 720 MIO rubles. Today, the company considers a possibility for construction of the second workflow phase.
Ed.: What will be the Uvatsky project further development?
V. YAKUSHEV: This investment project provides for a complex of geological exploration works, measures for assessment and involvement in production of the Uvatsky group deposits; performance of scientific research works for increasing exhausted deposits oil yield.
The Uvatsky project comprises a group of 12 license blocks and 22 deposits, four of which are already put into operation: Kalchinskoye, Urnenskoye, Ust-Tegusskoye, and Tyamkinskoye. In 2012, exploration of Yuzhno-Petyogskoye deposit started.
It is expected that, in 2013, the extraction volume of the group of deposits will increase by approximately 10%. In the current year, it is planned to produce more than 8 MIO tons of oil, in comparison with 7 MIO tons in 2012.
The Uvatsky project implementation to a great extent determines the development strategy of oil production in the South of the region in the next years. Involvement in production of available reserves will allow to increase petroleum production in Southern areas of the Tyumen Region up to the level of 10 MIO tons per year already in the near future (2015).
Ed.: The region oil and gas complex is dynamically developing, what made it possible?
V. YAKUSHEV: In the post-Soviet era, business world rejected the idea of building large oil processing enterprises. Such approach involves enormous capital investments, great responsibility for production industrial and environmental safety. It is much easier to pump crude oil through the pipes. We have taken a different path. An oil refinery was built in the region, it started with small volumes, low processing depth, but investors understood that, without raising the level of quality, without a technological leap forward, it will not be possible to remain in the market.
Presently, the refinery products quality is approaching modern world standards. We should not forget that, for the whole history of modern Russia, only two major oil refinery plant have been built in the country. One of them is Antipinsky Oil Refinery. It is something to be proud of.
Petrochemical industry is becoming the regional development locomotive – first of all, thanks to SIBUR Holding projects. In particular, construction of the biggest in Russia propylene production complex Tobolsk-Polymer is being completed.
The index of the regional oil products manufacturing in 2006-2011 was more than 330%. The planned creation of the West-Siberian hydrocarbons high-level processing complex will increase this index even more. Traditional branches do not tread water either. The Tyumen oil and gas service, that has grown almost twice in five years, continues to gain traction – in close collaboration with the world leaders. Bentek, Baker Hughes, Dina Energetics plants are being built and developing. More than 12 thousand specialists have been prepared by the Schlumberger Siberian training center – the most modern and largest in the world.
Our region’s positions in the fuel and energy sphere are strong as before. In the recent years, a multi-industry, diversified production complex has been created, with innovation technologies coming to the fore in its development. These achievements in many ways predetermine the Tyumen Region development prospects.

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Armed robbery. Dougherty Superior Court. Before Judge Hicks, Senior Judge.
Howard J. Stiller, for appellant.
Britt R. Priddy, District Attorney, L. Earl Jones, Assistant District Attorney, for appellee.
Appellant was tried before a jury and found guilty of armed robbery. He appeals from the judgment of conviction and sentence entered by the trial court on the jury's guilty verdict.
Appellant filed a pre-trial motion pursuant to OCGA § 17-7-211. In compliance therewith, the State provided appellant with a copy of the written report of its expert fingerprint witness. Compare Wester v. State, 260 Ga. 228 ( 391 S.E.2d 765) (1990). However, the State did not provide appellant with a copy of the written report of the officer who had actually lifted the fingerprint. The expert's written report referred to the officer's written report. On appeal, appellant urges that the trial court erred in allowing both the expert and the officer to testify, because of the State's failure to provide him with a copy of the latter's written report.
OCGA § 17-7-211 applies to "written scientific reports," which "includes, but is not limited to, reports from the Division of Forensic Sciences of the Georgia Bureau of Investigation; autopsy report by the coroner of a county or by a private pathologist; blood alcohol test results done by a law enforcement agency or a private physician; and similar type reports that would be used as scientific evidence by the prosecution in its case-in-chief or in rebuttal against the defendant." OCGA § 17-7-211 (a). "`It is a well-recognized rule of construction that when a statute or document enumerates by name several particular things, and concludes with a general term of enlargement, this latter term is to be construed as being ejusdem generis with the things specifically named, unless, of course, there is something to show that a wider sense was intended.' [Cits.] Examining § 17-7-211 ([cit.]), it is clear that the reports enumerated in subsection (a) are tests . ..." (Emphasis supplied.) State v. Mulkey, 252 Ga. 201, 203 (2) ( 312 S.E.2d 601) (1984). "Ordinarily the papers generated in the course of the scientific investigation or examination will not be introduced. . . . They do not inculpate defendant. What will be introduced is the end result, the incriminating conclusion. Thus, interim papers are not discoverable, for they are merely internal documents of the examining agency and[/or] products of the examiner's work as it is being undertaken. [Cits.]" (Emphasis supplied.) Thompson v. State, 175 Ga. App. 645, 649 (4) ( 334 S.E.2d 312) (1985). "We thus conclude that the [report of the officer who lifted the fingerprint] was not a `scientific report' discoverable under OCGA § 17-7-211. [Cits.]" Griffin v. State, 183 Ga. App. 386, 387 (1) ( 358 S.E.2d 917) (1987).
Therefore, the trial court did not err in allowing the officer to testify that a latent print had been lifted or in allowing the expert to testify that, in his opinion, that print had been made by appellant. The officer's report merely memorialized his act of lifting the fingerprint and was in no way inculpatory of appellant. The inculpatory testimony was that which was given by the expert and appellant had been provided with a copy of his report.
Judgment affirmed. Pope and Johnson, JJ., concur.


Any termination of this Agreement by the Landlord must be carried out in accordance with HUD regulations, State and local law, and the terms of this Agreement.
– advise the Tenant of his/her right to defend the action in court.
Please be advised that Millennia Housing Management, Ltd., the managing agent does hereby terminate your tenancy at this property, . . .
Your tenancy shall be terminated as of 08/18/2018.
In accordance with HUD guidelines, Millenia Housing Management Ltd., hereby advises you that you have ten (10) calendar days following the date of this letter in which you may meet with the Site Manager to discuss the proposed termination of your lease, and all charges which are delinquent on your account.
(c)Termination of tenancy. An owner may not terminate the tenancy or refuse to renew the lease of a tenant of rental housing assisted with HOME funds, except for serious or repeated violation of the terms and conditions of the lease; for violation of applicable Federal, State, or local law; for completion of the tenancy period for transitional housing or failure to follow any required transitional housing supportive services plan; or for other good cause. Good cause does not include an increase in the tenant’s income or refusal of the tenant to purchase the housing. To terminate or refuse to renew tenancy, the owner must serve written notice upon the tenant specifying the grounds for the action at least 30 days before the termination of tenancy.
In the instant case, the Plaintiff gave ten days written notice to the tenant that it was terminating the tenancy. The ten-day notice requirement in paragraph 23 of the lease only refers to the right to meet with the Landlord within ten days to discuss the issues related to termination of the tenancy. Paragraph 23 of the lease does not give the Landlord the right to terminate the lease on ten-days notice. Paragraph 23 of the lease provides that notice of termination must be given in accordance with HUD regulations. 24 C.F.R. 92.253 requires that prior to terminating the tenancy, the owner must give 30 days’ written notice to the tenant. Plaintiff failed to provide 30 days notice to the tenant that it was terminating the tenancy.
Defendant argued that the requirement to place funds in the registry of the court in order to defend against the action is preempted by 24 CFR 92.253. In Palma v. JPMorgan Chase Bank, 208 So. 3d 771 (Fla. 5th DCA, 2016) [41 Fla. L. Weekly D2694d], the Fifth District Court of Appeals found that when a contract incorporates HUD regulations, compliance with those regulations is mandatory. Because 24 CFR 92.253 provides conditions precedent to the termination of the tenancy, those conditions precedent were mandatory pursuant to Palma. For this reason, the Court did not reach the issue of Plaintiff’s defense to the motion to dismiss that Defendant did not place any funds in the registry of the Court. Because notice may not be retroactively cured, dismissal with prejudice was ruled appropriate.
Applicability to Community Banking Organizations: This guidance applies to all institutions supervised by the Federal Reserve, including those with total consolidated assets of $10 billion or less.
This letter provides background information about the recently restored Protecting Tenants at Foreclosure Act of 2009,1 which became effective on June 23, 2018. The law protects tenants from immediate eviction by persons or entities that become owners of residential property through the foreclosure process, and extends additional protections for tenants with U.S. Department of Housing and Urban Development Section 8 vouchers. The law is self-executing; no federal agency has authority to issue regulations implementing the law or to interpret the law.
The fundamental purpose of the law is to ensure that tenants facing eviction from a foreclosed property have adequate time to find alternative housing. To that end, the law establishes a minimum time period that a tenant can remain in a foreclosed property before eviction. The law does not affect any state or local law that provides longer time periods or other additional protections for tenants.
Under the law, the immediate successor in interest at foreclosure must: (a) provide bona fide tenants with 90 days’ notice prior to eviction; and, (b) allow bona fide tenants with leases to occupy property until the end of the lease term, except the lease can be terminated on 90 days’ notice if the unit is sold to a purchaser who will occupy the property. A lease or tenancy is bona fide if the tenant is not the mortgagor or the parent, spouse, or child of the mortgagor, the lease or tenancy is the result of an arms-length transaction, and the lease or tenancy requires rent that is not substantially lower than fair market rent or that is reduced or subsidized due to a Federal, State, or local subsidy. The law does not cover tenants facing eviction in a non-foreclosed property, tenants with a fraudulent lease, tenants who enter in lease agreements after a foreclosure sale, or homeowners in foreclosure. Additionally, the law does not affect the requirements of any State or local law that provides for longer time periods or extends additional protections to tenants.
BROWARD COUNTY SELF STORAGE, INC., is the owner and landlord of a commercial property in the City of Wilton Manors. The property consists of a single roofed building in which are half a dozen businesses are located. Although the businesses each have their own separate “unit” in the premises, they all share the same address, with no separate demarked unit number. Mail is delivered to a single mailbox, which all occupants share.
Landlord entered into a Master Lease with, Naturally Broward, Inc. which then sublet separate units to different subtenants. The landlord did not object to this arrangement and took an Assignment of Rents and the subtenants paid their rents directly to the landlord.
On May 26, 2015, the landlord served a 3-day notice to the registered agent of Naturally Broward, Inc. The amount claimed on the 3-day notice was Naturally Broward’s unpaid portion of real estate taxes.
A week later, landlord filed an eviction against “Units 1, 2, and 5 as shown on an attached drawing.” The drawing does not clearly delineate which units are “1, 2, 5.” On the day the eviction was filed, the subtenants were current in their rent.
A 5-day summons was posted on the premises by a private process server. The return, however, reflects the single address for the property, without any delineation of the precise location or business it was posted.
On June 2, 2015, sub-tenant in unit 4, CHATEAU D’VINE, INC., attempted to tender June rent to the landlord, who refused it.
On June 26, 2015, Judge Stephen Zaccor entered a Judgment of Eviction and a Writ of Possession was eventually was posted directly on the business of Chateau D’Vine. This sub-tenant had no prior notice of the eviction.
A friend of the landlord took it upon himself to contact the local police rather than wait for the county sheriff to execute the writ of possession. An officer of the Wilton Manors Police Department advised Chateau D’Vine that it had until midnight to vacate the premises or it would be removed. Chateau D’Vine did so, feeling reasonably that it had no alternative.
Chateau D-Vine filed to quash the writ of possession. On review the court found that there was substantial doubt that a single summons can be used against an entire parcel of commercial property where there are separately operating businesses. First, there is some authority that a subtenant in possession is a tenant at sufferance, and as a result, must be served with an eviction summons. Second, due process dictate that a subtenant who is in possession with the knowledge of the landlord, and is paying rent directly to the landlord at the landlord’s insistence, be provided meaningful notice and an opportunity to heard before being divested of possession. “[D]ue process is a protean constitutional concept of rule according to law, fairness in the law’s proceedings, and fundamental rights.” J. Lieberman, Evolving Constitution 169 (1992). See Chef’s No. 4, Inc. v. City of Chicago, 117 Ill. App. 3d 410, 414, 453 N.E.2d 892, 895-96 (Ill. App. 1983) (subtenant entitled to notice); Arrieta v. Mahon, 31 Cal. 3d 381, 389 & n.7, 644 P.2d 1249, 1253-54 & n.7 (Cal. 1982) (same). The writ of possession was vacated.
Tenant occupied landlord’s premises under an oral month to month lease. On February 13 landlord e-mailed tenant a 15 day notice of non-renewal effective March 1 pursuant to 83.57 F.S. When the tenant failed to vacate, landlord filed for eviction and tenant defended on the basis that 15 day notice had not been “mailed” to him. The trial court ruled that the e-mail transmitted by landlord to tenant and acknowledged by tenant through a return e-mail satisfied the requirement set forth in §83.57 Fla. Stat. of 15 days notice to vacate by “mailing or delivery of a true copy” of the notice as set forth in §83.56(4), Fla. Stat.
§83.56(4) F.S. specifies that delivery of written notices shall be by mailing or delivery of a true copy thereof, or, if the tenant is absent from the premises, by leaving a copy thereof at the residence.
Accordingly, the court held that e-mail constitutes a mailing sufficient to satisfy a statutory requirement of a mailing of written notice, whenever a contract or course of dealing between parties establishes e-mail as a permissible means of notice, or whenever it is shown that the recipient received actual and timely notice through e-mail which is substantially the same notice as would have been provided in a writing mailed through conventional means.
HARARI, vs. WHITFORD. Circuit Court,15th Judicial Circuit (Appellate) in and for Palm Beach County. May 25, 2007. Appeal from the County Court in and for Palm Beach County, Judge James L. Martz. 14 Fla. L. Weekly Supp. 701a.
On April 21, 2008, landlord filed a suit for tenant eviction and damages tenant in County Court. On May 2, 2008,landlord moved for entry of clerk’s default and default final judgment on Count I for removal of tenant and possession. On May 8, 2008, the County Court entered its Final Default Judgment on Count I for Removal of Tenant and Possession.
On May 19, 2008, landlord moved for entry of clerk’s default and default final judgment on Count II for unpaid rent, attorney’s fees and court costs, but did not send a copy to the tenant. On May 20, 2008, without holding a hearing, the County Court granted the landlord’s motion for damages, attorney’s fees, and court costs.
On June 19, 2008, tenant appealed, alleging a defective 3 day notice and that he was entitled to an evidentiary hearing on the damages count and proper notice thereof.
As to the damages, the appellate court ruled that a default admits a plaintiff’s entitlement to liquidated damages under a well-pled cause of action, but not to unliquidated damages, citing Bodygear Activewear, Inc. v. Counter Intelligence Services, 946 So. 2d 1148, 1150 (Fla. 4th DCA 2006) [32 Fla. L. Weekly D35a]. A defaulting party has a due process entitlement to notice and an opportunity to be heard as to the presentation and evaluation of evidence necessary to a judicial interpretation of the amount of unliquidated damages.1 Id.
The reasonable amount of attorney’s fees and taxable costs to be awarded are unliquidated. Even though tenant was in default, he was entitled to an evidentiary hearing and proper notice thereof in order to determine the reasonable amount of attorney’s fees and taxable costs to be awarded. As a result, the County Court’s Final Default Judgment on Count II for Damages for Unpaid Rent must be affirmed in part, as to the total amount of damages for unpaid rent, and reversed in part, as to the reasonable amount of attorney’s fees and taxable costs. See Bodygear Activewear, Inc., 946 So. 2d at 1151.
1Damages are liquidated when the proper amount to be awarded can be determined with exactness from the cause of action as pleaded, i.e., from a pleaded agreement between the parties, by an arithmetical calculation or by application of definite rules of law. Bodygear Activewear, Inc., 946 So. 2d at 1150. However, damages are not liquidated if a Court must consider testimony or evidence to ascertain facts upon which to base a value judgment. Id.
Tax Deed upheld despite the fact that notice to mortgagee’s record address was returned as undeliverable.
Mortgagee sued to overturn a tax deed sale extinguishing its two mortgage liens on the subject property on the basis that the notice sent to it was returned as undeliverable.
Florida Statutes §197.522(1), provide that prior to a tax deed sale the Clerk of Court is to issue notice of the application for a tax deed to interested parties as identified in §197.502(4). “Interested parties” include any mortgagee of record if the address appears on the recorded mortgage. The Clerk sent notice of the Tax deed sale to the mortgagee at the address listed on both mortgages recorded against the subject property. The notice was returned as undeliverable. The mortgagee admitted that it had moved its primary address and did not directly notify the Tax Collector’s office of the new address. The Clerk’s office admits that after the notice was returned it took no further action to attempt to locate a new address for Beneficial.
The Florida Landlord – Tenant Statute contains two liquidated damages provisions allowing the landlord an opportunity to impose liquidated damages on the tenant for early termination or for failure to give notice of intent not to renew the lease.
☐ I agree, as provided in the rental agreement, to pay $ (an amount that does not exceed 2 months’ rent) as liquidated damages or an early termination fee if I elect to terminate the rental agreement, and the landlord waives the right to seek additional rent beyond the month in which the landlord retakes possession.
☐ I do not agree to liquidated damages or an early termination fee, and I acknowledge that the landlord may seek damages as provided by law.
§83.575 was also added to the landlord tenant statute in 2004 allowing the landlord to require the tenant to provide up to 60 days notice of intent to vacate at the end of a rental agreement of fixed duration, or face liquidated damages for failing to notify the landlord that the tenant is not renewing the lease. The statute, however, requires the landlord to first provide the tenant a “reminder notice” of the liquidated damages 15 days before the tenant’s notice period expires.
Black’s law dictionary defines a “tort” as denoting a wrong or wrongful act, for which an action will lie. When can a landlord’s failure to perform repairs become a tort ?
In the case of FISHER vs. PEARSON, [ Circuit Court, 17th Judicial Circuit in and for Broward County. Case No. 06-003536 CACE (04). October 27, 2008, 16 Fla. L. Weekly Supp. 426a], the tenant moved into an apartment September 1, 2003. There were no apparent defects. On the morning of February 5, 2004, the tenant noticed a leak in the living room ceiling. The tenant notified the landlord of the leak. Within a few minutes of notifying the landlord of the leak the ceiling collapsed onto the tenant. The tenant sued the landlord for the injuries. The court granted summary judgment in favor of the landlord as the landlord had not been notified of the condition in time to remedy it.
The landlord’s seven-day notice of lease violation alleging unauthorized boarders was held defective for failing to provide the tenant with an opportunity to cure and also for alleging that the unauthorized boarder was arrested without indicating that boarder was engaged in criminal activity — Mere arrest is not tantamount to criminal activity or violation of lease.
1. Defendantl Warren, (hereinafter “Ms. Warren”) occupies residential real property owned by Plaintiff, Miami-Dade County, under a public housing lease.
2. Plaintiff filed a complaint for eviction against Ms. Warren on November 11, 2010, based upon a 7-Day Notice of Termination.
4. Proper statutory notices must be provided for each violation alleged by Plaintiff in the complaint.
5. Plaintiff’s 7-Day Notice of Termination is defective as it failed to provide Ms. Warren with an opportunity to cure regarding the allegation of unauthorized persons.
6. In accordance with Section 83.56(2)(b), Florida Statutes, an unauthorized person residing in a public housing unit is the type of non-compliance for which a tenant should be given an opportunity to cure.
7. Plaintiff’s 7-Day Notice of Termination is also defective as it alleges that the unauthorized person was arrested with a crime and does not indicate that the person has engaged in criminal activity.
8. Plaintiff cannot evict a public housing tenant for criminal activity when the only allegation is that the person has been arrested. Merely being arrested is not criminal activity and is not a violation of the lease.
9. As the notice of termination was defective, Plaintiff’s complaint for eviction is dismissed.


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PAULINO V. NERA, **, Petitioner, v. THE AUDITOR GENERAL, Respondent.
2.	CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT TO THE ASSISTANCE OF COUNSEL; NOT ESSENTIAL IN NON-CRIMINAL PROCEEDINGS. — The right to the assistance of counsel is not indispensable to due process unless required by the Constitution or a law. Exception is made in the charter only during the custodial investigation of a person suspected of a crime, who may not waive his right to counsel except in writing and in the presence of counsel, and during the trial of the accused, who has the right "to be heard by himself and counsel," either retained by him or provided for him by the government at its expense. In other proceedings, however, the need for the assistance of counsel is not as urgent nor is it deemed essential to their validity. There is nothing in the Constitution that says a party in a non-criminal proceeding is entitled to be represented by counsel and that without such representation he will not be bound by such proceedings. The assistance of lawyers, while desirable, is not indispensable.
3.	REMEDIAL LAW; APPEAL FROM THE RULING OF THE AUDITOR GENERAL; MUST BE MADE TO THE SUPREME COURT IF APPELLANT IS A PRIVATE CITIZEN OR ENTITY. — The Court notes that prior to the filing of this petition for review, and possibly even before making his request for reconsideration dated July 15, 1965, Nera appealed the ruling of the Deputy Auditor General to the Office of the President. The record does not show what happened to the appeal after the Office of the President, upon its inquiry, was informed by the General Auditing Office that its decision had already become final and was no longer appealable. At any rate, such appeal was the wrong remedy as at the time it was made, the petitioner had already retired and had become a private citizen. So we held in Espino v. Gimenez, where the appellant had retired from the National Power Corporation, and affirmed in Rosario v. Chairman of the Commission on Audit where the claimant was a former employee of the National Library, in keeping with a long line of earlier decisions on that same question.
4.	ID.; ID.; CANNOT BE CONSIDERED IF NOT FILED ON TIME. — Whatever the merits of the petitioner’s stance, we cannot consider them now because he has not appealed to this Court on time. Vigilantibus sed non dormientibus jura subveniunt.
Nera filed this petition for review with this Court on September 8, 1965, insisting that he was entitled to the disputed longevity pay and that his appeal was not filed out of time.
This is a strange and novel argument, indeed. Under the petitioner’s theory, even the rulings he sought to have reconsidered would have to be disregarded because they were rendered when he was acting on his own and therefore, as he contends, acting invalidly. In effect, following this logic, all proceedings where a person is not represented by counsel are null and void ab initio for violation of due process because he could not legally act by himself alone. Yet, magically, they become valid and may be reconsidered the moment and provided such person retains the services of a lawyer and starts acting through such counsel.
In other proceedings, however, the need for the assistance of counsel is not as urgent nor is it deemed essential to their validity. There is nothing in the Constitution that says a party in a non-criminal proceeding is entitled to be represented by counsel and that without such representation he will not be bound by such proceedings. The assistance of lawyers, while desirable, is not indispensable. The legal profession was not engrafted in the due process clause such that without the participation of its members the safeguard is deemed ignored or violated. The ordinary citizen is not that helpless that he cannot validly act at all except only with a lawyer at his side.
ACCORDINGLY, the petition is DISMISSED, with costs against the petitioner. It is so ordered.
Narvasa, Gancayco, Griño-Aquino and Medialdea, JJ., concur.
**	Deceased, substituted by his daughter, Teresita B. Nera.
1.	Auditor Sostenes M. Babasa.
2.	Deputy Auditor General Jesus Iriarte.
3.	Annex "C," Rollo, pp. 14-24.
4.	Annex "1," Rollo, p. 46.
5.	Annex "E," Rollo, p. 26.
6.	Annex "F," Rollo. p. 35.
8.	Annex "C," Rollo, p. 14.
9.	Annex "D," Rollo, p. 25.
10.	Lacson v. Auditor General, 107 Phil. 921.
11.	Mañgonon v. Republic, 114 Phil. 604.
12.	Casibang v. Philippine Tobacco Administration, 128 SCRA 87.
13.	Brief for the Petitioner, p. 18; Rollo, p. 53.
14.	1987 Constitution, Article III, Section 12(1).
16.	Annex "C," Rollo, pp. 14-24.
17.	Annex "E," Rollo, pp. 26-34.
20.	Dimaano v. Auditor General, 3 SCRA 811; Madrid v. Auditor General, 108 Phil. 578; Lacson v. Auditor General, 107 Phil. 945; Valencia v. Auditor General, 107 Phil. 128; Recio v. Auditor General, 105 Phil. 508; Bautista v. Auditor General, 104 Phil. 428; Peralta v. Auditor General, 100 Phil. 1051; Espejo v. Auditor General, 97 Phil. 216.
21.	The laws aid the vigilant, not those who slumber on their rights."

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The U.S. Department of Veterans Affairs has awarded two more former service members compensation for exposure to Agent Orange while serving on Okinawa during the 1960s and '70s.
The article mentions one other award which I posted at hadit some time ago. There is a possible 4th award too.
The above veteran proved exposure to AO and also proved it was where he said he came in contact with it.
These claims are very difficult to succeed in-then again I know the vet who proved AO in Thailand and since then VA has service connected many Thailand vets to AO. This vet also was instrumental in the VA development of the Thailand VA Directive.Also the first Conus AO vet succeeded too.Both of these vets are members of hadit and relentlessly sought evidence.
The AO CONUS vet told me he even went back to Fort Gordon a few times (where he proved his exposure) to gather any info he could.
So nothing is impossible at all with VA.
But these claims take a lot of hard work.Kurt Priessman ,the Thailand vet, published considerable research he did, on the net ,for others to use.
VA doesn't care abut any Superfund designation. They need proof that AO was used stored or tested where the vet was, and then the veteran, via their MOS, must prove the exposure.
In the case of the 2 vets I mentioned above, they used documented statements of AO ( that info is here from the DOD) of the presense of the AO at their location and then their inservice duties put them on the perimeters of the military base or Fort and that is where it was ,because as likely as not, the perimeters were sprayed with AO.
I posted it some time ago as the link to the DOD's statement on use of herbicides outside of Vietnam.
Yes, I served at Karen's in USAF ARCLIGHT in 1968-69 for 6 months. In 2004 I contracted Non Hodgkin Lymphoma, large cell diffuse. It's in remission and I have peripheral neuropathy in my feet, hands and extremities. Diabetic and sleep disorder. I've never claimed.
"I was in Okinawa(Kadena AFB) from 1965 to 1968. I was in the Air Force as a material specialist I loaded these drums on planes everyday. I once asked my Commander what was in it and I was told none of my business. I now have Heart disease high bp, high blood sugar diabetic neurapathy Als I have had 2 toes and part of my foot amputated> I also had a stroke in 2013"
Since I posted ther 2012 info I think 2 more Okinawa vets ( one is a member here I believe have [proved exposutre to AO in Okinawa. Maybe even more.
Also the C 123s were found, in some cases , as Presumptive to AO.
This link might help-but is not specific for Okinawa yet AO has b een used or transported in many places-other than Vietnam.
You could have been exposed to AO in a different place than Okinawa.
I will try to find those 2 case that were awarded and post them here.
“1. Credible evidence sustains a reasonable probability that during service, while performing regular duties at the Naha Naval Port in Okinawa, Japan, the Veteran was exposed to Agent Orange from leaking barrels. 2. The Veteran is currently diagnosed with diabetes mellitus type II.
“Next, explicitly considering the "unusual facts of this case" (and only this case), the Board finds that the evidence of record is at least in equipoise as to the question of whether the Veteran was exposed to herbicides during service. A July 2011 Joint Services Records Research Center (JSRRC) Agent Orange Request memorandum reflects that the Veteran was stationed at Naha Naval Port in Okinawa, Japan from October 1968 to May 1970. Numerous lay statements from both the Veteran and fellow service members over the past decade reflect that the Veteran's duties included hauling items and equipment from ships bringing supplies to and from the Republic of Vietnam.” Because diabetes mellitus, type II, is presumptively associated with herbicide exposure, service connection for diabetes mellitus, type II, as a result of herbicide exposure is warranted on a presumptive basis. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. As service connection is being granted on a presumptive basis, there is no need to discuss entitlement to service connection on any other basis, as other theories of service connection have been rendered moot, leaving no question of law or fact to decide. See 38 U.S.C.A. § 7104 (West 2014). ORDER Service connection for diabetes mellitus, type II, is granted.” Because diabetes mellitus, type II, is presumptively associated with herbicide exposure, service connection for diabetes mellitus, type II, as a result of herbicide exposure is warranted on a presumptive basis. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. As service connection is being granted on a presumptive basis, there is no need to discuss entitlement to service connection on any other basis, as other theories of service connection have been rendered moot, leaving no question of law or fact to decide. See 38 U.S.C.A. § 7104 (West 2014). ORDER Service connection for diabetes mellitus, type II, is granted.
Because diabetes mellitus, type II, is presumptively associated with herbicide exposure, service connection for diabetes mellitus, type II, as a result of herbicide exposure is warranted on a presumptive basis. 38 U.S.C.A. § 5107; 38 C.F.R.
§ 3.102. As service connection is being granted on a presumptive basis, there is no need to discuss entitlement to service connection on any other basis, as other theories of service connection have been rendered moot, leaving no question of law or fact to decide. See 38 U.S.C.A. § 7104 (West 2014). ORDER Service connection for diabetes mellitus, type II, is granted."