text:
Chesley R. Taylor of Nahant, in the County of Essex, brings this complaint for continuing trespass and injunctive and declaratory relief to determine the rights in a strip of land approximately eleven (11) feet in width situated between the lands admittedly of the plaintiff and of the defendants James M. Ryan and Geraldine Rowley Ryan, also both of said Nahant, and running between Summer Street Court and land of third parties. The plaintiff claims to have acquired title to the strip by adverse possession, and the defendants claim title by a construction of the deeds in their record chain of title. The defendants further deny that the plaintiff's use of the area was open, notorious and adverse. There is attached hereto a series of plans which highlight the problem. Appendix A is a copy of a portion of Chalk B which shows the plaintiff's land as Lot 3 with 65 feet on Summer Street Court and the defendants' land as Lot 5 with a frontage of "About 90'"; Appendix B is a portion of Exhibit No. 8C, which is an assessors' map for locus on which the plaintiff's land is shown as having a frontage of 76 feet and that of the defendants 90 feet; Appendix C is a copy of a portion of Exhibit No. 6, a plan prepared by the defendant James M. Ryan, a registered land surveyor, which shows the plaintiff's land as having a frontage on Summer Street Court of 65 feet and the defendants' land with a frontage of 101.38 feet; and finally Appendix D is a copy of Chalk A entitled "Plot Plan of Land Located in Nahant Prepared For Chesley R. Taylor" dated May 3, 1982 by Essex Survey Service, Inc.
In April of 1982, two years after the defendants took title to the lot abutting that of the plaintiff on the east, the vegetation in the area of the common bound was removed by the defendant, James M. Ryan, who thereafter constructed a fence along a line he believed to be the common boundary. The fence partially obstructed the plaintiff's driveway. This activity prompted protests by the plaintiff who asserted title to the area and subsequently filed this action. A hearing was held on the request for injunctive relief, and a preliminary injunction issued enjoining any activity by either party in the disputed eleven foot wide strip until further order of Court and providing for passage by the plaintiff on foot or by vehicle over the area of his existing driveway.
A trial was held on June 16 and August 25, 1987 at which a stenographer was appointed to record and transcribe the testimony. Eleven multi-part exhibits were introduced into evidence, together with the two chalks to which reference is made above. Witnesses who testified for the plaintiff at the trial were Chesley R. Taylor, his wife, Marian Taylor, the plaintiff's daughter, Sally A. Taylor Lee, and the plaintiff's son, Chesley R. Taylor, Jr. Witnesses for the defendants were James M. Ryan, Evelyn McLean, Phyllis Peters, Harriet Steeves and Suzanne Heidebriedt. All exhibits introduced into evidence are incorporated herein for the purpose of any appeal. At the close of the plaintiff's case the defendants moved in effect for a directed finding on the ground that the evidence of adverse possession was insufficient, specifically as to the requisite twenty year period. After consideration, the motion was denied in open Court.
This controversy has its roots in the fact that the measurements shown on the early subdivision of the area gives the combined frontage of the lots owned by the parties as about 155 feet, whereas the recent survey prepared by the defendant James M. Ryan finds a total frontage of more than 166 feet on the ground. Cf. Mercurio v. Smith, 24 Mass. App. Ct. 329 (1987). It is the proper allocation of the eleven feet in dispute which is at issue here. The plaintiff claims that the Taylor family has used the disputed area for nearly eighty years, originally through actions of the plaintiff's father and family and thereafter through those of the plaintiff and his family.
1. The plaintiff is a man 79 years old. The plaintiff grew up in his father's house on the locus where he lived from the time of his birth in 1908 until the early 1940's with other family members, including his two brothers. The plaintiff's father, J. Frank Taylor, had acquired title to the premises known as 1 Summer Street Court in said Nahant from Ella R. Burford by deed dated June 28, 1905 and recorded with Essex South District Deeds (to which all recording references refer) Book 1789, Page 100 (Exhibit No. 2). The description of the premises set forth in said deed bounded the premises "Northeasterly by land of Hortense Luscomb and Summer Street Court sixty-five (65) feet and southeasterly by land of Lydia L. and Susie Luscomb, ninety (90) feet..." There are no other distances set forth in this deed, but it contains the general caveat "Be (sic) the same measurements more or less..." The plaintiff remembers that when he was a child, there was a row of bushes running from the "L" of the Ryans' house to the back of the lots of the plaintiff and defendants where a then neighbor, Martin Henry, had a fence. Prior to the removal of the row of bushes by Mr. Ryan, it had grown to about 20 feet in height, was 3 feet wide and impenetrable except for one opening which the Taylor family kept blocked by a bicycle. The plaintiff was uncertain who had planted the bushes, but it was his belief that this was done by a predecessor in title of the defendants. The bushes left the disputed eleven feet on the Taylor side, and the family proceeded to use this area for roughly 70 years thereafter. The plaintiff testified that he remembered during World War I his parents had a victory garden in the area now in dispute.
2. When Mr. Taylor was married, he and his wife originally lived in another location for a year or two, but in 1943 Mr. and Mrs. Taylor moved into his father's home on the locus where they raised a family of five children, two of whom testified at the trial. Mr. Taylor's father died on September 24, 1944 intestate, leaving as his only heirs at law and next of kin his three sons (Exhibit No. 3). Thereafter, by deed dated May 2, 1945 and duly recorded in Book 3403, Page 182 (Exhibit No. 1), the plaintiff acquired title to 1 Summer Street Court from his brothers, Fred B. Taylor and F. Kenneth Taylor. The description in the deed follows that in the chain of title and as in the deed to the plaintiff's father gives a frontage of sixty-five (65) feet on Summer Street Court, bounds southeasterly by land now of the defendants ninety (90) feet and by two other courses, the lengths of which are not set forth.
3. As already stated the plaintiff and his wife have lived at 1 Summer Street Court since 1943. [Note 1] During the years which the plaintiff occupied the property first under his father's ownership and thereafter as the record owner by virtue of the deed from his brothers, he and family members used the land which is situated on the northwest side of the row of bushes as their own. Over the years, there originally were two Baldwin apple trees in the yard, at the base of which there was a strawberry patch and a grapevine. One of the apple trees was cut down by Mr. Taylor to make room for a vegetable garden in the area which was discontinued in 1977 due to his ill health. Six lilac bushes were planted along the row of bushes by the Taylors, and they from time to time trimmed their side of the row of bushes whenever it appeared overgrown. Chesley R. Taylor, Jr., who lived with his parents from 1948 to 1973 testified that he had played baseball in the disputed area with friends, had planted tulips near a forsythia and had stored his lobster boat and lobster pots in the area. The testimony of these witnesses appears credible since it is logical that when any kind of artificial boundary is erected which runs along most of a line between two properties, the area left between the bushes or fence or other dividing structure will be used by those upon whose side the open land is found, whether the true boundary or not. In the present case, it appears that the entrance to the driveway leading into the plaintiff's property was situated at the easterly corner of the property adjacent to the Ryans' land and that after the driveway entered from the street, it swung in a northerly direction to the garage. The driveway met the bushes which ran from the southwesterly side of the driveway southwesterly to the rear of both properties.
4. It is the dimension of the frontage of the lots owned by the parties which generates the disputed eleven foot wide strip between the two lots. The above-mentioned deeds in the plaintiff's back title, that of Ella R. Burford and that of the plaintiff's brothers, describe the plaintiff's lot as bounded by Summer Street Court for a distance of sixty-five (65) feet. The deed of Thomas C. Solone and Lisa S. Solone to the defendants describes their lot as bounded by Summer Street Court for a distance of "about 90 feet". The plaintiff claims an additional eleven feet of frontage for a total of seventy-six (76) feet by adverse possession. The defendants deny this claim and assert, in reliance upon the survey done by the defendant, James M. Ryan, entitled "Plan of Land in Nahant, Massachusetts - Lot 15 - Map 7", dated July 1981 and recorded as Plan 36 in Plan Book 170 (Exhibit No. 6), that their frontage in fact consists of 101. 38 feet. A plan of the plaintiff's lot entitled "Plot Plan of Land Located in Nahant - Prepared for Chesley R. Taylor" dated May 3, 1982 by Essex Survey Service, Inc. and marked at trial as Chalk A in the absence of testimony by the surveyor, Robert B. Bowman, shows seventy-six (76) feet of frontage set off between an iron rod (set) and a R.R. spike (set).
5. The Nahant Assessor's appraisal card for the tax year 1961 shows the plaintiff's lot (Lot 14, Map 7) as having a total area of 6,880 square feet and 76 feet of frontage (Exhibit No. 9B). From 1981 to 1986 these same records and the ownership cards (Exhibit No. 9A) show Lot-14 as having a total area of 6,844 square feet. The 1981 appraisal card (Exhibit No. 9B) bears a hand-written notation to the effect that an error in square footage has been corrected. The Assessor's map 7 for the years 1924, 1963 and 1970 (Exhibit Nos. 8A-8C) shows the total area of Lot. 14 as 6,880 square feet and the frontage as 76 feet. Five sets of the Assessor's valuation sheets were introduced into evidence for ten year intervals from 1947 to 1987 (Exhibit Nos. 11A-11E). The area of the plaintiff's lot shows as 6,880 square feet from 1947 to 1977 and as 6,844 square feet for 1987. In neither the case of Lot 14 or Lot 15 are the area figures material unless they reflect a change in frontage, one element in the computation of the square feet. This has not been shown to be the case.
6. The Nahant Assessor's ownership cards for the defendants' lot (Lot 15) for the period from 1958 to 1973 (Exhibit No. 10A) show Lot 15 as having a total area of 7,650 square feet. Prior to 1973 these cards show a second parcel known as Lot 15A, described as a right of way having an area of 1,350 square feet for a total area of 9,000 square feet for the combination of Lots 15 and 15A (Exhibit No. 10A). The ownership card for 1971 bears a hand-written notation that Lot 15A, was sold in 1973 to Peterson and shows Lot 15 as having 8,100 square feet after the sale. The figures for subsequent years reflect an increase in area of 450 square feet with which we need not be concerned. The only appraisal card showing a frontage figure for Lot 15 is fer the period from 1958 to 1979, and the frontage is given as 90 feet. The valuation sheets (Exhibit Nos. 11A-11E) show the defendants' lot as having an area of 7,650 square feet for 1947 and 1957, as 9,000 square feet in 1967 and as 8,100 square feet for 1977 and 1987. The Assessor's map 7 for the years 1924, 1963 and 1970 shows Lot 15 as having an area of 7,650 square feet with frontage of 90 feet.
7. Mr. Ryan testified at length as to his methodology in making the survey from which he drew up his plan showing his lot as having 101.38 feet of frontage which he recorded and which was admitted as Exhibit No. 6. During the course of his search of the records at the Registry of Deeds, he found a series of deeds dated 1896 by William Luscomb, the common grantor of both the Taylor and Ryan lots (Exhibit Nos. 7A-7E). Mr. Ryan drew up a plan of the 1896 division which was marked Chalk B. The Luscomb division appears to have been the source of the lack of exact dimensions for the lots along Summer Street Court as certain lots conveyed had no dimensions and others were given only partial dimensions.
8. Three witnesses from the neighborhood, one of whom had been involved in a previous dispute over use of her property, contradicted the evidence of the plaintiff's witnesses, but I have found the latter to be credible. Mr. Ryan's testimony regarding some of the discarded items he found and removed from his own lot and the disputed area appears to corroborate, at least in part, the uses described by the Taylor family; bicycles, bushels of rotten apples and lobster traps. Mr. Ryan relies in part upon this testimony to rebut the plaintiff's evidence of adverse use since at the time of his purchase in 1980 he found the disputed area weedy and overgrown, the bushes untrimmed and various long-discarded items left lying about.
This Court has frequently set forth the law applicable to the acquisition of title by adverse possession as it is found in decisions of the Supreme Judicial Court and the Appeals Court. The plaintiff must show an uninterrupted use of the premises in question which is open, notorious, exclusive, continuous and adverse for a period of at least twenty years. E.g., Kershaw v. Zecchini, 342 Mass. 318 , 320 (1961); Boston Seaman's Friend Society, Inc. v. Rifkin Management, Inc., 19 Mass. App. Ct. 248 , 251 (1979) rev. den. 394 Mass. 1101 (1985). The burden is on the party claiming title by adverse possession to establish each of these familiar elements, but once they have been shown, a lessening of the use or even its cessation after the twenty year period has run does not negate the title thus previously	acquired. See Holmes v. Johnson, 324 Mass. 450 , 453 (1949); Daley v. Daley, 300 Mass. 17 , 21 (1938); 4 Tiffany, The Law of Real Property, s. 1172 (3d. ed. 1975). The focus then shifts to a question of abandonment which is not shown on the facts which I have found.	The defendants argue that the plaintiff has not shown that his use of the disputed area was notorious since none of the neighbors who testified recalled any member of the plaintiff's family gardening, playing ball or otherwise using the area as alleged. It is established that to meet the requirement of notorious use the claimant's occupation must be so open and apparent as to communicate to the true owner, or other observers likely to report such activities to him, that another is exercising possession adverse to that of the holder of the record title. LaChance v. First National Bank and Trust of Greenfield, 301 Mass. 488 , 491-492 (1938); Foot v. Bauman, 333 Mass. 214 , 218 (1955). Actual knowledge is not necessary, only the opportunity to learn of the adverse possession in the exercise of due diligence. In Ottavia v. Savarese, 338 Mass. 330 , 333 (1959), the Supreme Judicial Court reviewed the doctrine and concluded that the purpose of the various requirements of adverse possession is to put the true owner "on notice of the hostile activity of the possession so that he, the owner, may have an opportunity to take steps to vindicate his rights by legal action." There was such opportunity in the present case where a period of nearly eighty years was involved.
It seems apparent from the evidence that the predecessors in title of the defendants indeed were aware of the existence of the barrier of bushes and easily could have informed themselves of the use being made of the strip between the natural fence and the true property line. The continuance of such a barrier where access is continuously denied to the owner of record and the land is available only for the exclusive nonpermissive use of the claimant is sufficient to show the elements for the acquisition of title. See Shaw v. Solari, 8 Mass. App. Ct. 151 , 156 (1979). Compare Ryan v. Stavros, 348 Mass. 251 , 260-263 (1964).
While it may be that enclosure or fencing alone is enough to establish adverse possession, it is significant here that the assessors' records also accord with use which the plaintiff has made in that they show the plaintiff's frontage as being 76 feet. In addition, the evidence which the plaintiff introduced and which I have accepted shows many acts over a very lengthy period of time which are illustrative of the exercise of dominion and exclusive possession. There was no evidence that any party in the defendants' chain of title ever used the eleven feet in question. The use for gardens, plants, trees and children's games by the plaintiff, his predecessors in title and his family members is buttressed also by the placement of a portion of the plaintiff's driveway in the disputed area where it is clear no one under whom the defendants claim made any use of the way. If the parties were in disagreement over an area where there was not intense residential use, it is possible that the result might be different. See Cowden v. Cutting, 339 Mass. 164 , 168 (1959); McDonough v. Everett, 237 Mass. 378 , 384 (1921); Parker v. Parker, 1 Allen 245 (1861).
Here, however, the density of lots in the area, the barrier to access from the defendants' property to the disputed strip presented by the bushes, and the presence of the driveway used only by the plaintiff support the plaintiff's claim to title acquired by adverse possession. Accordingly, I find and rule that on all the evidence the plaintiff has proved by a preponderance of the evidence that he has acquired title to the strip of land eleven feet in width by the exercise of adverse possession. The result which I have reached disposes of the defendants' argument that the plaintiff's claim was frivolous and entitles them to damages pursuant to the provisions of G.L. c. 231, §6F. I also find and rule that there was no evidence to support the defenses of laches and unclean hands. The Judgment which is to be entered will provide that the defendants, their agents, servants and employees are restrained from entering upon the strip in dispute, but will reserve to the defendants a right, if necessary, to enter upon such part thereof as may be equired to make any repairs or to paint the northwesterly wall of said building.
[Note 1] The defendants comment in their brief on the failure of the plaintiff	to have any non-family members testify as to adverse possession and point also to the neighbors who either denied or did not remember the activities for a determination as to the credibility of the witnesses; however, this is a province of the Court, and is reflected in my findings.

matches: v. v. v. v. v. v. v. v. v. v. v. v. v. §6


text:
Query expansion techniques for query-oriented document summarization are key topics in research conducted by the Software Engineering Lab members.
This year, our focus was on techniques to expand the user queries. The goal was to improve the accuracy of retrieval and the quality of the summaries of scientific documents created on the fly. Results of our investigations and tests were presented at the IEEE 2009 Joint Conferences on Pervasive Computing, the 2009 IEEE 5th International Workshop on Intelligent Data Acquisition and Advanced Computing Systems: Technology and Applications, .
The aim of our work in the area of text mining was to improve Web search service. The prototype of the system generating summaries on the fly designed last year was significantly improved. Our study was supported by a grant from the University of Aizu Competitive Research Funding. Students of our lab were involved in this research. Results of the research were presented at the Second International Conference on Advances in Human-Oriented and Personalized Mechanisms, Technologies, and Services and at The 12th International Conference on Humans and Computers.
Our lab joined to the Program for Leading Edge IT Specialists organized by our university and offered students a project on Summarizing Tools for General Purpose Search Engines. A team-based way of education and research is a new style of teaching for us. The first international group of students consisting of Japanese and Russian students successfully completed the program of the study in the autumn of 2009.
In June 2009, the agreement between our university and Saint Petersburg Polytechnical State University (http://www.spbstu-eng.ru/) on scientific and educational cooperation was signed in Saint-Petersburg, Russia. The Software Engineering Lab plays a key pole in the collaboration activities. Evgeny Pyshkin, Associate Prof. of our partner university was invited in November 2009 to introduce the intensive course on Object-Oriented Software Engineering for our graduate students.
Prof. Klyuev was granted a Fellowship under the Joint program between the Research Council of Norway (RCN) and the Japan Science and Technology Society, place to work: University of Agder, Grimstad, Norway, project Fast Search Algorithms, period: August - September, 2009. The results of the joined project were accepted for the presentation at The 2010 InternationalWorkshop on Future Engineering, Applications and Services of the 5th International Conference on Future Information Technology sponsored by IEEE, Korea, May 2010.
Our undergraduate student Ms. Ai Yokoyama visited Saint Petersburg State University, Russia in April 2009 and presented her paper at the XL Conference on Control Processes and Stability.
(http://www.apmath.spbu.ru/ru/structure/international/finishedprojects.html#human). This exchange of students was done in accordance with our agreement with Saint Petersburg State University.
V. Klyuev. An Approach to Implementing an Intelligent Web Search. Journal of Communication and Computer, 6(7 (Serial No 56),):52–57, 2009.
In this paper, we discuss the fetures of the functional approach to present English texts in the memory of computers. It makes it possible to keep semantic relations between words. These relations can be taken into account when indexing documents and when performing searching. The factoid question answering task is one of the possible applications of this approach.
S. Ebisu and V. Klyuev. An Algorithm to Generate Indicative Summaries for Japanese Documents. In Proceedings of the 12th International Conference on Humans and Computers, pages 191–194. University of Aizu, December 2009.
In this paper, we propose an algorithm that chooses the most important sentences semantically relevant to the user query and derives the paragraphs including them. This algorithm is applicable to the Japanese language.
V. Oleshchuk and V. Klyuev. Context-Aware Summary Generation for Web Pages. In Proceedings of the 2009 IEEE 5th International Workshop on Intelligent Data Acquisition and Advanced Computing Systems: Technology and Applications (IDAACS), Rende, Italy, 2009, pages 561–564. IEEE, IEEE, September 2009.
General purpose search engines provide users with lists of retrieved documents in response to their queries. The common structure of list elements includes the title of a document, its URL, and small snippet from the text. Snippets are evidence of occurrences of query ’s keywords in the document. The length of each snippet is just a couple of lines. They cannot play a role of summaries of retrieved documents: In many cases, they are not indicative and users cannot judge on the relevancy of documents. In our approach we use ontology as context description and that ontology will be used to describe user ’s main interest with respect to wanted summary and help to select weighting of key words and other semantically related words. Using such semantically related words would make it possible to generate summaries that are more semantically focused with respect to user ’s interests/queries.
A. Yokoyama and V. Klyuev. Query expansion using WordNet for the Japanese information retrieval task. In Proc. of the XL Conference on Control Processes and Stability, 2009,, pages 385–389. Saint Petersburg State University, Saint Petersburg State University Publishing Press, April 2009.
Nowadays, Internet users are familiar with the Web searching process; and the searching is the most common tasks performed on the Web. On the other hand, users receive non relevant information in response to queries. The web search is especially difficult for beginners when they utilize a keyword query language. Usually beginner users apply ambiguous queries. Our goal is to make the search process more convenient for them. We assume the first page returned by a search engine is the most important one for the user. We find the most important terms on the page, assuming they are related to the user query words. In addition to that, we get synonyms and hyponyms for the words in the user query utilizing WordNet. We combine aforementioned words together. This expanded query is then submitted to the search engine. These functions are done automatically, so the web searching process is becoming easier for beginners.
D. Vazhenin, S. Ishikawa, and V. Klyuev. A User-Oriented Web Retrieval Summarization Tool. In Proceedings of the Second International Conference on Advances in Human-Oriented and Personalized Mechanisms, Technologies, and Services, Porto, Portugal, 2009, pages 73–78. IEEE Computer Society, September 2009.
The information resources on the web become increasingly global in nature. Their amount is continuingly growing. A solution to summarize the retrieved pages on the fly and to design the simplest user interface is possible approach to improve and speed up the retrieval of the information from the web. This paper discusses the algorithms to implement the aforementioned approach and results of preliminary experiments.
S. Satake, S. Ishikawa, D. Vazhenin, and V. Klyuev. A Semantic-Based Summarizing Tool for Improving the Usability of General Purpose Search Engines. In Proceedings of The 2009 Joint Conferences on Pervasive Computing, pages 5 p, CD edition. IEEE, IEEE, December 2009.
Nowadays, the Internet is an important source of scientific information. However, retrieval of relevant information on the Web still remains difficult. To simplify this process, we designed a semantic summarizing tool for scientific publications retrieved from the Web. In this paper, we presented the architecture of our approach and demonstrated how our solution works.
V. Klyuev. How to Make a Web Search more Intelligent (In Japanese). Fukushima Review, ISSN 0288-0954, (7):40–44, 2009.
This paper analyzes the intelligent approaches to create a next generation of search engines. Illustrative examples are provided.
G. Nikishkov V. Klyuev. ICTs for Modern Educational and Instructional Advancement: New Approaches to Teaching, Chapter 13: Using a Web- Based System to support Teaching Processes., pages 151–166. IGI Global, 2010.
V. Klyuev. Fellowship under the Joint programme between the Research Council of Norway (RCN) and the Japan Society, 2009.
Denis Vazhenin. Master Thesis: Architecture of a Summarizing Tool for General Purpose Search Engines, University of Aizu, 2009.
Satoru Satake. Master Thesis: Applied Methods for a Semanticallybased Summarizing Tool, University of Aizu, 2009.
Satoru Ishikawa. Master Thesis: Summarizing Tool for General Purpose Search Engines: Tests and Evaluation, University of Aizu, 2009.
Ai Yokoyama. Graduation Thesis: Search Engine Query Expansion using Japanese WordNet, University of Aizu, 2010.
Sayuri Ebisu. Graduation Thesis: An Approach to Generate Indicative Summaries for Japanese Documents, University of Aizu, 2010.
Yuta Hiraki. Graduation Thesis: Comparison of Summarization Methods, University of Aizu, 2010.

matches: V. V. V. V. V. V. V. V. V. V.


text:
Dietz, Lawrence. Soda Pop. The History, Advertising, Art and Memorabilia of Soft Drinks in America. Photo available. New York. Simon and Schuster. 1973. 184 pps. 4to. Hardcover. First edition. Full number line. Illustrated in black, white and color. Important reference work. Fine copy in edge chipped dust jacket (in mylar).
Dietz, Matthias & Michael Monninger. Japan Design. Photo available. Koln. Taschen. 1992. 176 pps. 4to. Soft cover. First edition. Illustrated in black, white and color. Important reference work. Fine copy.
Dietz, Thomas. J. On Miniature Wings. Model Aircraft of The National Air and Space Museum. Photo available. Washington Charlottesville. Smithsonian. Thomasson-Grant. 1995. 180 pps. 4to. Hardcover. First edition. Illustrated in black, white and color. Important reference work. Letter from Smithsonian laid in. Fine copy in fine dust jacket (in mylar).
Diffee, Matthew (ed). The Rejection Collection. Cartoons You Never Saw, and Never Will See, in The New Yorker. Photo available. New York. Simon Spotlight. 2006. Octavo. Hard cover. First edition. Illustrated. Fine copy in fine dust jacket (in mylar).
Dillard, Annie. Pilgrim at Tinker Creek. Photo available. New York. Harper's Magazine Press. 1974. 271 pps. Octavo. Hardcover. Stated first edition. Important reference work. Fine copy in near fine (very light edge, spine lightly sunned) dust jacket (in mylar).
Dillin, Captain John G.W. The Kentucky Rifle. Photo available. Washington National Rifle Association. 1924. 4to. Gilt decorated hard cover. First edition. Illustrated. Important reference work. Near fine copy (very light shelf wear).
Dilling, Tom. Dirt Trackin' at the Acres. Inscribed by the author. History, Memories and Related B.S. (Eureka, California). Photo available. np. Self published. c. 1982. 170 pps. Octavo. Soft cover. First edition. Illustrated. Inscribed by the author "To Jack - Hope you enjoy the book - It's really great.... +Tom Dilling April 1982". Fine copy.
Dillon, Janet. Manly. Old & New. Photo available. Sydney. View Productions. 1983. 4to. Hardcover. First edition. Illustrated in black, white and color. Fine copy in fine dust jacket (in mylar).
Dillon, Richard & Steve Simmons. Delta Country. Photo available. Novato. Presidio Press. 1982. 134 pps. Octavo. Hardcover. First edition. Illustrated. Fine copy in fine dust jacket (in mylar).
Dillon, Richard & Steve Simmons. Delta Country. Photo available. Novato. Presidio Press. 1982. 134 pps. Octavo. Hardcover. First edition. Illustrated. Fine copy in very good (light shelf wear) dust jacket (in mylar).
Dillon, Richard & Steve Simmons. Delta Country. Photo available. Novato. Presidio Press. 1982. 134 pps. Octavo. Hardcover. First edition. Illustrated. Important reference work. Fine copy in fine dust jacket (in mylar).
Dillon, Richard & Steve Simmons. Delta Country. Novato. Presidio Press. 1982. 134 pps. Octavo. Hardcover. Second edition. Illustrated. Important reference work. Fine copy.
Dillon, Richard H. J. Ross Browne. Confidential Agent in Old California. Photo available. Norman. University of Oklahoma Press. 1965. 218 pps. Octavo. Hardcover. First edition. Illustrated. Fine copy in fine dust (price clipped) jacket (mylar).
Dillon, Richard H. J. Ross Browne. Confidential Agent in Old California. Photo available. Norman. University of Oklahoma Press. 1965. 218 pps. Octavo. Hardcover. First edition. Illustrated. Fine (owner name on end paper) copy in lightly worn dust jacket (in mylar).
Dillon, Richard H. The West in Review. Proof copy, inscribed by the author. 56 Book Reviews by Richard H. Dillon. Photo available. np. Self published. nd. 103 pps. Octavo. Spiral bound. First edition. Important reference work. Copy "A" Inscribed by the author "Author's proof, before 10 numbered copies. Richard H. Dillon". Rare. Fine copy.
Dillon, Richard. Captain John Sutter. Sacramento Valley's Sainted Sinner. Photo available. Santa Cruz. Western Tanager. 1991. 380 pps. Octavo. Soft cover. Reprint. Illustrated. Near fine copy (very light shelf wear).
Dillon, Richard. Delta Country. Photo available. Novato. Presidio Press. 1982. 134 pps. Octavo. Hardcover. First edition. Illustrated. Fine copy.

matches:
in fine
in fine
in fine
in fine
in fine
in fine


text:
Slip Op. 08-47. Court No. 05-00276.
Sandler Travis Rosenberg Glad Ferguson, PC (Thomas R. Ferguson), Ventura, CA, and Sandler, Travis Rosenberg, PA (Arthur K. Purcell), Miami, FL, for the third party plaintiff.
Galvin Mlawski (John J. Galvin), New York City, for the third party defendants.
Before: JANE A. RESTANI, Chief Judge.
Restani, Chief Judge: This matter is before the court on third party plaintiff Aegis Security Insurance Company's ("Aegis") motion for sanctions in the form of attorneys' fees and expenses, filed pursuant to USCIT R. 37(d), against third party defendant Matthew Fleming ("Fleming"). Aegis seeks an award of fees and expenses incurred as a result of Fleming's failure to respond to Aegis' interrogatories and other discovery requests, and failure to appear on the first day of a scheduled two-day deposition. The court will grant the motion.
On September 25, Aegis filed a motion to amend the scheduling order. (Mot. for Fifth Am. Scheduling Order.) The court granted the motion and extended discovery to November 29, 2007. (Fifth Am. Scheduling Order, Oct 1, 2007.) Aegis filed another motion on January 14, 2008. (Mot. for Sixth Amendment of Scheduling Order.) The court also granted that motion and extended discovery to January 30, 2008. (Sixth Am. Scheduling Order, Jan. 23, 2008).
In this motion, in addition to requesting additional time for discovery, Aegis also requested more time for Fleming to respond to its Amended Third Party Complaint, filed in November 2007, in which Aegis added a subrogation cause of action after settling with the United States in the underlying action. (Answer Second Am. Third Party Claim 4; Mot. for Sixth Amendment of Scheduling Order 1-2.) Fleming responded to the Amended Complaint but not to the discovery requests.
In response to the Motion for Sanctions, Fleming claims that Aegis has not incurred any additional expenses for his failure to appear on September 25 for the two-day deposition. (Combined Resp. at 7.) In the response, he does not address the part of the motion seeking an award of fees and expenses for his failure to respond to the Second and Third Sets of Interrogatories and to the additional requests made at the deposition.
In light of Fleming's response that the Kramer Law Firm prepared the corporate documents in March 2007 and admission that Fleming himself is the custodian of the documents, Aegis additionally seeks sanctions for Fleming's alleged withholding of such information. Aegis questions Fleming's response at his deposition that he could not recall this information. Aegis also claims that the corporate documents are questionable on their face and that, contrary to Fleming's assertion, he had not submitted the electronic copies of the corporate documents, as requested.
Failure of Party To Attend at Own Deposition or Serve Answers to Interrogatories or Respond to Request for Inspection. If a party or an officer, director, or managing agent of a party . . . fails (1) to appear before the officer who is to take the deposition, after being served with a proper notice, or (2) to serve answers or objections to interrogatories submitted under Rule 33, after proper service of the interrogatories . . ., the court on motion may make such orders in regard to the failure as are just. . . . In lieu of any order or in addition thereto, the court shall require the party failing to act or the attorney advising that party or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.
USCIT R. 37(d). USCIT R. 37(d) "mirrors the Federal Rules of Civil Procedure," and the court, in applying the Rule, has relied on opinions of other federal courts applying the Federal Rules of Civil Procedure ("FRCP"). United States v. Neman Bros. Assocs., 18 CIT 89, 90 (1994); see also, e.g., Zenith Radio Corp. v. United States, 2 CIT 59, 59-60 (1981).
Some courts have held that Rule 37(d) of the FRCP does not authorize sanctions unless a party totally fails to respond to the discovery requests. See Fjelstad v. Am. Honda Motor Co., 762 F.2d 1334, 1339-40 (9th Cir. 1985) (disagreeing with district court's finding that Rule 37(d) sanctions were warranted because partial answers were incomplete, evasive, and false); Fox v. Studebaker-Worthington, Inc., 516 F.2d 989, 995 (8th Cir. 1975) ("Rule 37(d) sanctions only apply where there is a total non-compliance with discovery."); Al Barnett Son, Inc. v. Outboard Marine Corp., 611 F.2d 32, 35 (3d Cir. 1979) ("Rule 37 sanctions are contemplated when there has been virtually total noncompliance with discovery."), abrogated on other grounds by Alexander v. Gino's, Inc., 621 F.2d 71, 73 (3d Cir. 1980);see also Southard v. Pa. R.R. Co., 24 F.R.D. 456, 457 (E.D. Pa. 1959) ("Even if the defendant had filed false answers, it is extremely doubtful that such filing should be considered tantamount to a refusal to answer."). Other courts have imposed sanctions where parties have responded but "the evasive or incomplete answers are tantamount to no answer at all." Airtex Corp. v. Shelley Radiant Ceiling Co., 536 F.2d 145, 155 (7th Cir. 1976); see also Minn. Mining Mfg. Co. v. Eco Chem, Inc., 757 F.2d 1256, 1260-61 (Fed. Cir. 1985) (holding that "unable to respond" constitutes no response); Fautek v. Montgomery Ward Co., 96 F.R.D. 141, 145 (N.D. Ill. 1982) ("Parties are required to respond to requests to produce in a complete and accurate fashion."); Bell v. Auto. Club of Mich., 80 F.R.D. 228, 232 (E.D. Mich. 1978) ("The answers provided in defendants' responses . . . were so misleading and deceptive as to constitute a failure to answer these interrogatories."). Although this issue is undecided, Neman Brothers suggests that the court would adopt the broader view. See Neman Bros., 18 CIT at 92 (acknowledging the existence of "clear policies underlying Rule 37(d) to deter the serious disregard of discovery requests that would be undermined if the parties had only further orders directing compliance to fear"). Here, sanctions are warranted for Fleming's failures to respond to the discovery requests because he either failed to respond completely or his answers were so misleading that they constitute a failure to respond.
Sanctions also would be warranted under the narrow view, as Aegis had moved to compel discovery, see Fox, 516 F.2d at 995 ("Defendants' remedy for incomplete or otherwise objectionable answers to interrogatories, and for failure to produce the correct documents . . . was to file a motion under Rule 37(a) for an order requiring plaintiffs to answer and to produce documents for evidence."); GFI Computer Indus., Inc. v. Fry, 476 F.2d 1, 3 (5th Cir. 1973) ("Plaintiff's remedy for incomplete or otherwise objectionable answers to interrogatories, and for failure to produce pursuant to a Rule 34 request, was to file a motion under Rule 37(a) for an order requiring defendant to answer and to produce documents for inspection."), and sanctions may be imposed under USCIT R. 37(b) for noncompliance with the court's June 2007 Order to Compel, see USCIT R. 37(b); see also Ohio v. Arthur Andersen Co., 570 F.2d 1370, 1374 (10th Cir. 1978) (upholding sanctions under FRCP Rule 37(b) despite eventual production of documents because "[f]inal production is not determinative").
Fleming claims that "in accordance with the [c]ourt's June 19, 2007, order . . . [he] timely provided his responses [to the Third Set of Interrogatories]," but he does not specify when he provided such responses. (See Combined Resp. 2.) Aegis consistently denies receiving these responses, (see Mot. to Show Cause 3 n. 1; Mot. for Sanctions 4), and Attachment A is not signed, dated, notarized, or accompanied by any proof of mailing, (see Attachment A). Furthermore, Fleming's own counsel "represented and maintains that he does not have a copy of the subject responses in his files." (Ferguson Decl. ¶ 7.) Nonetheless, even assuming that Fleming had submitted the responses, his failure to resubmit it until the Combined Response is insupportable.
Belated responses generally do not excuse a party from Rule 37 sanctions. See Cine Forty-Second St. Theatre Corp. v. Allied Artists Pictures Corp., 602 F.2d 1062, 1068 (2nd Cir. 1979) (rejecting argument that court should not preclude evidence because, although plaintiff had "at last filed answers" to interrogatories, "plaintiff's hopelessly belated compliance should not be accorded great weight"); Fautek, 96 F.R.D. at 145 ("Ultimate production of the material in question does not absolve a party where it has failed to produce the material in a timely fashion."). Here, even assuming that Fleming was unable to locate his responses for a period of time, the record shows that Aegis had given him time to resubmit them after they had been located. (See Ferguson Decl. ¶ 7; Mot. to Show Cause 3 n. 1.) Yet, Fleming did not resubmit them until the Combined Response. Sanctions are similarly warranted for his tardy responses to the September 26 discovery requests, which also were not produced until the Combined Response.
As to Fleming's claim that "Mainland, Inc." is nonexistent, this assertion is inconsistent with his responses to prior interrogatories that he was an employee of "Mainland, Inc." and a Customs entry indicating "Fleming, Matthew dba Mainland, Inc." as the importer of record. (See Third Party Def. Matthew Fleming's Resp. to Third Party Claimant's First Set of Interrogs. Req. for Produc. of Docs. 6, Ex. E to Statement Detailing Outstanding Disc.; Customs Entry Summary, Attach. I to Statement Detailing Outstanding Disc.) Even assuming that "Mainland, Inc." is a short-hand reference to "Mainland Enterprises, Inc.," Fleming could have so explained upon his receipt of the Third Set of Interrogatories in March 2007. His failure to respond until the Combined Response in February 2008 impeded discovery for close to a year and caused Aegis to incur unnecessary discovery expenses and therefore warrants sanctions.
Fleming's assertions that the Kramer Law Firm prepared the corporate documents in March 2007 and that he is the custodian of the documents contradict his prior claims that he could not recall the source, time of preparation, location, and custodian of the documents. His prior misleading answer constitutes a failure to respond. See Badalamenti v. Dunham's, Inc., 896 F.2d 1359, 1363 (Fed. Cir. 1990) (concluding that "clear misrepresentation" constitutes "failure to respond"). His belated disclosure in the Combined Response does not excuse him from sanctions.
Although Fleming's failure to appear for his deposition on September 25 was not justified, whether his nonappearance on the first day of a scheduled two-day deposition is sanctionable presents a close question. Aegis was able to depose Fleming the following scheduled day, and Aegis does not contend that the deposition took longer than anticipated or that it was unable to complete the deposition that day. Also, nothing in the record shows that Aegis incurred any additional travel expenses for the deposition.
Nonetheless, in determining whether sanctions are warranted, the court must take into consideration the history of the discovery phase of the litigation. See Link v. Wabash R.R. Co., 370 U.S. 626, 634 (1962) ("We need not decide whether unexplained absence from a pretrial conference would alone justify a dismissal with prejudice if the record showed no other evidence of dilatoriness on the part of the plaintiff. For the District Court in this case relied on all the circumstances that were brought to its attention, including the earlier delays."); Cine Forty-Second St. Theatre, 602 F.2d at 1068 ("[S]anctions must be weighed in light of the full record in the case") (citing Nat'l Hockey League, v. Metro. Hockey Club, Inc., 427 U.S. 639, 642 (1976)); Al Barnett Son, 611 F.2d at 36 ("The full record reveals a course of conduct that frustrates the fundamental purpose underlying the discovery rules to provide adequate information to litigants in civil trials."). Here, even if Fleming's failure to appear for his deposition on September 25 may not warrant sanctions, his failure falls within a pattern of noncooperation and noncompliance with Rule 37(d). Cf. First Nat'l Bank of Wa. v. Langley-Howard, Inc., 391 F.2d 207, 208 (3d Cir. 1968) (holding that delayed appearance for deposition does not warrant default judgment but warrants sanctions in the form of costs). Thus, his failure to appear for his own deposition on September 25 is sanctionable in light of the history of the litigation.
Because Fleming fails to show that his lack of cooperation during discovery was substantially justified or that circumstances would render an award unjust, the court shall grant Aegis' motion for attorneys' fees and expenses. Aegis is entitled to an award of the following: (1) the unanticipated costs incurred as a direct result of Fleming's failure to appear for the September 25 deposition, (2) costs associated with drafting and filing of the motions to amend the scheduling orders to enlarge the discovery period to accommodate Mr. Fleming's delays in responding, (3) costs associated with drafting the motion to compel discovery, (4) costs associated with drafting the motion for an order to show cause, and (5) costs associated with the drafting of the motion for sanctions. The copies of the invoices that Aegis submitted, which total $31,188.31 in fees and expenses, include fees and expenses that fall beyond the above-defined categories. (See Invoices, Ex. D to Mot. for Sanctions.) Because the invoices do not enable a proper and accurate calculation of the fees and expenses to be awarded, the court directs Aegis to file a complete and detailed statement of expenses and fees that Aegis believes fall within the parameters stated above, in accordance with the attached order.
Limiting the expenses to services directly related to address the discovery problems here — such as drafting the motion to compel production and the current motion for attorneys' fees and expenses, discussions arising out of the cancellation of the September 25 deposition, and the motions to amend the scheduling order to accommodate Fleming's failure to provide discovery — this court estimates the attorneys' fees and expenses to be substantially less than the full amount submitted by Aegis.

matches: v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v.


← Fifth Circuit Strikes Down Entire DOL Fiduciary Duty Rule, Two Days After Tenth Circuit Upholds PTE 84-24: Supreme Court Up Next?
Co-Authored by Kirsten Pagel, Briggs and Morgan Associate.
On Wednesday, March 20, 2019, the Supreme Court ruled, in Obduskey v. McCarthy & Holthus LLP, that a business engaged in nonjudicial foreclosure proceedings is not a “debt collector” under the Fair Debt Collection Practices Act (“FDCPA”), except for the limited purpose of 15 U.S.C. § 1692f(6) as specified by 15 U.S.C. § 1692a(6).
The decision to affirm the district court was unanimous, with Justice Breyer writing for the majority. Justice Sotomayor filed a separate, concurring opinion. The Court’s opinion may be found here.
In 2007, Dennis Obduskey purchased a home with a loan secured by that home. By 2009, Obduskey had defaulted on that loan. Wells Fargo Bank, N.A., the servicer of that loan, began nonjudicial foreclosure proceedings through its counsel McCarthy Holthus LLP (“McCarthy”). McCarthy sent Obduskey a notice in 2014 that listed various details about Obduskey’s loan. Obduskey responded to the 2014 notice by challenging the debt pursuant to the FDCPA. McCarthy did not proceed by following the FDCPA’s procedures, and, instead, initiated a new nonjudicial foreclosure in 2015. Obduskey sued McCarthy, alleging that McCarthy was a debt collector and had violated the FDCPA and Colorado law.
The FDCPA defines “debt collector” as “any person … in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts …. For the purpose of section 1692f(6) of this title, such term also includes any person … in any business the principal purpose of which is the enforcement of security interests.” 15 U.S.C. § 1692a(6).
McCarthy successfully moved to dismiss on the grounds that McCarthy was not acting as a debt collector, and, thus, the FDCPA does not apply to it; the Tenth Circuit agreed and affirmed the decision noting that the “mere act of enforcing a security interest through a non-judicial foreclosure proceeding does not fall under” the FDCPA.
The Court noted that text of the FDCPA itself is the strongest basis for its decision. The Court explained that because § 1692a(6) provides that “for the purpose of section 1692f(6) of this title [a debt collector] also includes [a business] the principal purpose of which is the enforcement of security interests,” one who does no more than enforce security interests is not a debt collector for any section but section 1692f(6). As such, the Court held that the FDCPA does not apply to those who are engaged in no more than the enforcement of security interests, like nonjudicial foreclosure, except for the limited purpose of 15 U.S.C. § 1692f(6).
Dan Supalla is a member of Briggs and Morgan's Financial Markets and Appellate practice groups. He practices principally in the areas of financial services and securities litigation, state and federal appeals, and business and employment litigation.
This entry was posted in Banking, Consumer Finance and Lending, FDCPA, Litigation, Supreme Court, Uncategorized. Bookmark the permalink.


Our shop system allows inquiries/orders/delivery for Germany and many other countries. Inquiries/orders/delivery for countries that are not activated in the shop: Please go to our web-site www.meilhaus.com or send an E-Mail to sales@meilhaus.com an.
These General Terms and Conditions of Business are formulated according to German legal understanding; the terms used in them are taken from German understanding of language and law. If, in an individual case the English legal understanding of the following provisions should differ from the German legal understanding, the German legal understanding shall solely prevail.
All of our current and future deliveries and services are exclusively made/rendered on the basis of these General Terms of Delivery and Payment. Any terms and conditions of our customers diverging from our Terms of Delivery and Payment shall not be valid and are hereby expressly rejected.
We supply exclusively to entrepreneurs in terms of § 14 BGB.
The product details set forth in our catalogue or on our homepage, our price lists, our price and product information communicated to our customers orally, electronically or in writing do not constitute legally binding offers, but only a request made to our customers for submitting offers.
An order placed with us by a customer is a binding offer. A contract with the customer only comes about when we accept such offer by means of a written confirmation of the order. As a matter of principle, we only accept orders from a minimum order value of € 50.00 on.
We reserve the right to make any changes in design, choice of materials, specifications and model even after sending a confirmation of an order, provided such change is not in conflict with the confirmation of the order or with the customer's specifications. Beyond that, the customer will agree to any proposals for changes made on our part as far as they are reasonable for the customer. Improvements of the products shall be permissible as far as they are reasonable for the customer, taking our interests into account, too. The documents, such as illustrations, drawings dimensions and weights, that form the basis of the offer or confirmation of the order shall be generally regarded as approximate values, unless they are expressly designated as binding. Drawings and other offer documents continue to be owned by us; any exploitation rights under copyright are exclusively due to us.
We generally accept orders with the proviso that we receive delivery from our suppliers in time.
Any binding arrangement agreed upon with us, in particular also additions to or alterations of contracts or collateral agreements to contracts must be made in writing to become effective; in case of electronic transmission, it shall be sufficient to state the full name of the sender instead of a signature.
The price applicable to the conclusion of the contract shall be the net price stated in our confirmation of the order plus value-added tax at the rate in force on the day of consignment. The price is understood ex place of consignment Alling.
If the Customer asserts legal exemption from the German turnover tax, the Customer is obliged towards Meilhaus Electronic to comply with the obligations to produce proof imposed under German tax law and by the German fiscal authorities on Meilhaus Electronic for proving such exemption from turnover tax. In particular for intra-Community deliveries, the Customer is obliged to issue a “confirmation of arrival” in line with the specifications under German tax law. The risk of provability of the exemption from taxation is borne by the Customer; if respective proof cannot be produced towards the competent local fiscal authorities of Meilhaus Electronic for reasons that Meilhaus Electronic is not responsible for and/or the Customer fails to issue a “confirmation of arrival” in line with the legal requirements within a period of one month from the contractual delivery of the goods, the Customer shall in addition owe to Meilhaus Electronic payment of the German turnover tax at the legal rate.
The individual prices published on our price list are not binding.
If, due to fl uctuations in the exchange rate, our purchase price of the goods ordered should change by more than 3 % compared with the price in force on the day of the confirmation of the order, we shall be entitled to make a respective price adjustment. In such a case, the customer can cancel the order by written notice within a period of 8 days from the receipt of the written price adjustment.
If the period between conclusion of the contract and delivery is longer than 4 month and we are not responsible for the delay in delivery, we can reasonably increase the price, taking into account any costs of materials and labour and other ancillary costs incurred that are to be borne by the seller. If the purchase price increases by more than 10 %, the customer shall be entitled to rescind the contract.
Any unforeseeable changes in customs duties, import and export duties entitle us to make a respective price adjustment.
Except as may be otherwise agreed upon, the sale is always made ex our warehouse in Alling; this applies also when we undertake to deliver/consign the goods.
The time of delivery stated in our confirmations of orders only indicates the expected date of delivery and is expressly subject to the proviso that we receive delivery from our suppliers in time.
The risk passes to the customer at the moment the goods are handed over to the forwarding agent, carrier or other persons entrusted with the forwarding. The means of transport used shall be chosen by us.
The purchase price includes neither costs of freight and packaging nor costs of a special packaging that may be required. These costs are charged to the customer separately.
Insurance against damage in transit of any kind shall only be effected at the express request of the customer, charging the amounts disbursed to the customer.
We are entitled to make partial deliveries at any time; the customer cannot reject any partial deliveries or partial services.
In an event of force majeure (§ 275 BGB - Civil Code), we are entitled to defer the delivery for the period of the impediment plus a reasonable start-up period or, in case of a presumably lasting impediment, to withdraw from the contract completely or in part with regard to the part of the contract that has not been performed yet. In such a case, the customer can require us to state whether we will withdraw from the contract or deliver within a reasonable period of time. If we do not make a respective statement, the customer can withdraw from the contract.
Without prejudice to the legal rights of rescission, we shall be entitled to rescind the contract in particular if the customer has given incorrect information with regard to facts concerning its creditworthiness, if it suspends payments, if it has made a declaration in lieu of an oath or if there has been filed an application for the institution of insolvency proceedings against its assets.
Except as may be otherwise agreed upon, our invoices shall be due for payment immediately upon receipt of the goods. Irrespective of the above, we generally grant the customer a term of payment of 30 days without affecting the maturity of the claim. We reserve, however, the right to make deliveries only against immediate payment or by cash on delivery in individual cases, in particular in case of initial orders.
In case of a delay in payment, we charge default interest according to § 288 BGB (Civil Code) to the customer. This shall not affect an assertion of further damages. Also in case of a subsequent extension of terms of payment, interest shall be incurred until the date of payment, unless otherwise agreed in writing.
All of our claims shall become immediately due when the customer fails to observe any contractual arrangements, in particular those concerning payments, or when any facts reducing the customer's creditworthiness have come to our knowledge. In such a case, we shall be entitled to make/render any outstanding deliveries/services only against advance payment and shall be entitled to securities for our claims as usual according to type and scope, even if they are conditional or limited in time. Apart from that, we can, in such a case, prohibit a resale and a machining or processing of any goods delivered that are still subject to reservation of title (cf. section VII. below).
Any set-off or any exercise of rights of retention is only permissible with regard to claims of the customer against us that are undisputed or have become res judicata.
As a matter of principle, the customer only acquires ownership of the goods delivered upon complete payment of all claims resulting from this contract as well as from our business relationship, in particular also those from respective current balances of claims.
A machining or processing is always made for us as a manufacturing within the meaning of § 950 BGB (Civil Code), without obliging us. Machined or processed goods are regarded as reserved goods within the meaning of section 1.) above. In case of a processing, combination or mixing of the reserved goods by the customer with goods of a different origin into a new item or mixed goods, we shall be entitled to co-ownership of it, namely in the ratio of the invoice value of the reserved goods to the total value of the new item or mixed goods. The co-ownership share is regarded as reserved goods within the meaning of section 1.) above.
If the reserved goods are connected or mixed with other items and if the item owned by the customer is to be regarded as principal item within the meaning of § 947 Subsec. 2 BGB (Civil Code), the customer already now assigns its co-ownership share to us, namely in the ratio of the invoice value of our reserved goods to the total value of the new principal item. The co-ownership share assigned is regarded as reserved goods within the meaning of section 1.) above.
The customer is obliged to keep the reserved goods for us, exercising the due care of a prudent businessman. At our request, we must be granted access to the reserved goods at any time for the purpose of stocktaking and appropriate marking of the reserved goods. In case of an attachment or any other encroachment on our rights, the customer must immediately inform us, stating all details required for enabling us to take all measures legally available to us against such encroachment on our rights.
The customer is only entitled to sell the reserved goods in the ordinary course of business on its normal conditions, agreeing a reservation of title, subject to the condition that its claims from such resale pass to us according to the items below. The customer is not entitled to any other disposal of the reserved goods.
Already now, the customer's claims from a resale of the reserved goods, also within the scope of contracts for work or contracts for work and materials, are assigned to us together with all ancillary rights. We accept such assignment. They shall serve as a security for us to the same extent as the reserved goods.
If the reserved goods are sold by the customer together with other goods not purchased from us, the assignment of the claims from resale shall only apply to the amount of the invoice value of our reserved goods, but with priority. In a sale of goods in which we hold co-ownership rights according to items 2.) and 3.) above, the assignment of the claims shall be applicable to the amount of the co-ownership share.
The customer shall be entitled to collect claims from the resale according to items 6.) and 7.) above until this right is revoked by us, which revocation shall be permissible any time. At our request, the customer must give us the names of the debtors of the assigned claims so that we can disclose the assignment and collect the assigned claims ourselves.
If the value of existing securities altogether exceeds the claims by more than 20 %, we shall be obliged to release securities at our choice to such an extent at the customer's request.
For a period of 1 year from the delivery of the goods, we warrant that they are free from defects. Any defects caused by wear and tear as well as any defects in the goods caused by improper use, mounting, etc. of the goods are not covered by the above warranty.
Any public statements, promotion or advertising made by the manufacturer do not form a contractual description of quality with regard to the goods delivered by us.
We do not make any guarantees within the meaning of § 443 BGB (Civil Code), unless expressly otherwise agreed in writing.
Immediately upon receipt, the customer must check the goods delivered and give notice of any obvious defects, differences in quantity or wrong delivery without any delay; in addition, § 377 HGB - Commercial Code shall apply.
In case of a justified notice of defect, we will remedy the defect (subsequent performance) at our choice by either rectifying the defect or delivering a replacement. In case of a failure of subsequent performance, the customer can generally demand, at its choice, a reduction of the purchase price or a rescission of the contract. In case of an only minor lack of conformity with the contract, in particular in case of only minor defects, the customer does not have a right of rescission.
All items complained about as defective shall be sent to us, freight paid. Any consignments sent unpaid will be rejected. In case of a justified notice of defect, we will reimburse the customer for the freight costs.
As far as we are legally or contractually liable for damages, we shall only be liable for grossly negligent or intentional fault on part of our legal representative, our staff members and/or our vicarious agents, unless it is a case of breach of an essential contractual duty the fulfilment of which is a condition sine qua non for the performance of the contract. Such claims for damages, however, are limited in any case to compensation for the foreseeable direct damage that is typical of the contract.
In case we are legally liable for damages from injury to life, body or health as well as for claims of the customer under product liability law, item 1.) above shall not be applicable.
Claims for damages of the customer shall become statute-barred after 1 year from the receipt of the goods. This shall not be applicable if we can be blamed for fraudulent intent.
Products and technical know-how delivered by us are generally intended to remain in the Federal Republic of Germany. In case of export/re-export, the customer shall be obliged to inform himself/herself about any permissions that may be required under foreign-trade regulations of the Federal Republic of Germany/EU and/or the manufacturing country and to obtain such permissions. If the export/re-export is impermissible or not practicable, that shall not affect the contract concluded between us and the customer, unless expressly otherwise provided in writing.
We are not obliged to issue supplier's statements according to applicable EU law. As far as any such statements are made by us at the customer's request in individual cases, that shall not be connected with a warranty liability.
The software (also) delivered by us, including user manual, is protected by law (under copyright law, patent law, trademark law, etc.). As far as we deliver software of a third-party manufacturer, there apply the respective terms and conditions of licence and use of the latter; unless expressly otherwise agreed in an individual case, we only arrange the right of use between manufacturer and Customer on the basis of the manufacturer's specifications in such cases.
Before concluding the contract, the person ordering must check on his/her own responsibility whether the software meets his/her wishes and needs; such check is possible without acquiring a licence.
As far as we do not only arrange rights of use in the software (cf. above under 1.)), the Customer is entitled to use the software permanently for its contractual purposes. Our software, including subsequent new versions, as well as parts thereof and the related documentation may only be used on one central unit. On principle, any alteration, revision and duplication is prohibited; the software may only be duplicated to the extent required for its contractual use, in particular for backup purposes. The Customer shall protect the software against access by a third party. Any persons who, by order of the Customer, exercise the Customer's right of use are not regarded as third parties. In case the Customer sells the software to a third party, the Customer must not use the software himself/herself anymore and is obliged to destroy any copies of the software remaining in his/her possession.
Upon delivery of the software, the licence to use according to the above provisions is regarded as having been granted and the respective agreed licence fee becomes due for payment. Upon receipt of the delivery, these software conditions are regarded as accepted.
A supply of source programmes is subject to a special written agreement.
According to the current state of the art, software is never complete free of errors in its structure. In case of material defects, an instruction for a workaround for avoiding the consequences of the defect is regarded as sufficient rectification.
We do not warrant that the program functions meet the requirements of the customer or interoperate in the selection made by him/her.
As far as we deliver software of third-party manufactures, we assign our warranty claims against such third party to the customer in case there should occur any defects in the software. In connection with such defects, the costumer can only assert any claim against us after having unsuccessfully asserted such claims against the third party before court.
The client is responsible to ensure by making appropriate backup copies of the data that no loss of data occurs in connection with the use of the software. Any liability for the replacement or loss of data shall be excluded.
As far as claims are asserted against our customer based on an infringement of industrial property rights or copyrights and such infringement is attributable to us, we will defend the customer at our own expense against all claims of third parties and indemnify the customer against all payment obligations connected with the alleged infringement that have become final or agreed upon with our consent by way of settlement. This, however, is subject to the condition that the customer informs us immediately in writing about all claims asserted against him/her as well as the subsequent proceedings, authorizes us to independently conduct and conclude the legal dispute and gives appropriate support in that connection.
- in case the above measures are not possible for us on reasonable economic conditions, take the product back and credit to the customer the value reduced according to the principles of depreciation.
The customer shall not be entitled to any claims other than those mentioned above in case of an infringement of protective rights.
The place of jurisdiction, also for actions in proceedings based on/relating to documentary evidence, bills and cheques, shall be the registered seat of our company. However, we are also entitled to sue the customer at its competent place of jurisdiction.
This agreement is subject to the laws of the Federal Republic of Germany, excluding the provisions of the UN Sales Convention.
If any individual provisions of the contract with the customer, including these General Terms and Conditions of Business, should be or become ineffective in part or as a whole, this shall not affect the validity of the remaining provisions and of the contract as a whole. The partially or completely invalid provision shall be replaced by a provision the economic result of which comes as close as possible to that of the invalid provision.


vehicle were co-defendant Coffer and co-defendant Butler. Mr. Logan observed the Defendant walking away from the PT Cruiser. The Defendant approached Mr. Logan while he sat in his car and asked “for a change for a ten.” Mr. Logan responded that he did not have any change, and “about ten seconds later” his car door opened and the Defendant got into the back seat.
Mr. Logan testified that he recognized the Defendant and knew him by name. After the Defendant entered the back seat of the car, he took out a gun, hit Mr. Logan in the head with the gun, and ordered him to “drop it off.” Mr. Logan interpreted this statement as an instruction that Mr. Logan give the Defendant his money. Mr. Logan gave the Defendant “some” of his money because he was “scared” and believed that the Defendant was going to kill him. After Mr. Logan handed over the money, the Defendant told Mr. Logan to “crank [the] car up” and drive. Mr. Logan did so, believing that the Defendant was “going to try to take [him] somewhere and do something to [him].” As Mr. Logan drove, he observed the silver PT Cruiser following him. He identified co-defendant Coffer as the driver of the PT Cruiser and co-defendant Butler as the passenger.
Mr. Logan testified that about a month after the shootings, after his “trach” was removed, he identified the Defendant and the co-defendants in photographic line-ups. Mr. Logan identified co-defendant Coffer as the driver of the PT Cruiser, co-defendant Butler as one of the robbers, and the Defendant as the other robber and shooter.
enrollment at Messick Vo-Tech. As to the robbery, Mr. Logan testified that he had approximately $280.00 in his “left pocket” that he gave to the Defendant in response to his demand to “drop it off.” Mr. Logan denied having any marijuana on his person; however, he agreed that he had been smoking a “blunt” in the car and placed what remained of it in the car ashtray. Mr. Logan’s testimony reflected some uncertainty about his interaction with the police during his hospitalization, but he testified that he provided a police officer with a note that identified co-defendant Coffer as one of the suspects.
Margie Shields testified that on January 30, 2016, she was at her apartment located across the driveway from the Decatur Apartments. That afternoon, while standing on her balcony, Ms. Shields saw someone washing Mr. Logan’s red Cadillac in the parking lot of the Decatur Apartments. Later, she saw Mr. Logan sitting in the red Cadillac and “Kilo,”whom she later identified as the Defendant, walk up to the red Cadillac and speak with Mr. Logan. Ms. Shields then went downstairs and talked with her neighbor. As they talked, she heard a vehicle driving out of the apartment driveway fast and “skidding.” She saw that it was the red Cadillac driven by Mr. Logan. She said it was unlike Mr. Logan to drive fast through the parking lot due to the numerous potholes. Mr. Logan turned right out of the complex onto Decatur Street and soon after, Ms. Shields heard a “big bang.” Ms. Shields and her neighbor walked “up the street” toward the sound and foundthe red Cadillac crashed into a house.
On cross-examination, Ms. Shields testified that she saw only Mr. Logan in the red Cadillac when he drove quickly out of the apartment complex parking lot. Ms. Shields agreed that in her statement to the police she wrote that she observed the Defendant get into Mr. Logan’s car. She stated that it had “been awhile” since the incident and that, during her testimony, she did not remember the Defendant getting in the car. In her police statement, she referred to the Defendant as the “suspect.” She said that she did so because, while she was holding Mr. Logan’s hand after the car crash, he identified the Defendant as the shooter. Ms. Shields denied seeing co-defendant Butler rob Mr. Logan after the car crash.
Ms. Shields testified that she saw “AI” pull Mr. Logan from the car and lay him on the driveway. As she walked closer she could tell that Mr. Logan “was hurting,” so she held Mr. Logan’s hand until his brother arrived. Ms. Shields left the scene once the paramedics began attending to Mr. Logan, but she later went to the police station and provided a statement. While at the police station, the police showed Ms. Shields a photographic line-up, and she identified the Defendant’s picture in the line-up as the man she saw speaking to Mr. Loganin the parking lot.
on her way to the store. As she walked she heard “one little shot or something.” She looked “back” and did not see anything, so she continued walking. Seconds later, she heard more noise. She looked “back again” and saw that a Cadillac had driven through a fence and then watched as the Cadillac ran into a house. As Ms. Douglas watched, she sawsomeone wearing a black hoodie “jump[ ] out the car” and run toward the back of the house. At the time, she assumed that it was an unlicensed driver trying to flee from the scene of the crash. Ms. Douglas called 911 to report the accident. A recording of the phone call was played for the jury. On the recording Ms. Douglas reported to the 911 operator that a car crashed into a house. She stated that she observed a man jump out of the back seat and run toward the back of the house. She said that the vehicle was a red Cadillac and that someone had pulled out the other individual that had beeninthe car and laid him on the ground.
Kevin Jackson, a Memphis Police Department (“MPD”) officer, testified that he responded to the car crash on Decatur Street. When he arrived, he observed a red Cadillac that had driven through a fence and hit a house. He approached the car and found Mr. Logan, with a gunshot wound, lying outside of the car on the driveway. Officer Jackson began securing the crime scene by taping off the area and identifying potential witnesses. MPD Officer Christopher Slaughter photographed the crime scene and collected evidence. Among the evidence collected from the items found on Mr. Logan at Regional Medical Center was a small clear plastic baggie containing 6.4 grams of marijuana. MPD Officer Michael Coburn found a .40 caliber spent shell casing under the right front passenger seatof Mr. Logan’s red Cadillac. V.B.,1 who was sixteen at the time of the shooting and car crash, testified that she was at her house on North Decatur Street when Mr. Logan’s car crashed into her greatgrandmother’s house on Decatur Street. V.B. was asleep at the time and woke up when the car hit the house. Initially V.B. was unsure of what had occurred, but when she heard screaming, she went outside and saw the red Cadillac had crashed into her greatgrandmother’s house. V.B. estimated that it took the police approximately fifteen to twenty minutes to arrive at the crash site.
Darrell Cherry, an MPD officer, testified that he attempted to speak with Mr. Logan at the hospital the day after the shooting, January 31, 2016; however, the Defendant was unable to talk due to his injuries and the insertion of a trachea tube. Officer Cherry attempted to speak with Mr. Logan again on February 9, 2016, but he was informed that Mr. Logan was on a ventilator and unconscious. On February 15, 2016, Mr. Logan was conscious but still unable to speak. In response to Officer Cherry’s question about how many suspects were involved, Mr. Logan held up three fingers. 1 It is the policy of this court to refer to minors by their initials.
Based upon information gathered at the crime scene, Officer Cherry knew that Mr. Logan had identified the Defendant as a shooter. Mr. Logan also identified co-defendant Coffer as “Mente.” Based upon this nickname, Officer Cherry developed co-defendant Coffer as the second suspect and prepared a photographic line-up containing a picture of codefendant Coffer. Mr. Logan identified co-defendant Coffer in the photographic lineup as a participant in the robbery.
Officer Cherry testified that he developed co-defendant Butler as the third suspect on March 1, 2016, and showed a photographic line-up containing a picture of codefendant Butler to Mr. Logan. Mr. Logan identified co-defendant Butler as a participant in the robbery. Finally, on March 11, 2016, Officer Cherry showed Mr. Logan a photographic line-up containing the Defendant’s picture. The photographic line-up is contained in the record and reflects that Mr. Logan identified the Defendant. On crossexamination, Officer Cherry denied ever receiving a handwritten note from Mr. Logan implicating co-defendant Coffer in the crime.
James Bradley, a Memphis Fire Department (“MFD”) paramedic firefighter, testified that he was dispatched to a car crash on Decatur Street. When he arrived, he found Mr. Logan lying on the ground outside the vehicle. Mr. Bradley located a single gunshot wound in the back of Mr. Logan’s left shoulder by his scapula. He noted one entry wound with no exit wound. The paramedics then rolled Mr. Logan onto a spine board. Mr. Logan was moved to the ambulance where paramedics conducted a more thorough trauma assessment. During this assessment, Mr. Bradley found a small laceration on the back of Mr. Logan’s head and a minor abrasion on one of his legs. Mr. Bradley checked Mr. Logan’s legs for “a pulse motor sensory function.” Mr. Logan reported no feeling from his chest down to his toes. Paramedics transported Mr. Logan to “Med Trauma” where a trauma team was waiting for Mr. Logan.
After hearing this evidence, the jury convicted the Defendant of especially aggravated robbery, and the trial court sentenced the Defendant to serve twenty years in the Tennessee Department of Correction. It is from this judgment that the Defendant appeals.
On appeal, the Defendant asserts that the evidence is insufficient to sustain his conviction because the conviction is “based upon the uncorroborated testimony of the named victim, Ronald Logan.” He further asserts that Mr. Logan was not a credible witness. The State responds that the evidence is sufficient to support the conviction. We agree with the State.
When an accused challenges the sufficiency of the evidence, this Court’s standard of review is whether, after considering the evidence in the light most favorable to the State, “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); seeTenn. R. App. P. 13(e); State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State v. Reid, 91 S.W.3d 247, 276 (Tenn. 2002)). This standard applies to findings of guilt based upon direct evidence, circumstantial evidence, or a combination of both direct and circumstantial evidence. State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999) (citing State v. Dykes, 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990)). In the absence of direct evidence, a criminal offense may be established exclusively by circumstantial evidence. Duchac v. State, 505 S.W.2d 237, 241 (Tenn. 1973). “The jury decides the weight to be given to circumstantial evidence, and ‘[t]he inferences to be drawn from such evidence, and the extent to which the circumstances are consistent with guilt and inconsistent with innocence, are questions primarily for the jury.’” State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (quoting Marable v. State, 313 S.W.2d 451, 457 (Tenn. 1958)). “The standard of review [for sufficiency of the evidence] ‘is the same whether the conviction is based upon direct or circumstantial evidence.’” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)).
instrumentality of justice to determine the weight and credibility to be given to the testimony of witnesses. In the trial forum alone is there human atmosphere and the totality of the evidence cannot be reproduced with a written record in this Court.
Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d 523, 527 (Tenn. 1963)). This Court must afford the State of Tennessee the “‘strongest legitimate view of the evidence’” contained in the record, as well as “‘all reasonable and legitimate inferences’” that may be drawn from the evidence. Goodwin, 143 S.W.3d at 775 (quoting State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). Because a verdict of guilt against a defendant removes the presumption of innocence and raises a presumption of guilt, the convicted criminal defendant bears the burden of showing that the evidence was legally insufficient to sustain a guilty verdict. State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000) (citations omitted). Especially aggravated robbery “is the intentional or knowing theft of property from the person of another by violence or putting the person in fear. . . . (1) Accomplished with a deadly weapon; and (2) Where the victim suffers serious bodily injury.” T.C.A. § 39-13-401, -403(a)(1)-(2) (2014). “‘Serious bodily injury’ means bodily injury which involves: (A) A substantial risk of death; (B) Protracted unconsciousness; (C) Extreme physical pain; (D) Protracted or obvious disfigurement; or (E) Protracted loss or substantial impairment of a function of a bodily member, organ or mental faculty.” T.C.A. 39-11-106(a)(34) (2014). “‘Deadly weapon’ means [a] firearm or anything manifestly designed, made or adapted for the purpose of inflicting death or serious bodily injury.” T.C.A. § 39-11-106(a)(5).
The evidence, viewed in the light most favorable to the State, showed that the Defendant approached Mr. Logan’s car under the guise of getting change for a ten dollar bill. He then entered the back seat of the car from the passenger door, hit Mr. Logan in the head with a gun, and demanded Mr. Logan’s money. In fear for his life, Mr. Logan complied. The Defendant then ordered Mr. Logan to drive. Mr. Logan drove out of the Decatur Apartment parking lot at a high rate of speed, turned onto Decatur Street, and the Defendant shot Mr. Logan from behind in the shoulder. Mr. Logan lost control of the vehicle, drove through a fence, and crashed into a house. The Defendant exited the vehicle and fled toward the back of the house. Mr. Logan, bleeding from the gunshot wound, was pulled from the vehicle and laid on the ground while waiting for medical assistance. At the scene, Mr. Logan exhibited signs of paralysis to the lower half of his body. He was transported to the hospital where he remained for three months and underwent four surgeries. Despite these surgeries, doctors were unable to remove the bullet lodged in Mr. Logan’s body. At the time of trial, Mr. Logan was paralyzed from the waist down, could no longer work, and required medical assistance on a daily basis.
Based upon this evidence, we conclude that a rational jury could find, beyond a reasonable doubt, that the Defendant, while brandishing a gun, stole money from Mr. Logan and then shot him, causing Mr. Logan serious bodily injury, namely the loss of the use of his legs.
As to the Defendant’s assertions that Mr. Logan was not credible and his testimony was “full of contradictions and out right falsehoods,” we reiterate that this court does not “reweigh or reevaluate the evidence” and all “[q]uestions concerning the credibility of witnesses, the weight and value to be given the evidence, as well as all factual issues raised by the evidence are resolved by the trier of fact.” Bland, 958 S.W.2d at 659 (Tenn. 1997). The jury heard the inconsistencies the Defendant now complains of and, by its verdict, accredited the testimony of the victim. Moreover, we note that the Defendant’s testimony at trial was corroborated by Ms. Shields and Ms. Douglas. Nonetheless, this Court does not second-guess the weight, value, or credibility afforded to the evidence by the jury. Accordingly, we conclude that the State presented sufficient evidence to support the Defendant’s conviction. The Defendant is not entitled to relief.
Outcome: In accordance with the aforementioned reasoning and authorities, we affirm the judgment of the trial court.


text:
Thank you for your interest in our online shop. The protection of your privacy is very important to us. In the following we inform you in detail about the handling of your personal data.
You can visit our websites without giving any personal information. Each time a website is accessed, the web server automatically saves a so-called server log file containing for example the name of the requested file, your IP address, date and time of the retrieval, the amount of data transferred and the requesting provider (access data); each retrieval is documented.
These access data are evaluated solely for ensuring a trouble-free operation of the site and the improvement of our offer. In accordance with Art. 6 para. 1 sentence 1 (f) GDPR this serves to protect our legitimate interests, which predominate within the context of a weighing up of interests, for the correct presentation of our offer. All access data will be deleted not later than seven days after the end of your page visit.
Within the framework of a processing on our behalf, a third party provides the services for hosting and displaying the website. This serves to protect our legitimate interests, which predominate in the context of a weighing up of interests, in a correct presentation of our offer. All data collected as part of the use of this website or in designated forms in the online shop, as described below, will be processed on its servers. Processing on other servers only takes place within the exemplified context. This service provider is located within Germany.
We collect personal information if you voluntarily provide it to us as part of your order, when contacting us (for example, by contact form or e-mail) or when opening a customer account. Required fields are marked as such, since in these cases we need the data for contract execution, or to process your inquiry, or opening the customer account and without this information you cannot complete the order, or opening the account, or cannot send a message. Which data are collected, can be seen from the respective input forms. We use the provided data in accordance with Art. 6 para. 1 sentence 1 (b) GDPR for contract handling and the process of any inquiries you may have. After completion of the contract or deletion of your customer account, your data will be restricted for further processing and deleted after expiry of the tax and commercial retention periods, unless you have explicitly consented to a further use of your data or we reserve the legally permitted right for future data use, about which we inform you in this statement. The deletion of your customer account is possible at any time and can be done either by a message to the contact option described below or via a designated function in the customer account.
If you subscribe to our newsletter, we will use the data required or separately provided by you to regularly send you our e-mail newsletter based on your consent in accordance with Art. 6 para. 1 sentence 1 (a) GDPR. A deregistration from the newsletter is possible at any time and can be done either by a message to the contact option described below or via a dedicated link in the newsletter. After unsubscribing we delete your e-mail address, as far as you have not explicitly consented to a further use of your data or we reserve the legally permitted right for additional data use, about which we inform you in this statement. The newsletter is sent as part of a processing on our behalf by a service provider, to which we pass on your e-mail address. This service provider is located within a country of the European Union or the European Economic Area.
In order to provide the Trusted Shops buyer protection, only after a successfully carried out order the Trusted Shops Trustbadge is integrated on this website This serves the protection of our legitimate interests, which predominate in the context of a weighing up of interests, in the optimal marketing of our offer according to Art. 6 para. 1 sentence 1 (f) GDPR. The Trustbadge and the services advertised are an offer of Trusted Shops GmbH, Subbelrather Str. 15C, 50823 Cologne. Accessing the Trustbadge, the web server automatically saves a so-called server log file containing for example your IP address, date and time of the retrieval, the amount of data transferred and the requesting provider (access data); each retrieval is documented . These access data will not be evaluated and are automatically overwritten not later than seven days after the end of your page visit. Other personal data will only be transferred to Trusted Shops as far as you have consented to this, decide for the use of Trusted Shops products after the completion of an order or have already registered for use. In this case, the contractual agreement between you and Trusted Shops applies.
In order to make the visit to our website attractive and to enable the use of certain functions, to display suitable products or for market research, we use so-called cookies on various pages. This serves to protect our legitimate interests, which predominate within the context of a weighing up of interests, in order to optimize the presentation of our offer in accordance with Art. 6 para. 1 sentence 1 (f) GDPR. Cookies are small text files that are automatically stored on your device. Some of the cookies we use (so-called session cookies) are deleted after the end of the browser session, ie after closing your browser. Other cookies remain on your device and allow us to recognize your browser on your next visit (persistent cookies). The duration of the storage can be found in the overview in the cookie settings of your web browser. You can exclude the acceptance of cookies in your browser for certain cases or in general. For an explanation of the cookie settings (in German), see for example Cookies | Verbraucher sicher online. In case of non-acceptance of cookies, the use of the shopping cart and the ordering process will not be possible.
For website analysis, the web analytics software Matomo (https://matomo.org), a service of the provider InnoCraft Ltd., is used by this website to collect and store data when the site is used, from which user profiles are created using pseudonyms. This serves to safeguard our legitimate interests, which predominate in the context of a weighing up of interests, in order to optimize the presentation of our offer in accordance with Art. 6 (1) sentence 1 (f) GDPR. Cookies can be used. The pseudonymised user profiles will not be merged with personal data about the bearer of the pseudonym without explicit consent. After expediency and the end of the use of Matomo by us, the data collected in this context will be deleted.
All data processed as part of the web page analysis described above will be processed on our servers. You may object to the collection and storage of data at any time with future effect by following the instructions below.
As person concerned, you have the following rights: according to Art. 15 GDPR, the right to demand information on the personal data processed by us in the scope specified therein; according to Art. 16 GDPR the right to demand the correction of incorrect or the completion of personal data stored with us without delay; according to Art. 17 GDPR the right to demand the deletion of your personal data stored by us, unless further processing to exercise the right to freedom of expression and information; to fulfill a legal obligation; for reasons of public interest or to assert, exercise or defend legal claims is required; according to Art. 18 GDPR the right to demand the restriction of the processing of your personal data, as far as the accuracy of the data is disputed by you; the processing is unlawful, but you reject its deletion; we no longer need the data, but you need it for asserting, exercising or defending legal claims or you filed an objection against the processing in accordance with Art. 21 GDPR; according to Art. 20 GDPR the right to receive your personal data, which you have provided us, in a structured, common and machine-readable format or to request the transfer to another person responsible; according to Art. 77 GDPR the right to complain to a supervisory authority. Generally, you can contact the supervisory authority of your usual place of residence or work or of our company headquarters. For questions about the collection, processing or use of your personal data, information, correction, blocking or deletion of data and revocation of granted consent or objection to a particular use of data, please contact us directly via the contact details in our imprint.
Insofar as we process personal data as explained above in order to safeguard our legitimate interests, which predominate in the context of a weighing up of interests, you can object to this processing with effect for the future. If the processing is for the purpose of direct marketing, you can exercise this right at any time as described above. Insofar as the processing takes place for other purposes, you are only entitled to a right of objection if there are reasons that arise from your particular situation. After exercising your right to object, we will not further process your personal data for these purposes, unless we can demonstrate compelling legitimate grounds for processing that outweigh your interests, rights and freedoms, or if the processing serves the assertion, exercise or defense of legal claims. This does not apply if the processing is for direct marketing purposes. In that case we will not process your personal data for this purpose.

matches:
Art. 6
Art. 6
Art. 6
Art. 6
Art. 6
Art. 6
Art. 15
Art. 16
Art. 17
Art. 18
Art. 21
Art. 20
Art. 77