§ 106-1 Registration of contractors and subcontractors.
§ 106-4 Registration fees, renewals and change of address.
§ 106-5 Revocation of registration or license.
§ 106-7 Registration after revocation.
§ 106-8 Power to make rules and regulations.
§ 106-9 Enforcement; violations and penalties.
Uniform Construction Codes — See Ch. 102.
Property maintenance — See Ch. 177.
Except for entities required to register pursuant to the New Home Warranty and Builders' Registration Act, every person and entity engaged in the business of constructing, erecting, altering, renovating, repairing, restoring, reroofing, re-siding, moving or demolishing the whole or any part of buildings or structures, or providing carpentry, masonry, HVAC or other work typically provided by subcontractors (other than plumbers and electricians) therefor, or engaged in the construction or installation of swimming pools or engaged in the business of erecting or altering signs, for any of which a building permit is required, shall be required to register the name of such and obtain a license therefor as provided herein.
Editor's Note: See N.J.S.A. 46:3B-1 et seq.
The owner or occupant of a building or structure applying for a building permit required herein shall not be required to register, provided that he does his own work and executes a sworn statement to this effect on forms supplied by the Construction Official.
Scope and meaning of certain words and terms. Unless the context clearly indicates the contrary, words used in the present tense include the future; the singular includes the plural, and the plural includes the singular. The word "shall" is mandatory, and the word "may" is permissive.
Any roofed structure built for the support, shelter or enclosure of persons, animals, chattels or property of any kind.
Any person who is in any capacity other than as the employee of another with wages as the sole compensation, who undertakes or offers to undertake or purports to have the capacity to undertake or accepts an order or contract whether on a fixed sum cost plus or percentage or fixed fee, or any combination thereof, or submits a bid to construct, alter, repair, add to, subtract from, demolish, reroof, re-side or in any way improve any building, structure, property, project or improvement, or to do any part thereof, including the erection of scaffolding or other structures or works in connection therewith.
Any individual, firm, association, partnership or corporation.
The contractor's name, business name and whether the contractor is an individual, partnership, corporation or any other entity and, if any other entity, a full explanation and description thereof.
In the case of a firm or corporation, the name and address of the principal office, the name and address of the registered agent, the names and addresses of all officers, directors, managerial employees and stockholders owning, of record or beneficially, 5% or more of the outstanding stock of any class of the corporation.
In the case of a partnership, the names and addresses of all partners, whether general, special or limited.
The number of years the applicant has been in business at its present business address or at any prior location, including the addresses of such prior location, and all corporate names under which the applicant has operated and all corporate officers and major interest holders.
The name and address of the insurance company providing the applicant with public liability insurance in a minimum amount of $500,000, the policy number, expiration date and the amount of coverage.
The name and address of the applicant's workers' compensation insurance carrier, policy number and expiration date of said policy.
The identity of any other municipality in which the applicant is licensed.
The identity of any municipality which requires licensing in which the applicant's license has been revoked for any reason. If there has been a revocation of said license, indicate the municipality and the reason for revocation.
Upon receipt of such application, the Construction Official shall submit the same to the Police Department for the purpose of obtaining a copy of any police record which the applicant or any partner, officer or stockholder thereof may have. In this regard, the applicant shall execute a waiver in order to permit such an investigation to take place. This report shall be submitted to the Construction Official.
Prior violations of statutes, ordinances or regulations relevant to the construction, erection, alteration, repair, restoration, reroofing, re-siding, removing or demolition of any building, structure, swimming pool, sign, billboard or part thereof, or any property improvement which have not been timely corrected.
A determination of previous fraudulent acts or conduct.
A history of adjudicated breaches of contracts.
The failure to carry and maintain public liability and workers' compensation insurance coverage.
If said application for registration and license is denied, the applicant shall be advised in writing of the reasons for denial. The applicant may appeal to the Municipal Council within 20 days the Construction Official's determination. A copy of the notice of appeal shall be served upon the Township Clerk, Township Administrator and the Construction Official. The Council shall entertain the appeal within 30 days of the receipt of the notice of appeal unless any other date is required because of the inability of the Council to meet within said period or because of the mutual consent of the parties. If the Council cannot meet within said thirty-day period, the appeal shall be heard no later than the next regularly scheduled meeting after said thirty-day period. At said appeal, the applicant may be represented by counsel but, in any event, will be required to give testimony under oath. The applicant or his representative may cross-examine any witness and may call witnesses on his behalf.
Upon filing such application, the applicant shall pay to the Construction Official a fee of $50 for such registration and license or for registration after revocation of a registration previously issued to such applicant and in accordance with the provisions of § 106-7 below.
The term of such registration shall be based upon a fiscal year beginning January 1 and expiring December 31 each and every year.
Registration fee as shown in Subsection A of this section shall not be prorated for a term of less than one year.
A license shall automatically be renewed by the Construction Official upon payment by the applicant to the Construction Official of an annual renewal fee of $25. Upon failure to renew any license within 14 days after expiration, any subsequent license shall be considered a new and original license.
All registered contractors shall notify the licensing officer of any change in the names, addresses, places of business and telephone numbers listed on the application.
A file of all registered contractors shall be kept in the office of the Construction Official which shall include the contractors' respective names, addresses and telephone numbers.
The contractor shall notify the Construction Official of any change in the name, address and telephone number of the insurance carrier and change in the policy limits for the public liability and owner's compensation coverage and shall confirm the renewal, each year, of these coverages by submitting a certificate of insurance for each policy to the Construction Official to be kept on file.
If any person, firm or corporation registered under the provisions of this chapter shall fail in the execution of this chapter to comply with any work for which a permit is required, including this chapter, other applicable ordinances and regulations of the Township of Mullica relevant to the construction, erection, alteration, repair, restoration, re-siding, reroofing, moving or demolition of any building, structure, swimming pool, sign or billboard or part thereof, or any property improvement, the Construction Official shall cause a notice of violation to be served upon such person or the principal member or officer of any such firm or corporation in accordance with the established procedures as set forth in the Uniform Construction Code of the State of New Jersey. Upon conviction for such violation or upon failure to correct such violation within the period of time stated in the notice of violation, the registration and license of such person, firm or corporation shall be revoked by the Construction Official who shall strike the name of such person, firm or corporation from the registration list and shall not reenter or reinstate such registration or license during such time as said violation exists or remains.
Upon the renewal of the issuance of a registration and license to a contractor, under the terms of this chapter, said registration and license shall undergo review by the Construction Official, and if the contractor has been the recipient of an excessive number of notices of violation and/or stop notices, said license shall be revoked for a period of six months.
Appeals from any decision made by the Construction Official and the revocation or execution of other duties pursuant to the provisions of this chapter shall be made to the Township Council of the Township of Mullica. Any appeals from convictions in the Municipal Court of the Township of Mullica shall be made as provided for by the laws of the State of New Jersey and the rules governing the courts of the State of New Jersey.
Any person, firm or corporation whose registration has been revoked under the provisions of § 106-5 of this chapter may register and have his or her name reentered upon the registration list upon the filing with the Township Council, or its designated representative, a certification by the Construction Official to the effect that all violations with reference to which conviction was secured have been corrected or are nonexistent and upon payment of the fee described in § 106-4.
The Township Council may, by resolution, make rules and regulations which interpret or amplify any provision of this chapter or for the purpose of administering the provisions of this chapter or making them more effective. No regulation shall be inconsistent with or alter or amend any provisions of this chapter, and no regulation shall impose any requirement which is in addition to or greater than the requirements that are expressly, or by implication, imposed by any provision of this chapter.
The Construction Official of the Township of Mullica is hereby designated as the Enforcement Officer of all licenses issued under this chapter. It shall be the duty of the Enforcement Officer to enforce this chapter.
Any person or persons or corporation who shall violate any of the provisions of this chapter shall upon conviction be punishable by a fine not to exceed $500 for each offense or violation or by imprisonment not to exceed 90 days as shall be imposed by the Municipal Judge empowered to hear and determine such violations. Each day that a violation continues shall constitute a separate offense.


Appellate review shall be initiated by the filing of a notice of disagreement in the form prescribed by the Secretary. Each appellant will be accorded hearing and representation rights pursuant to the provisions of this chapter and regulations of the Secretary.
Except in the case of simultaneously contested claims, a notice of disagreement shall be filed within one year from the date of the mailing of notice of the decision of the agency of original jurisdiction pursuant to section 5104, 5104B, or 5108 of this title.
A notice of disagreement postmarked before the expiration of the one-year period shall be accepted as timely filed.
A question as to timeliness or adequacy of the notice of disagreement shall be decided by the Board.
Notices of disagreement shall be in writing, shall identify the specific determination with which the claimant disagrees, and may be filed by the claimant, the claimant’s legal guardian, or such accredited representative, attorney, or authorized agent as may be selected by the claimant or legal guardian.
Not more than one recognized organization, attorney, or agent may be recognized at any one time in the prosecution of a claim.
Notices of disagreement shall be filed with the Board.
a review by the Board without a hearing or the submittal of additional evidence.
The Secretary shall develop a policy to permit a claimant to modify the information identified in the notice of disagreement after the notice of disagreement has been filed under this section pursuant to such requirements as the Secretary may prescribe.
as may otherwise be provided in such regulations as are consistent with this title.
The Board may dismiss any appeal which fails to identify the specific determination with which the claimant disagrees.
Amendment of section by section 2(q)(1) of Pub. L. 115–55 applicable to all claims for which the Secretary of Veterans Affairs provides notice of a decision under section 5104 of this title on or after the later of 540 days after Aug. 23, 2017, or 30 days after the date on which the Secretary submits to Congress a certification of certain capabilities of the Department of Veterans Affairs to carry out the new appeals system established by Pub. L. 115–55 and to address appeals of decisions on legacy claims, with provision for early applicability of the new appeals system to certain claims. See 2017 Amendment notes below.
2017—Pub. L. 115–55, § 2(q)(1)(F), struck out “notice of disagreement and” before “appeal” in section catchline.
“(1) Except in the case of simultaneously contested claims, notice of disagreement shall be filed within one year from the date of mailing of notice of the result of initial review or determination. Such notice, and appeals, must be in writing and be filed with the activity which entered the determination with which disagreement is expressed (hereinafter referred to as the “agency of original jurisdiction”). A notice of disagreement postmarked before the expiration of the one-year period will be accepted as timely filed.
Subsec. (d). Pub. L. 115–55, § 2(q)(1)(D), added subsec. (d) and struck out former subsec. (d) which related to development and review actions, statement of the case, and dismissal of appeal.
“(1) If, either at the time or after the agency of original jurisdiction receives a substantive appeal, the claimant or the claimant’s representative, if any, submits evidence to either the agency of original jurisdiction or the Board of Veterans’ Appeals for consideration in connection with the issue or issues with which disagreement has been expressed, such evidence shall be subject to initial review by the Board unless the claimant or the claimant’s representative, as the case may be, requests in writing that the agency of original jurisdiction initially review such evidence.
2012—Subsec. (e). Pub. L. 112–154 added subsec. (e).
2001—Subsec. (b)(1). Pub. L. 107–14 substituted “hereinafter” for “hereafter”.
1991—Pub. L. 102–40, § 402(b)(1), renumbered section 4005 of this title as this section.
Subsec. (a). Pub. L. 102–83 substituted “Secretary” for “Administrator”.
Subsec. (d)(2). Pub. L. 102–40, § 402(d)(1), substituted “5701” for “3301”.
Subsec. (d)(5). Pub. L. 100–687, § 203(b), struck out “will base its decision on the entire record and” after “of Veterans’ Appeals”.
1986—Subsec. (b)(2). Pub. L. 99–576, § 701(85), substituted “the claimant’s” for “his” and “the claimant or legal guardian” for “him”.
Subsec. (d)(1), (3). Pub. L. 99–576, § 701(85)(A), substituted “the claimant’s” for “his”.
Amendment by Pub. L. 100–687 effective Jan. 1, 1989, see section 401(d) of Pub. L. 100–687 set out as an Effective Date note under section 7251 of this title.


text:
hengest, es; m. A gelding, horse, steed :-- Hengst canterius, Ælfc. Gl. 20; Som. 59, 46; Wrt. Voc. 23, 8. Án hundred wildra horsa and xvi tame hencgestas a hundred wild horses and sixteen tame steeds, Chart. Th. 548, 11. [Laym. hængest: O. Frs. hengst: Icel. hestr a stallion, horse: O. H. Ger. hengist eunuchus, spado, cantarius, equus castratus: Ger. hengst a stallion.] DER. brim-, faroþ-, fæt-, fríd-, mere-, sæ-acute;-, sund-, wæ-acute;g-hengest.
Hengest, es; m. Hengest, Rd. 1, 15; S. 483, 28: Chr. 449; Erl.13, 1-21: 455; Erl. 13, 22-25: 457; Erl. 12, 17-20: 465; Erl. 12, 21: 473; Erl. 12, 25: 488; Erl. 14, 3-4.
heng-wíte, es; n. A fine to be paid for not keeping a criminal in custody so that he may be brought before the proper tribunal :-- Si quis latronem vel furem, sine clamore et insecutione ejus, cui dampnum factum est, ceperit, et captum ultra duxerit dabit x solid. de henwite [hengwite, French text], L. Will. 1. 4; Th. i. 469, 27.
henna, an; m. A fowl :-- Gif swýn oððe henna ete of mannes líchaman si porcus vel gallina de corpore hominis ederit, L. Ecg. P. iv. 57; Th. ii. 220, 13. v. hæn.
hentan; p. te To pursue, follow after, seize[?] :-- Gif hé man tó deáþe gefylle beó he ðonne útlah and his hente mid hearme æ-acute;lc ðara ðe riht wille if he fell a man to death, let him then be an outlaw, and let every one that desires right pursue him with hue and cry[?], L. E. G. 6; Th. i. 170, 10: L. C. S. 49; Th. i. 404, 11. Nime ðonne leáfe ðæt hé móte hentan æfter his ágenan let him then take leave to follow after his own, 19; Th. i. 386, 17. [Chauc. Piers P. hente to seize, take, get: Prompt. Parv. hentin rapere.] v. ge-hentan.
hénþ, hénþu. v. hýnþ, hýnþu.
heóf, es; m. Lamentation, grief, sorrow :-- Maximus mid micelum heófe gedréfed him tó com Maximus troubled with great grief came to him, Homl. Th. i. 414, 17. Sæ-acute;de ðæt hie hæfden bet gewyrht ðæt him mon mid heáfe [heófe MS. C.] ongeán cóme ðonne mid triumphan Fabius oblatum sibi a senatu triumphum suscipere recusaret, quia luctus potius debebatur, Ors. 2, 4; Swt. 70, 20. Heóf mínne planctum meum, Ps. Spl. 29, 13 [heáf, Ps. Th. 29, 11].
heófan; p. de To lament, grieve, wail, mourn :-- Hungre heófeþ laments for hunger, Exon. 91 b; Th. 342, 30: Gn. Ex. 150. Heófaþ mid handum [Ps. Th. wépaþ and heówaþ] plaudite manibus, Ps. Spl. T. 46, 1: 97, 8. Wé heófdon and gé ne weópon lamentavimus et non plorastis, Lk. Skt. 7, 32. Gif hé mid inweardre heortan heófe if he heartily grieve, L. Pen. 8; Th. ii. 280, 10. Heófende spræc lamenting he spoke, Andr. Kmbl. 3113; An. 1559. Álegdon ðá tó middes mæ-acute;rne þeóden hæleþ hiófende hláford leófne warriors lamenting laid down in their midst the great prince, the lord beloved, Beo. Th. 6275; B. 3142. [Goth. hiufan; p. hauf, v. Lk. 7, 32: O. Sax. heo&b-bar;andi, hio&b-bar;andi, part. pres: O. H. Ger. hiufit luget; hiufanti luctuosus.] v. heófian, heáfan.
heófe-líce; adj. Lamentable, grievous; funebris, Som.
heófian; p. ode To lament, mourn, wail, bewail :-- Ic heófige lugeo, Ælfc. Gr. 26; Som. 28, 63. Gé heófiaþ and wépaþ plorabitis et flebitis vos, Jn. Skt. 16, 20. Hieremias heófode miclum ðæs folces synna swá swá his bóc ús segþ Jeremiah lamented greatly the people's sins, as his book tells us, Swt. A. S. Rdr. 70, 440. Ðá weópon hig ealle and heófodon hí flebant autem omnes et plangebant illam, Lk. Skt. 8, 52. Hí heófodon folces synna they bewailed people's sins, Homl. Th. i. 540, 30. Wá eów ðe nú hlihgaþ gé sceolon heófian and wépan woe to you that laugh now, ye shall mourn and weep, 180, 15. Ðá ongann Ypolitus sárlíce heófian then Hippolytus began sorely to lament, 428, 12: 408, 9: L. E. I. prm; Th. ii. 398, 36. Heófigende lugens, Ps. Spl. 34, 17. Heófiende flebilis, Bt. 2; Fox 4, 8. Of heófigendre menigu from a mourning multitude, Homl. Th. i. 86, 33. Mid heófigendum stemnum with lamenting voices, ii. 420, 16. v. heófan.
HEOFON, heofen, heofun, hefon, heben, hiofon, es; m. HEAVEN; cælum :-- Heofon and heofuna heofun and eorþe and ealle ða þing ðe sind on him sind Drihtnes the heaven and the heaven of heavens is the Lord's, the earth with all that therein is, Deut. 10, 14. Heofen and eorþe síde sæ-acute;flódas cæli et terra, mare, Ps. Th. 68, 35. Heofon and hel heaven and hell, Exon. 31 a; Th. 97, 17; Cri. 1592. Heben til hrófe heaven for a roof, Swt. A. S. Rdr. 195, 13. Heofonas god the god of heaven, Hy. 3, 58; Hy. Grn. ii. 282, 58: Andr. Kmbl. 3000; An. 1503. Hiofones leóhtes beorhto the brightness of the light of heaven, Bt. Met. Fox 21, 77; Met. 21, 39. Of hefene from heaven, Beo. Th. 3146; B. 1571. Mid his worde synt getrymede heofonas verbo Domini cæli firmati sunt, Ps. Th. 32, 5. Ðá wæ-acute;ron fullfremode heofenas and eorþe the heavens and the earth were finished, Gen. 2, 1. Heofona ríce regnum cælorum, Mt. Kmbl. 13, 24. Of heofonum ðe of mannum e cælo an ex hominibus, 21, 25. Gif ic on heofenas up ástíge si ascendero in cælum, Ps. Th. 138, 6. [O. Sax. he&b-bar;an and himil: Icel. hifinn and himinn: Goth. himins: O. Frs. himul, himel: O. H. Ger. himil cælum, lacunar: Ger. himmel.] v. Grmm. D. M. 661.
heofon, heófon[?] :-- Hergas on helle heofon ðider becom druron deófolgyld, Cd. 145; Th. 180, 17; Exod. 47. Grein translates heofon lamentation and druron mourned; but may not hergas be from hearg q.v. and parallel to deófolgyld, and the passage be translated the idols and false gods fell to hell and heaven came there?
heofon-beácen, es; n. A heavenly beacon or sign [the fiery pillar], Cd. 148; Th. 184, 15; Exod. 107.
heofon-beohrt; adj. Heaven-bright, bright with the light of heaven, Cd. 190; Th. 237, 21; Dan. 341: Exon. 23 a: Th. 63, 13; Cri. 1019.
heofon-býme, an; f. A heavenly trumpet, Exon. 21 b; Th. 59, 8; Cri. 949.
heofon-candel, -condel, e; f. A heavenly candle or light [the sun], Andr. Kmbl. 486; An. 243: [the fiery pillar] Cd. 148; Th. 184, 31; Exod. 115: [sun and moon] Exon. 16 b; Th. 38, 17; Cri. 608: [the stars] 93 a; Th. 349, 30; Sch. 54.
heofon-col, es; n. The coal of the heavens :-- Brúne hátum heofoncolum brown with the sun's heat [the Ethiopians], Cd. 146; Th. 182, 5; Exod. 71.
heofon-déma, an; m. A heavenly judge, Cd. 228; Th. 306, 4; Sat. 658.
heofon-dreám, es; m. Heavenly joy, joy of heaven, Ps. Th. 113, 11: Soul Kmbl. 206; Seel. 104: Exon. 54 a; Th. 190, 27; Az. 79.
heofon-duguþ, e; f. A heavenly host, Exon. 32 a; Th. 101, 7; Cri. 1655.
heofone, an; f. Heaven :-- Heofone næs ná æ-acute;r æ-acute;rðan ðe se ælmihtiga wyrhta hí geworhte on anginne heaven was not before the almighty workman wrought it in the beginning, Hexam. i; Norm. 4. Heofenan ríce the kingdom of heaven, Homl. Th. i. 68, 2: 58, 4. God gesette hig on ðære heofenan ðæt hie scinon ofer eorþan God set them in the firmament of heaven to give light upon the earth, Gen. 1, 17, 14. On anginne gesceóp God heofenan and eorþan in the beginning God created the heaven and the earth, 1, 1.
heofon-engel, es; m. An angel of heaven, Exon. 15 a; Th. 31, 8; Cri. 492: 21 b; Th. 57, 34; Cri. 928: 75 a; Th. 281, 7; Jul. 642: Hy. 7, 13; Hy. Grn. ii. 287, 13.
heofon-feld, es; m. A Northumbrian local name :-- Is seó stów on Englisc nemned Heofenfeld wæs heó geára swá nemned for tácnunge ðæra tóweardra wundra forðon ðe ðæ-acute;r ðæt heofonlíce sigebeácen áræ-acute;red beón sceolde and ðæ-acute;r heofonlíc sige ðam cyninge seald wæs vocatur locus ille lingua Anglorum Hefenfelth, quod dici potest Latine cælestis campus, quod certo utique præsagio futurorum antiquitus nomen accepit significans nimirum quod ibidem cæleste erigendum trophæum, cælestis inchoanda victoria, Bd. 3, 2; S. 524. 33. Seó stów is geháten Heofonfeld on Englisc wið ðone langan weall ðe ða Rómániscan worhton the place is called in English Heavenfield, by the long wall that the Romans made, Swt. A. S. Rdr. 96, 33.

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 Rau, Der-Hwa V. & Joseph E. Grimes. 1994. Transitivity and discourse grounding in Atayal. 7th ICAL, Leiden University, The Netherlands.
 Chu, Judy ( 朱我沄 ) & Der-Hwa V. Rau. 1993. A pragmatic study of newspaper headlines on political news, 22th NWAV Conference, University of Ottawa, 10/14-17.
 Rau, Der-Hwa V. 1991. The role of grammar in teaching Indonesian based on the notion of communicative competence, 6ICAL, University of Hawaii, Honolulu.

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206 Whyte v. Mayor, etc., of Nashville, 2 Swan (Tenn.) 364.
207 Summers v. Babb, 13 111. 483. Cf. Matlock v. Lee, 9 Ind. 298; Stockwell v. Sargent, 37 Vt. 16.
208 See Talbot v. Hill, 68 III. 106. Any doubt as to this was removed by the statute of Merton (20 Hen. III c. 2), which has been generally recognized or re-enacted in this country. 2 Scrib. Dower (2d Ed.) 779; 1 Stim. Am, St. Law, § 3233.
210 Parker v. Parker, 17 Pick. (Mass.) 236. 211 White v. Cutler, 17 Pick. (Mass.) 248.
212 Childs v. Smith, 1 Md. Ch. 483. But cf. Cook v. Cook, 11 Gray (Mass.) 123; Noyes v. Stone (Mass.) 40 N. E. 856.
214 See post, p. 111.
60. The right to dower may be defeated by: (a; Alienage of husband or wife, in some states (p. 103).
(b) Elopement and living in adultery by the wife, in most states (p. 103).
(c) Annulment of marriage (p. 104).
(d) Divorce, in many states (p. 104).
(e) Loss of husband's seisin (p. 104).
(1) Before marriage (p. 105).
(2) After marriage, in some states (p. 105).
215 2 Scrib. Dower (2d Ed.) 783.
216 Graham v. Dunigan, 2 Bosw. (N. T.) 516; Bidwell v. Greenshleld, 2 Abb. N. C. (N. Y.) 427; Durkee v. Felton, 44 Wis. 4G7; Linden v. Graham, 34 Barb. (N. Y.) 316. So of assessments for street improvements. Whyte v. Mayor, etc., of Nashville, 2 Swan (Tenn.) 364.
217 Maddocks v. Jellison, 11 Me. 482; Bent v. Weeks, 44 Me. 45; Cannon v. Hare, 1 Tenn. Ch. 22.
218 2 Scrib. Dower (2d Ed.) 781.
219 2 Scrib. Dower (2d Ed.) 785.
(i) Widow's election to take a testamentary or statutory-provision in lieu of dower (p. 109).
(k) Statute of limitations, in many states (p. 111).
(1) Laches in equity (p. 111).
(m) Waste after assignment which causes a forfeiture in several states (p. 111).
220 2 Bl. Comm. 131; Co. Litt. 31b; Calvin's Case, 7 Coke, 25a; Wight-man v. Laborde, Speer (S. C.) 525.
221 1 Stim. Am. St.. Law, §§ 102, 6013; 1 Scrib. Dower (2d Ed.) 156; 1 Washb. Real Prop. (5th Ed.) 80, note; 1 Shars. & B. Lead. Cas. Real Prop. 303, 515. In Michigan and Wisconsin, by statute, lands conveyed by a nonresident owner are not subject to dower. Ligare v. Semple, 32 Mich. 438. Cf. Bear v. Stahl 61 Mich. 203, 28 N. W. 60; Bennett v. Harms, 51 Wis. 251, 8 N. W. 222.
223 13 Edw. I. c 34.
224 1 Stim. Am. St Law, § 3246 A (1 ); 2 Scrib. Dower (2d Ed.) 535; 1 Shars. & B. Lead. Cas. Real Prop. 384.
225 Adultery without elopement does not bar. Cogswell v. Tibbetts, 3 N. H. 41; Reel v. Elder, 62 Pa. St 308; Ondis v. Bates, 7 Kulp (Pa.) 309. If there has been a separation for any cause whatever, a subsequent adultery will be a bar. Woodward v. Dowse, 10 C. B. (N. S.) 722; Hethrington v. Graham, 6 Bing. 135. Cf. Goss v. Froman, 89 Ky. 318, 12 S. W. 387; Watters v. Jordan, 13 Ired. (N. C.) 361. But if the husband drives the wife away, or deserts her, dower is not lost by adultery committed afterwards. Heslop v. Heslop, 82 Pa. St 537; Rawlins v. Buttel, 1 Houst (Del) 224. And see Reynolds v. Reynolds, 24 Wend. (N. Y.) 193.
Annulment of Marriage and Divorce.
226 See 2 Scrib. Dower (2d Ed.) 539. 227 l Stim. Am. St Law, § 3246 B.
228 2 Scrib. Dower (2d Ed.) 541.
230 1 Stim. Am. St Law, §§ 3246 C, 6251.


text:
KATHLEEN G. PFEIFFER & another vs. JOSE S. S. SALAS.
TORT. Writ in the Superior Court dated December 28, 1965.
The action was tried before Dimond, J.
Benjamin Goldman for the plaintiffs.
Joseph L. Tauro for the defendant.
QUIRICO, J. This is an action of tort against a surgeon (defendant) for alleged malpractice in which Kathleen G. Pfeiffer (plaintiff) [Note 1] seeks to recover for personal injuries sustained by her, and Ralph Pfeiffer, Jr., her father, seeks to recover for hospital and medical bills incurred by him. The case was tried to a jury which returned verdicts for the defendant on the claims of both plaintiffs. The case is before us on various exceptions taken by the plaintiffs to rulings by the judge during the presentation of evidence and to instructions which he gave to the jury. We summarize the evidence to the limited extent necessary for the purposes of this decision.
On December 31, 1963, the plaintiff fractured her left leg in an accident. She was taken to the Leonard Morse Hospital in Natick where the defendant, who was an orthopedic surgeon, took charge of her, operated on her leg, placed an eighteen inch long stainless steel Hansen-Street rod in the left femur and applied a cast to the leg. The cast was removed on March 4, 1964. On that date hospital personnel taught her how to use crutches and gave her rehabilitation exercises or therapy, and she left the hospital. She continued to use crutches until the end of the school year that summer.
includes the entries: "Organisms found, Hemolytic staphylococcus aureus. Resistant to penicillin."
The plaintiff was an inpatient at the same hospital from August 17 to August 26, 1964. During that period the defendant performed surgery on her left hip where it was draining, treated the infection, and applied three sutures. The hospital record includes the following: "A generous degree of elliptical incision was made removing the brownish indurated fibrofatty tissue component of the left hip wound. The drainage site was noted to involve the peri-trochanteric region of the greater trochanter from which the metallic cap of the femoral Hansen-Street rod was protruding. . . . Three silk stay sutures were utilized to diminish the dead space area." The surgery involved in the original insertion of the Hansen-Street rod had left a six inch scar on the plaintiff's hip. The surgery of August, 1964, for the infection, left a cavity at that point which is noticeable when the plaintiff sits down, and it left a cavity scar about six inches long and one and one-half inches wide.
In October, 1964, the plaintiff's left hip again started to redden and drain a reddish-yellow thick liquid in the area of the incision of August, 1964. She was again admitted to the Leonard Morse Hospital on October 27, and was discharged on October 30. The hospital record shows: "Preoperative Diagnosis: Metallic foreign body bursitis of the left hip due to fracture immobilization of femur with femoral rod. Post-operative Diagnosis: same. Operation: Removal of femoral rod. Date of operation: 10/28/64." This operation involved another incision along the existing scar, and it was again sutured. An X-ray taken on October 30 showed that there was solid healing of the plaintiff's left femur across the old fracture site. The plaintiff went to the defendant's office on November 4 and November 9, 1964, for removal of sutures.
her left femur at the old site of fracture. On November 10, the plaintiff was transferred to the Peter Bent Brigham Hospital and was there treated by a doctor other than the defendant until her discharge on March 9, 1965. She was then confined to bed at home for a period and started to walk with crutches in April, 1965.
There was conflicting evidence on the question whether the defendant advised the plaintiff to use crutches at various times during the period that she was under his care. We do not summarize that evidence because it is not a factor in our decision of this case.
inches you will get more irritation and will definitely get a bursitis which will become inflamed, redden, and eventually burst as in this case. Near the end of his testimony the defendant said: "Looking at another x-ray, [Note 2] the rod is sticking up out of the saddle of the trochanter. You can see the edge of the bone with the saddle. In the x-ray the rod hides a portion of the saddle. The top part of the rod is called the cap. It should not stick up a couple of inches. I do not believe that it sticks up more than a couple of inches."
occurred in the presence of the jury. This same dispute over whether the plaintiff had so testified came to the surface again when counsel for the plaintiff so argued to the jury, and the judge stopped him and told the jury that the plaintiff had not so testified.
The plaintiff's mother who is a registered nurse testified that on August 8, 1964, she had a conversation with the defendant about the infection in her daughter's hip, and that he said: "that the infection, the irritation was caused by the rod in her bone -- it was about two or three inches too long for the femur, and it rubbed every time she walked, and broke down the tissue, and subsequently the infection entered where the tissue broke down." The mother had given a deposition more than a year before she testified at the trial. Some questions and answers were read from that deposition relating to her conversation with the defendant. In those answers she had not attributed to the defendant the statement that the rod was too long. Some of the questions read from the deposition were limited in scope, and for that reason there may be doubt whether the answers given then were inconsistent with those given at the trial. It is not necessary to resolve that for the purposes of this decision.
With that summary of the evidence as a background, we shall now consider separately a number of the exceptions taken by the plaintiffs to the judge's instructions to the jury.
judge when the plaintiff was on the stand and when counsel for the plaintiff was making his final argument to the jury. The judge's statement also entirely overlooked the testimony of the defendant that good medical practice required that the rod not extend more than one and one-half inches above the saddle of the trochanter, and that it was not good medical practice to have it stick up two to three inches. When some of this additional evidence was called to the judge's attention he gave the jury the following additional instruction: "Finally, one thing I do want to make clear: to the extent there are open issues in the case -- I have indicated what the open issues are -- that your recollection of the testimony is conclusive, and if there is any variation between your recollection and anything I may have said which indicates my recollection, then it is your memory that controls."
A judge presiding over a trial by jury is not permitted to charge the jury with respect to matters of fact, but he "may state the testimony and the law." G. L. c. 231, Section 81. He is not required to state the testimony, but he may do so in his discretion. "If a statement of the testimony is made by the judge, it should be fair and impartial." Sawyer v. Worcester Consol. St. Ry. 231 Mass. 215, 218. While much must be left to the discretion of the presiding judge in this regard, the manner in which it is exercised is subject to review and reversal in those infrequent cases in which it is apparent that it has resulted in the denial of a fair trial to a litigant. We think in this case, as we did in Jaglenaski v. Andersen Coal Mining Co. 214 Mass. 573, 578, that "it is to be presumed that the judge supposed he was rightly quoting the testimony, but it is clear that he was not," that in this respect his charge to the jury was misleading and prejudicial to the plaintiff, and that "the statement to the jury, in another part of the charge, that the jury are to act upon their understanding of the testimony and not upon that of the judge" did not cure the difficulty in this case.
admissions from which, in combination with the other evidence in the case, the jury could have found all of the necessary elements of legal liability for damages in some amount. Leary v. Keith, 256 Mass. 157, 158-159. Tully v. Mandell, 269. Mass. 307, 309. Zimmerman v. Litvich, 297 Mass. 91, 93-94. Woronka v. Sewall, 320 Mass. 362, 365-367. Manzoni v. Hamlin, 348 Mass. 770. The judge was therefore required to submit to the jury for decision the question whether the defendant made the alleged admissions and, if he did, what weight should be given to them.
Immediately after stating to the jury that the only testimony he recalled on the length of the pin was that of the plaintiff's mother, which we have discussed above, the judge instructed the jury as follows: "Now, if you should believe that testimony, you still have to then make the determination what it means. Did that mean, or is that to be regarded -- and this is for you to determine -- is that to be regarded as an admission of fault or negligence, or is it to be regarded as something else? I don't want to attempt to enumerate and discuss other possible interpretations, if there are any. I merely instruct you, but it is for you to determine, that the statement does not, as a matter of law, constitute an admission of fault" (emphasis supplied). How does that instruction finally leave the matter with the jury? Does it tell them that they are not required, as a matter of law, to find that the defendant's statement was an admission? Or does it tell them that, as a matter of law, they cannot find that it was an admission? In our view it sounds more like the latter, and as such it would be erroneous.
of varying degrees of education and experience, drawn at random from the community and from all walks of life, but who are not trained in the field of law. The language used in instructing the jury must be appropriately chosen to be helpful to such a group. Mahoney v. Boston Elev. Ry. 271 Mass. 274, 278-280. Bell v. Dorchester Theatre Co. 308 Mass. 118, 123-124. Cahalane v. Poust, 333 Mass. 689. Baglio v. New York Cent. R.R. 344 Mass. 14, 18-20. Commonwealth v. Freeman, 352 Mass. 556, 562-564.
The plaintiffs were entitled to have the judge instruct the jury that if they found that the defendant made the statements attributed to him by the plaintiff and her mother, they were then permitted, though not required, to find further that such statements constituted admissions. The language used by the judge was not sufficiently clear to amount to such an instruction, and sounded more like an instruction to the contrary. The prejudice resulting therefrom to the plaintiffs entitles them to a new trial.
3. The plaintiffs have argued exceptions to several other parts of the judge's instructions to the jury. [Note 3] Beyond noting that the instructions are of questionable accuracy, it is unnecessary to consider them further for the reason that they may not be a factor in the retrial of this case.
[Note 1] The plaintiff was born on August 9, 1947, and thus was a minor when this action was commenced by a writ dated December 28, 1965, describing the plaintiff as "a minor who brings this action by her father and next friend, Ralph Pfeiffer, Jr."
[Note 2] Exhibit 16 included about thirty-eight negatives of X-rays taken of the plaintiff's left leg during her several confinements to the Leonard Morse Hospital. The record does not identify the particular X-ray about which the defendant was speaking in his quoted testimony. At least one of these negatives (identified as "KP") and a positive print made therefrom indicate by measurement that the upper end of the pin and the cap thereon extend from two to two and three-eighths inches above the saddle of the trochanter.
[Note 3] These several instructions which seem to invade the province of the jury as the finders of facts are the following: "I further instruct you that there is no legally sufficient evidence in this case to justify you in concluding that the scars that Kathy has today were due to any negligence on the part of Dr. Salas. . . . Now, let's assume you might conclude that the pin was too long, and that this length was the result of negligence on the part of Dr. Salas: what consequences may you legally give to that? I instruct you that the only legal consequence that you can attach to that is the cleaning-out operation that took place in the Summer or August of 1964. I instruct you that there is no legally sufficient evidence that would justify you in concluding that the pin, if too long, was causally connected to the removal of the pin in October, late October of 1964."

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


Document: Original Complaint in Swedenburg v. Kelly, 2/3/00.
Original Complaint in Swedenburg v. Kelly.
Re: challenge to New York statute affecting Internet alcohol sales.
Court: U.S. District Court, Southern District of N.Y., Case No. _____.
Date filed: February 3, 2000.
Source: Institute for Justice. This page was created by Tech Law Journal by converting a PDF version of the complaint into HTML.
1. This is a civil rights action seeking declaratory and injunctive relief to vindicate economic liberty, consumer freedom, and freedom of speech. Two of the five plaintiffs are small wineries operating outside the State of New York that are prohibited under state law from selling or shipping wines directly to New York residents, or from advertising their products within the State of New York. The other three plaintiffs are New York consumers who would like to purchase wines from the plaintiff producers but are prevented from doing so by New York law. The statutory regime that separates willing producers from willing purchasers is discriminatory and is intended and has the effect of protecting certain economic interests from [begin page 2] competition from out-of-state enterprises. It therefore violates the fundamental rights of American citizens to free commerce, privileges and immunities, and freedom of speech.
2. This case is brought pursuant to 42 U.S.C. §§ 1983 and 1988, and 28 U.S.C. § 2201. Subject matter jurisdiction is based on 28 U.S.C. §§ 1331 and 1343(a)(3) and (4).
3. Venue is appropriate pursuant to 28 U.S.C. § 1391(b).
4. Plaintiff Juanita Swedenburg is a citizen of the United States, a resident of the Commonwealth of Virginia, and proprietor of Swedenburg Winery, a Virginia partnership. Swedenburg Winery has been in business since 1987.
5. Plaintiff David Lucas is a citizen of the United States, a resident of the State of California, and proprietor of The Lucas Winery, a California sole proprietorship. The Lucas Winery has been in business since 1978.
6. Plaintiff Patrick Fitzgerald is a citizen of the United States and resides in Elmira, New York.
7. Plaintiff Cortes DeRussy is a citizen of the United States and a resident of Bronxville, New York.
8. Plaintiff Robin Brooks is a citizen of the United States and a resident of New York, New York.
10. At all times alleged herein, defendants and their agents have acted under color of state law.
11. N.Y. Alco. Bev. Cont. Law § 102(1)(c) provides, inter alia, that "No alcoholic beverages shall be shipped into the state unless the same shall be consigned to a person duly licensed hereunder to traffic in alcoholic beverages. This prohibition shall apply to all shipments of alcoholic beverages into New York state and includes importation or distribution for commercial purposes, for personal use, or otherwise, and irrespective of whether such alcoholic beverages were purchased within or without the state. . . ." The provision makes an exception for certain alcoholic purchases for personal use made outside the United States and shipped by the purchaser to him or herself.
12. N.Y. Alco. Bev. Cont. Law § 102(1)(d) provides, inter alia, that "No common carrier or other person shall bring or carry into the state any alcoholic beverages, unless the same shall be consigned to a person duly licensed hereunder to traffic in alcoholic beverages. . . ." 13. N.Y. Alco. Bev. Cont. Law § 102(1)(a) states that "No person shall send or cause to be sent into the state any letter, postcard, circular, newspaper, pamphlet, order kit, order [begin page 4] form, invitation to order, price list, or publication of any kind containing an advertisement or a solicitation of any order for any alcoholic beverages, irrespective of whether the purchase is made or to be made within or without the state, or whether intended for commercial or personal use or otherwise, unless such person shall be duly licensed hereunder to traffic in alcoholic beverages.
14. N.Y. Alco. Bev. Cont. Law § 102(3-b) forbids retail licensees from purchasing or receiving alcoholic beverages except from duly licensed persons.
15. N.Y. Alco. Bev. Cont. Law § 130(1) provides that the illegal sale of alcohol is a misdemeanor punishable by prescribed fine or imprisonment.
16. N.Y. Alco. Bev. Cont. Law § 130(3) provides that other violations of the Alcoholic Beverage Control Law constitute a misdemeanor.
17. Licensed wineries in New York State are not subject to the restrictions of N.Y. Alco. Bev. Cont. Law §§ 102(a)-(c) (collectively, the "Direct Shipment and Advertising Ban").
18. Plaintiff wineries, although licensed to produce and sell wine in their own states, are not eligible for licensure in the State of New York. They are therefore subject to the Direct Shipment and Advertising Ban.
19. The Direct Shipment and Advertising Ban, combined with N.Y. Alco. Bev. Cont. Law § 102(3-b), create a monopoly by which licensed wholesalers have the exclusive authority under state law to import or distribute wines from out-of-state wineries for purchase by New York residents.
20. Plaintiff wineries each produce a small amount of wine each year. Few wineries of such small size are represented by wine wholesalers by reason of economies of scale. Like most small wineries, plaintiff wineries sell the vast majority of their wine to customers who visit their wineries from around the country, and by direct shipment to their customers in their own states and around the country. Absent direct sale and shipment of wines to consumers, the plaintiff wineries would cease to operate as viable business enterprises.
21. The plaintiff wineries are not represented by wholesalers in New York. The operation of the Direct Shipment and Advertising Ban therefore has the effect of preventing plaintiff wineries of the opportunity to sell wines in the State of New York.
22. The State of New York has enforced the Direct Shipment and Advertising Ban through sting operations, fines, and other means.
23. The winery plaintiffs all have New York customers who would like to order their products. The winery plaintiffs would sell and ship products to New York customers but do not do so because of the Direct Shipment and Advertising Ban.
24. Licensed New York wineries may sell their wines directly to New York customers; they may offer tastings to the public; they may ship wine directly to New York customers; and they may ship wine to customers from other licensed New York wineries.
25. The winery plaintiffs would like to send brochures, wine lists, order forms, or other advertisements to New York customers but do not do so because of the Direct Shipment and Advertising Ban.
26. Plaintiff David Lucas maintains a nationwide mailing list of customers, including New York customers. He also maintains an internet Website where he posts information about his winery and his wines. Through this mailing list, the Internet, and other means, plaintiff Lucas has advertised and otherwise provided information about his wines to residents of New York. He cannot lawfully send advertisements to New York customers because of the Direct Shipment and Advertising Ban.
27. Plaintiff Juanita Swedenburg includes a brochure, wine list, order form or other advertisement for her wines in packages of wine that she ships to customers. She has past and possible future customers in New York and would like to send those customers her brochure, wine lists, order form, or other advertisement, but she cannot because of the Direct Shipment and Advertising Ban.
28. Licensed New York wineries may send brochures, wine lists, order forms, and other advertisements directly to New York customers.
29. The consumer plaintiffs are wine enthusiasts who desire to purchase wine directly from out-of-state wineries and/or through Internet retailers. One or more of them have purchased wine via the Internet or direct mail.
30. Because the Direct Shipment and Advertising Ban prohibits common carriers from delivering wine shipments directly to consumers from non-licensed producers or retailers, New York residents including the consumer plaintiffs cannot visit out-of-state wineries, including plaintiff wineries, and ship the wines back to themselves.
31. In January 2000, the consumer plaintiffs each ordered wines from the one or more of the plaintiff wineries, supplying a copy of their drivers’ licenses to demonstrate that they [begin page 7] are legal adults, providing credit card information, and requesting direct delivery of the wines. Although the plaintiff wineries were prepared to sell the wine to the consumer plaintiffs, in each instance the orders were denied on the sole ground that the sale and shipment would violate the Direct Shipment and Advertising Ban. The orders and responses are attached as Exhibit A to this Complaint.
32. The allegations contained in paragraphs 1-31 are incorporated by reference as if fully set forth herein.
33. The interstate commerce clause, U.S. Const. art. 1, sec. 8, cl. 3, creates open national markets and prohibits discriminatory trade legislation among the states.
34. The Direct Shipment and Advertising Ban discriminates on its face against out-of-state wineries, and in favor of New York wineries, by prohibiting direct sales and shipments of wines to New York consumers from out-of-state wineries and by permitting such direct sales and shipments to New York consumers by licensed in-state wineries.
35. Defendants have no adequate justification for maintaining such discrimination.
36. A principal purpose of the Direct Shipment and Advertising Ban is economic protectionism, primarily or exclusively for the benefit of wholesalers. That purpose is not a valid justification for discriminatory trade barriers under the interstate commerce clause.
37. The discriminatory Direct Shipment and Advertising Ban prevents the plaintiff wineries from selling and shipping wines directly to New York consumers, including the consumer plaintiffs; and prevents the consumer plaintiffs from obtaining desired wines from out-of-state producers, including plaintiff wineries.
38. Accordingly, the Direct Shipment and Advertising Ban violates the rights of all the plaintiffs to freedom of commerce as guaranteed by the interstate commerce clause.
39. The allegations contained in paragraphs 1-38 are incorporated by reference as if fully set forth herein.
40. The privileges and immunities clause embodied in U.S. Const. art. 4, sec. 2, cl. 1 states, "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several states."
41. The freedom to pursue a livelihood is a fundamental right protected by the privileges and immunities guarantee.
42. The Direct Shipment and Advertising Ban prevents plaintiffs Swedenburg and Lucas from directly selling and shipping wines to New York consumers. Absent the prohibition, the winery plaintiffs would sell and ship wines to New York consumers.
43. Because nearly all the winery plaintiffs’ sales are directly to consumers, the Direct Shipment and Advertising Ban significantly impairs plaintiffs’ ability to pursue their chosen and legitimate livelihood.
44. The opportunities available to plaintiffs Swedenburg and Lucas to sell and ship wine directly to New York consumers are severely disadvantageous relative to the opportunities available to similarly situated New York wineries, by virtue of the Direct Shipment and Advertising Ban.
45. No adequate justification exists to deny plaintiffs Swedenburg and Lucas the opportunities to directly ship and sell wine to New York consumers that are available to New York wineries.
46. Accordingly, the Direct Shipment and Advertising Ban violates the economic liberty of plaintiffs Swedenburg and Lucas under the privileges and immunities guarantee.
47. The allegations contained in paragraphs 1-46 are incorporated by reference as if fully set forth herein.
48. The First Amendment to the United States Constitution, applied to the states through the 14th Amendment, prohibits the states from making any law abridging freedom of speech.
49. The Direct Shipment and Advertising Ban, on its face, prohibits in the most sweeping terms truthful information and advertising about wine, including but not limited to commercial speech.
50. The Direct Shipment and Advertising Ban subjects to misdemeanor liability any person who advertises out-of-state wines in any manner whatsoever, including over the Internet. By its terms, the Direct Shipment and Advertising Ban even forbids speech inviting [begin page 10] New York residents to visit out-of-state wineries where they may lawfully taste and purchase the products.
51. Plaintiff Lucas has advertised and otherwise provided information about their wines to residents of New York through mailings, the Internet, and other means. Plaintiffs Lucas and Swedenburg desire to and would advertise and otherwise provide information about their wines to residents of New York through mailings, the Internet, and other means.
52. Consumer plaintiffs Fitzgerald, DeRussy, and Brooks have secured information, and desire to secure further information, including ordering information, about wines from out-of-state wineries and over the Internet.
53. The Direct Shipment and Advertising Ban exerts a chilling effect on protected speech, and on its face forbids certain protected speech. No adequate justification exists for this censorship of speech.
54. Accordingly, the Direct Shipment and Advertising Ban violates the right of the winery plaintiffs to produce, and of the consumer plaintiffs to receive, protected speech in violation of the First Amendment.
D. Order such further relief as to the Court seems just and proper.


In a case that should cause lenders heartburn, the United States District Court for the Western District of North Carolina recently ruled that common provisions in a Chapter 11 plan prevented the debtor’s lender from executing on a judgment against the non-debtor owner of the debtor.1 Biltmore is a corporation2 that operates manufactured home parks and sells and rents manufactured homes. McGee is the president and controlling shareholder of Biltmore. Biltmore filed Chapter 11 in January of 2011, and TD Bank was Biltmore’s largest secured creditor. In November of 2012 Biltmore filed its Chapter 11 plan which contained standard retention of jurisdiction provisions and stated that the shareholders and management, including McGee, would remain in place after confirmation. TD Bank filed an objection to confirmation of the plan on feasibility and fair and equitable grounds. The plan was confirmed in April of 2012 over TD Bank’s objection, and TD Bank did not appeal the confirmation.
In July of 2012 TD Bank obtained a judgment against McGee for more than $2.5 million in state court and proceeded to execute on the judgment, including requesting the state court to “set a hearing for Biltmore Investments to respond regarding the assets of Mr. McGee that it held – particularly the number of shares of stock in the name of Walter T. McGee” and to require McGee and Biltmore to refrain from transferring any McGee-owned stock until a hearing could be held. Biltmore contended that the automatic stay of §362 of the Bankruptcy Code prohibited granting TD Bank’s requested relief. TD Bank then filed a motion with the bankruptcy court requesting an order clarifying that the §362 stay did not apply to McGee or his Biltmore stock.
The bankruptcy court concluded that the §362 stay did not apply because the stay only covers property of the estate and McGee’s stock is not an asset of Biltmore. The bankruptcy court declined to issue an order imposing a stay under §105 of the Bankruptcy Code. The District Court reversed, concluding that the facts met the “unusual circumstances” test of A.H. Robins Co. v. Piccinin,3 finding “such identity between the debtor and the third party defendant that the debtor may be said to be the real party defendant and a judgment against the third party defendant will in effect be a judgment against the debtor.” The court concluded that TD Bank’s actions amounted to an action to obtain possession of, or exercise control over, property of the debtor’s bankruptcy estate (McGee’s stock) which is, in effect, an action against the debtor. The court found that if TD Bank’s collection efforts resulted in a sale of the Biltmore stock, a third party purchaser might not act in the best interests of Biltmore by failing to comply with the terms of the plan or liquidating the company. The District Court concluded that stay protection is needed to accomplish Biltmore’s reorganization.
It appears that neither court noticed that the automatic stay of §362 terminated on confirmation of the plan4 and was replaced by the injunction created by §524(a). In addition, McGee’s stock would not generally be considered property of the Biltmore estate which was divested of all property on confirmation of the plan.5 It can also be questioned whether the routine plan provisions noted by the District Court regarding jurisdiction and retention of management rises to the level of “unusual circumstances” contemplated by Robins since those circumstances exist in many Chapter 11 reorganizations. Finally, the potential “harm” which the District Court noted (a potential stock sale to a party that might violate the plan) is just conjecture and does not appear to provide justification for the ruling. Perhaps the District Court was influenced by the equities of this case since it appears that the plan provided for eventual full payment of all creditors and the bankruptcy court had required additional protections for TD Bank and other creditors regarding the use by Biltmore of an unanticipated $1.3 million recovery from litigation.
Attorneys for debtors should keep this ruling handy to fend off litigation against officers and directors, and lenders should prepare themselves to counter this extension of the Robins “unusual circumstances” doctrine.
1 Biltmore Investments Ltd. V. TD Bank, N.A. (W.D.N.C. December 22, 2014).
2 So designated by the court notwithstanding the “Ltd” in the name of the debtor.
3 788 F. 2d 994, 999 (4th Cir. 1986).
4 Sections 362(c) and 1141(d).