Hopewell Va reckless driving speeding traffic ticket attorney offering affordable and aggressive representation of traffic felonies, misdemeanors, and infractions.
Hopewell County VA has become notorious for the Hopewell County Deputy Sheriff’s and Virginia State Troopers enforcement of the many Code of Virginia traffic violations especially regarding reckless driving and speeding. Experienced and knowledgeable Caroline County VA traffic attorney Trey Mattox has experience defending a wide variety of misdemeanor, felony, and infraction traffic violations including Speeding, Driving on a Suspended License, DUI, Reckless Driving, and possession of marijuana among others. Virginia Traffic Lawyer Trey Mattox would love the opportunity to walk you through the process of how to get out of a DUI, reckless driving, or speeding ticket in Hopewell, VA.
Hopewell VA traffic lawyer Trey Mattox has extensive experience representing individuals charged with a wide variety of traffic violations including reckless driving, speeding, and DUI charges among others. He has successfully defended these cases providing results that in nearly every instance avoid a conviction for the traffic misdemeanor or infraction alleged. If you have been charged with a traffic crime or infraction in Hopewell VA, contact knowledgeable and accomplished Hopewell traffic lawyer Trey Mattox.
The speed limit on Interstate 295 through the City of Hopewell is 70 miles per hour. Therefore, according to the statute going as little as 81 miles per hour can result in a conviction for reckless driving.
· § 46.2-853 Driving vehicle which is not under control; faulty brakes.
· § 46.2-854. Passing on or at the crest of a grade or on a curve.
· § 46.2-855. Driving with driver's view obstructed or control impaired.
· § 46.2-856. Passing two vehicles abreast.
· § 46.2-857. Driving two abreast in a single lane.
· § 46.2-858. Passing at a railroad grade crossing.
· § 46.2-859. Passing a stopped school bus; prima facie evidence.
· § 46.2-860. Failing to give proper signals.
· § 46.2-861. Driving too fast for highway and traffic conditions.
· § 46.2-862. Exceeding speed limit.
· § 46.2-863. Failure to yield right-of-way.
· § 46.2-864. Reckless driving on parking lots, etc.
· § 46.2-865. Racing; penalty.
Virginia Code § 46.2-868 dictates that reckless driving is a class 1 misdemeanor and therefore carries extremely serious consequences. In Virginia, a Class 1 misdemeanor is the most serious category of misdemeanors and falls just one step short of a felony. Specifically, as a Class 1 misdemeanor, reckless driving carries a maximum $2500 fine, one year in jail, and 6 month license suspension. Additionally, there are many secondary consequences such as points on your driving record, license suspensions due to accumulation of points, increased insurance premiums, and failed criminal background checks.
A conviction for a DUI in Virginia carries very extreme consequences and can often lead to time in jail. DUI meaning driving under the influence and can be applied to both drug and alcohol cases. Additionally, there is no categorical difference in Virginia in between DUI v. DWI although the offense is most frequently referred to as a DUI. Similar to reckless driving, a first offense DUI charge in Virginia is a class 1 misdemeanor which has a maximum $2,500 fine, 12 month license suspension, and 12 months jail sentence. Additionally, there are mandatory minimum sentences which must be enforced by the judge upon conviction of an elevated BAC DUI. A DUI can become elevated due to the defendants blood alcohol content (BAC) and previous DUI convictions. There are too many scenarios to list here, but I would invite you to contact me so that we can discuss your case and whether any of these factors would apply to your case.
Trey analyzes each case with extreme care in order to bring to light any possible defenses which can be used in trial. This careful analysis can become important not only at trial but also during negotiations with the prosecutor. There are often questionable situations in a DUI case which may not be significant enough to lead to a dismissal but can be used as leverage for a better plea agreement. It is extremely important to contact an attorney who is willing to spend the time to go over every detail in order to get the best possible result for your case.
Speeding tickets in Virginia can vary significantly depending on the nature of the offense. The most severe cases are often charged as reckless driving by speed, which elevates the offense from a simple traffic infraction to a class 1 misdemeanor. Although speeding is an infraction rather than a misdemeanor, a conviction can still carry very serious consequences. A speeding conviction can lead to license suspension, high fines, points on your driving record, and increased insurance rates.
Speeding ticket lawyer Trey Mattox has represented thousands of individuals charged with speeding infractions and has an outstanding record of having those charges reduced or dismissed. When contesting speeding tickets, Trey regularly saves Mattox Law clients hundreds of dollars in fines and insurance premiums as well as helping to preserve driving privileges. Trey is intimately familiar with Virginia speeding ticket laws and what is required of the officer ensuring that all possible legal strategies are pursued.
Each traffic case is unique and carries individual issues leading to a variety of potential results. The biggest factor affecting the outcome of a case of course is the original traffic ticket received or allegation. Certainly, we expect far different outcomes for DUI charges as compared to speeding tickets. However, there are many other factors that can affect potential results involved with every traffic case. One of the most important factors the court will take into consideration is your demeanor when interacting with the police officer. The judge will be far more lenient to an individual who is polite and cooperative with the officer as opposed to someone who was argumentative or otherwise uncooperative. Another major factor is the number of prior violations and points on your driving record. Most judges and commonwealth attorney’s will not willing to agree to a favorable outcome without viewing your driving record first. A clean driving record will allow for much better results than one with multiple prior speeding tickets or other traffic infractions, misdemeanors, or felonies.
Driving school is a very powerful tool in the defense of traffic infractions and crimes. In many cases I will advise my clients to complete driving school before the court date in order to achieve a better outcome. In other case, the judge may require the you to complete driving school in order to have the case completely dismissed. Under those circumstances it is up to the you to get the driving school completed by the deadline set by the court in order to have the case dismissed. In many cases judges will issue driving school after your first ticket and are less willing to allow for driving school after subsequent tickets. Of course courts and judges differ from jurisdiction to jurisdiction and some are more lenient in this regard. In most cases the court will allow you to complete driving school online or in person as long as the hour requirement is met. To be in compliance with the courts order you must ensure that the original certificate of completion for the defensive driving program is submitted to the court by the deadline set by the judge. In addition to the certificate you will be required to pay court costs which will vary depending on the court and violation.
In some cases the speed may be too high or there may be too many violations on your record for the court to willing to completely dismiss the case. In those situations, the court may still require driving school for the case to simply be reduced as opposed to being dismissed. There are a couple different routes the court may go in regard to the reduction. The most common and likely scenario would be a reduction to a simple speeding violation. Another common outcome would be the reduction to improper driving. In other circumstances the court may be willing to reduce the original violation to some sort of non-moving violation such as defective equipment, defective speedometer, or failure to obey a highway sign while sleeping. Finally, there are some instances where the court is unwilling to reduce the violation but will waive an active jail sentence and/or license suspension upon the completion of a defensive driving course.
What is a defective equipment ticket in Virginia? A defective equipment charge in Virginia is a violation you may receive for having a tail light out or maybe a cracked windshield. This is a non-moving violation typically indicating that something may have been wrong with your vehicle as opposed to something being wrong with your driving. As a non-moving violation, defective equipment does not carry any points on a Virginia driving record and most other states as well. Many judges in Virginia use defective equipment as a means to reduce a traffic violations that otherwise would carry points on your driving record. A reduction to defective equipment is often a bit of a quid pro quo allowing judges to reduce moving violations to keep points off of a driving record while still allowing him to collect a fine. In many cases the Judge will keep the fine at the standard fine based on the originally charged speed. In other cases, the judge may enhance the fine for having a few priors on your record or possibly demeanor issue with the officer.
For some reckless driving and speeding cases, avoiding any points on your record with a non-moving violation or having the case dismissed may not always be possible. In those cases, our focus will often shift from avoiding the points to at least reducing the number of points going on your driving record and avoiding the class 1 misdemeanor conviction. Reckless driving of course is considered a class 1 misdemeanor so at the very least we need to ensure that you are not convicted of reckless driving to ensure you do not end up with a criminal record. Simple speeding is just a traffic infraction and therefore will avoid the misdemeanor conviction. Additionally, most states DMV point systems are based on speed and the number of miles per hour the allegation is over the speed limit. By convincing the court to reduce the speed we should at least be able to reduce the number of points going on your record. This reduction in points can then have several secondary consequences as well. In some states a conviction over a certainly threshold, such as 15 miles per hour over the speed limit, can lead to an automatic license suspension. By reducing the speed below that limit we can ensure that your license is not administratively suspended by your states DMV. A reduction in speed will also help to ensure that your insurance rates are not effected. Most insurance companies will use the miles per hour over the speed limit as part of their analysis to determine whether your insurance rates should be increased. Therefore, the lower the speed can be reduced to the less likely that your insurance rates will be affected.
Improper driving is a frequently used reduction specific to reckless driving cases. I find improper driving is most frequently used in accident related cases; however, it is certainly used by many judges in reckless driving by speed cases. Many judges and commonwealth’s attorneys use improper driving as means to reduce reckless driving by speed cases because it allows them to issue an elevated fine of $500.00 as opposed to the maximum fine for a simple speeding conviction of $250.00. However, on the positive side, improper driving only stays on a Virginia driving record for 3 years as opposed to 5 years for a speeding violation and 11 years for a reckless driving conviction.
Unfortunately, there are certain cases that, despite our best efforts, result in a conviction of the originally charged infraction or class 1 misdemeanor for reckless driving offenses. Of course in most cases our number one goal is simply avoiding a conviction for that alleged offense. In some cases it is improbable or nearly impossible to get the charge reduced. These cases can be difficult to reduce for a number of different reasons including the nature of the alleged offense, the underlying facts, and what your prior record looks like. In these situations we are hoping instead to convince the court to reduce the consequences of a conviction including the fine, license suspension, and jail sentence.
In the unfortunate case where you are ultimately convicted of the underlying offense there is the possibility the court will issue a license suspension. When facing a case where a license suspension is possibly one of our key goals then become reducing or hopefully eliminating the potential for a license suspension. In some cases it is not possibly to avoid the license suspension despite our best efforts. In those cases we will typically request the court to order a restricted license that will at least allow you to drive to work and necessary appointments. Once the suspension time has elapsed you will then be required to contact the Virginia DMV in order to have your license or privilege to drive in Virginia reinstated.
Fortunately, the judge is typically good about working with individuals faced with traffic violations, and I am frequently able to negotiate a reduction. However, this judge is very particular with what he requires for a reduction. It is extremely important to speak with an attorney who is familiar with Hopewell and how the judge handles his docket.
It is also important to retain an attorney who has established good working relationships with the Hopewell Commonwealth’s Attorney’s office. The Commonwealth’s Attorney or prosecutor does not typically get involved in Reckless Driving or Speeding charges; however, for more serious offense such as Possession of Marijuana, DUI, or Driving on a Suspended License the Commonwealth’s Attorney’s office plays a prominent role. It is extremely important to choose an attorney who is very familiar with the Commonwealth’s Attorney prosecuting your case.
There are several tasks that I frequently have my clients complete prior to their scheduled court date in order to ensure the best possible outcome. Alternatively, Judge Clark will often have additional requirements before he is willing to reduce your charge. Judge Clark requires each of these items to be presented in the proper form. Failure to follow every requirement can result in a conviction. When looking for an attorney to represent you please be careful to speak with someone who is knowledgeable of Judge Clark’s rules. Below please find links to blog articles describing some of the mitigation evidence I use to defend my clients. Please give me an email me at trey@mattoxlawpc.com or call at (804)-451-6033 for additional suggestions on mitigation evidence for your Hopewell traffic case.
Speedometer Calibration - Speedometer calibrations are often the single most important piece of evidence I present while defending reckless driving cases. It is extremely important to have your vehicle properly calibrated in order to ensure that it is admissible in court and can be as beneficial as possible to the outcome of your case. It is essential to select the right shop with the correct equipment. You will want to take your vehicle to a shop with a dynamometer or “dyno.” In essence a dynamometer is a device used to test the accuracy of your vehicle’s speedometer, among other functions. The technician will put your vehicle on the dynamometer and measure what your speedometer is reading as compared to the actual wheel speed of your vehicle in order to determine how accurate your speedometer is. A favorable calibration will demonstrate to the judge that your speedometer was reading lower than your actual speed. This will help to show that you were unaware that you may have been traveling at that alleged speed. Many of the judges that I appear before regularly give my clients credit for the calibration and will reduce a charge down further than he or she may have otherwise been willing to do. A true calibration will carry the greatest weight in court. Many of my clients will take their vehicles to a shop without a dynamometer before they have spoken to me. Frequently these shops will inform my clients that their speed sensor or speedometer cluster is malfunctioning and offer to replace them. While this can be helpful to a reckless driving case it does not usually carry the same amount of weight as a true calibration.
Community Service - Community service can be a powerful piece of mitigation evidence used to help get the best possible result in court. In some cases a judge will order the defendant to complete community service as a requirement for a reduction of the charged offense. On other occasions, I will advise my clients to complete community service hours proactively in order to present the best case possible. Judges have differing standards when it comes to community services. Most if not all judges will be satisfied with your community service hours if completed according to the following guidelines. First, the community service must be completed for a non-profit organization. However, many judges adhere to strict prohibitions against doing community services for any school, church, or any other organization you are currently associated with. The second requirement for community services work deals with the reporting of the work. Many of the judges that I appear before regularly are extremely picky about how the community service should be documented and presented to the court. Ultimately, you will want to have the supervisor write a letter on a piece of the organization’s letterhead describing the dates and hours you worked, a description of the work, and the total number of hours worked. Some judges even require this letter to be signed by the supervisor in front of a notary.
Driving School - Completion of a defensive driving course can be very valuable to the defense of a reckless driving charge. Often completing the course prior to your scheduled court date can be a useful tool to get the best possible outcome for your case. You must also be careful you choose the correct driving school for your individual case. Driving courses can range in length from six hours up to twelve hours. You must also be sure that driving school is the correct tool for your case. For high-speed cases I often get my clients to complete a 12-hour aggressive driving course. The length and subject matter of these courses can show that a client is very concerned about their case and willing to do what it takes to avoid a conviction. There are two primary sources I use for 12-hour courses. The first is offered through the Virginia Alcohol Safety Action Program (VASAP) and is called Reckless/Aggressive Driver Education Program (RADEP). This is a two-day, in person aggressive driving school. The other primary source is one of the many 12 hour courses offered online out of Florida. The state of Florida uses 12-hour driving schools with great frequencies and has many online programs available. Judges can differ significantly when it comes to the value they will place on driving school. Some judges refuse to order defendants to take driving school, some will only use driving school for exceptional cases, and others rely solely on driving school as a means of reducing reckless driving charges. In Virginia, DMV will add five positive points to your driving record if you complete driving school voluntarily and submit the certificate of completion to the DMV. When signing up to take a defensive driving course you should be given the option of court ordered and voluntary for points on your record. It is important to take the court ordered course when completing it prior to your court date to ensure the judge gives you proper credit for completing it.
If you have been pulled over in Hopewell County please feel free to contact me at your earliest convenience. I offer free consultations and am available by phone (804) 451-6033 or email trey@mattoxlawpc.com.
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CHINA BANKING CORPORATION, PETITIONER, VS. MARIANO M. BORROMEO, RESPONDENT.
Before the Court is the petition for review on certiorari filed by China Banking Corporation seeking the reversal of the Decision dated July 19, 2002 of the Court of Appeals in CA-G.R. SP No. 57365, remanding to the Labor Arbiter for further hearings the complaint for payment of separation pay, mid-year bonus, profit share and damages filed by respondent Mariano M. Borromeo against the petitioner Bank. Likewise, sought to be reversed is the appellate court’s Resolution dated January 6, 2003, denying the petitioner Bank’s motion for reconsideration.
Respondent Mariano M. Borromeo joined the petitioner Bank on June 1, 1989 as Manager assigned at the latter’s Regional Office in Cebu City. He then had the rank of Manager Level I. Subsequently, the respondent was laterally transferred to Cagayan de Oro City as Branch Manager of the petitioner Bank’s branch thereat.
For the years 1989 and 1990, the respondent received a “highly satisfactory” performance rating and was given the corresponding profit sharing/performance bonus. From 1991 up to 1995, he consistently received a “very good” performance rating for each of the said years and again received the corresponding profit sharing/performance bonus. Moreover, in 1992, he was promoted from Manager Level I to Manager Level II. In 1994, he was promoted to Senior Manager Level I. Then again, in 1995, he was promoted to Senior Manager Level II. Finally, in 1996, with a “highly satisfactory” performance rating, the respondent was promoted to the position of Assistant Vice-President, Branch Banking Group for the Mindanao area effective October 16, 1996. Each promotion had the corresponding increase in the respondent’s salary as well as in the benefits he received from the petitioner Bank.
However, prior to his last promotion and then unknown to the petitioner Bank, the respondent, without authority from the Executive Committee or Board of Directors, approved several DAUD/BP accommodations amounting to P2,441,375 in favor of Joel Maniwan, with Edmundo Ramos as surety. DAUD/BP is the acronym for checks “Drawn Against Uncollected Deposits/Bills Purchased.” Such checks, which are not sufficiently funded by cash, are generally not honored by banks. Further, a DAUD/BP accommodation is a credit accommodation granted to a few and select bank clients through the withdrawal of uncollected or uncleared check deposits from their current account. Under the petitioner Bank’s standard operating procedures, DAUD/BP accommodations may be granted only by a bank officer upon express authority from its Executive Committee or Board of Directors.
When DAUD/BP accommodations were allowed, what efforts, if any, were made to establish the identity and/or legitimacy of the alleged broker or drawers of the checks accommodated?
Did the branch follow and comply with operating procedure which require that all checks accommodated for DAUD/BP should be previously verified with the drawee bank and history if not outright balances determined if enough to cover the checks?
How did the accommodations reach P2,441,375.00 when our records indicate that the borrowers B/P-DAUD line is only for P500,000.00? When did the accommodations start exceeding the limit of P500,000.00 and under whose authority?
When did the accommodated checks start bouncing?
What is the status of these checks now and what has the branch done so far to protect/ensure collectibility of the returned checks?
What about client Joel Maniwan and surety Edmund Ramos, what steps have they done to pay the checks returned?
The accommodations reach P2.4 million upon the request of Mr. Edmund Ramos, surety, and this request was subsequently approved by undersigned. The excess accommodations started in July ’96 without higher management approval.
Checks started bouncing on September 20, 1996.
Checks have remained unpaid. The branch sent demand letters to Messrs. Maniwan and Ramos and referred the matter to our Legal Dept. for filing of appropriate legal action.
Mr. Maniwan, thru his lawyer, Atty. Oscar Musni has signified their intention to settle by Feb. 1997.
Justification for lapses committed (Item nos. 1 to 3).
The attached letter of Mr. Ramos dated 19 Nov. 1996 will speak for itself. Further to this, undersigned conferred with the acting BOH VSYap if these checks are legitimate 3rd party checks.
On the other hand, Atty. Musni continues to insist that Mr. Maniwan was gypped by a broker in the total amount of P10.00 Million.
Undersigned accepts full responsibility for committing an error in judgment, lapses in control and abuse of discretion by relying solely on the word, assurance, surety and REM of Mr. Edmund Ramos, a friend and a co-bank officer. I am now ready to face the consequence of my action.
In another Letter dated April 8, 1997, the respondent notified Chiong of his intention to resign from the petitioner Bank and apologized “for all the trouble I have caused because of the Maniwan case.” The respondent, however, vehemently denied benefiting therefrom. In his Letter dated April 30, 1997, the respondent formally tendered his irrevocable resignation effective May 31, 1997.
4. UCPB Tagbilaran Check No.
The foregoing checks were accommodated through your approval which was in excess of your authority.
The branch failed to follow the fundamental and basic procedures in handling BP/DAUD accommodations which made the accommodations basically flawed.
The accommodations were attended by lapses in control consisting of failure to report the exception and failure to cover the account of Joel Maniwan with the required Credit Line Agreement.
Your approval of the accommodations in excess of your authority without prior authority and/or approval from higher management is a violation of the above cited Rules.
In view of these, you are directed to restitute the amount of P1,507,736.79 representing 90% of the total loss of P1,675,263.10 incurred by the Bank as your proportionate share. However, in light of your voluntary separation from the Bank effective May 31, 1997, in view of the years of service you have given to the Bank, management shall earmark and segregate only the amount of P836,637.08 from your total separation benefits/pay. The Bank further directs you to fully assist in the effort to collect from Joel Maniwan and Edmundo Ramos the sums due to the Bank.
In the Letter dated May 26, 1997 addressed to the respondent, Remedios Cruz, petitioner Bank’s Vice-President of the Human Resources Division, again informed him that the management would withhold the sum of P836,637.08 from his separation pay, mid-year bonus and profit sharing. The amount withheld represented his proportionate share in the accountability vis-à-vis the DAUD/BP accommodations in favor of Maniwan. The said amount would be released upon recovery of the sums demanded from Maniwan in Civil Case No. 97174 filed against him by the petitioner Bank with the Regional Trial Court in Cagayan de Oro City.
Consequently, the respondent, through counsel, made a demand on the petitioner Bank for the payment of his separation pay and other benefits. The petitioner Bank maintained its position to withhold the sum of P836,637.08. Thus, the respondent filed with the National Labor Relations Commission (NLRC), Regional Arbitration Branch No. 10, in Cagayan de Oro City, the complaint for payment of separation pay, mid-year bonus, profit share and damages against the petitioner Bank.
... This Branch views that if complainant finds the necessity to controvert the allegations in the respondent’s pleadings, then he may file a supplemental position paper and adduce thereto evidence and additional supporting documents, the soonest possible time. All the evidence will be evaluated by the Branch to determine whether or not a clarificatory hearing shall be conducted.
On February 26, 1999, the Labor Arbiter issued another Order submitting the case for resolution upon finding that he could judiciously pass on the merits without the necessity of further hearing.
On even date, the Labor Arbiter promulgated the Decision dismissing the respondent’s complaint. According to the Labor Arbiter, the respondent, an officer of the petitioner Bank, had committed a serious infraction when, in blatant violation of the bank’s standard operating procedures and policies, he approved the DAUD/BP accommodations in favor of Maniwan without authorization by senior management. Even the respondent himself had admitted this breach in the letters that he wrote to the senior officers of the petitioner Bank.
The Labor Arbiter, likewise, made the finding that the respondent offered to assign or convey a property that he owned to the petitioner Bank as well as proposed the withholding of the benefits due him to answer for the losses that the petitioner Bank incurred on account of unauthorized DAUD/BP accommodations. But even if the respondent had not given his consent, the Labor Arbiter held that the petitioner Bank’s act of withholding the benefits due the respondent was justified under its Code of Ethics. The respondent, as an officer of the petitioner Bank, was bound by the provisions of the said Code.
WHEREFORE, the decision of the Labor Arbiter is Affirmed. The appeal is Dismissed for lack of merit.
The respondent moved for a reconsideration of the said decision but the NLRC, in the Resolution of December 20, 1999, denied his motion.
The respondent then filed a petition for certiorari with the Court of Appeals alleging that the NLRC committed grave abuse of discretion when it affirmed the findings and conclusions of the Labor Arbiter. He vehemently denied having offered to pledge his property to the bank or proposed the withholding of his separation pay and other benefits. Further, he argued that the petitioner Bank deprived him of his right to due process because it unilaterally imposed the penalty of restitution on him. The DAUD/BP accommodations in favor of Maniwan allegedly could not be considered as a “loss” to the bank as the amounts may still be recovered. The respondent, likewise, maintained that the Labor Arbiter should not have decided the case on the basis of the parties’ position papers but should have conducted a full-blown hearing thereon.
On July 19, 2002, the CA rendered the Decision now being assailed by the petitioner Bank. The CA found merit in the respondent’s contention that he was deprived of his right to due process by the petitioner Bank as no administrative investigation was conducted by it prior to its act of withholding the respondent’s separation pay and other benefits. The respondent was not informed of any charge against him in connection with the Maniwan DAUD/BP accommodations nor afforded the right to a hearing or to defend himself before the penalty of restitution was imposed on him. This, according to the appellate court, was contrary not only to the fundamental principle of due process but to the petitioner Bank’s Code of Ethics as well.
Procedural due process, as must be remembered, has two main concerns, the prevention of unjustified or mistaken deprivation and the promotion of participation and dialogue by affected individuals in the decision-making process. Truly, the magnitude of the case and the withholding of Borromeo’s property as well as the willingness of the parties to conciliate, make a hearing imperative. As manifested by the bank, it did not contest Borromeo’s motion for hearing or trial inasmuch as the bank itself wanted to fully ventilate its side.
Accordingly, the CA set aside the decision of the NLRC and ordered that the records of the case be remanded to the Labor Arbiter for further hearings on the factual issues involved.
THE FACTUAL FINDINGS OF THE LABOR ARBITER AS AFFIRMED BY THE NATIONAL LABOR RELATIONS COMMISSION ARE SUPPORTED BY SUBSTANTIAL EVIDENCE AND SHOULD HAVE BEEN ACCORDED RESPECT AND FINALITY BY THE COURT OF APPEALS IN ACCORDANCE WITH GOVERNING JURISPRUDENCE.
AT ALL TIMES, THE LABOR ARBITER ACTED IN ACCORDANCE WITH THE REQUIREMENTS OF DUE PROCESS IN THE PROCEEDINGS A QUO.
THERE WAS NO VIOLATION BY PETITIONER BANK OF RESPONDENT’S RIGHT TO DUE PROCESS AS NO ADMINISTRATIVE INVESTIGATION WAS NEEDED TO BE CONDUCTED ON HIS ADMITTED MISCONDUCT.
The petitioner Bank posits that the sole factual issue that remained in dispute was whether the respondent pledged his benefits as guarantee for the losses the bank incurred resulting from the unauthorized DAUD/BP accommodations in favor of Maniwan. On this issue, both the Labor Arbiter and the NLRC found that the respondent had indeed pledged his benefits to the bank. According to the petitioner Bank, this factual finding should have been accorded respect by the CA as the same is supported by the evidence on record. By ordering the remand of the case to the Labor Arbiter, the CA allegedly unjustifiably analyzed and weighed all over again the evidence presented.
The petitioner Bank insists that the Labor Arbiter acted within his authority when he denied the respondent’s motion to set case for hearing or trial and instead decided the case on the basis of the position papers and evidence submitted by the parties. Due process simply demands an opportunity to be heard and the respondent was not denied of this as he was even given the opportunity to file a supplemental position paper and other supporting documents, but he did not do so.
The petitioner Bank takes exception to the findings of the appellate court that the respondent was not afforded the right to a hearing or to defend himself by the petitioner Bank as it did not conduct an administrative investigation. The petitioner Bank points out that it was poised to conduct one but was preempted by the respondent’s resignation. In any case, respondent himself in his Letter dated December 5, 1996, in reply to the clarificatory queries of Chiong, admitted that the DAUD/BP accommodations were granted “without higher management approval” and that he (the respondent) “accepts full responsibility for committing an error of judgment, lapses in control and abuse of discretion ...” Given the respondent’s admission, the holding of a formal investigation was no longer necessary.
For his part, the respondent, in his Comment, maintains that the DAUD/BP accommodations in favor of Maniwan were approved, albeit not expressly, by the senior management of the petitioner Bank. He cites the regular reports he made to Chiong, his superior, regarding the DAUD/BP transactions made by the branch, including that of Maniwan, and Chiong never called his attention thereto nor stopped or reprimanded him therefor. These reports further showed that he did not conceal these transactions to the management.
The respondent vehemently denies having offered the withholding of his benefits or pledged the same to the petitioner Bank. The findings of the Labor Arbiter and the NLRC that what he did are allegedly not supported by the evidence on record.
The respondent is of the view that restitution is not proper because the petitioner Bank has not, as yet, incurred any actual loss as the amount owed by Maniwan may still be recovered from him. In fact, the petitioner Bank had already instituted a civil case against Maniwan for the recovery of the sum and the RTC rendered judgment in the petitioner Bank’s favor. The case is still pending appeal. In any case, the respondent argues that the petitioner Bank could not properly impose the accessory penalty of restitution on him without imposing the principal penalty of “Written Reprimand/Suspension” as provided under its Code of Ethics. He, likewise, vigorously avers that, in contravention of its own Code of Ethics, he was denied due process by the petitioner Bank as it did not conduct any administrative investigation relative to the unauthorized DAUD/BP accommodations. He was not informed in writing of any charge against him nor was he given the opportunity to defend himself.
The Court shall first resolve the procedural issue raised in the petition, i.e., whether the CA erred in remanding the case to the Labor Arbiter. The Court rules in the affirmative. It is settled that administrative bodies like the NLRC, including the Labor Arbiter, are not bound by the technical niceties of the law and procedure and the rules obtaining in courts of law. Rules of evidence are not strictly observed in proceedings before administrative bodies like the NLRC, where decisions may be reached on the basis of position papers. The holding of a formal hearing or trial is discretionary with the Labor Arbiter and is something that the parties cannot demand as a matter of right. As a corollary, trial-type hearings are not even required as the cases may be decided based on verified position papers, with supporting documents and their affidavits.
Hence, the Labor Arbiter acted well within his authority when he issued the Order dated February 26, 1999 submitting the case for resolution upon finding that he could judiciously pass on the merits without the necessity of further hearing. On the other hand, the assailed CA decision’s directive requiring him to conduct further hearings constitutes undue interference with the Labor Arbiter’s discretion. Moreover, to require the conduct of hearings would be to negate the rationale and purpose of the summary nature of the proceedings mandated by the Rules and to make mandatory the application of the technical rules of evidence. The appellate court, therefore, committed reversible error in ordering the remand of the case to the Labor Arbiter for further hearings.
Before delving on the merits of the case, it is well to remember that factual findings of the NLRC affirming those of the Labor Arbiter, both bodies being deemed to have acquired expertise in matters within their jurisdiction, when sufficiently supported by evidence on record, are accorded respect, if not finality, and are considered binding on this Court. As long as their decisions are devoid of any arbitrariness in the process of their deduction from the evidence proffered by the parties, all that is left is for the Court to stamp its affirmation.
In this case, the factual findings of the Labor Arbiter and those of the NLRC concur on the following material points: the respondent was a responsible officer of the petitioner Bank; by his own admission, he granted DAUD/BP accommodations in excess of the authority given to him and in violation of the bank’s standard operating procedures; the petitioner Bank’s Code of Ethics provides that restitution/forfeiture of benefits may be imposed on the employees for, inter alia, infraction of the bank’s standard operating procedures; and, the respondent resigned from the petitioner Bank on May 31, 1998. These factual findings are amply supported by the evidence on record.
* With restitution, if warranted.
Restitution may be imposed independently or together with any other penalty in case of loss or damage to the property of the Bank, its employees, clients or other parties doing business with the Bank. The Bank may recover the amount involved by means of salary deduction or whatever legal means that will prompt offenders to pay the amount involved. But restitution shall in no way mitigate the penalties attached to the violation or infraction.
Forfeiture of benefits/privileges may also be effected in cases where infractions or violations were incurred in connection with or arising from the application/availment thereof.
It is well recognized that company policies and regulations are, unless shown to be grossly oppressive or contrary to law, generally binding and valid on the parties and must be complied with until finally revised or amended unilaterally or preferably through negotiation or by competent authority. Moreover, management has the prerogative to discipline its employees and to impose appropriate penalties on erring workers pursuant to company rules and regulations. With more reason should these truisms apply to the respondent, who, by reason of his position, was required to act judiciously and to exercise his authority in harmony with company policies.
Contrary to the respondent’s contention that the petitioner Bank could not properly impose the accessory penalty of restitution on him without imposing the principal penalty of “Written Reprimand/Suspension,” the latter’s Code of Ethics expressly sanctions the imposition of restitution/forfeiture of benefits apart from or independent of the other penalties. Obviously, in view of his voluntary separation from the petitioner Bank, the imposition of the penalty of reprimand or suspension would be futile. The petitioner Bank was left with no other recourse but to impose the ancillary penalty of restitution. It was certainly within the petitioner Bank’s prerogative to impose on the respondent what it considered the appropriate penalty under the circumstances pursuant to its company rules and regulations.
Anent the issue that the respondent’s right to due process was violated by the petitioner Bank since no administrative investigation was conducted prior to the withholding of his separation benefits, the Court rules that, under the circumstances obtaining in this case, no formal administrative investigation was necessary. Due process simply demands an opportunity to be heard and this opportunity was not denied the respondent.
Prior to the respondent’s resignation, he was furnished with the Memorandum dated November 19, 1996 in which several clarificatory questions were propounded to him regarding the DAUD/BP accommodations in favor of Maniwan. Among others, the respondent was asked whether the bank’s standard operating procedures were complied with and under whose authority the accommodations were granted. From the tenor thereof, it could be reasonably gleaned that the said memorandum constituted notice of the charge against the respondent.
Contrary to his protestations, the respondent was given the opportunity to be heard and considering his admissions, it became unnecessary to hold any formal investigation. More particularly, it became unnecessary for the petitioner Bank to conduct an investigation on whether the respondent had committed an “[I]nfraction of Bank procedures in handling any Bank transaction or work assignment which results in a loss or probable loss” because the respondent already admitted the same. All that was needed was to inform him of the findings of the management and this was done by way of the Memorandum dated May 23, 1997 addressed to the respondent. His claim of denial of due process must perforce fail.
It bears stressing that the respondent was not just a rank and file employee. At the time of his resignation, he was the Assistant Vice-President, Branch Banking Group for the Mindanao area of the petitioner Bank. His position carried authority for the exercise of independent judgment and discretion, characteristic of sensitive posts in corporate hierarchy. As such, he was, as earlier intimated, required to act judiciously and to exercise his authority in harmony with company policies.
On the other hand, the petitioner Bank’s business is essentially imbued with public interest and owes great fidelity to the public it deals with. It is expected to exercise the highest degree of diligence in the selection and supervision of their employees. As a corollary, and like all other business enterprises, its prerogative to discipline its employees and to impose appropriate penalties on erring workers pursuant to company rules and regulations must be respected. The law, in protecting the rights of labor, authorized neither oppression nor self-destruction of an employer company which itself is possessed of rights that must be entitled to recognition and respect.
WHEREFORE, the petition is GRANTED. The Decision dated July 19, 2002 of the Court of Appeals and its Resolution dated January 6, 2003 in CA-G.R. SP No. 57365 are REVERSED AND SET ASIDE. The Resolution dated October 20, 1999 of the NLRC, affirming the Decision dated February 26, 1999 of the Labor Arbiter, is REINSTATED.
Puno, (Chairperson), Austria-Martinez, and Tinga, JJ., concur.
 Penned by Associate Justice Oswaldo D. Agcaoili, with Associate Justices Eriberto U. Rosario, Jr. and Danilo B. Pine, concurring; Rollo, pp. 69-90..
 Id. at 89. (Citations omitted).
 Bantolino v. Coca-Cola Bottlers Phils., Inc., 403 SCRA 699 (2003).
 Rabago v. NLRC, 200 SCRA 158 (1991).
 Columbus Philippines Bus Corp. v. NLRC, 364 SCRA 606 (2001).
 Bantolino v. Coca-Cola Bottlers Phils., Inc., supra.
 Ignacio v. Coca-Cola Bottlers Phils., Inc., 365 SCRA 418 (2001).
 Alcantara, Jr. v. Court of Appeals, 386 SCRA 370 (2002).
 Philippine Airlines, Inc. v. NLRC (4th Division), 337 SCRA 286 (2000).
 Philippine Long Distance Telephone Company v. NLRC, 303 SCRA 9 (1999).
 Ginete v. Sunrise Manning Agency, 359 SCRA 404 (2001).
 Pampanga II Electric Cooperative, Inc. v. NLRC, 250 SCRA 31 (1995). See also Bernardo v. NLRC, 255 SCRA 108 (1996); and Magos v. NLRC, 300 SCRA 484 (1998).
 Dayan v. Bank of the Philippine Islands, 369 SCRA 712 (2001).
 Dayan v. Bank of the Philippine Islands, supra.
 Philippine Commercial International Bank v. Court of Appeals, 350 SCRA 446 (2001).

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Decisions > Federal Court Decisions > Allergan, Inc. v. Apotex Inc.
Allergan, Inc. v. Apotex Inc.
ALLERGAN, INC. AND ALLERGAN SALES, LLC. AND ALLERGAN USA, INC. AND KYORIN PHARMACEUTICAL CO., LTD.
 The Plaintiffs have brought a motion for an Order enforcing what they argue are the terms of a settlement of this action made as between the parties. The Defendants deny that any settlement was reached.
 This action brought by the Plaintiffs alleges that the Defendants have infringed Canadian Patent numbered 1,340, 316 (“the ‘316 Patent”). That patent claims certain chemical compounds the commercially important of which is gatifloxacin used as the active ingredient in ophthalmic solutions. The term of the ‘316 Patent will expire on January 12, 2016.
 The Statement of Claim in this action was filed on August 5, 2010 in which it was alleged that the Defendants were infringing the ‘316 Patent by making or having made for it, constructing, importing, exporting and using gatifloxacin and gatifloxacin ophthalmic solutions. The Defendants filed a Defence on May 2, 2011 denying infringement and stating that any manufacture or use of gatifloxacin was for experimental and fair use, and relied on certain statutory exemptions provided in subsections 55.2(1) and (6) of the Patent Act, RSC 1985, c.P-4.
 The action has proceeded to the initial phases of discovery.
 The evidence provided consists of the affidavit of a law clerk from Plaintiffs’ Counsel’s office and an affidavit from a lawyer from Defendants’ Counsel’s office, each of which affidavits attached numerous documents as exhibits. There was no cross-examination upon either affidavit. The following is a synopsis of the relevant correspondence.
We are writing to present the following offer to settle.
1. The offer shall remain open for acceptance until 1 minute after the commencement of trial or until such time prior thereto that it is withdrawn in writing.
2. The Plaintiffs will discontinue the action on a without costs basis.
b. that any use of gatifloxacin API in Canada by the Defendants to expiry of the 316 patent will be solely for regulatory and/or experimental use.
d. that any gatifloxacin API has not been used for regulatory and/or experimental use by the expiry of the 316 patent will be destroyed on expiry of the 316 patent.
 Plaintiffs’ Counsel responded by letter dated April 20, 2012 seeking clarification as to two points; the first was whether export from Canada would occur, the second was whether the undertaking would extend to any company controlled or affiliated with the Defendants.
 Defendant’s Counsel replied by letter dated April 29, 2012 stating that the undertaking extended to manufacture for commercial sale anywhere in the world and that companies under the power or control or affiliated with the Defendants were included.
 On April 27, 2012, the Plaintiffs’ lawyers sent an e-mail to Defendants’ lawyers saying “it appears that we are making good progress in settlement discussions…” and proposing an adjournment of a motion then before the Court.
 On June 6, 2012, the Plaintiffs’ lawyers sent an e-mail to the Defendants’ lawyers saying “in order to get the ball rolling” they had drafted and were attaching draft Minutes of Settlement.
 On June 12, 2012, Defendants’ lawyers sent an e-mail to Plaintiffs’ lawyers attaching a revised draft Minutes of Settlement requesting that the Plaintiffs seek instructions. Plaintiffs’ lawyers responded by an e-mail dated June 27, 2012 stating that the draft appeared to be acceptable save for a missing comma, and that they would forward the document to their clients for instructions.
 On July 30, 2012, Plaintiffs’ lawyers e-mailed Defendants’ lawyers providing an amended draft Minutes of Settlement saying that it was prepared “as we discussed on Friday”.
 Defendants’ lawyers responded by e-mail dated August 14, 2012 commenting on the revisions, agreeing to some revisions but not others and ending by stating “Please advise whether your client remains interested in settling…”. Plaintiffs’ lawyers responded by e-mail the same day stating that their clients “… remain interested in settling this case”.
 On November 15, 2012, Plaintiffs’ lawyers e-mailed Defendants’ lawyers enclosing clean and marked-up copies of the most recent draft Minutes of Settlement and a proposed draft letter to the Court. Such a letter was sent by Plaintiffs’ lawyers on November 16, 2012, apparently responding to a status request, stating “The parties are at an advanced stage and are hopeful that they will come to an agreement within the next two or three weeks”.
 On December 11, 2012, Defendants’ lawyers sent an e-mail to Plaintiffs’ lawyers providing a revised document.
 On January 21, 2013, Plaintiffs’ lawyers e-mailed Defendants’ lawyers enclosing a further draft Minutes of Settlement inserting terms “inadvertently omitted on previous drafts”.
 On January 28, 2013, Plaintiffs’ lawyers wrote to the Court stating “The parties …are continuing to negotiate the terms of settlement”.
 From that period to June 17, 2013, Plaintiffs’ lawyers sent various reminders to the Defendants’ lawyers and Defendants’ lawyers responded seeking more time.
 On June 17, 2013, Defendants’ lawyers sent an e-mail to Plaintiffs’ lawyers with a revised draft of the Minutes of Settlement. Plaintiffs’ lawyers responded by e-mail on August 16, 2013 proposing a mediation conference with the Court.
 On September 18, 2013, Plaintiffs’ lawyers wrote to the Court with a status update saying “…progress is being made in respect of the terms of settlement …there are currently a small number of outstanding points”.
 On December 13, 2013, Defendants’ lawyers sent an e-mail to Plaintiffs’ lawyers saying “We are prepared to recommend to our client that your proposed changes be accepted save for (small grammar changes)”.
We have recommended that our client accept the revisions as set out below and as encapsulated in the attached and our client is inclined to accept subject to completing on additional step on their end. Can you please confirm that the attached is acceptable to your client.
 On January 14, 2014, Plaintiffs’ Counsel sent an e-mail to the Court providing a status update saying that the Plaintiffs have agreed to the latest draft subject to confirmation from one group and inviting Defendants’ Counsel to confirm.
Further to our discussions this morning, our clients agree to accept the terms that you put forward in your email dated December 14, 2013 and as captured in the draft circulated Jan. 13, 2014.
 On March 17, 2014, Plaintiffs’ Counsel wrote a status update letter to the Court saying “It is the Plaintiffs’ view that an agreement has been reached…”. The same day, Defendants’ Counsel wrote to the Court saying “we do not agree that a settlement has been reached”.
Attached please find further information demonstrating Apotex’ offer and the Plaintiffs’ acceptance. It is clear that there is an agreement between the parties. Moreover, this offer and acceptance is mirrored by the current Minutes of Settlement, which you proposed on December 13, 2013. Thus, it is incumbent upon the parties to sign the current Minutes of Settlement. Thus, we believe it is you who should retract your communications to the Court especially your statement « we do not believe that a settlement has been reached ».
If helpful, we can provide these letters to the Court as well as the current Minutes of Settlement seeking its assistance in resolving this matter. Regardless, please provide your dates of availability over the next two weeks for a case management call.
 A further e-mail was sent by Plaintiffs’ Counsel to Defendants’ Counsel on March 18th demanding that the Defendants’ assertion to the Court as to no settlement, be retracted.
Your email below appears nothing more than a colourable attempt to justify your previously incorrect position. Contrary to your earlier assertion of settlement in February of 2014, you are instead asserting settlement in April of 2012. Neither assertion is correct. All the correspondence between the parties is only consistent with there having not yet been a meeting of the minds regarding the terms of any settlement. As a result, we will not be writing to the Court as you suggested.
To avoid any confusion, the offer to settle dated April 9, 2012 is hereby withdrawn.
 On March 19, 2014, Plaintiffs’ Counsel wrote a letter to the Court seeking an appointment to speak to the Case Management Prothonotary.
 On October 29, 2014, the Plaintiffs filed the present motion seeking enforcement of what they terms as the settlement agreement.
 The issue before the Court is whether there has been a settlement for this action and, if so, what Order should be given.
 No party challenged the jurisdiction of this Court to determine whether there has been a settlement of the action. The subject matter of the action, that of patent infringement, is clearly within the jurisdiction of this Court (Federal Courts Act, R.S.C., 1985, c. F-7, section 20; Patent Act, R.S.C., 1985, c. P-4, section 54(2)).
 In cases such as Kellogg Co. v Kellogg,  S.C.R. 242 and Flexi-Coil Ltd. v Smith-Roles Ltd. (1980), 50 C.P.R. (2d) 29 (FC); Bandag Inc. v Vulcan Equipment Co. (1977), 32 C.P.R. (2d) 1 (FC) and Bauer Nike Hockey Inc. v Tour Hockey (2003), 25 C.P.R. (4th) 336, the jurisdiction of this Court to determine if actions such as this have been settled has been recognized.
A similar analysis may be employed where an agreement is made that contemplates a further document such as a formal contract. Is execution of the formal contract as step in carrying out an already enforceable agreement, like a conveyance under an agreement to buy land, or is it a prerequisite of any enforceable agreement at all? Again, the test must be the reasonableness of the parties’ expectations. Has the promisor committed himself to a firm agreement or does he retain an element of discretion whether or not to execute the formal agreement? In the former case there is an enforceable agreement. In the later there is none. If the promisee’s expectation of a firm commitment is a reasonable one it will be protected even though the formal document is never executed. Again, the courts seem particularly ready to protect such an expectation when it is manifested in conduct in reliance on the agreement.
It appears to be well settled by the authorities that if the documents or letters relied on as constituting a contract contemplate the execution of a further contract between the parties, it is a question of construction whether the execution of the further contract is a condition or term of the bargain, or whether it is a mere expression of the desire of the parties as to the manner in which the transaction already agreed to will in fact go through. In the former case there is no enforceable contract either because the condition is unfulfilled or because the law does not recognise a contract to enter into a contract. In the latter case there is a binding contact and the reference to the more formal document may be ignored.
96 When parties have a mutual intention to create a legally binding agreement and have reached agreement on all of the essential terms of the agreement, they create a contract. Bawitko Investments Ltd. v. Kernels Popcorn Ltd. (1991), 79 D.L.R. (4th) 97 (Ont. C.A.).
97 A settlement agreement is a contract. Olivieri v. Sherman, 2007 ONCA 491.
98 As was stated at paragraph 44 of Rawlins v. Rawlins, 2014 ONSC 5649: A determination as to whether a concluded agreement exists does not depend on an inquiry into the actual state of mind of one of the parties or on the parole evidence of one party's subjective intention.
It should not be thought that every disagreement over documentation consequent upon a settlement, even if insisted upon, amounts to a repudiation of a settlement. Many such settlements are very complicated such as structured settlements, and the deal is usually struck before the documentation can be completed. In such cases the settlement will be binding if there is agreement on the essential terms. When disputes arise in this connection the question will seldom be one of repudiation as the test cited above is a strict one, but rather whether a final agreement has been reached which the parties intend to record in formal documentation, or whether the parties have only reached a tentative agreement which will not be binding upon them until the documentation is complete. Generally speaking, litigation is settled on the former rather than on the latter basis and, parties who reach a settlement should usually be held to their bargains. Subsequent disputes should be resolved by application to the court or by common sense within the framework of the settlement to which the parties have agreed and in accordance with the common practices which prevail amongst members of the bar. It will be rare for conduct subsequent to a settlement agreement to amount to repudiation.
As a matter of normal business practice, parties planning to make a formal written document the expression of their agreement, necessarily discuss and negotiate the proposed terms of the agreement before they enter into it. They frequently agree upon all of the terms to be incorporated into the intended written document before it is prepared. Their agreement may be expressed orally or by way of memorandum, by exchange of correspondence, or other informal writings. The parties may "contract to make a contract", that is to say, they may bind themselves to execute at a future date a formal written agreement containing specific terms and conditions. When they agree on all of the essential provisions to be incorporated in a formal document with the intention that their agreement shall thereupon become binding, they will have fulfilled all the requisites for the formation of a contract. The fact that a formal written document to the same effect is to be thereafter prepared and signed does not alter the binding validity of the original contract.
However, when the original contract is incomplete because essential provisions intended to govern the contractual relationship have not been settled or agreed upon; or the contract is too general or uncertain to be valid in itself and is dependent on the making of a formal contract; or the understanding or intention of the parties, even if there is no uncertainty as to the terms of their agreement, is that their legal obligations are to be deferred until a formal contract has been approved and executed, the original or preliminary agreement cannot constitute an enforceable contract. In other words, in such circumstances the "contract to make a contract" is not a contract at all. The execution of the contemplated formal document is not intended only as a solemn record or memorial of an already complete and binding contract but is essential to the formation of the contract itself.
In the calculus of offer and acceptance, the communications of the parties must have created an “offer” that sets out the offeror’s willingness to enter into an agreement on certain terms; this is then matched with a corresponding agreement or “acceptance” forthcoming from the other party, the offeree, which also communicates a willingness to enter into an agreement on the proffered terms. The acceptance must precisely match the terms of the offer, a proposition often referred to as “the mirror image rule”. A purported acceptance that indicates different terms cannot create the required consensus. Under the orthodox analysis, the offeree must intend to accept the offer.
With great respect to the learned judges who hold a contrary opinion, there does not appear to be here present either in the letter of August 24 or in the conduct of the appellant that absolute and unequivocal acceptance of terms required by the authorities to conclude a contract. McIntyre v. Hood [(1884) 9 Can. S.C.R. 556.]; District of North Vancouver v. Tracy [(1903) 34 Can. S.C.R. 132.]; Harvey v. Facey [ A.C. 552.]; Fulton Bros. v. Upper Canada Furniture Company [(1883) 9 O.A.R. 211.]. Moreover, when the whole of the correspondence and conversations are considered it is clear that the parties had not agreed upon the terms of a contract.
• negotiations as to the more formal document do not necessarily mean that an offer or acceptance has been repudiated.
 The Court must apply a subjective standard, not an objective one, as to whether there has been a binding contract. The matter is fact-specific. A determination is to be made on a case-by-case basis.
 This case illustrates how solicitors, with their fussing and wordsmithing can mess up the clearest of cases.
 The Offer to Settle letter of April 9, 2012 was clear and unequivocal; particularly as clarified by a further letter of April 24, 2012. A simple letter in response saying “We accept your offer” would have ended the matter. The action would have been discontinued without costs and, if Apotex breached the terms of the Offer, it could have been sued for breach of contract.
 Instead, the response was “to get the ball rolling” here is a draft Minutes of Settlement (e-mail of June 6, 2012). This and every succeeding draft clearly incorporate the terms of the Offer to Settle, as clarified. The differences between the Minutes and clarified Order lie simply in added preamble and words such as that the agreement is binding on heirs, assigns, etc. In other words, solicitors are fussing and wordsmithing. The essential terms are the same.
 The back and forth as to the draft Minutes is directed largely to trivia, a misplaced comma, use of words such as “for or” and “by or for” or “or for”. In the back and forth, the solicitors are careful to protect their backsides by using words such as “subject to my client’s instructions” or “I will seek instructions”.
 This action was case managed and this Court asked for period status updates. These updates vaguely stated that, for instance, that progress was being made in terms of settlement.
We have now had an opportunity to review your revised language. We do not believe that these amendments are suitable. We are, however, willing to recommend to our clients that we accept your prior draft, circulated January 13, 2014. Please advise whether you would like us to seek these instructions.
 Plaintiffs’ Counsel replied by e-mail on February 24, 2014.
Further to our discussions this morning, our clients agree to accept the terms that you put forward in your email dated Dec. 14, 2013 and as captured in the draft circulated Jan. 13, 2014.
• Plaintiffs’ Counsel’s e-mail of February 24, 2014 constituted not only an acceptance of the terms of the Offer to Settle, which I find was implicit throughout, but also an acceptance as to the form of the Minutes of Settlement.
 I find, therefore, that there has been an offer and acceptance of the clarified Offer to Settle, and that the Plaintiffs are entitled to an Order in terms as provided in the Motion Record.
1. This action is discontinued without costs.
2. No gatifloxacin containing formulations shall be manufactured in Canada for commercial sale anywhere in the world by the Defendants, as well as any company under the power and control of or affiliated with the Defendants, until expiry of Canadian Patent No. 1,340,316 (the “316 patent”).
3. Any use of gatifloxacin API in Canada by the Defendants, as well as any company under the power and control of or affiliated with the Defendants, to expiry of the 316 patent will be solely for regulatory and/or experimental use.
4. No gatifloxacin containing formulations manufactured by the Defendants, as well as any company under the power or control of or affiliated with the Defendants, for regulatory and/or experimental use up to expiry date of the 316 patent shall be sold commercially.
5. Any gatifloxacin API that has not been used for regulatory and/or experimental use by expiry of the 316 patent will be destroyed on expiry of the 316 patent.
ALLERGAN, INC. AND ALLERGAN SALES, LLC. AND ALLERGAN USA, INC. AND KYORIN PHARMACEUTICAL CO., LTD. v APOTEX INC. AND APOTEX PHARMACHEM INC.

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Fraudulent Conveyances 3.4 — adequate consideration for conveyances — genuine issue of material fact In an action by creditors to set aside conveyances as fraudulent, the evidence presented genuine issues of material fact as to whether the conveyances were supported by adequate consideration where there was evidence that two tracts were conveyed to the male debtor's parents in satisfaction of a debt to the parents of $73,000 and that the parents assumed obligations on the tracts of $97,000, and where another tract was transferred to the male debtor's brother for $2,000 and the evidence as to whether the fair market value of the tract was more than that amount was conflicting.
APPEAL by defendants from Llewellyn, Judge. Judgment entered 19 August 1983 in Superior Court. DUPLIN County. Heard in the Court of Appeals 8 June 1984.
Ward and Smith, P.A., by Michael P. Flanagan, for plaintiff appellee, First-Citizens Bank Trust Company.
This appeal presents one narrow question, whether the trial court properly granted summary judgment to creditors seeking to have a transfer of real estate declared void. We find a material issue of fact as to adequacy of consideration, and we, therefore, reverse.
At the time these events occurred, the Kornegay defendants were farmers, with two main farming operations. One farming operation belonged to Ellis Gerald Kornegay (Gerald Kornegay) and his wife, Connie, and the other belonged to Gerald's father, Cecil Kornegay, and his wife Jean. Kelvin Kornegay, Gerald Kornegay's brother, had recently graduated from high school and lived with his father. Smith-Douglass, Inc. (SDI), a fertilizer supplier, and First-Citizens Bank Trust Company (FCBT), held notes totalling $124,000 from Gerald Kornegay for moneys advanced for farm supplies and operating costs.
On 7 March 1982 Gerald and Connie Kornegay transferred three parcels of land to members of their family: a 100-acre tract and a two-acre tract to Cecil and Jean Kornegay, and an 11-acre tract to Kelvin Kornegay. Gerald Kornegay thereafter defaulted on the SDI and FCBT notes. The two creditors brought actions, later consolidated, on the notes themselves and also to void the transfers as fraudulent. On the creditors' motion for summary judgment, supported by the depositions or all five Kornegays, the trial court rendered judgment on the notes and declared the transfers void. From this ruling, the Kornegays appeal.
The Kornegays do not contest, in either their assignments of error or their brief, the grant of summary judgment on the notes. Therefore the propriety of that portion of the court's order is not challenged by this appeal, and we accordingly affirm it. 4A N.C. Gen. Stat. App. I 2(A), N.C. R. App. P. 10(a), 28(a) (Supp. 1983); State v. Brothers, 33 N.C. App. 233, 234 S.E.2d 652, disc. rev. denied, 293 N.C. 160, 236 S.E.2d 704 (1977). Only the portion granting summary judgment on the conveyances claim remains.
Summary judgment is proper only when the forecast of evidence shows that no genuine issue exists as to any material fact and that the movant is entitled to judgment as a matter of law. Sharpe v. Quality Education, Inc., 59 N.C. App. 304 296 S.E.2d 661 (1982). The court must look at the record in the light most favorable to the non-movant in evaluating the evidence. Id. When a question of material fact exists on the record so viewed, the movant has no right to summary judgment, and a summary judgment order will be reversed. Liberty Loan Corp. v. Miller, 15 N.C. App. 745, 190 S.E.2d 672 (1972).
The pivotal question is whether there was sufficient consideration for the three transfers. If no sufficient consideration changed hands, then the conveyances were voluntary and void since Gerald Kornegay admitted that he did not retain sufficient property to satisfy his debts. N.C. Gen. Stat. 39-17 (1976). No question of fraud would then need to go to the jury, Black v. Sanders, 46 N.C. 67, (1 Jones) (1853), and summary judgment would therefore be appropriate. If, on the other hand, consideration did pass, the intent of the parties to the transactions becomes an essential element of the creditors' action. N.C. Gen. Stat. 39-15 (1976); Aman v. Walker 165 N.C. 224, 81 S.E. 162 (1914); Moore v. Hinnant, 89 N.C. 455 (1883). Questions of fraudulent intent ordinarily go to the jury on circumstantial evidence, and summary judgment is usually inappropriate. Johnson v. Phoenix Mutual Life Ins. Co., 300 N.C. 247, 266 S.E.2d 610 (1980). The evidence in the record as to the state of mind of Gerald Kornegay does not compel a conclusion as a matter of law that he transferred the property with intent to defraud. Therefore, unless the plaintiffs' evidence established as a matter of law that no consideration passed, the trial court erred in granting summary judgment to FCBT and SDI.
This crucial distinction was explained by Chief Justice Ruffin in Fullenwider v. Roberts, 20 N.C. 420 (1839). Mere inadequacy of price is not sufficient to set aside a contract as between two parties for the reason that if one will, without imposition, distress or undue advantage make a bad bargain with his eyes open, he must stand to it. His agreement is sufficient, because his interests alone are affected by it.' Id. However, different policy considerations come into play when the transaction involves the interests of a creditor who is not a party to the transaction. As against such creditors `the price must be sufficient in itself to sustain the deed, without the aid of their acceptance, for no such acceptance exists.' Id. Since the creditor has no control over the amount of consideration which his debtor will accept in relinquishing assets, the law requires that the debtor receive `a fair and reasonable price, according to the common mode of dealing between buyers and sellers.' Id. This does not mean that the debtor should [be] paid every dollar the land was worth, but he should [be] paid a reasonably fair price — such as would indicate fair dealing, and not be suggestive of fraud.' Austin v. Staten, 126 N.C. 783, 36 S.E. 338 (1900). Such a requirement prevents a debtor from placing his assets beyond the reach of his creditors by transfers to friendly parties for nominal considerations.
296 N.C. at 378-79, 250 S.E.2d at 234. The resolution of the issue on appeal depends on the strength of the evidence that Gerald and Connie Kornegay did not receive a "fair and reasonable" price for the tracts in question.
The trial court had before it evidence that Gerald Kornegay's parents had loaned him approximately $73,000 and that the transfer of the real property satisfied that debt. The parents, Cecil and Jean Kornegay, claimed to take title in exchange for forgiveness of this existing debt. The majority of jurisdictions accept such satisfaction of debt as consideration if the amount forgiven is fairly equivalent to the value of the property. 37 Am. Jur.2d Fraudulent Conveyances 21, at 712 (1968). North Carolina has recognized a conveyance for the sole purpose of discharging an honest debt as outside the statutory prohibition against fraudulent conveyances. Hafner v. Irwin, 23 N.C. 490, (1 Ired.) (1841). In Wurlitzer Distributing Corp. v. Schofield, 44 N.C. App. 520, 261 S.E.2d 688 (1980), this Court considered the application of Hafner, and concluded that Hafner controlled when it had been established that the existing debts were valid. The creditors have not shown that the existing debt was invalid as a matter of law; the kind of "after the fact" invention found in Wurlitzer is not conclusively apparent on this record. The creditors emphasize the absence of revenue stamps on the deeds as proof of no real consideration; however, under current law this is only evidence of lack of consideration, not conclusive proof. See N.C. Gen. Stat. 105-228.32 (1979); 40 N.C. Att'y Gen. Rep. 876 (1970) (duty of presenter, not Register of Deeds, to ensure proper amount of stamps affixed). The creditors also contend that the debt to Gerald Kornegay's father Cecil consisted of obligations on joint purchases and that the purchases were for the benefit of Cecil Kornegay, and therefore no consideration passed by the forgiveness. The record does not conclusively establish that all the purchases were joint in nature; in fact, there was substantial testimony by Cecil and Jean Kornegay that they lent money to pay bills incurred solely by Gerald. Nothing in the record suggests that the creditors attempted to discover the financial records of the Kornegays, or to force them to admit that there were no such records. Compare Wurlitzer v. Schofield (no records or notes or demand for payment). On this record we conclude that there was a genuine issue of fact as to the existence of consideration by virtue of satisfaction of debt.
In addition, there was evidence that Cecil and Jean Kornegay assumed the remaining purchase obligations on the tracts they received. Assumption of the remainder of existing mortgage debts can also constitute sufficient consideration. NCNB v. Evans; see also 37 Am. Jur.2d Fraudulent Conveyances 22, at 712-13 (1968).
Whether these two types of consideration, taken together, constituted a "fair and reasonable" price also appears to present a genuine issue of fact. The amount of debt satisfied and assumed by Cecil and Jean Kornegay, apparently some $170,000, does not appear to be so unreasonably disproportionate to the asserted fair market value of the property as to conclusively indicate fraud. See 37 Am. Jur.2d Fraudulent Conveyances 20-21, at 710-12 (1968). Accordingly, we conclude that there was a genuine issue as to valuable consideration, and that the trial court erred in granting summary judgment for the creditors with respect to the transfers to Cecil and Jean Kornegay.
We reach this figure as follows: $73,000 debt forgiveness + $54,000 mortgage assumption + $13,000 and $30,000 debt assumption on house and grain facility.
With respect to the conveyance to Kelvin Kornegay, it is undisputed that Kelvin paid an existing debt of $2,000 in the name of Gerald Kornegay for the tract. The only question presented here thus becomes whether the record shows as a matter of law that this sum did not constitute a "fair and reasonable price" for the property. The creditors relied on an unsworn and uncertified financial statement executed by Gerald and Connie Kornegay, which indicated that the fair market value of the property was $15,000. The creditors did not present any other independent assessment of the value of the property. In his sworn deposition, Gerald Kornegay testified to the contrary that the market value at the time of transfer had dropped to $2,000 as a result of falling land prices, the cutting of timber off the land, and his own failure to complete planned drainage of it. In view of the authentication requirements for materials used to support summary judgment, this conflicting evidence presented a material issue as to the adequacy of consideration. N.C. Gen. Stat. 1A-1, Rule 56(e) (1983) (certification required); see under identical federal rule Zoslaw v. MCA Distributing Corp., 693 F.2d 870 (9th Cir. 1982), cert. denied, ___ U.S. ___, 76 L.Ed.2d 349, 103 S.Ct. 1777 (1983) (unauthenticated documents properly disregarded); United States v. Dibble, 429 F.2d 598 (9th Cir. 1970) (merely attaching unauthenticated documents to affidavit insufficient). Summary judgment, was therefore incorrectly granted as to this conveyance.
Judges HILL and BRASWELL concur.