Applicant hereby gives notice to all interested persons and to Jessica Toothman and David Perine, whose last known address is: Ms. Toothman at 32926 Evans Rdg. Rd., New Matamoras OH and Mr. Perine at 1308 Williamson Ave., New Matamoras OH that the applicant has filed an Application for Change of Name in the Probate Court of Monroe County, Ohio, requesting the change of name of Alexus Elaine Perine to Alexus Elaine Felton. The hearing on the application will be held on the 25th day of June, 2019, at 10:30 o’clock a.m. in the Probate Court of Monroe County, located at 101 North Main Street, Room #39, Woodsfield OH 43793.
Eureka Midstream, LLC (Eureka) is submitting a permit application for the modification of the permit for the three Waukesha L7044GSI 4-stroke rich burn engines to change from a general permit to a PTIO at its German Ridge Compressor Station (German Ridge) to account for their ZZZZ status. No changes in emissions are being requested for the engines. Eureka is also asking for a change in the blowdown emissions.
Initial PTIO application for a compressor station in Monroe County.
of liens for delinquent land taxes by action in rem by County Treasurer of Monroe County, Ohio.
Public Notice is hereby given that the County Treasurer of Monroe County, Ohio, filed a complaint in the Common Pleas Court of Monroe County, Ohio at Woodsfield, Ohio, for the foreclosure of liens for delinquent taxes, assessments, charges, penalties and interest against certain real property situated in such county, as described in the complaint.
The object of the actions is to obtain from the Court judgments foreclosing the tax liens against such real estate and ordering the sale of such real estate for the satisfaction of the tax liens.
Such action is brought against the real property only and no personal judgment shall be entered in it. However, if pursuant to the actions, the property is sold for an amount that is less than the amount of the delinquent taxes, assessments, charges, penalties, and interest against it, the Court, in a separate order, may enter a deficiency judgment against the owner of record of a parcel for the amount of the difference; if that owner of record is a corporation, the Court may enter the deficiency judgment against the stockholder holding a majority of the corporation’s stock.
PPN 05-280104.5000 in the Village of Woodsfield, located at 418 East Marietta Street, Woodsfield, Ohio, and being Lot 210 in the Morris & Mooney Addition has delinquent taxes, assessments, penalties and interest upon it in the amount of $10,930.51. The last known owner is Galford W. Barnes and Gloria M. Barnes, 16725 Bronze Heights Lane Lot 18, Caldwell, Ohio 43734. Lienholders & other persons with an interest: Partners for Payment Relief DE II, LLC, at 3748 West Chester Pike, Suite 103, Newtown Sq., PA 19073, c/o Registered Ohio Statutory Agent, Inc., 244 Kull Road, Lancaster, Ohio 43130, may have a mortgage recorded in the office of the Monroe County Recorder in Official Records V. 146 at P. 948.
PPN 10-028017.000, address unknown, but being more particularly described in the Office of the Monroe County Recorder, DR V. 175, P. 588, consisting of approximately 9.26 acres, has delinquent taxes, assessments, penalties and interest upon it in the amount of $1,622.66. The last known owner is George Conley, 44886 Ludoph Ridge Road, New Matamoras, Ohio 45767.
PPN 12-031036.0000, but containing 5.007 acres more or less, and being further described in the Office of the Monroe County Recorder, OR V 240, P 674, has delinquent taxes, assessments, penalties and interest upon it in the amount of $2,884.87. The described property is believed to be located at 52601 Township Road, Jerusalem, Ohio 43747. The last known owner of record is Wilda Loraine Elkins, 3654 Essex Pond Quay, Virginia Beach, VA 23462 or 1814 3rd Street, Moundsville, WV 26041-1721.
PPN 12-031036.1000, containing 0.97 acres, more or less, and being further described in the Office of the Monroe County Recorder, OR, V 240, P 674, has delinquent taxes, assessments, penalties and interest upon it in the amount of $55.61. The described property is located at or near 52601 Township Road, Jerusalem, Ohio 43747. The last known owner of record is Wilda Loraine Elkins, 3654 Essex Pond Quay, Virginia Beach, VA 23462 or 1814 3rd Street, Moundsville, WV 26041-1721.
PPN 02-021026.0000, and being further described in the Office of the Monroe County Recorder, OR V 77, P 178, containing approximately 9.955 acres, and located at 41844 Township Road 817, New Matamoras, OH 45767 has delinquent taxes, assessments, penalties and interest upon it in the amount of $7,735.83. The last known owner is James M. Johnson and Heather Johnson, 41844 Township Road 817, New Matamoras, OH 45767. Lienholders & other persons with an interest: Credit Corporation Solutions, Inc, 4645 Executive Driver, Columbus, OH 43220, c/o Corporation Service Company, 50 West Broad Street, Suite 1330, Columbus, OH 43215, may have an interest by reason of a Judgement Lien filed in the Monroe County Common Pleas Court, Case # JL 2018-296. Capital One Bank (USA), N.A., 15000 Capital One Drive, Richmond, VA 23238, may have an interest by reason of a Judgement Lien filed in the Monroe County Common Pleas Court, Case # JL 2014-023.
PPN 03-025015.0000, address unknown, but being further described in the Office of the Monroe County Recorder, OR V. 145, P. 540, consisting of approximately 5.004 acres, more or less, has delinquent taxes, assessments, penalties and interest upon it in the amount of $1,307.45. The last known owner of record is Mark W. Lamb, 1881 Manchester Road, Apartment 3, Akron, Ohio 44314.
PPN 25-003002.0000, address unknown, but being known and numbered as Lot Four (4), in said Town of Beallsville, EXCEPTING from the above described Lot Number Four (4), 35 feet off of the West end of said lot has delinquent taxes, assessments, penalties and interest upon it in the amount of $20,299.61. A complete legal description may be found in the Office of the Monroe County Recorder, OR V 148, P 371. The last known owner of record is LLP Properties, LLC, 51300 Trembly Ridge Road, Beallsville, Ohio 43716.
PPN 26-001003.0000, and being Lot No. 32 in Wiley’s Addition to East Jerusalem, Ohio and containing ½ acre, except 25 feet across the south end for road purposes, has delinquent taxes, assessments, penalties and interest upon it in the amount of $321.40. That the last known owner of record is Jerald L. Phillips and Amy M.M. Phillips, 52191 State Route 26, Jerusalem, OH 43747.
PPN 26-001004.0000, and being Lot No. 33 in Wiley’s Addition to East Jerusalem, Ohio has delinquent taxes, assessments, penalties and interest upon it in the amount of $3,516.78. That the last known owner of record is Jerald L. Phillips and Amy M.M. Phillips, 52191 State Route 26, Jerusalem, OH 43747.
Lienholders & other persons with an interest: Belmont Savings Bank, 915 East Main Street, Barnesville, OH 43713 c/o Todd D. Cover, 3301 Guernsey Street, P.O. Box 654, Bellaire, OH 43906, may have an interest in the subject parcel(s) by reason of two (2) mortgages recorded in the office of the Monroe County Recorder in OR V 166 at P 531, and OR V 194, P 567.
PPN 24-003002.0000, containing approximately 4.5 acres, more or less, and being further described in the Office of the Monroe County Recorder, OR, V 37, P 589, has delinquent taxes, assessments, penalties and interest upon it in the amount of $253.36. The last known owner of record is Samuel M. Post and Hazel E. Post, 52426 Crum Road, Beallsville, Ohio 43716.
PPN 24-003002.1000, containing approximately 2.13 acres, more or less, and being further described in the Office of the Monroe County Recorder, OR V. 37, P. 589, has delinquent taxes, assessments, penalties and interest upon it in the amount of $2,096.87. The last known owner of record is Samuel M. Post and Hazel E. Post, 52426 Crum Road, Beallsville, Ohio 43716.
PPN 10-023014.0000, address unknown, containing 40 acres more or less, has delinquent taxes, assessments, penalties and interest upon it in the amount of $2,194.08. A full property description can be found in the Office of the Monroe County Recorder, DR, V 72, P 312. The last known owner is George W. Raper and William A. Raper, c/o Kathryn M. Williams, 11450 Oakhurst Lane, Woodbridge, VA 22192.
PPN 29-006026.0000, and containing 10.116 acres more or less, has delinquent taxes, assessments, penalties and interest upon it in the amount of $6,428.01. A complete legal description can be found in the Office of the Monroe County Recorder, OR V. 60, P. 675. The last known owner of record is David Scott Rinkes, 36808 Kinney Road, Woodsfield, Ohio 43793. Lienholders & other persons with an interest: Ocean Bank F.S.B. One Home Loan Plaza, Suite 3, Warwick, Rhode Island, 02886-1765, , may have an interest in the subject parcel by reason of two (2) mortgages recorded in the office of the Monroe County Recorder in OR V. 143 at P. 316, and V. 148, P. 294.
PPN 22-021024.0000, address unknown, being more particular described in the Office of the Monroe County Recorder, DR V. 115, P. 269, has delinquent taxes, assessments, penalties and interest due and owing upon it in the amount of $116.65. The last known owner of record is Bessie P. Schell, address unknown.
PPN 04-022017.0000, address unknown, containing approximately 0.91 acres more or less, and being further described in the Office of the Monroe County Recorder, OR, V. 155, P. 727, has delinquent taxes, assessments, penalties and interest upon it in the amount of $2,138.24. The last known owner of record is James E. Sowers, 39791 Gun Club Road, Woodsfield, Ohio 43793. Lienholders & other persons with an interest: The State of Ohio Department of Taxation, 150 East Gay Street, 21st Floor, Columbus, OH 43215, may have an interest in the subject parcel by reason of a Judgement Lien recorded in the office of the Monroe County Common Pleas Court Clerk in Case No. JL 2010-403.
PPN 05-110200.2000, address unknown, but being further described in the Office of the Monroe County Recorder, OR, V. 157, P. 702, has delinquent taxes, assessments, penalties and interest upon it in the amount of $1,490.18. The last known owner of record is James E. Sowers, 39791 Gun Club Road, Woodsfield, Ohio 43793. Lienholders & other persons with an interest: The State of Ohio Department of Taxation, 150 East Gay Street, 21st Floor, Columbus, OH 43215, may have an interest in the subject parcel by reason of a Judgement Lien recorded in the office of the Monroe County Common Pleas Court Clerk in Case No. JL 2010-403.
PPN 05-090102.7000, address unknown, but being further described in the Office of the Monroe County Recorder, OR, V. 157, P. 700, has delinquent taxes, assessments, penalties and interest upon it in the amount of $1,120.55 as of the date of filing on the parcel.
PPN 05-090101.2000, address unknown, but being further described in the Office of the Monroe County Recorder OR V. 157, P. 700 has delinquent taxes, assessments, penalties and interest upon it in the amount of $55.61.
PPN 05-090101.2100, address unknown, but being further described in the Office of the Monroe County Recorder OR V. 157, P. 700 has delinquent taxes, assessments, penalties and interest upon it in the amount of $8.04.
PPN 05-090101.2200, address unknown, but being further described in the Office of the Monroe County Recorder OR V. 157, P. 700 has delinquent taxes, assessments, penalties and interest upon it in the amount of $7.44.
The last known owner of record is James E. Sowers, 39791 Gun Club Road, Woodsfield, Ohio 43793. Lienholders & other persons with an interest: The State of Ohio Department of Taxation, 150 East Gay Street, 21st Floor, Columbus, OH 43215, may have an interest in the subject parcels by reason of a Judgement Lien recorded in the office of the Monroe County Common Pleas Court Clerk in Case No. JL 2010-403.
PPN 05-280103.1000, address unknown, but being further described in the Office of the Monroe County Recorder, OR, V 157, P 231, has delinquent taxes, assessments, penalties and interest upon it in the amount of $1,058.03. The last known owner of record is James E. Sowers, 39791 Gun Club Road, Woodsfield, Ohio 43793. Lienholders & other persons with an interest: The State of Ohio Department of Taxation, 150 East Gay Street, 21st Floor, Columbus, OH 43215, may have an interest in the subject parcels by reason of a Judgement Lien recorded in the office of the Monroe County Common Pleas Court Clerk in Case No. JL 2010-403.
PPN 28-002013.0000, address unknown, but being further described as part of “Tract II” as contained in the Certificate of Transfer in the Office of the Monroe County Recorder, OR, V. 156, P. 953, has delinquent taxes, assessments, penalties and interest upon it in the amount of $242.14.
PPN 28-001025.0000, address unknown, but and being further described as part of “Tract II” as contained in the Certificate of Transfer in the Office of the Monroe County Recorder, OR, V. 156, P. 953, has delinquent taxes, assessments, penalties and interest upon it in the amount of $137.03.
PPN 19-005042.0000, believed to be located at 481 Market Street, Clarington, Ohio, but being situated in the Village of Clarington, County of Monroe, and being bounded and described as the south half of Lot No. 98 in Township Three (3), Range Three (3), of Section Nineteen (19) has delinquent taxes, assessments, penalties and interest upon it in the amount of $3,192.52. The last known owner of record is John L. Tomshack and Lisa R. Tomshack, 481 Market Street, Clarington, Ohio 43915.
**Any person owning or claiming any right , title, or interest in, or lien upon, any parcel of real property above listed may file an answer in such action setting forth the nature and amount of interest owned or claimed and any defense or objection to the foreclosure. Such answer shall be filed in the office of the undersigned Clerk of the Court, and a copy of the answer shall be served on the assistant prosecuting attorney, on or before the 30th day of May, 2019 (such date being twenty-eight (28) days after the date of final publication of this notice, publication to occur on April 18, 2019, April 25, 2019, and May 2, 2019).
If no answer is filed with respect to a parcel listed in the above complaints, on or before the date specified as the last day for filing an answer, a judgment of foreclosure will be taken by default as to that parcel. Any parcel as to which a foreclosure is taken by default shall be sold for the satisfaction of the taxes, assessments, charges, penalties, and interest, and the costs incurred in the foreclosure proceeding, which are due and unpaid.
At any time prior to the filing of an entry of confirmation of sale, any owner or lienholder of, or other person with an interest in, a parcel listed in the complaints may redeem the parcel by tendering to the county treasurer the amount of taxes, assessments, interest, penalties, and charges due and unpaid on the parcel, together with all costs incurred in the proceedings instituted against the parcel under ORC § 5721.18. Upon the filing of any entry of confirmation of sale, there shall be no further equity of redemption. After the filing of any such entry, any person claiming any right, title, or interest in, or lien upon, any parcel shall be forever barred and foreclosed of any such right, title, or interest in, lien upon, and any equity of redemption in, such parcels.


Appeal from the Second District Court, David County, J. Duffy Palmer, J.
Brant H. Wall, Salt Lake City, for defendants and appellants.
Darrell G. Renstrom, Ogden, for plaintiffs and respondents.
This appeal arises out of a mechanics' lien foreclosure action.
Plaintiffs furnished labor and materials on premises purchased under contract by defendant Raintree Development and Energy (Raintree) and completed their work on January 10, 1982. When Raintree failed to pay, plaintiffs placed a timely lien on the premises but then sued Raintree for breach of oral contract. Plaintiffs obtained a money judgment against Raintree on January 14, 1983.
On June 29, 1982, the sellers of the property here at issue sold the property to defendant Galen J. Ross (Ross) when Raintree defaulted under its contract. Ross later brought suit to terminate the rights of Raintree to the property and to quiet title against plaintiffs and Raintree. Raintree was served with process but failed to answer or otherwise respond. On May 2, 1983, Ross obtained judgment against Raintree quieting title to the property and declaring all of Raintree's rights, title, interest and lien or estate in the land null and void.
Meanwhile, on March 7, 1983, after they discovered that Raintree was judgment-proof against their money judgment, plaintiffs instituted their mechanics' lien foreclosure action against defendants. Ross answered, but failed to plead the statutory bar as an affirmative defense. Plaintiffs' action was consolidated with Ross's quiet title action for purposes of trial. Both parties moved for summary judgment, and Ross for the first time raised the issue that plaintiffs were barred from bringing the foreclosure action as it was not filed in a timely manner. The court granted plaintiffs' motion for summary judgment and entered judgment against Ross in the amount of the lien, together with costs and attorney fees. Ross filed motions for an amendment of findings and a new trial which were denied. This appeal followed.
Ross appeals on several grounds, but his claim that plaintiffs' foreclosure action was barred for failure to institute their claim within the time prescribed by section 38-1-11 of the mechanics' lien statute is dispositive here. That section provides that actions to enforce liens must be begun within twelve months after the completion of the original contract. Plaintiffs concede that they filed their complaint late, but argue that Ross has waived his rights to the statutory bar as he failed to plead it as an affirmative defense. They also claim that filing a lawsuit is only one form of "taking action to enforce the lien," and that filing a notice of lien is another action which they took in time. Moreover, continues their response, the foreclosure of a mechanics' lien is a matter of equity, and this Court should therefore construe the statute liberally in accordance with section 68-3-2 of the Utah Code.
38-1-11. Enforcement — Time for — Lis pendens — Action for debt not affected. — Actions to enforce the liens herein provided for must be begun within twelve months after the completion of the original contract, or the suspension of work thereunder for a period of thirty days. Within the twelve months herein mentioned the lien claimant shall file for record with the county recorder of each county in which the lien is recorded a notice of the pendency of the action, in the manner provided in actions affecting the title or right to possession of real property, or the lien shall be void, except as to persons who have been made parties to the action and persons having actual knowledge of the commencement of the action, and the burden of proof shall be upon the lien claimant and those claiming under him to show such actual knowledge. Nothing herein contained shall be construed to impair or affect the right of any person to whom a debt may be due for any work done or materials furnished to maintain a personal action to recover the same.
Properly framed, the issue before us is whether an untimely action under our mechanics' lien statute affects the rights or merely the remedies of the parties. We disagree with plaintiffs that it affects merely their remedies and is therefore subject to waiver and estoppel as are procedural statutes of limitations and hold instead that it is jurisdictional and forecloses their rights.
Mechanics' liens are statutory creatures unknown to the common law. The purpose of the Utah mechanics' lien law is to provide protection to those who enhance the value of a property by supplying labor or materials. Interiors Contracting Inc. v. Navalco, Utah, 648 P.2d 1382 (1982). Although liens and pleadings arising under the statute will be liberally construed to effect the desired object, compliance with the statute is required before a party is entitled to the benefits created by the statute. First Security Mortgage Co. v. Hansen, Utah, 631 P.2d 919 (1981); see also Schofield v. Copeland Lumber Yards, Inc., Nev., 692 P.2d 519 (1985); Lewis v. Wanamaker Baptist Church, 10 Kan. App. 2d 99, 692 P.2d 397 (1984).
The law is clear in this jurisdiction that a mechanics' lien foreclosure action must be brought within twelve months after the original contract between the lienor and the lienee is completed, or relief will not lie. Motivated Management International v. Finney, 604 P.2d 467 (1979) (dictum); Roberts v. Hansen, 25 Utah 2d 190, 479 P.2d 345 (1971); Totorica v. Thomas, 16 Utah 2d 175, 397 P.2d 984 (1965). That failure to enforce a mechanics' lien within the statutory period is a jurisdictional question has not heretofore been decided by this Court. We therefore look to our sister jurisdictions with similar mechanics' lien statutes.
While the contrary is held in California, it is the rule in most jurisdictions that [the time limit provided for actions to enforce mechanics' liens] is not a statute of limitations, which is waived if not pleaded, but a statute limiting the duration of the lien. The remedy forms a part of the right and must be pursued within the time prescribed, or else both are lost. If an action is not brought within the time limited, the court is without jurisdiction to decree a foreclosure. . . .
Mechanics, materialmen, artisans, and laborers of every class, shall have a lien upon the property upon which they have bestowed labor or furnished material for the value of such labor done and material furnished; and the Legislature shall provide, by law, for the speedy and efficient enforcement of such liens.
(Emphasis added.) For a historical abstract of the California Mechanic Lien Statute, see Robinson v. S S Development, 256 Cal.App.2d 13, 63 Cal.Rptr. 663 (1967); accord Petersen v. W.T. Grant Co., 41 Cal.App.3d 217, 115 Cal.Rptr. 874 (1974). A procedural statute has been defined as one which neither enlarges nor impairs substantive rights but rather relates to the means and procedures for enforcing these rights. Bellegarde Custom Kitchens v. Leavitt, Me., 295 A.2d 909, 911 (1972).
34 P.2d at 650, 93 A.L.R. at 1459.
That rule is still good law today. It was echoed in Diamond National Corp. v. Dwelle, 164 Conn. 540, 325 A.2d 259 (1973), where the court addressed the same issue and citing Fleshman v. Whiteside pronounced the statutory bar substantive or jurisdictional rather than procedural or personal. As the mechanics' lien is a creature of statute and fixes the time within which the right must be enforced, the court reasoned that "it is a limitation of the liability itself as created, and not of the remedy alone." Similar results were reached in Well Done Heating Sheet Metal Co. v. Ralph Schwartz Associates, 112 Ill. App.3d 438, 68 Ill.Dec. 3, 445 N.E.2d 451 (1983), accord Garbe Iron Works, Inc. v. Priester, 99 Ill.2d 84, 75 Ill.Dec. 428, 457 N.E.2d 422 (1983) (dictum); Regal Wood Products, Inc. v. First Wisconsin National Bank of Milwaukee, Fla.App., 347 So.2d 643 (1977); Federal National Bank and Trust Co. of Shawnee v. Calsim, Inc., La. App., 340 So.2d 611 (1976); Bellegarde Custom Kitchens v. Leavitt, Me., 295 A.2d 909 (1972).
In Cox v. Bankers Trust Co., 39 Colo. App. 303, 570 P.2d 6 (1977) (dealing with untimely joinder under the Colorado statute), the court held that the trial court was not vested with jurisdiction after the statutory period. Both in that case and in King v. W.R. Hall Transportation and Storage Co., Colo., 641 P.2d 916 (1982) (also barring joinder after the statutory period), the court stated that the strict application of the statutory limit was based on the principle that extending the lifetime of a perfected lien would vest a lien creditor with greater rights than were granted by the statutory provision creating the rights. In addition, strictly limiting the time during which property is encumbered renders titles to real property and to interests and estates therein more safe, secure, and marketable. Id. at 920. See also Wood Panel Structures, Inc. v. Grangaard, 55 Or. App. 294, 637 P.2d 1320 (1981). In distinguishing mechanics' lien statutory periods from procedural statutes of limitations, the court in Bellegarde Custom Kitchens, supra, held that the trial court had no jurisdiction where a lienor filed one day late because the last statutory day for enforcing the lien fell on a Sunday. "The Legislature saw fit to provide that this right should exist only during a limited period, and the Court is without jurisdiction to entertain such an action as this when the period of its availability has expired." Id. at 912. The vitality of a lien created solely by statute depends on the terms of the statute, and parties may not by estoppel enact or enlarge a statute. Boyce v. Knudson, 219 Kan. 357, 548 P.2d 712 (1976).
It should be noted that Kansas law requires the recorder to cancel the lien after the statutory period.
Plaintiffs claim that Ross knew about the lien when he purchased the property and the lower court therefore did not err in enforcing the lien against him. A similar claim was made in D.M. Foley Co., Inc. v. North West Federal Savings Loan Assoc., 122 Ill. App.3d 411, 77 Ill.Dec. 877, 461 N.E.2d 500 (1984). The court there found that a lien foreclosure filed after the statutory period was not valid even against those who purchased an interest in the property after the filing of the lien and who therefore had notice of it, because the statutory period "is not merely a statute of limitations but a condition of liability itself and not just a limitation on the remedy." The court held that the potential liability of subsequent purchasers perished inchoate when plaintiffs failed to bring suit within the period allowed after completion of the work.
The same result is mandated here. The time for enforcing mechanics' liens set out in section 38-1-11, supra, limits a lienor's rights to twelve months after his work is completed. At that point, both his rights and his remedies under the statute are extinguished.
Because we find that plaintiffs were too late in bringing their lien foreclosure action against Ross, we must also reverse the award of their attorney fees. The successful party shall be entitled to recover a reasonable attorney fees. U.C.A., 1953, § 38-1-18. Ross successfully defended against plaintiffs' action and attorney fees should be awarded to him. However, plaintiffs resist Ross's claim for attorney fees on the ground that it is first raised on appeal. An award of attorney fees is proper to the successful party under section 38-1-18. Palombi v. D. C. Builders, 22 Utah 2d 297, 452 P.2d 325 (1969). Moreover, the record indicates that Ross briefed the trial court to the effect that the prayer of his counterclaim asked for costs incurred and for such further relief as would be proper in the premises. He also argued to the trial court that under section 38-1-18 attorney fees were to be taxed as costs, and his affidavit of attorney fees asked for $2,500 to the date of the summary judgment. We hold that Ross is entitled to attorney fees as stated above. Petty Investment Co. v. Miller, Utah, 576 P.2d 883 (1978).
No appeal has been taken from the money judgment plaintiffs obtained against Raintree, and that judgment therefore stands, though it apparently is of little value. The trial court's summary judgment in favor of plaintiffs and against Ross is reversed with instructions to enter judgment in favor of Ross and remove the lien from the land. The case is remanded to the trial court for a hearing on a reasonable amount of attorney fees to Ross, including those incurred in this appeal.
STEWART, J., concurs in the result.


Richard E. Robinson, Petitioner, v. Harold Clarke, Respondent.
THIS MATTER is before the Court on respondent's motion to dismiss Richard E. Robinson's pro se petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254. This case concerns Robinson's challenge to his conviction of four counts of animal fighting in the Circuit Court for the City of Richmond, Virginia. Respondent filed his motion to dismiss on June 24, 2013. Petitioner was given the opportunity to file responsive materials, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), and he filed a reply on July 15, 2013. Upon careful review, the Court finds that this habeas corpus application must be dismissed because the state courts' decisions were not contrary to or an unreasonable applications of federal law.
On December 16, 2009, a jury convicted Richard E. Robinson of one count of animal cruelty in violation of Va. Code. § 3.2-6570(B)(5); one count of dog fighting: possessed owned or trained in violation of Va. Code. § 3.2-6571(A)(l)(B)(2); one count of animal: dog fighting activity in violation of Va. Code. § 3.2-6571 (A)(1)(B)(1), and one count of dog fighting: possessed, owned or trained in violation of Va. Code. § 3.2-6571 (A)(1)(B)(5) in the Circuit Court for the City of Richmond. Commonwealth v. Robinson, Case Nos. CR09-F-4742, CR09- F-4743, CR09-F-4882, and CR09-F-4884, respectively. On September 08, 2009, a grand jury returned three indictments for violations of felony dog lighting and animal cruelty. J.A. at 1-4.
On December 14,2009, a day before petitioner's trial began, petitioner's counsel filed a motion to quash the three indictments or, in the alternative, to proceed on only one indictment arguing that to proceed on all would violate the double jeopardy clause. Id. at 5-6, 32. The trial court found that Va. Code § 19.2-266.2 required "defense motions or objections seeking . . . dismissal of an. . . indictment. . . on the ground that. . . defendant would be twice placed in jeopardy in violation of the provisions of the Fifth Amendment to the Constitution of the United States," or in violation of the Virginia Constitution to be brought "not later than seven days before trial." Id. at 32. As such, the trial court denied the motion as untimely pursuant to §19.2-266.2(B). Id. at 40. Though §19.2-266.2(B) gives circuit courts discretion to hear untimely petitions for "good cause shown and in the interest of justice," the trial court found that petitioner's counsel failed to show good cause for why the motion was untimely. Id. at 40 (relating petitioner's counsel's given reason for not meeting §19.2-266.2(B)'s requirement as "in trying to figure out what we were doing about the motion to continue, I simply just didn't -didn't focus on this until at the moment I did").
At petitioner's trial, Amy Taylor, an animal control officer, testified that on June 16, 2009, she went to petitioner's residence, id. at 182, and found twelve dogs, id. at 191, many of which had injuries, were visibly bleeding and were kept on heavy chains, id. at 137-39. The dogs had either no or little water. See id. at 140. One dog was found without any water and kept on a chain that weighed more than the dog itself. Id. at 139, 176. Officer Taylor also testified to finding documentation of dogs' pedigrees, id. at 153, 156, salted hides, leashes, toys, harnesses, id. at 173-74, and multiple kennels. Dr. Touroo, a veterinarian for animal control with the Virginia Department of Agriculture, id. at 213-14, testified that she examined the twelve dogs seized from petitioner's residence and concluded that most of the dogs were used in fighting, based on injuries, scarring, clinical dehydration, and bruising found on the dogs, id. at 224-239. One dog was euthanized because the injuries were no longer treatable, id. at 241. Richard Samuels, a certified expert in dog fighting and an animal control officer for the Spotsylvania County Sheriff's Office, id. at 263-64, testified that the number of dogs in petitioner's residence, the injuries on the dogs, id. at 266, and items found on the property were consistent with those of dog fighting, id. at 273,280,282,286. Anna Ponce, a former employee of the Richmond Animal Care and Control, testified that during one of her shifts petitioner came into the animal control center and asked why his dogs were taken. Id. at 304.
Mr. Trucker, petitioner's witness, testified that he was the owner of the dogs, id. at 340, that he had built the kennels found on petitioner's residence, id. at 341, and that he was renting space on petitioner's property on which to keep the dogs, id. at 340. Mr. Tucker was the defense's only witness. The court sentenced petitioner to nine years and twelve months incarceration. Robinson pursued a direct appeal to the Court of Appeals of Virginia claiming insufficient evidence to support his conviction and two errors by the trial court: convicting him on three counts of animal cruelty in violation of the double jeopardy clause and in imposing a ten-year sentence. The Court of Appeals granted the petition for appeal as to petitioner's double jeopardy claim on January 25, 2011. Robinson v. Commonwealth, R. No. 0792-10-2 (Va. Ct. App. Jan. 25, 2011). On July 19, 2011, after hearing oral argument on the double jeopardy issue, the Court of Appeals of Virginia affirmed the trial court's decision to deny Robinson's motion to quash two of the three felony indictments because the motion was untimely under Va. Code § 19.2-266.2 and Robinson's counsel had failed to show either "good cause" or an "interest of justice" existed to excuse the delay. Id. at 2. On August 15, 2011, the Court of Appeals of Virginia denied Robinson's petition for a rehearing en banc. Robinson v. Commonwealth, R. No. 0792-10-2 (Va. Ct. App. Aug. 15, 2011). On April 4, 2012, the Supreme Court of Virginia refused Robinson's petition for appeal. Robinson v. Commonwealth, R. No. 111660 (Va. Apr. 4, 2012).
Though Robinson signed his petition he did not include a date. His envelope was post marked March 13, 2013, and the Court received his petition on March 15, 2013. Thus, his petition will be deemed filed as of March 13, 2013.
(A) Counsel was ineffective for failing to timely raise a double jeopardy claim.
(B) Counsel was ineffective for failing to introduce evidence of a contract that showed a third party was responsible for the dogs.
2. Trial court erred in failing to dismiss two of the three felony indictments in violation of the double jeopardy clause of the United States Constitution and the Virginia Constitution.
3. The Court abused its discretion in imposing a ten-year sentence.
4. Trial Court erred in finding there was sufficient evidence to support his conviction.
Based on the pleadings and record before this Court, it is uncontested that Robinson exhausted all of his claims as required under 28 U.S.C. § 2254.
Petitioner's claim that the trial court erred in failing to dismiss two of the three felony indictments in violation of the double jeopardy clause is procedurally barred from review on the merits. A state court's finding of procedural default is entitled to a presumption of correctness on federal habeas corpus review, Clanton v. Muncv, 845 F.2d 1238, 1241 (4th Cir. 1988) (citing 28 U.S.C. § 2254(d)), provided two foundational requirements are met. Harris v. Reed, 489 U.S. 255, 262-63 (1989). First, the state court must explicitly rely on the procedural ground to deny petitioner relief. See Ylst v. Nunnemaker, 501 U.S. 797, 802-03 (1991); Harris, 489 U.S. at 259. Second, the state procedural rule used to default petitioner's claim must be an independent and adequate state ground for denying relief. See Harris, 489 U.S. at 260; Ford v. Georgia, 498 U.S. 411, 423-24 (1991). The Fourth Circuit has held consistently that "the procedural default rule set forth in Slavton constitutes an adequate and independent state law ground for decision." Mu'Min v. Pruett, 125 F.3d 192, 196-97 (4th Cir. 1997).
When these two requirements are met, federal courts may not review the barred claim absent a showing of cause and prejudice or a fundamental miscarriage of justice, such as actual innocence. Harris, 489 U.S. at 260. The existence of cause ordinarily turns upon a showing of (1) a denial of effective assistance of counsel, (2) a factor external to the defense which impeded compliance with the state procedural rule, or (3) the novelty of the claim. See Coleman v Thompson, 501 U.S. 722, 753-54 (1991); Clozza v. Murray, 913 F.2d 1092, 1104 (4th Cir. 1990); Clanton, 845 F.2d at 1241-42. Importantly, a court need not consider the issue of prejudice in the absence of cause. See Kornahrens v. Evatt, 66 F.3d 1350, 1359 (4th Cir. 1995), cert, denied, 517 U.S. 1171 (1996).
Both the trial court and Court of Appeals of Virginia held that Robinson failed to timely raise his double jeopardy claim as required by Va. Code § 19.2-266.2. J.A. at 5-6, 32. Each court explicitly relied on Va. Code § 19.2-266.2, which is an independent and adequate state ground. See Schmitt v. Kelly, 189 Fed. Appx. 257, 274 (4th Cir. 2006).
Petitioner argues that this claim should not be procedurally barred because the trial court failed to "reasonably apply this Virginia Code section... [which] has now possibly precluded him from seeking federal review of the matter. This fact, Robinson maintains, does not constitute an [sic] adequate state procedural bar." Pet'r's Answer to Res't Mot Dismiss at 3. This argument, however, makes no showing of cause and prejudice or a fundamental miscarriage of justice. See Coleman, 501 U.S. at 753-54; Clozza v. Murray, 913 F.2d 1092, 1104 (4th Cir. 1990); Clanton v. Muncv, 845 F.2d 1238,1241-42 (4th Cir. 1988). Therefore, claim two of this petition is procedurally barred from consideration on the merits.
Where a state court has addressed the merits of a claim raised in a federal habeas petition, a federal court may not grant habeas relief unless the state court's adjudication is contrary to, or an unreasonable application of, clearly established federal law, or is based on an unreasonable determination of the facts. 28 U.S.C. § 2254(d). The evaluation of whether a state court decision is "contrary to" or "an unreasonable application of federal law is based on an independent review of each standard. Williams v. Taylor, 529 U.S. 362, 412-13 (2000). A state court determination meets the "contrary to" standard if it "arrives at a conclusion opposite to that reached by [the United States Supreme] Court on a question of law or if the state court decides a case differently than [the United States Supreme] Court has on a set of materially indistinguishable facts." Williams, 529 U.S. at 413. Under the "unreasonable application" clause, the writ should be granted if the federal court finds that the state court "identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. Moreover, this standard of reasonableness is an objective one. Id. at 410.
To establish ineffective assistance of counsel, a petitioner must show that (1) "counsel's performance was deficient" and (2) "the deficient performance prejudiced the defendant." Strickland, 466 U.S. at 687. To prove that counsel's performance was deficient, a petitioner must show that "counsel's representation fell below an objective standard of reasonableness," id. at 688, and that the "acts and omissions" of counsel were, in light of all the circumstances, "outside the range of professionally competent assistance." Id. at 690. Such a determination "must be highly deferential," with a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689; see also Burket v. Angelone, 208 F.3d 172, 189 (4th Cir. 2000) (reviewing court "must be highly deferential in scrutinizing [counsel's] performance and must filter the distorting effects of hindsight from [its] analysis"); Spencer v. Murray, 18 F.3d 229, 233 (4th Cir. 1994) (court must "presume that challenged acts are likely the result of sound trial strategy.").
To satisfy Strickland's prejudice prong, a "defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. In this respect, "[a] reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.; accord Lovitt v. True, 403 F.3d 171, 181 (4th Cir. 2005). The burden is on the petitioner to establish not merely that counsel's errors created the possibility of prejudice, but rather "that they worked to his actual and substantial disadvantage, infecting his entire trial with errors of constitutional dimension." Murray v. Carrier, 477 U.S. 478, 494 (1986) (citations omitted, emphasis original). The two prongs of the Strickland test are "separate and distinct elements of an ineffective assistance claim," and a successful petition "must show both deficient performance and prejudice." Spencer, 18 F.3d at 233. Therefore, a court need not review the reasonableness of counsel's performance if a petitioner fails to show prejudice. See Ouesinberry v. Tavlore, 162 F.3d 273, 278 (4th Cir. 1998). The Virginia Supreme Court found that Claims l(a)-(b) fail to satisfy either the performance or prejudice prong of the two-part test enunciated in Strickland.
Claim (a) fails to satisfy the "prejudice" prong of the two-part test enunciated in Strickland v. Washington, 466 U.S. 668, 687 (1984). The record, including the indictments, the transcript, and the verdict forms, demonstrates that petitioner was found guilty of three separate violations of the animal fighting statutes, Code§§ 3.2-6571(A) (1) (B) (1), 3.2-6571 (A) (1) (B) (2), 3.2-6571(A) (1) (B) (5), for conduct involving multiple animals. Thus, petitioner has failed to demonstrate that there is a reasonable probability that, but for counsel's alleged errors, the result of the proceeding would have been different.
Order Jan. 16, 2013 at 1, R. No. 1337989. The Double Jeopardy Clause of the Fifth Amendment, applicable to the states via the Fourteenth Amendment, provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const, amend. V; see Benton v. Maryland, 395 U.S. 784, 794 (1969). "This protection applies both to successive punishments and to successive prosecutions for the same criminal offense." US v. Dixon, 509 U.S. 688, 696 (1993). "A single act," however, "may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other." Blockburger v. U.S., 284 U.S. 299, 304 (1932). "The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Blockburger, 284 U.S. at 304.
Here, Blockburger is the controlling federal law as petitioner argues that his counsel's failure to object to being convicted under three distinct statutory provisions based on the same conduct violates the double jeopardy clause. Notably, when the Virginia Supreme Court heard this claim it examined the statutes to conclude that petitioner was convicted of three separate offenses. As "a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus," Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (per curiam) (citing Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)), there can be no second-guessing of the Supreme Court of Virginia's conclusion. As such, the Virginia Supreme Court's rejection of this claim was not contrary to, or an unreasonable application of federal law, nor was it based on an unreasonable determination of the facts; the court found petitioner failed to satisfy the prejudice prong of Strickland when it concluded petitioner was convicted of three separate offenses that involved multiple animals. Williams, 529 U.S. at 412-13. Therefore, this claim will be dismissed.
Claim (b) satisfies neither the "performance" nor the "prejudice" prong of the two-part test enunciated in Strickland. Petitioner fails to proffer either the contract that counsel allegedly should have introduced or affidavits from the contract's parties detailing the contract's contents. Moreover, all of the injured animals were found on petitioner's property. Thus, petitioner has failed to demonstrate that counsel's performance was deficient or that there is a reasonable probability that, but for counsel's alleged errors, the result of the proceeding would have been different.
"It is well settled that when the maximum punishment is prescribed by statute, 'and the sentence [imposed] does not exceed that maximum, the sentence will not be overturned as being an abuse of discretion.'" Valentine v. Commonwealth, 18 Va. App. 34,339,443 S.E.2d 445,443 (1994) (quoting Abdo v. Commonwealth, 218 Va. 473,479,237 S.E.2d 900, 903 (1977)). The sentences imposed by the trial judge were within the ranges set by the legislature. See Code §§ 3.2-6570 and 3.2-6571. Accordingly, the judge did not abuse her discretion.
Order Oct. 20, 2010 at 3, R. No. 0792-10-2. The Supreme Court of Virginia refused further review by its April 4, 2012 order. Because the foregoing order was the last reasoned state court decision on the claim at issue, its reasoning is imputed to the Supreme Court of Virginia, which refused further appeal without explanation. See Ylst, 501 U.S. at 803. "A state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus," Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (per curiam) (citing Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)). As the Supreme Court of Virginia interpreted Virginia state law to conclude that the trial court did not abuse its discretion when it imposed petitioner's sentence, there can be no second-guessing the Court of Appeals of Virginia. Thus, the state court's rejection of this claim was not contrary to, or an unreasonable application of federal law, nor was it based on an unreasonable determination of the facts. Williams, 529 U.S. at 412-13. Therefore, this claim will be dismissed. C. Claim 4: Insufficient Evidence to Support Conviction.
Petitioner alleges that he was denied his Fourteenth Amendment Due Process rights because the evidence at trial was insufficient to support his conviction. Br. Supp. Writ 7, Docket No. 2. On federal habeas review, the standard for a claim challenging the sufficiency of the evidence supporting a state conviction is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis original). The federal court is required to give deference to findings of fact made by the state courts, and this presumption of correctness applies to facts found by both trial and appellate courts. 28 U.S.C. § 2254(d); Sumner v. Mate, 449 U.S. 539, 546-47 (1981); see Wilson v. Greene, 155 F.3d 396,405-06 (4th Cir. 1998) (citing Wright v. West, 505 U.S. 277, 292 (1992) for the holding that a federal habeas court is prohibited from either "consider[ing] anew the jury's guilt determination or "replacpng] the state's system of direct appellate review"). Instead, the federal court must determine only whether the trier of fact made a rational decision to convict. Herrerav. Collins, 506 U.S. 390, 402 (1993).
weight accorded the evidence are matters solely for the fact finder who has the opportunity to see and hear that evidence as it is presented." Sandoval v. Commonwealth, 20 Va. App. 133, 138,455 S.E.2d 730, 732 (1995). Appellant repeatedly asserted ownership of the dogs to the shelter employees and to the police. The dogs were kept at his mother's residence where he also lived, and the record reveals Tucker did not even have a key to the house to access the dogs he claimed at trial were his. The record fully supports the jury's conclusion that appellant was the actual owner and caretaker of the animals. Furthermore, the circumstantial evidence amply supports the finding that appellant was actively involved in dog fighting.
Circumstantial evidence may establish the elements of a crime, provided it excludes every reasonable hypothesis of innocence. See, e.g., Tucker v. Commonwealth, 18 Va. App. 141, 143, 442 S.E.2d 419, 420 (1994). However, "the Commonwealth need only exclude reasonable hypotheses of innocence that flow from the evidence, not those that spring from the imagination of the defendant." Hamilton v. Commonwealth, 16 Va. App. 751, 755,433 S.E.2d 27,29 (1993). Whether a hypothesis of innocence is reasonable is a question of fact, see Cantrell v. Commonwealth, 7 Va. App. 269, 290, 373 S.E.2d 328, 339 (1988), and a finding by the trial court is binding on appeal unless plainly wrong, see Martin, 4 Va. App. at 443,358 S.E.2d at 418.
[The Commonwealth's expert in dog fighting] explained that the number and type of dogs as well as their injuries and the presence at appellant's residence of numerous items related to dog fighting were all consistent with appellant's active involvement in the business of dog fighting. Similarly, Touroo, [a Veterinarian,] testified the injuries sustained by appellant's dogs were consistent with dog fighting.
The Commonwealth's evidence was competent, was not inherently incredible, and was sufficient to prove beyond a reasonable doubt that appellant was guilty of animal cruelty, second offense within five years and three counts of animal fighting.
Order Oct. 20, 2010 at 3, R. No. 0792-10-2. The Supreme Court of Virginia refused further review by its April 4, 2012 order. Because the foregoing order was the last reasoned state court decision on the claim at issue, its reasoning is imputed to the Supreme Court of Virginia, which refused further appeal without explanation. See Ylst, 501 U.S. at 803. As the state court's rejection of this claim was based on a reasonable determination of the facts and was not contrary to the controlling federal law, that result may not be disturbed here. Williams, 529 U.S. at 412 -13. Therefore, this claim must be dismissed.
For the above-stated reasons, respondent's Motion to Dismiss will be granted. An appropriate order shall issue.


text:
Justia › US Law › Case Law › Federal Courts › District Courts › New York › Southern District of New York › 1999 › Nobel Ins. Co. v. Hudson Iron Works, Inc.
HUDSON IRON WORKS, INC., James Giannopoulos, Cathy Giannopoulos, Philippos Kapnisis and Melani Kapnisis, Defendants.
*409 Joseph Patrick Asselta, Agovino & Asselta, LLP, New Hyde Park, NY, Martha Connolly, Ernstman, NY, for Plaintiff.
Michael McDermott, Scotto, Georgoulis et al., New York City, for Defendants.
Plaintiff Nobel Insurance Company ("Nobel") has moved for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure ("Fed.R.Civ.P."), against defendants Hudson Iron Works, Inc., James Giannopoulos, Cathy Giannopoulos, Philippos Kapnisis and Melani Kapnisis ("Hudson Defendants").
For the reasons set forth below, Nobel's motion for summary judgment is granted in part and denied in part.
The Indemnity Agreement states that the "Amount of Obligation Assumed" by each of the Hudson Defendants is $330,000.
The respective obligations and liabilities of the parties hereto for all claims, demands and losses under the Bond shall be limited ... to the following proportions: In the case of Republic Western Insurance Company the proportion that $2,875,500 bears to the penalty of the Bond. In the case of Nobel Insurance Company the proportion that $330,000 bears to the penalty of the Bond [i.e., 10.3%].
In 1995, RCR defaulted with respect to its involvement in the construction project, as a result of which Republic Western incurred expenses of $1,082,678.88 in bringing the project to completion. Thereafter, Republic Western commenced an action in this Court, before the Honorable Jed S. Rakoff, to recover Nobel's contribution allegedly owed under the Co-Surety Agreement for the losses, costs, expenses and fees incurred under the bonds which amounted to $111,515.91, plus interest.
On February, 13, 1998, in the proceedings before Judge Rakoff, Republic Western and Nobel cross-moved against one another for summary judgment under the Co-Surety Agreement. By Order dated May 1, 1998, Judge Rakoff granted Republic Western's motion and denied Nobel's motion. Judge Rakoff ordered Nobel to pay to Republic Western the amount of $111,515.91, plus interest, for its proportionate share of the losses, costs, expenses and fees incurred under the bonds as of June 26, 1997. Republic Western Insurance Co. v. Nobel Insurance Co., 2 F. Supp. 2d 548 (S.D.N.Y.1998).
*411 Republic Western subsequently sued Nobel in this Court (again, before Judge Rakoff) to recover an additional $95,565.31, representing additional losses, costs, expenses and fees incurred under the bonds after June 26, 1997.
Nobel later settled with Republic Western by agreeing to pay them the total amount of $170,000 covering losses, costs expenses and fees incurred under the bonds both before and after June 26, 1997. This amount was in satisfaction of both the judgment issued by Judge Rakoff of $111,515.91 and Republic Western's claim in the second action before Judge Rakoff seeking an additional $95,565.31. Nobel has since paid the sum of $170,000 and, thus, has incurred a total loss under the bonds of $170,000. Nobel has not collected any monies from the RCR Defendants for its losses.
On July 8, 1998, Nobel brought the instant action for, inter alia, indemnification from the Hudson Defendants. On August 11, 1998, the Hudson Defendants filed an Answer and Counterclaims. On February 17, 1999, Nobel filed the instant motion for summary judgment. Oral argument was held on March 19, 1999.
Summary judgment may be granted only when there are no genuine issues of material fact in dispute and the movant is entitled to judgment as a matter of law. See Fran Corp. v. United States, 164 F.3d 814, 816 (2d Cir. 1999). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). In assessing whether summary judgment is appropriate, the Court must "`resolve all ambiguities and draw all reasonable inferences against the moving party.'" See Fran Corp. 164 F.3d at 816 (citation omitted). However, Fed.R.Civ.P. 56 jurisprudence is clear "that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 247-48, 106 S. Ct. 2505. The non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986).
Preliminarily, the Court does not accept Nobel's argument that the Hudson Defendants are precluded from relitigating here certain issues litigated and decided in the proceedings before Judge Rakoff. Four elements must be met before issue preclusion is appropriate: (1) the issues of both proceedings must be identical; (2) the issues must have been litigated and decided in the prior proceeding; (3) there must have been full and fair opportunity for the litigation of the issues in the prior proceeding; and (4) the issues were necessary to support a valid and final judgment on the merits. See Central Hudson Gas & Electric Corp. v. Empresa Naviera Santa S.A., 56 F.3d 359, 368 (2d Cir.1995). Issue preclusion binds not only the parties to a prior proceeding but also their privies. See Conte v. Justice, 996 F.2d 1398, 1402 (2d Cir.1993). Cf. Garver v. Brown & Co. Securities Corp., 1998 WL 54608 at *4 (S.D.N.Y. Feb. 10, 1998), remanded by, 164 F.3d 617 (2d Cir.1998) ("the Second Circuit instructs courts to `flexibly apply the privity concept in determining whether claim preclusion exists. Res judicata may bar a second suit even in the absence of literal privity'") (citations omitted).
Here, Nobel cites the Conte case for the proposition that, although they were not parties in the prior proceedings before Judge Rakoff, the Hudson Defendants *412 exercised practical control over those proceedings in that Nobel tendered its defense to Hudson. See Conte, 996 F.2d at 1402 ("[a]mong other things, privity has been held to include those who, although not actual parties, exercise practical control over an action"). Nobel's reliance upon Conte is misplaced because, among other reasons, in the proceedings before Judge Rakoff, although Nobel may have tendered its defense to Hudson, it is undisputed that prior to entry of a final judgment, Nobel fired Hudson's attorneys. (Opp.Aff., ¶ 48). The fact that Nobel had the power to fire Hudson's attorneys raises an issue as to whether Hudson can be said to have been a party to the prior proceedings or to have exercised "practical control" over those proceedings.
In addition, the issue of the Hudson Defendants' liability to Nobel was not litigated before Judge Rakoff. The prior proceedings involved (i) the relationship between Nobel and Republic Western and (ii) the relationship between Nobel and the RCR Defendants. It did not involve the Hudson Defendants' liability to Nobel under the Indemnity Agreement. (Opp.Br., pp. 6-7).
Thus, while the issues before Judge Rakoff and those at bar are closely related, they are not sufficiently identical to give rise to issue preclusion.
Nobel also argues that, pursuant to the Indemnity Agreement and the Co-Surety Agreement, the Hudson Defendants are obligated to indemnify Nobel in the amount of $170,000, which as noted, represents the settlement of the $111,515.91 (Judge Rakoff) judgment plus the $95,565.31 claim. Here, Nobel is on firmer ground. The Indemnity Agreement provides that the Hudson Defendants jointly, severally and unconditionally agree to indemnify Nobel (and Republic Western) for all losses, costs, damages, expenses and attorneys' fees, up to $330,000, incurred under the bonds. See General Accident Insurance Co. of America v. Merritt-Meridian Construction Corp., 975 F. Supp. 511, 515-16 (S.D.N.Y.1997) (indemnity agreements such as this "are valid and enforceable under New York law"). The language of the Indemnity Agreement reflects the Hudson Defendants clear and unmistakable obligation (and intent) to indemnify Nobel. The Co-Surety Agreement provides that Nobel's liability was capped at $330,000, and, more particularly, was limited with respect to a claim to the proportion that $330,000 bore to the $3,205,500 total exposure on the bond (i.e., 10.3%). Both of these Agreements are written, clear, unambiguous, fully executed, and consistent with one another.
The Hudson Defendants contend that the Court should go (well) beyond these clear Agreements, and should consider two other documents which they say, alter and modify the plain meaning of the Agreements, namely a letter and a fax cover sheet each dated August 27, 1993. The Hudson Defendants would also have the Court consider the parties' (pre-litigation) conduct, as testified to by Nobel's alleged agent. Lenora Cape, to alter the terms of the Indemnity and Co-Surety Agreements so that the Hudson Defendants' liability is limited to losses traceable (only) to Hudson's work on the Verranzano Bridge project.
As noted, the Indemnity Agreement and the Co-Surety Agreement are plain and unambiguous on their face and neither provides that the Hudson Defendants' liability is limited in the fashion suggested by the Hudson Defendants, i.e., to losses traceable only to work performed by Hudson. *413 See Slatt v. Slatt, 64 N.Y.2d 966, 488 N.Y.S.2d 645, 477 N.E.2d 1099, 1100 (1985), reargument denied, 65 N.Y.2d 785, 492 N.Y.S.2d 1026, 482 N.E.2d 568 (1985) ("[w]here the intention of the parties is clearly and unambiguously set forth, effect must be given to the intent as indicated by the language used"). Thus, the Hudson Defendants' effort to go beyond the written Agreements is "barred by the settled principle of New York law (here applicable) that extrinsic evidence, whether oral or written, is not admissible to vary or contradict the terms of an integrated written contract clear on its face." Republic Western Insurance Co. v. Nobel Insurance Co., 2 F. Supp. 2d 548, 549 (S.D.N.Y.1998). See also Farm Stores, Inc. v. School Feeding Corp., 79 A.D.2d 504, 433 N.Y.S.2d 453, 455 (N.Y.App.Div.1980), aff'd, 53 N.Y.2d 910, 440 N.Y.S.2d 633, 423 N.E.2d 56 (1981) ("[p]arol evidence, whether oral or written, is not admissible to vary or contradict the terms of a written contract clear on its face. The written agreement speaks for itself").
The Hudson Defendants seek to circumvent the parol evidence rule arguing that, under New York law, "instruments executed at the same time, by the same parties, for the same purpose and in the course of the same transaction are read and interpreted as one contract." (Opp.Br., pp. 7-8). The cases cited by the Hudson Defendants, i.e., Commander Oil Corp. v. Advance Food Service Equipment, 991 F.2d 49 (2d Cir.1993) and Carvel Corp. v. Diversified Management Group, Inc., 930 F.2d 228 (2d Cir.1991), concerned co-signed (executed) writings exhibiting a high degree of interrelationship. These cases are inapposite to the case at bar. Here the Hudson Defendants' seek to rely on, at best, inconclusive, unexecuted, one-sided documents to markedly alter the terms and plain meaning of the Indemnity Agreement and Co-Surety Agreement. See Republic Western Insurance Company, 2 F. Supp. 2d at 549. Cf. Readco, Inc. v. Marine Midland Bank, 81 F.3d 295, 299 (2d Cir.1996) (stating that parol evidence is not admissible even to prove ambiguity).
Here, some extrinsic evidence relied upon by the Hudson Defendants "do[es] not [even] involve the same parties." Packer v. TDI Systems, 959 F. Supp. 192, 199 (S.D.N.Y.1997) (where the Court found that "TDI and STS are both parties to both documents; but Packer and DesOrmeaux are not parties to the Subordination Agreement"). The instant Indemnity Agreement was executed by the Hudson Defendants and the RCR Defendants; the Co-Surety Agreement was executed by Nobel and Republic Western. The letter and the fax cover sheet cited by the Hudson Defendants were unexecuted, one-sided documents that do not remotely qualify as contracts.
Moreover, the proffered extrinsic "evidence," does not appear to support the Hudson Defendants position. The meanings of the letter and the fax cover sheet are not discernable from the text. If the parties intended to alter the Agreements, they would have done so. See Braten, 468 N.Y.S.2d 861, 456 N.E.2d at 805 (Court must determined "`whether or not the agreement was one which the parties would ordinarily be expected to embody in *414 the writing'"). As noted, the parties did (clearly) make changes on the Agreements, for example, they made an addition to Paragraph 5 of the Co-Surety Agreement which was typed directly onto the second page.
The Court believes that the Hudson Defendants' argument also flies in the face of common business sense. Prior to awarding the construction contract, the TBTA required a performance and payment bond for the full amount of the contract, i.e., $3,205,500. It would seems highly unlikely that the TBTA would agree to limit Nobel's portion of this obligation to (only) those losses traceable to Hudson's work, as this would not afford the TBTA full protection for all aspects of the construction project. In any event, such limitation of liability was never included in either the Indemnity Agreement or the Co-Surety Agreement.
Accordingly, the Court holds that extrinsic evidence is not admissible to alter the clear and unambiguous terms of the Indemnity Agreement and the Co-Surety Agreement.
The Sureties shall have the right, and are hereby authorized, but not required: (b) To adjust, settle or compromise any claim, demand, suit or judgment upon said bonds, or any of them, unless the applicants shall request the Sureties to litigate such claim or demand, or to defend such suit or to appeal from such judgment, and shall deposit with the Sureties at the time of such request cash or collateral satisfactory to them in kind and amount to be used in paying any judgment or judgments rendered or that may be rendered, with interest, costs and attorneys' fees.
"Sureties enjoy such discretion to settle claims because of the important function they serve in the construction industry ..." General Accident Insurance Co. of America, 975 F. Supp. at 516. Paragraph 6 of the Indemnity Agreement provided that the Hudson Defendants would not be liable for any settlement made in contravention of the requirements of Paragraph 4(b).
The Hudson Defendants argue that, even if the Court were to accept Nobel's interpretation of the Indemnity and Co-Surety Agreements, Nobel's motion should still be denied because Nobel violated Paragraph 4(b) of the Indemnity Agreement principally because "Hudson was not notified of, or permitted to participate in, the litigation and/or settlement decisions or discussions." (Opp.Aff., ¶ 58).
The Court believes that there are several issues of material fact that are in dispute in this regard and, therefore, not susceptible to resolution by a motion for summary judgment as follows: (i) whether the Hudson Defendants were entitled to (but denied) the opportunity to appeal Judge Rakoff's decision, and (ii) whether Nobel concluded a settlement in accordance with Paragraph 4(b) of the Indemnity Agreement.
(iii) issues of material fact concerning Nobel's compliance with Paragraph 4(b) of *415 the Indemnity Agreement along with the Hudson Defendants' counterclaims will be resolved in the trial of this action.
The parties are hereby directed to appear at a status/scheduling conference on May 14, 1999, at 3:00 p.m., in Courtroom 706 of the U.S. Courthouse, 40 Centre Street, New York, New York.
 "Partial summary judgment is merely a pretrial adjudication that certain issues shall be deemed established for the trial of the case ... [t]his adjudication accelerates litigation by framing and narrowing the triable issues, and by eliminating, before trial, matters that contain no genuine issue of material fact." Meek v. Metropolitan Dade County, 805 F. Supp. 958, 963 (S.D.Fla.1992) (citations omitted). See also Lovejoy Electronics, Inc. v. O'Berto, 616 F. Supp. 1464, 1473 (N.D.Ill. 1985).
 The other applicant Indemnitors, i.e., RCR, Vasilios Xanthakos, Venus Deliganis and Demetrios Xanthakos ("RCR Defendants"), each assumed an obligation of $2,875,500.
 Nobel, in turn, commenced a third-party action against the RCR Defendants for indemnity based upon the Indemnity Agreement. On June 12, 1998, Nobel moved for summary judgment against the RCR Defendants based on the Indemnity Agreement. By Order, dated June 18, 1998, Judge Rakoff granted Nobel's motion and directed the RCR Defendants to indemnify Nobel for the full amount of the sums it was obligated to pay Republic Western (i.e., $111,515.91, plus interest).
 The Hudson Defendants filed an Amended Answer and Counterclaims on September 2, 1998. The Hudson Defendants' counterclaims are not at issue here.
 Here it is claimed that the Indemnity Agreement is subject to certain extrinsic evidence which limited the Hudson Defendants' liability to losses traceable to Hudson's own work. The substantive issue of the admissibility of extrinsic evidence is addressed below.
 Though Judge Rakoff's rulings in the prior proceedings are not necessarily binding here, they are well researched, clear, instructive and very persuasive.
 Nor does the absence of a "merger clause" in the Agreements affect this Court's determination. See Braten v. Bankers Trust Co., 60 N.Y.2d 155, 468 N.Y.S.2d 861, 456 N.E.2d 802, 805 (1983), reargument denied, 61 N.Y.2d 670, 472 N.Y.S.2d 1028, 460 N.E.2d 232 (1983) ("[i]n the absence of a merger clause ... the court must determine whether or not there is an integration `by reading the writing in the light of surrounding circumstances, and by determining whether or not the agreement was one which the parties would ordinarily be expected to embody in the writing'") (citations omitted).
The Co-Surety Agreement contains language which was clearly intended as an "amendment;" thus, the parties thereto clearly knew how to go about reflecting the terms of their understanding "in the writing."
 In their papers, the Hudson Defendants consistently mischaracterize the August 27, 1993 letter as a "letter agreement."
 This point is confirmed in Judge Rakoff's decision which found that Nobel was a co-surety liable for a portion of the losses attributable to RCR's default. Republic Western Insurance Co. v. Nobel Insurance Co., 2 F. Supp. 2d 548 (S.D.N.Y.1998).

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