text:
The first of the First Amendment's two religion clauses reads: “Congress shall make no law respecting an establishment of religion ... .” Note that the clause is absolute. It allows no law. It is also noteworthy that the clause forbids more than the establishment of religion by the government. It forbids even laws respecting an establishment of religion. The establishment clause sets up a line of demarcation between the functions and operations of the institutions of religion and government in our society. It does so because the framers of the First Amendment recognized that when the roles of the government and religion are intertwined, the result too often has been bloodshed or oppression.
For the first 150 years of our nation’s history, there were very few occasions for the courts to interpret the establishment clause because the First Amendment had not yet been applied to the states. As written, the First Amendment applied only to Congress and the federal government. In the wake of the Civil War, however, the 14th Amendment was adopted. It reads in part that “no state shall ... deprive any person of life, liberty or property without due process of law... .” In 1947 the Supreme Court held in Everson v. Board of Education that the establishment clause is one of the “liberties” protected by the due-process clause. From that point on, all government action, whether at the federal, state, or local level, must abide by the restrictions of the establishment clause.
“The establishment of religion clause means at least this: Neither a state nor the federal government may set up a church. Neither can pass laws that aid one religion, aid all religions, or prefer one religion over another. Neither can force a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion... . Neither a state or the federal government may, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between church and state.'"
To help interpret the establishment clause, the Court uses several tests, including the Lemon, coercion, endorsement and neutrality tests.
The first of these tests is a three-part assessment sometimes referred to as the Lemon test. The test derives its name from the 1971 decision Lemon v. Kurtzman, in which the Court struck down a state program providing aid to religious elementary and secondary schools. Using the Lemon test, a court must first determine whether the law or government action in question has a bona fide secular purpose. This prong is based on the idea that government should only concern itself in civil matters, leaving religion to the conscience of the individual. Second, a court would ask whether the state action has the primary effect of advancing or inhibiting religion. Finally, the court would consider whether the action excessively entangles religion and government. While religion and government must interact at some points while co-existing in society, the concern here is that they do not so overlap and intertwine that people have difficulty differentiating between the two.
Although the test has come under fire from several Supreme Court justices, courts continue to use this test in most establishment-clause cases.
In its 1997 decision Agostini v. Felton, the Supreme Court modified the Lemon test. By combining the last two elements, the Court now used only the “purpose” prong and a modified version of the “effects” prong. The Court in Agostini identified three primary criteria for determining whether a government action has a primary effect of advancing religion: 1) government indoctrination, 2) defining the recipients of government benefits based on religion, and 3) excessive entanglement between government and religion.
Some justices propose allowing more government support for religion than the Lemon test allows. These justices support the adoption of a test outlined by Justice Anthony Kennedy in his dissent in Allegheny County v. ACLU and known as the “coercion test.” Under this test the government does not violate the establishment clause unless it (1) provides direct aid to religion in a way that would tend to establish a state church, or (2) coerces people to support or participate in religion against their will. Under such a test, the government would be permitted to erect such religious symbols as a Nativity scene standing alone in a public school or other public building at Christmas. But even the coercion test is subject to varying interpretations, as illustrated in Lee v. Weisman, the 1992 Rhode Island graduation-prayer decision in which Justices Kennedy and Antonin Scalia, applying the same test, reached different results.
The endorsement test, proposed by Justice Sandra Day O’Connor, asks whether a particular government action amounts to an endorsement of religion. According to O’Connor, a government action is invalid if it creates a perception in the mind of a reasonable observer that the government is either endorsing or disapproving of religion. She expressed her understanding of the establishment clause in the 1984 case of Lynch v. Donnelly, in which she states, “The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person's standing in the political community.” Her fundamental concern was whether the particular government action conveys “a message to non-adherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.” O’Connor’s “endorsement test” has, on occasion, been subsumed into the Lemon test. The justices have simply incorporated it into the first two prongs of Lemon by asking if the challenged government act has the purpose or effect of advancing or endorsing religion.
The endorsement test is often invoked in situations where the government is engaged in expressive activities. Therefore, situations involving such things as graduation prayers, religious signs on government property, religion in the curriculum, etc., will usually be examined in light of this test.
While the Court looks to the endorsement test in matters of expression, questions involving use of government funds are increasingly determined under the rubric of neutrality. Under neutrality, the government would treat religious groups the same as other similarly situated groups. This treatment allows religious schools to participate in a generally available voucher program, allows states to provide computers to both religious and public schools, and allows states to provide reading teachers to low-performing students, even if they attend a religious school. (See Zelman v. Simmons-Harris, 2002, and Mitchell v. Helms, 2000.) It also indicates that the faith-based initiatives proposed by President Bush might be found constitutional, if structured appropriately.
The concept of neutrality in establishment-clause decisions evolved through the years. Cited first as a guiding principle in Everson, neutrality meant government was neither ally nor adversary of religion. “Neutral aid” referred to the qualitative property of the aid, such as the funding going to the parent for a secular service such as busing. The rationale in Everson looked to the benefit to the parent, not to the religious school relieved of the responsibility of providing busing for its students.
Later cases recognized that all aid is in some way fungible; i.e., if a religious school receives free math texts from the state, then the money the school would have spent on secular texts can now be spent on religious material. This refocused the Court’s attention not on the kind of aid that was provided, but who received and controlled the aid. Decisions involving vocational training scholarships and providing activity-fee monies to a college religious newspaper on the same basis as other student groups showed the Court focused on the individual’s control over the funds and equal treatment between religious and non-religious groups.
In Zelman v. Simmons-Harris, the plurality decision clearly defines neutrality as evenhandedness in terms of who may receive aid. A majority of the Court continues to find direct aid to religious institutions for use in religious activities unconstitutional, but indirect aid to a religious group appears constitutional, as long as it is part of a neutrally applied program that directs the money through a parent or other third party who ultimately controls the destination of the funds.
While many find this approach intuitively fair, others are dissatisfied. Various conservative religious groups raise concerns over diminishing the special place religion has historically played in constitutional law by treating religious freedom the same as every other kind of speech or discrimination claim. Strict separationist groups argue that providing government funds to religious groups violates the consciences of taxpayers whose faith may conflict with the religious missions of some groups who are eligible to receive funding using an “even-handed” approach.
Although the Court’s interpretation of the establishment clause is in flux, it is likely that for the foreseeable future a majority of the justices will continue to view government neutrality toward religion as the guiding principle. Neutrality means not favoring one religion over another, not favoring religion over non-religion and vice versa.
Will Roberts Court flip Burger precedents?
Will Charles-Camilla marriage spark church-state divorce?
Church, state and Judge Roberts: Will the wall come tumbling down?

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


text:
Case: State of Texas v. S.W.
Our client's dad hired Temani, after she defended herself in an altercation. Our client was called to assist a relative who was being bullied by a neighbor. The neighbor and her friends began taunting our client via Facebook, in order to have our client come fight. After a physical altercation, our client was leaving the location when the alleged “victim” hit our client’s car with a baseball bat, and shot at her car. In self defense, our client shot back and left the scene.
After reviewing the evidence in the case, Temani went to the crime scene herself, and was immediately able to determine that the victim was lying. Temani was able to show the prosecutor that there was crossfire, which indicated that the victim also had a gun. Temani also produced a video, and affidavits of several witnesses. After reviewing all of the evidence that Temani presented, the prosecutor reduced the charge to a Class C misdemeanor, the lowest offense level in Texas, and that ticket was dismissed. Our client went from facing 2-20 years in jail, to walking away with no record.
Case: State of Texas v. C.L.
After a verbal altercation with the mother of his child, our client was charged with Assault Family Violence. The victim stated that our client assaulted her and pushed her into a wall, among other things. Temani was able to show that our client had no prior history of family violence, and that the “victim” in the case, had a habit of lying. After reviewing the lack of evidence, and other outlandish statements made by the victim, the prosecutor agreed with Temani, and the case was dismissed.
Case: State of Texas v. C.G.
Our client was charged with possession of a controlled substance, after he was pulled over for speeding, and the cop searched his car. The substance was dab, a highly concentrated form of weed. His mom immediately called Temani. After reviewing the surveillance video from the officer’s car, Temani immediately knew there was an issue with the search.
While the possession of a controlled substance case was still pending, our client was pulled over again. A small amount of marijuana was found in his car, and he was arrested. Being arrested for a new offense, while on bond, normally results in a higher bond amount, or the judge throwing the person in jail for a few days. This didn’t happen for our client.
After Temani brought up the search issue to the prosecutor, he immediately wanted to make a deal. The prosecutor had originally offered to place our client on felony deferred adjudication probation. After the search issue was brought to his attention, we came to the agreement that he would dismiss our client’s new marijuana charge, and reduce the felony case to a misdemeanor. Our client was placed on a short term probation, and his charge will be dismissed once he completes it.
Case: State of Texas v. L.R.
Our client was pulled over by cops after he made a wide right turn. The officer stated that he smelled “the strong odor of burnt marijuana,” and subsequently searched our client’s car. A gun and marijuana were found. Temani filed a Motion to Suppress, based on a bad stop. The judge denied our motion.
Our client insisted that there was no marijuana in the car, and that the cops didn’t show him the marijuana that they found. We then filed a Motion to Inspect, demanding that they prosecutor show us the marijuana. At the police property room, an officer pulled out the marijuana. The amount was so small that it couldn’t be tested. Texas law requires that the amount of marijuana at least be a usable amount. Based on the small amount of marijuana, both charges were dismissed.
Case: State of Texas v. B.D.
Our client was parked in his drive way, scrolling down his Facebook timeline, when officers approached his vehicle with guns drawn. After some intense moments, where officers threatened to shoot him, our client was yanked from his vehicle, and was subsequently charged with unlawful carrying of a weapon.
Temani immediately ordered the body camera footage from the police department. What is showed was startling. Temani went to speak with the prosecutor before the first court setting. Temani was able to show that our client was on his own property, and in his own vehicle. As a result, he was not unlawfully carrying a weapon, because the law allows a person to possess a firearm in their car or on their property. The case was dismissed before its first court setting.
Case: State of Texas v. K.O.
On a Sunday morning, our client was essentially involved in a drug deal gone wrong. After getting into the car with a man who wanted to buy marijuana, our client quickly realized that the man had different intentions. The unknown man pulled out a handgun, and attempted to rob our client. Our client was subsequently shot at, and returned fire. Fearing for his life, he fled on foot, and called Temani.
Temani met with our client, discussed the altercation, and personally went to the crime scene. After reviewing the evidence and prepping our client, they both went to police headquarters to discuss the altercation. After less than an hour, Temani and our client walked out of the police station together. Temani’s successful preparation ensured that no charges were filed against our client.
Case: State of Texas v. C.C.
After a bad search, our client was charged with a misdemeanor, after officers found her grandmother’s prescription medication in her car. Our client explained to the officer that she was her grandmother’s care taker, and that she often picked up her grandmother’s prescriptions and medical supplies. They even had the same address.
On the first court setting, Temani went to court with all of her pre-trial motions in hand. The prosecutor agreed with Temani’s possession, and dismissed the charge the same day.
Case: State of Texas v. R. J.
Our client was arrested for, and charged with, two (2) felony counts of Manufacturing and Delivering a Controlled Substance, after hanging out at a friend’s house that was subsequently raided. Due to his criminal record, before retaining Temani, the client was held in the county jail for months with a high bond. One the same day he retained our office, Temani had the client’s bond reduced, and he was released from jail.
After several contentious court settings, and a plowing through a large volume of evidence, Temani was able to prove that our client was simply in the wrong place at the wrong time. Despite, Temani using the State’s own evidence to come to this conclusion, the State refused to dismiss the charges. After showing that the State’s own witnesses, and the lead police detective agreed that our client had nothing to do with any drug activity, our client was cited with a ticket, and the felony charges were dismissed.
Case: State of Texas v. M. C.
Our client and his friends were pulled over while heading to do some target shooting at a local gun range. All three people in the vehicle were arrested and charged with Unlawful Carrying of a Weapon, a Class A Misdemeanor. Officers claimed that our client’s weapon was in “plain view” in the backseat of the vehicle, making his possession of the weapon unlawful. Temani did not set out to disprove that the gun was in “plain view.” Instead, Temani focused on a little known exception to the law, that allows a person to possess a gun if they are in route to a shooting range.
Temani presented this exception to the State and requested a dismissal of the charge. The State refused, and the parties proceeded to trial. On the day of trial, after a jury panel was ordered, the State dismissed the charge.
Early one Sunday morning, our client was pulled over for a traffic violation. He was subsequently arrested for an outstanding traffic warrant. Shortly after being handcuffed, officers discovered that our client had over $15,000.00 in his possession. While our client was only arrested for a traffic warrant, the police department filed seizure proceedings, in hopes that the department would be able to keep the funds. Once retained, Temani, provided the prosecutor with a large volume of documents proving that the seized funds were legitimately earned, and should be returned. The State dropped the ball, and we proceeded to trial.
During a one (1) day bench trial, Temani was able to refute the State’s argument that our client was a drug dealer, who’d earned the seized funds by selling marijuana. Temani tore the State’s evidence to shreds. She presented several witnesses that testified, in detail, about our client’s various business ventures. Temani also produced an even larger volume of documents, detailing our client’s income. The judge agreed with Temani, and ordered the police department to return the seized funds.
Case: State of Texas v. J. H.
While completing a two (2) year probation, our client was arrested for, and charged with the felony offense of Unauthorized Absence from Correctional Facility. The State alleged that our client failed to comply with a condition of his probation, that required him to complete fifteen (15) days in jail. Temani produced certified court documents, proving that the court modified the conditions of our client’s probation, that our client was fully compliant with his probation, and that the State erred in filing the new charge. While the same documents were in the possession of the State, once Temani produced them in court, the State dismissed the new charge, and continued our client’s probation.
Case: State of Texas v. J.A.
Charge: Felony Possession of a Controlled Substance with Intent to Deliver (Xanax) in a Drug Free Zone, Felony Possession of Marijuana in a Drug Free Zone, and Felony Probation Violation.
Result: Charges Dismissed. Probation reinstated.
While on felony probation, our client was arrested for, and charged with, two (2) felony drug charges and a probation violation. The State alleged that our client sold prescription Xanax, and marijuana in a house located near an elementary school.
In reality, our client fell asleep at a neighbor’s home, after mistakenly being locked out of his home. While asleep, the neighbor’s house was raided by the police and drugs were found. Our client and two (2) other occupants were arrested and charged. Our client immediately called Temani.
Temani used a pre-trial hearing, known as an examining trial, to obtain the testimony of the lead detective. Temani began by having the officer admit that the “drug free zone” that the State used to enhance the charge was bogus, because the alleged school had been closed for years. Through effective cross examination, Temani was also able to force the officer to admit that our client did not live in the home where the drugs were found, was not in the room where the drugs were found, and that he was asleep in a spare bedroom when officers entered the home. After producing the record from the hearing, Temani was able to have the drug charges dismissed, and have the client’s probation reinstated without any jail time.
Case: State of Texas v. M. P.
Our client was charged with assaulting his live in girlfriend after police received a false 911 call. When officers arrived, both our client and his girlfriend vehemently denied that any assault occurred. Despite their statements that nothing happened, our client was charged with a first degree felony. This was a very serious case. Not only because of the charges our client faced, but because our client was currently on parole. After reviewing the facts, the State elected not to proceed with charges. However, our client still faced jail time due to parolee status.
During the initial parole hearing, Temani called two (2) witnesses, our client’s girlfriend, and the 911 caller. The parole officer conducting the hearing was livid. The officer felt that it was a waste of time for an attorney to present witnesses at a preliminary parole hearing. Temani proceeded. Temani effectively questioned both witnesses, who testified that no assault occurred. Temani was even able to get the 911 caller to admit that he was under the influence of drugs at the time of his call, and made a false statement.
Before the final parole hearing, Temani obtained new evidence that substantiated our client’s claim of innocence. Evidence that the State did not have. During the final parole hearing, Temani produced the 911 call, and police in car video from the night of the arrest. Before making it half way through the police video, the hearing officer sided with Temani, and recommended that our client’s parole be reinstated.
Case: State of Texas v. M.P.
Our client was riding in the car with friends, when they were pulled over. After questioning the driver, the officer found marijuana on the ground, and stuck the charge on our client. After reviewing the police report, Temani knew that there was no evidence to prove that the marijuana belonged to our client. Temani setup a meeting with the prosecutor to discuss the case. During their meeting, the prosecutor agreed that there was no evidence to substantiate the charge, and the case was dismissed.
Case: State of Texas v. D.Y.
Our Client was arrested when he and his girlfriend went to the police station to clear up false allegations she’d previously made. Instead of listening to his girlfriend explain how other police officers twisted her words, our client was arrested and held without bond.
Due to our client being in custody, Temani took the smart approach of having our client’s girlfriend testify at the grand jury hearing. Temani rigorously prepared our witness, to ensure that the correct story was told to the grand jury. The girlfriend told her story, the true story, and the case was No Billed.
Temani then prepared to have our client’s parole reinstated. Using the same preparation techniques, Temani prepared our witness to testify during our client’s parole hearing. After a productive hearing, our client’s parole was reinstated.
Case: State of Texas v. F.B..
Temani was contacted by our client’s mom after he was arrested for being in the wrong place at the wrong time. Our client had gone with one of his friends to play Playstation at another friend’s house. While waiting his turn to play, the police barged in. They were executing a search warrant.
Although our client didn’t live there, and had just arrived, he was charged with a crime. In his report, the cop even falsely stated that our client was sitting near the door, acting as a lookout. After reviewing the evidence, we were able to show that our client had nothing to do with what was found in the home.
Case: State of Texas v. R.O.
Our client was charged with 5 crimes, after being involved in a crazy situation at a grocery store. His parents called Temani, and she got the ball rolling. The first thing that we did was request the dash camera footage from the police car. This was crucial to our case.
After reviewing the police reports, we knew that the gun, and identifying information, were found in a bag, they couldn’t prove our client possessed. Based on that, we were able to have the officer agree not to pursue the felony charges.
We then began dealing with the misdemeanors. After the prosecutor insisted that there was no dash camera footage available, it magically appeared (thanks to our earlier request). Not only did the video show that our client did not resist arrest, but it also showed that the cop lied. The resisting arrest charge was out, but the prosecutor was forced to dismiss the remaining two (2) charges as well, because the cop lied.

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


As a result, noise complaints have become popular and common, and, as such, noise litigation has spiked. Like the flash of a neon light,2 this article attempts to explain both the noise laws and remedies in New York.
While case law establishes that municipal violations are not a prerequisite to establishing private nuisance,8 Noise Code violations are generally prima facie nuisances. Experience teaches that while police are trained to detect that a barking dog or a television violates noise laws, it is generally a matter of pure luck when a building inspector detects that a unit violates the acoustical isolation requirements. However, several acoustical engineers in the city specialize in making just such determinations and are available as expert witnesses, although it may require a court order to get the access for them to perform their necessary tests.
In Brown v. Blennerhasset Corp.,16 the occupants complained of the neighboring unit producing noise including heavy footsteps, snoring, and a dishwasher. The First Department, Appellate Division held that such noises were not unreasonable as they were incidental to normal occupancy. However, because the plaintiff’s expert stated that the noise could not be abated via carpeting or padding because the penetration of noise was attributable to the construction of the building, the court granted leave to amend the complaint so as to allege breach of the warranty of habitability against the co-op corporation. If there were proof of violation of §27-769, the court should have awarded an injunction mandating the amendment of the building so as to isolate the noise.
Recently in 150 West 21st v. Doe,17 the First Department, Appellate Term found there are was no “actionable nuisance.” Here, the landlord brought the action against tenants that allegedly made a “handful of of complaints over the course of more than one year” to the upstairs neighbor. The court found that this “did not constitute a recurring or continuing pattern of objectionable conduct that threatens the comfort and safety of others in the building,” and that the landlord failed to submit evidence to support the allegations.
In the case of rentals, the First Department has held that where a landlord had surrendered control of the unit to another tenant who was causing the nuisance, a cause of action for nuisance could not be sustained against the landlord because the landlord did not create the nuisance.18 However, that speaks to the generation of the noise, not architectural failure to sufficiently prevent its transmission.
While condominium boards are not subject to the implied warranty of habitability, condominiums boards are required, pursuant to RPL 339(v)(1)(i), to include by-law provisions “that are designed to prevent unreasonable interference with the use of their respective units and of the common elements by the several unit owners.”19 Unit owners can therefore obtain relief from noise interference through private nuisance claims and injunctive relief.
Unlike condominiums, co-ops and rental units are bound by the statutory warranty of habitability.20 They are required to ensure that there is no unreasonable interference with shareholders’ and tenants’ ability to use their premises for residential purposes.
In contrast, the plaintiffs in Nostrand Gardens Co-Op v. Howard24 were successful in establishing their claim that the landlord breached the warranty of habitability and obtaining an abatement of rent. The plaintiffs provided evidence showing the nature, scope, and duration of the of the breach and that the noise emanating from the apartment neighboring the tenant was excessive and occurred during unreasonable hours.
Where liability is found for breach of warranty of habitability, the “measure of damages is the difference between the fair market value of the premises if they had been as warranted and the value of the premises during the period of the breach.”25 In co-ops, these numbers tend to be vastly lower than in conventional landlord-tenant housing.
Utilizing expert testimony and conducting sound tests is helpful in establishing liability. In the case of Hohenberg v. 77 W. 55th St. Associates,26 the plaintiffs resided in the unit as tenants until the building was converted into a condominium. As such, the board of managers became responsible for common areas of the building. The plaintiffs showed that they made numerous complaints to the board and that they expended a considerable amount of money to change the layout of the apartment to ameliorate the penetrating noise and vibration. The court found that the board failed to take actions to correct the interference complained of and awarded damages to the plaintiffs. Similarly, in JP Morgan Chase Bank v. Whitmore,27 the owner of a condo unit produced expert testimony. The Second Department Appellate Division accepted the unit owner’s expert testimony and awarded damages in her favor.
1. To see a properly drafted, effective and tested carpeting provision drafted by the authors for BlumbergExcelsior, Inc, go to https://www.blumberglegalforms.com/Forms/59.pdf, paragraph 20(p). or http://albpc1.wpengine.com/forms/.
5. The “Noise Control Code” is also known as “The Noise Code.” See http://www.nyc.gov/html/ dep/pdf/noise_code_guide.pdf.
23. Armstrong v. Archives, 46 AD.3d 465 (1st Dept. 2007).
24. Nostrand Gardens Co-Op v. Howard, 221 A.D.2d 637 (2d Dept. 1995).
25. Id. (citing Park West Management Corp. v. Mitchell, 47 N.Y.2d 316).
26. Hohenberg v. 77 W. 55th St. Associates, 118 A.D.2d 418 (1st Dept. 1986).
27. JP Morgan Chase Bank v. Whitmore, 41 A.D.3d 433 (2d Dept. 2007).
28. Constantiner v. Sovereign Apartments, Inc., 126 A.D.3d 532 (1st Dept. 2015).


text:
PETITION for a writ of mandamus filed in the Superior Court on April 10, 1972.
James H. Tourtelotte for the petitioners.
Michael J. Morrill, Town Counsel, for the Building Inspector of Brimfield & another.
; Mahoney v. Commissioner of Pub. Works of Lowell, 351 Mass. 697 ). The order for judgment dismissed the petition, and the petitioners have appealed.
The order for judgment was right. We summarize the facts found by the trial judge. The locus is a 4.7 acre parcel of land owned by William G. Lyons (Lyons), the principal officer and shareholder of Brimfield Precision, Inc. (Precision). On the easterly portion of the locus is a one-story masonry structure with a floor area of 3,000 square feet. Precision, the town's only industry, and its largest employer, has used this structure for the fabrication of small sophisticated surgical instruments and parts since before the town's adoption on June 19, 1968, [Note 2] of its first zoning by-law. These operations thereupon constituted a non-conforming use in the Agricultural-Residential district in which the locus was placed. They cause no noise, waste, smoke, or pollution of any kind, and Precision's requirements for municipal facilities and services are minimal.
The locus fronts on the southerly side of Mill Lane Road and also has access to Haynes Hill Road. Both Mill Lane Road and Haynes Hill Road are paved secondary ways and intersect Route 19 within a few hundred feet of the locus. Route 19 is one of the major roads of the town and leads to the center of the town, where it intersects U. S. Route 20.
The area in which the locus is situated is sparsely settled; it consists primarily of wooded or meadow land intermittently interrupted by single family homes, some with associated farm buildings. One of the property owners near the locus stores on his property equipment and vehicles used in his septic system installation and service business. There has been no substantial change in the area since the original adoption of the zoning by-law (compare Raymond v. Commissioner of Pub. Works of Lowell, 333 Mass. 410 , 413 ; Addison-Wesley Publishing Co. Inc. v. Reading, 354 Mass. 181 , 186 ).
The 1968 by-law established five types of zoning districts: Residential, Agricultural-Residential, Business, Industrial, and Flood Plain. But the zoning map, which was adopted together with the by-law, divided the entire town into only three of those districts: Agricultural-Residential, Business, and Flood Plain. No land in the town was zoned either as Residential or as Industrial. Compare Noonan v. Moulton, 348 Mass. 633 , 638-639 (1965).
In July of 1971, Precision, desiring to expand its manufacturing operations, moved its office facilities into two trailers which were placed in front of the building. A number of neighbors protested to the building inspector. The building inspector refused a permit for expansion of the building, and the board of appeals told Lyons that it did not have the power to grant relief. Thereupon, Lyons requested that an article be included in a warrant for a special town meeting to consider rezoning the locus from Agricultural-Residential to Industrial.
The town meeting was held on December 29, 1971. The planning board unanimously recommended rejection of the amendment. Compare Noonan v. Moulton, supra, at 639. The board of selectmen, however, favored the amendment and reported to the town meeting that Lyons had told it that Precision would expand its 28-man work force by 10 if permitted to enlarge its plant but that if it were not allowed to expand, it would be forced to seek new quarters in another community. The town meeting voted by more than the required two-thirds majority to adopt the amendment; the Attorney General approved it on January 27, 1972.
the same factor is present. We do not pause to classify and analyze the numerous cases. The overriding "test is whether there has been shown any substantial relation between the amendment and the furtherance of any of the general objects of the enabling act. . . . The promotion of the public welfare, as that term is fairly broadly construed, is chief among the purposes of the enabling statute." Lanner v. Board of Appeal of Tewksbury, 348 Mass. 220 , 228 (1964). See G. L. c. 40A, Section 2.
The trial judge in his comprehensive and well-considered "Findings, Rulings, and Order for Judgment" summarized the circumstances as follows: "By December of 1971, however, the situation had changed to some degree [from the situation in 1968, when a nonconforming use was sufficient for Precision's needs]. The town's only industry and largest employer needed to expand, and the by-law prohibited such expansion. The town faced the prospect of losing the company . . .. The probability of replacing it with an equally desirable business or industry was not great. The changes in the size and appearance of the company's building that were contemplated to permit the required expansion were not drastic and not likely to detract from the appearance of the area in which the building is located."
He then held, "In my opinion, the voters were justified in concluding that the public welfare would be furthered if the company's presence in the town could be preserved." We agree. Shannon v. Building Inspector of Woburn, 328 Mass. 633 , 636-638 (1952). Raymond v. Commissioner of Pub. Works of Lowell, 333 Mass. 410 , 411-414 (1956). See Caires v. Building Commr. of Hingham, 323 Mass. 589 , 595 (1949); Pierce v. Wellesley, 336 Mass. 517 , 521-522 (1957); Tracy v. Board of Appeals of Marblehead, 339 Mass. 205 , 207-209 (1959); Lanner v. Board of Appeal of Tewksbury, 348 Mass. 220 , 228-230 (1964); Kennedy v. Building Inspector of Randolph, 351 Mass. 550 , 553-554 (1967); Barrett v. Building Inspector of Peabody, 354 Mass. 38 , 42 (1968); Addison-Wesley Publishing Co. Inc. v. Reading, 354 Mass. 181 , 186 (1968).
to residential use [compare Durand v. Superintendent of Pub. Bldgs. of Fall River, 354 Mass. 74 , 77 (1968)]."
It is clear that the petitioners have not sustained the heavy burden of proof placed upon one attempting to invalidate a zoning by-law as spot zoning. As was emphasized in Crall v. Leominster, 362 Mass. 95 , 103 (1972): "To sustain that burden they must prove facts which compel a conclusion that the question whether the amendment falls within the enabling statute is not even fairly debatable." See also the cases cited in fns. 4 and 5 of the Crall case at 101-102 and Martin v. Rockland, 1 Mass. App. Ct. 167 , 169 (1973).
[Note 1] Town clerk of Brimfield.
[Note 2] The by-law was approved by the Attorney General on September 12, 1968, and presumably was published and posted and hence became effective shortly thereafter. G. L. c. 40, Section 32.
[Note 3] The court in that case went on to say: "It is no objection to a legislative solution of a public problem that it will incidentally lead to private profit or advantage. Pierce v. Wellesley, 336 Mass. 517 , 522 . The vote of the townspeople on the specific amendment emphasizes a genuine and general public interest in the establishment of the local business district transcending any concern for Garabedian's private advantage. See Raymond v. Commissioner of Pub. Works of Lowell, 333 Mass. 410 , 412 ." Lanner v. Board of Appeal of Tewksbury, 348 Mass. at 229-230.
[Note 4] In any event, it is not controlling that "a particular parcel of property was singled out for treatment different from that given to surrounding property of a similar character," for the change was not "all for the economic benefit of the owner of that lot." Board of Appeals of Hanover v. Housing Appeals Comm. 363 Mass. 339 , 361-362 (1973), quoting in part Whittemore v. Building Inspector of Falmouth, 313 Mass. 248 , 249 (1943) (emphasis in Hanover case).
[Note 5] Compare Sinn v. Selectmen of Acton, 357 Mass. 606 , 609 (1970), citing G. L. c. 40A, Section 3, which lists among the purposes of a by-law, "to encourage the most appropriate use of land throughout the city or town."

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


Let’s go back to the Supreme Court for a second.
There’s a difference in the effect of Supreme Court holdings on matters of constitutional interpretation and matters of statutory interpretation that might not be obvious to you.
As I’ve said a million times before, the holdings of the Supreme Court represent the supreme law of the land binding on all lower courts as well as the other branches of government.
The effect of a Supreme Court holding on a matter of constitutional law can only be overturned or superseded by an amendment to the Constitution or a subsequent ruling by the Supreme Court itself.
Both are incredibly rare, so when the Supreme Court issues a constitutional law holding it will likely remain the law of the land for quite some time.
The holdings of the Supreme Court in cases interpreting the application of federal statutes likewise represent the supreme law of the land in the United States and will prevail over conflicting interpretations by lower courts or the other two branches of government as a technical matter.
Unlike constitutional decisions, however, the Supreme Court’s holdings on matters of statutory interpretation can be, in effect, overturned by Congress if Congress decides to amend the statutory language that was at issue in the Supreme Court’s statutory law decision.
Ø United States v. Mink (1973): For example, in a 1973 case, Environmental Protection Agency v. Mink, the Supreme Court interpreted the Freedom of Information Act to allow the Executive Branch to unilaterally exempt all documents from disclosure simply by stamping them secret.
o Moreover, the Court interpreted this prerogative to forbid courts from examining supposedly “classified” documents in camera to determine if the classification decision was made in good faith.
o This decision allowed Executive Branch officials to classify documents having nothing to do with national security simply to avoid public scrutiny.
Ø Congress disagreed with the Supreme Court’s interpretation of its FOIA statute, so it amended FOIA in 1974 to require the classification of documents to take place pursuant to lawful procedures and substantive criteria set out in an Executive Order.
o It also requires that such classifications be properly made, which explicitly allows courts to examine whether the classification decision was legitimate or not.
The bottom line is that a Supreme Court holding on a matter of constitutional interpretation will always trump all contrary interpretations by lower courts or even the other two branches of government unless they can garner enough support to amend the Constitution itself—which is very unlikely.
Supreme Court holdings on matters of statutory interpretation are just as binding as a technical matter, but since Congress controls the text of federal statutes it can always supersede a statutory holding by the Supreme Court simply by changing the text of the statute the Supreme Court interpreted.
 Environmental Protection Agency v. Mink, 410 U.S. 73 (1973) (Official Case Syllabus: "Respondent Members of Congress brought suit under the Freedom of Information Act of 1966 to compel disclosure of nine documents that various officials had prepared for the President concerning a scheduled underground nuclear test. All but three were classified as Top Secret or Secret under E. O. 10501, and petitioners represented that all were inter-agency or intra-agency documents used in the Executive Branch's decisionmaking processes. The District Court granted petitioners' motion for summary judgment on the grounds that each of the documents was exempt from compelled disclosure by 5 U. S. C. § 552 (b)(1) (hereafter Exemption 1), excluding matters "specifically required by Executive order to be kept secret in the interest of the national defense or foreign policy," and § 552 (b)(5) (hereafter Exemption 5), excluding "inter-agency or intra-agency memorandums or letters which would not be available by law to a party . . . in litigation with the agency." The Court of Appeals reversed, concluding (a) that Exemption 1 permits nondisclosure of only the secret portions of classified documents but requires disclosure of the nonsecret components if separable, and (b) that Exemption 5 shields only governmental "decisional processes" and not factual information unless "inextricably intertwined with policy-making processes." The District Court was ordered to examine the documents in camera to determine both aspects of separability. Held: 1. Exemption 1 does not permit compelled disclosure of the six classified documents or in camera inspection to sift out "non-secret components," and petitioners met their burden of demonstrating that the documents were entitled to protection under that exemption. Pp. 79-84. 2. Exemption 5 does not require that otherwise confidential documents be made available for a district court's in camera inspection regardless of how little, if any, purely factual material they contain. In implying that such inspection be automatic, the Court of Appeals order was overly rigid; and petitioners should be afforded the opportunity of demonstrating by means short of in camera inspection that the documents sought are clearly beyond the range of material that would be available to a private party in litigation with a Government agency. Pp. 85-94.").
 Pub. L. No. 93-502, § 4, 88 Stat. 1564 (Nov. 21, 1974). The new provision is codified at 5 U.S.C. § 552(b)(1) (“This section does not apply to matters that are--(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order”).
 5 U.S.C. § 552(b)(1)(B) (“This section does not apply to matters that are--(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order”) (emphasis added).


text:
Art. 1) These Regulations, drawn up by the Executive Council of "INVICTUS BOLOGNA A.S.D." and approved by the shareholders on 24 March 2015, govern the conduct of activities that the aforementioned place in accordance with Article. 3 Articles of Association.
Art. 2) The Association formed a non-profit, It has the aim of promoting and developing amateur sports activities and in particular that of Basketball.
Art. 3) They can join the Association all those who are interested in the activities described in paragraph 2 as well as to the activities indicated in Article. 3 bylaws, submitting a request to the Executive Council, made on the appropriate online registration form on the site www.invictuscamp.com.
Art. 4) Acceptance of the application by the Governing Council, leads, for the new Associate, the payment of dues which will valid for one year from 1 January to 31 December.
Art. 5) The possible refusal by the Board of Directors will be explicitly motivated.
Art. 6) At the new Associate membership card will be issued and the entity in which the association is affiliated, also including accident insurance.
Art. 7) Allowances for attendance of courses organized by the Association will be fixed by the Board annually.
Art. 10) The Association is not liable for damages that may occur to the Members as a result of injuries, accidents, diseases that have occurred to its members. In case of accident and emergency, the Associate will receive the necessary treatment and will be assisted and cared for by doctors and physiotherapists. In addition, the Association is not liable for damage caused by members to things and / or people and the loss of documents during the planned activities.
Art. 11) The Association accepts no liability for damages, theft or tampering inside the locker room, gyms, outdoor areas, cars and rooms.
Art. 12) Associates with the accession declare to know and abide by these Rules and undertake to indemnify and hold raised the Association and its co-obligors from all damages, both direct and indirect, they could, however and by whomever, People and things, including athletes, members instructors, coaches, carers, public, arise in connection dependency or use of the installations and accessories, raising the Association itself and its co-obligors from any and all action, claim, request (both judicial and extrajudicial both) It could still promote it and by anyone in relation to the practice of their sport. The Association is still achieved by the consequent risks to the plant management and the performance of sports activities, by concluding appropriate general liability insurance. The Associate waives any claim higher damages to the guaranteed maximum insurance.
Art. 13) The Member is entitled to be informed of the most relevant facts concerning the management, the development and guidance of the Association. To this end, the Member may request clarifications and information upon request to the President.
Art. 14) All Members must follow the rules of good manners, of proven morality, fairness in relationships and will not disrupt in any way the staff and the activities of other Associates.
Art. 15) The Associate is obliged to observe all the provisions of the Statute and of these Rules. The Associate has the rights conferred upon it by the Statute and these Regulations from the time when his application for admission has been accepted.
Art. 16) The Board has delegated the implementation of this Regulation and to resolve any type of measure in respect of Members who do not respect these Rules, in compliance with the Law and Statute.
Art. 17) Although not expected and mentioned in these Regulations, the provisions of the Statute as reported, in Book I of the Civil Code and in the alternative to the rules contained in Book V of the Civil Code. jurisdiction for any dispute will be to Bologna.
Art. 18) The present Regulations may be amended by the Assembly of Members.

matches:
Art. 2
Art. 3
Art. 4
Art. 5
Art. 6
Art. 7
Art. 10
Art. 11
Art. 12
Art. 13
Art. 14
Art. 15
Art. 16
Art. 17
Art. 18


text:
A common focus when assessing non-pecuniary damages deals with looking at recreational activities and how they have been curtailed as a result of physical injuries. Reasons for judgement were released last week by the BC Supreme Court, Vernon Registry, addressing this in the context of lingering soft tissue injuries.
In last week’s case (Travelbea v. Henrie) the Plaintiff was injured in a 2008 collision. Fault was admitted by the Defendant focussing the case on an assessment of damages. The court found that the Plaintiff suffered a “mild to moderate soft tissue injury to her neck and upper back“. Her symptoms remained “painful and limiting” at the time of trial and while there was room for further improvement the Court was satisfied that there would still be “residual pain and limitations“.
 From the foregoing I conclude the following. The plaintiff sustained a mild to moderate soft tissue injury to her neck and upper back. Now, some four years after the accident, it remains painful and limiting. I think it more likely than not that if she commits to the focused stretching that Dr. Laidlow recommended she will increase her level of functioning. I think it more likely than not that if she takes the course of medication, whether nortriptyline or Celebrex, that Dr. Travlos recommended, she will experience an even greater improvement in her functionality. She will, however, be left with residual pain and limitations. I think it unlikely she will ever be able to ride a road bicycle for any appreciable period of time. As a result both that training and triathlon racing will remain beyond her ability. She may be able to ride a bicycle that can be operated in a more upright posture. I think it more likely than not that she will be able to swim and run, albeit not at the level or for the distance she did previously. I think it also likely that with this improvement in function she will recover some of her self confidence and some of the depression which seems to have settled over her will lift.
 Taking all of the foregoing into account, and having regard to the non-exhaustive list of factors set out at paragraph 46 in Stapley v. Hejslet, I consider that an award of $50,000 is appropriate in this case. Included in this amount is $3,000 which I have determined is the appropriate compensation for the plaintiff’s lost capacity to perform housekeeping tasks.
The current judicial cap for non-pecuniary damages in Canada for negligently caused injuries rests at just over $342,000. Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, discussing whether such an assessment was appropriate for a severe traumatic brain injury coupled with multiple orthopaedic injuries.
 Ms. Clost is seeking an award for non-pecuniary damages at the upper limit set by the Supreme Court of Canada. Counsel agreed the upper limit, adjusted for inflation, was $342,500 at time of trial. The defendants submitted that an award of $175,000 to $225,000 would adequately compensate Ms. Clost for the pain, suffering, and loss of enjoyment of life caused by the accident injuries.
 Ms. Clost does not, as did many of the plaintiffs in the cases referred to by plaintiff’s counsel, require constant supervision for her own protection. She continues to enjoy a considerable degree of independence and to exercise control over most aspects of her life. She has returned to living in her own home. She is able to do most activities of daily living without assistance. She is entirely capable of bathing, toileting, dressing and feeding herself. She can walk, she can swim, she can drive, she can use a computer; she can cook, she can bake, she can shop ? for necessities and for enjoyment. She goes out to the library; for lunch and visits with friends. She can still do many household and outdoor chores although there are also some she cannot do or can only do in a modified way or with assistance. She has continued to manage her own finances, taking care of banking and bill-paying on-line, as she did before the accident. She has not demonstrated a propensity to engage in behaviours that make her a danger to herself or others, as was the case with the plaintiffs in Spehar andCoulter.
 I am of the view, however, that Ms. Clost has experienced pain, suffering and loss of enjoyment of life and will continue to experience losses for which she is entitled to very significant compensation and to an award above the range suggested by defendants’ counsel. Having considered the various authorities, I have concluded that the appropriate award for non-pecuniary damages in this case is $300,000.
 I have already reviewed the evidence of Ms. Clost’s numerous serious orthopedic injuries and the details of the injuries to her brain. She was in a coma for a month and only gradually returned to consciousness. She has a gap in her memory of events for some period before and after the accident. She required two major orthopaedic surgeries within the month following the accident to repair numerous fractures. I have concluded she will require at least one and possibly more surgeries in future to fuse the joint in her left foot and ankle; to remove hardware in the ankle and possibly in her wrists as well; and a possible ankle replacement surgery. Her orthopedic injuries caused her considerable pain; and she was essentially confined to a hospital bed and unable to bear weight or to walk for several months. There was a period during which she was unable to use her arms due to injuries to her arms, wrists and hands.
 In total, Ms. Clost was confined to one type of hospital or another for five months following the accident. Her rehabilitation was ongoing at time of trial. She continues to have pain or discomfort in many parts of her body. She has frequent headaches. The most significant and frequent sources of pain are her left foot and ankle; she also has swelling there and the injury disables her from walking or standing for extended periods of time. Although a fusion of the joint may reduce the amount of discomfort she experiences, the medical opinions I accept indicate that she is unlikely to be pain-free. At time of trial she still needed to take strong medications to control her pain and to help her to sleep.
Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry providing some useful comments in an assessment of non-pecuniary damages for a Plaintiff with pre-existing, long-standing chronic pain and disability.
In the recent case (Morgan v. Scott) the Plaintiff was injured in a 2009 collision. The Defendant admitted fault focusing the trial on an assessment of damages. The Plaintiff had a host of pre-existing problems including chronic pain in his neck and low back. He was also on a disability pension as a result of a chronic lung condition.
 The defendant argues that the Accident caused an “exacerbation” of these conditions. As a matter of definition this is true. There are instances, however, where a worsening in a condition gives rise to more than a change in degree. Instead, in real terms, it gives rise to a change in kind.
 I find that this is so for several of Mr. Morgan’s symptoms. I have said that his pain symptoms changed from being recurring in nature, with periodic “flareups” or, as Dr. Caillier described it, of an “on and off” nature, to being enduring in nature and markedly more severe. That reality has dramatically curtailed Mr. Morgan’s ability to follow his exercise regime. That regime, in turn, is vital to his respiratory health and to the management of his chronic pain. It was also one of the few physical activities that Mr. Morgan could participate in and it provided him with a sense of confidence. Further, it is clear to me that it also provided him with pleasure and with a sense of pride.
 There is no question that Mr. Morgan has become further de-conditioned since the Accident. He testified that his respiratory function has worsened. There was no admissible evidence before me that Mr. Morgan’s chances of being accepted onto a list of prospective transplant donees have diminished as a result of the Accident. Nevertheless I consider that I can, in my assessment of Mr. Morgan’s non-pecuniary losses, weigh the anxiety or stress that Mr. Morgan has expressed over his weakened state and its significance for his long term health.
 Based on the findings I have made and on the considerations I have identified, I consider that an appropriate award for Mr. Morgan’s non-pecuniary losses is $100,000. This figure recognizes and accounts for the various positive and negative contingencies which exist as well as the various non-exhaustive factors that are identified in Stapely v. Hejslet, 2006 BCCA 34 at para. 46. I also emphasize that this award recognizes the difficulties that Mr. Morgan laboured under prior to the Accident and does not compensate him for such pre-existing difficulties.
Reasons for judgement were released last week by the BC Supreme Court, Nanaimo Registry, assessing damages for injuries sustained from two motor vehicle collisions.
In last week’s case (Parker v. Lemmon) the Plaintiff was injured in two separate crashes, the first occurred in late 2008 the second the following month. Fault was admitted by the Defendants for both collisions. The crashes caused an overlapping indivisible injury and damages were assessed globally.
The Plaintiff’s injuries included a Grade 2 Whiplash Associated Disorder in her upper and lower back long with her neck muscles and ligaments. This injury persisted and caused the Plaintiff a partial disability in her job as a care-aid with restrictions associated with “repetitive reaching and pulling and pushing…as well as the repetitive bending with regards to her lower back“.
Thus the amount of an award for non-pecuniary damage should not depend alone upon the seriousness of the injury but upon its ability to ameliorate the condition of the victim considering his or her particular situation. It therefore will not follow that in considering what part of the maximum should be awarded the gravity of the injury alone will be determinative. An appreciation of the individual’s loss is the key and the “need for solace will not necessarily correlate with the seriousness of the injury” (Cooper-Stephenson and Saunders, Personal Injury Damages in Canada(1981), at p. 373). In dealing with an award of this nature it will be impossible to develop a “tariff”. An award will vary in each case “to meet the specific circumstances of the individual case” (Thornton at p. 284 of S.C.R.).
 In Fata, the injuries were found to be such that they would not have prevented a return to full-time employment, although with discomfort. Some of the sequelae were resolved at the time of trial, although there was some lingering shoulder pain that would likely not resolve. The Court awarded $45,000 non-pecuniary damages. The factual circumstances are not in all respects similar to the case at bar, but in my view the award in Fata most appropriately approximates what is appropriate here. I note in that case the Court found that the plaintiff could have returned to work but chose not to. In this case the plaintiff did return to her former employment, which her specialist physician opined she could, but she ultimately chose to discontinue that employment and is considering retraining.
 In my opinion the appropriate award for non-pecuniary damages in this case is $45,000.
Reasons for judgement were released last week by the BC Court of Appeal setting aside a jury verdict and ordering a new trial in a motor vehicle collision injury claim. The Court found that the Jury’s award for non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) was “almost derisory” and not compatible with the other awards made.
In last week’s case (Evans v. Metcalfe) the Plaintiff was injured in a 2006 collision. The Plaintiff sought substantial damages. A jury was not receptive to much of the Plaintiff’s claim and awarded a fraction of the sought damages. The awards included $6,000 in special damages, $10,300 for past loss of income and $1,000 for non-pecuniary damages. The trial judge found these awards to be “shockingly unreasonable”.
 In the present case, there was a body of medical evidence that did not depend on the veracity or reliability of the appellant plaintiff or her primary treating physician that was supportive of the thesis that she continued to suffer from the sequelae of the April 2006 accident throughout 2006 into the early months of 2007. As I earlier noted, the quantum of the awards made by the jury under the heads of past income loss and special damages are reasonably susceptible of the interpretation that the jury made a factual decision that the effects of the accident did persist for about nine months post-accident.
 In my respectful opinion, these findings of the jury as reflected in their pecuniary awards make the award for non-pecuniary damages very anomalous. It is not impossible that the jury may have taken a quite censorious view of the appellant because of her economic circumstances or because of her conduct in importuning the physician to give her a note in aid of possible financial advantage. These would not be judicious reasons for denying her an appropriate award of non-pecuniary damages. As I observed, there was a body of credible evidence that would support an award under this head significantly greater than the amount awarded at trial. While there can be considerable variance in awards made under this head as the cases cited to us demonstrate, this award seems almost derisory.
 Generally this Court must be very restrained in any interference with a jury disposition as a consistent body of precedent makes plain. However, I have been persuaded that this is one of those rare cases where the interests of justice make intervention appropriate. The degree of anomaly in the respective awards, coupled with a very real possibility of the triers of fact taking an unduly severe view of the appellant’s conduct unrelated to her physical condition persuade me that the award made by the jury for non-pecuniary damages cannot stand.
 We were invited by counsel for the appellant to either fix awards under various heads ourselves, or refer the matter to the trial judge for assessment. The latter course does not commend itself to me for two reasons: the judge has previously expressed certain fairly strong preliminary views and it is of course the right of the defendant respondent to choose the forum of a jury if so minded. As to the possible remedy of this Court adjusting upward awards made by the jury, this is very much dependent on factual issues, including particularly issues of credibility. Historically this Court has been properly reluctant to engage in factual determinations in this class of matter. In my view, the only appropriate resolution of this case is to set aside the order made at trial and order a new trial and I would so order.
As previously discussed, frequent doctor visits in and of themselves add no value to a personal injury claim. Seeing a doctor simply to ‘paper’ a personal injury claim really does nothing to add to the amount of compensation a claimant is entitled to receive not to mention that it creates a costly and unnecessary burden on the medical system. Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating that medical visits to address ‘inconsequential‘ matters with a view to assisting a personal injury claim are frowned upon.
In this week’s case (Hough v. Wyatt) the Plaintiff was involved in a 2009 collision. He sued seeking over $350,000 in damages. The Court largely rejected the Plaintiff’s claim finding that while the collision did cause some injuries these were little more than a ‘minor degree‘ of aggravation of pre-existing injuries. Non-Pecuniary damages of $15,000 were assessed.
 Dr. Waiz’s evidence is unsatisfactory on many levels, not the least of which his manner in which he managed Mr. Hough’s care with increasing doses of narcotics. His records are unreliable. He blames computer programs and computer generated forms. He has been willing to fill out reports to benefit Mr. Hough, for example, claiming all Mr. Hough’s drugs were WCB-related so Mr. Hough could be compensated, and claiming a wrist fracture was a WCB injury due to ongoing weakness and pain in his right leg. This is the same broken wrist that Mr. Hough now claims was caused by the accident for the same reason. Where it has suited Mr. Hough, Dr. Waiz has reported to WCB Mr. Hough is unable to work in any capacity. Now he was reporting to this court that, because of the accident, Mr. Hough cannot work. The concern is he is parroting what Mr. Hough wants him to say.
While it is true that serious injuries warrant higher damage awards than minor injuries and that serious injuries typically result in more medical appointments, the mere number of doctor’s visits in and of themselves do not assist in valuing a personal injury claim. You can click here for a short discussion addressing the factors Court’s often consider when assessing non-pecuniary damages (money for pain and suffering) in a BC personal injury lawsuit.
As previously discussed damages for non-pecuniary loss (pain and suffering and loss of enjoyment of life) are best thought of in ranges. The same injury can be valued differently by individual trial judges and for this reason its important to get a sense of the low end and high end of appropriate compensation for your injury when considering settlement. The best way to do this is to review as many cases as possible dealing with similar injuries.
Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, discussing non-pecuniary damages for a modest soft tissue injury of nine months duration.
 Bearing in mind that Mr. Thomson’s continuing symptoms were not sufficiently serious to require further medical attention, I find that the link Dr. Fyfe makes between his work duties and the presence of symptoms in the areas described is plausible, particularly in light of what she identified as the difficulties Mr. Thomson endured when undertaking strenuous duties during the earlier stages of his recovery. I find that although Mr. Thomson’s symptoms diminished to such an extent as to no longer require him to seek ongoing medical treatment and engage in physiotherapy, those symptoms persisted in one form or another until the end of August 2008.
Most of my injuries had improved quite a bit before I returned to work on March 10, 2008. I remember that the pain in the left shoulder, left arm and between the shoulder blades were still lingering when I returned to work. I had periodic neck pain which was aggravated by work, as my job involved a lot of looking up.
 I think this candid description weighs substantially in favour of Mr. Thomson’s credibility and distinguishes him from those plaintiffs who maintain that their physiological problems continue undiminished for very lengthy periods, well past what objective medical or other evidence can possibly support.
 In all the circumstances, I think that the duration of Mr. Thomson’s most serious symptoms and the limited extent to which they interfered with his pre-collision lifestyle calls for a lower award than those awarded in the cases he relies on. However I have no concerns on the evidence that Mr. Thomson may have exaggerated his symptoms, so I think that a substantially higher award than the nominal ones in the cases Mr. Hunt relies on is warranted.
 I, accordingly, award Mr. Thomson $20,000 for non-pecuniary damages.
If you’re looking for other recent soft tissue injury damages assessments by BC Courts feel free to access my archived posts on this topic (fairly comprehensive from 2008-present). Another great resource is Canlii, a free Canadian legal case-law database.

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


This paper is available for download in PDF format or Microsoft Word format.
States, not the federal government, are the principal purveyors of criminal codes. Congress' authority to enact criminal laws is greatly circumscribed by the Constitution.
Only when federal and state laws directly conflict is federal law supreme. When there is no direct conflict, states retain the authority to legislate as they see fit.
States retain full authority to de-criminalize or de-penalize conduct as they see fit. The refusal of a state to criminalize or penalize conduct is fully consistent with principles of Federalism and does not conflict with federal law even when federal law criminalizes or penalizes the very same conduct.
This authority extends to States' ability to de-criminalize or de-penalize conduct related to the possession and use of marijuana, including medical marijuana. See generally Illicit Drug Policies: Selected Laws from the 50 States, available at http://www.andrews.edu/BHSC/impacteen-illicitdrugteam (noting that states have a history of drug policy experimentation that has often differed from federal policy and comparing states. various de-penalization approaches with respect to marijuana).
It is the duty of sheriffs, as well as the district attorney to enforce state laws. The Alameda county sheriff has a statutory duty to enforce the laws of the state and maintain public order and safety. Los Angeles Free Press, Inc. v. City of Los Angeles, 88 Cal.Rptr. 605, 611 (1970). The Attorney General is mandated by the California constitution to "see that the laws of the State are uniformly and adequately enforced," and to oversee the offices of the district attorneys and sheriffs towards this ends. Cal. Const., Article V, §13. That local law enforcement may enter into cooperative agreements with Federal enforcement agencies in no way abrogates their obligation to enforce state law.
The federal government may not compel state law enforcement agents to enforce federal regulations. "[T]he Federal Government may neither issue directives requiring the States to address particular problems, nor command the State's officers, or those of their political subdivisions, to administer or enforce a federal regulatory program." In Printz v. United States, 521 U.S. 898, 935 (1997), a Montana Sheriff Jay Printz challenged the constitutionality of a federal handgun control scheme that required him and other local law enforcement officers to conduct background checks on prospective handgun buyers, ensuring that no handguns were illegally purchased. In invalidating the law, the Supreme Court stated that Congress cannot require state officers to enforce federal laws. Asserting that it was discovered early on by the framers of the Constitution that "using the states as the instruments of federal governance was both ineffectual and provocative of federal-state conflict," the Court said that "the Constitution  contemplates that a State's government will represent and remain accountable to its own citizens."
State (and local) governments also have the right to be free from unwanted regulation imposed at the federal level. In New York v. United States, 505 U.S. 144, 166 (1992), the Court noted "we have always understood that even where Congress has the authority under the Constitution to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit those acts."
The states, not the federal government, regulate medical practice and establish standards of medical care.
An attempt by the executive branch to assert federal authority over the practice of medicine in Oregon in order to halt application of that state's so-called physician-assisted suicide law was recently rebuffed by a federal court. Oregon v. Ashcroft, 192 F. Supp. 2d 1077 (D. Or., 2002) ("The determination of what constitutes a legitimate medical practice or purpose traditionally has been left to the individual states" and Congress has "never authorized" nor "establish[ed] a national medical practice or  national medical board.").
The federal government is prohibited from sanctioning physicians who recommend medical marijuana to patients. Conant v. McCaffrey, 2000 U.S. Dist. LEXIS 13024 (N.D. Cal., 2000) (awaiting decision on appeal in the U.S. Court of Appeals for the Ninth Circuit, renamed Conant v. Walters).
Since 1996, seven states have enacted laws that confer various state legal protections on persons who need medical marijuana, and the people who provide care to them (including physicians and caregivers). The states are California, Oregon, Washington, Maine, Colorado, Nevada, and Hawaii.
The stated purposed of the Compassionate Use Act, passed in 1996 by the California electorate, is to "ensure that persons who use marijuana for medical purposes upon recommendation of a physician are not subject to criminal prosecution or sanction."
None of these medical marijuana laws have been challenged in court by the federal government, and no facial challenge to these laws by the federal government would succeed. While these laws differ from federal marijuana laws and are at odds with the federal rejection of "medical marijuana", these laws do not directly "conflict" with federal law so as to trigger a Supremacy Clause claim by the federal government.
The Oakland Cannabis Buyers' Cooperative Case decided by the U.S. Supreme Court in 2001 does not affect states' authority to legislate in the area of medical marijuana. The OCBC case simply held that federal law did not recognize a medical necessity defense when asserted by an organization that distributes marijuana to individuals. The Court did not strike down any state medical marijuana laws. Nor did the Court declare that such a defense was unavailable to individual patients who might assert such a defense in the face of federal prosecution. See Memorandum of Legislative Counsel, State of Nevada, to Assemblywoman Giunchigliani (May 17, 2001) (describing the very narrow holding of the Oakland Cannabis Buyers' Cooperative case). Thus, states remain free to enact legislation de-criminalizing or de-penalizing medical marijuana.
The federal government remains free to enforce federal marijuana laws, even in jurisdictions that have enacted medical marijuana laws. (The federal government, however, cannot force state officials to assist in these enforcement efforts). Accordingly, the federal government can arrest medical marijuana patients or caregivers for federal marijuana offenses. Similarly, federal officials can confiscate any marijuana they come across. To date, the federal government has yet to arrest or prosecute any individual patients for possession or use of medical marijuana. The federal government has prosecuted a handful of medical marijuana users who cultivated a substantial number of plants (typically over 1000) or distributed a substantial amount of marijuana. The federal government also has confiscated small amounts of marijuana seized and provided by state law enforcement officials who oppose medical marijuana.
The California Supreme Court recently recognized that "as a result of the enactment of [Prop 215], the possession and cultivation [of medical cannabis] is no more criminal - so long as its conditions are satisfied - than the possession and acquisition of any prescription drug with a physician's prescription." In People v. Mower, 122 Cal.Rptr.2d 326 Cal. (2002), the California Supreme Court held that the statutory medical-marijuana defense grants a defendant a limited immunity from prosecution, which not only allows a defense at trial, but also permits a motion to set aside an indictment or information prior to trial, by rendering possession and cultivation of marijuana noncriminal for a qualified patient or primary caregiver.


David Jon Weckert, petitioner, Appellant, vs. State of Minnesota, Respondent. C2-97-1594, Court of Appeals Unpublished, February 24, 1998.
Retired judges of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
Appellant David Jon Weckert challenges his convictions for second- and fifth-degree assault, and recklessly handling a gun. Appellant requests a new trial claiming the district court did not sua sponte include CRIMJIG 3.20 in the final jury instructions. Because the jury was accurately instructed on both second- and fifth-degree assault, including that the jury must acquit if it had a reasonable doubt, and because appellant never objected to the instructions given or requested an instruction on lesser crimes, we affirm.
In early 1996, Jeff Koistinen, owner of a repossession service company, made several attempts to repossess appellant's pickup truck. Appellant admitted that he was aware of Koistinen's desire to repossess the truck, but wanted to keep the truck and was therefore avoiding Koistinen.
On February 22, 1996, Koistinen drove his tow truck to appellant's home. When Koistinen arrived, he could not locate the pickup truck and no one answered the door. As he was leaving, appellant's brother drove up and parked next to the tow truck. The two men started talking about Koistinen's desire to repossess the pickup truck. As they were talking, appellant yelled "get off my property." As Koistinen turned around, he saw appellant standing on the front stoop, holding a Ruger Mini 14 .223 caliber semi-automatic rifle in his hand. Koistinen asked, "Are you [appellant]?" Koistinen saw appellant's arm move and the sound of a "cha-cha," described by Koistinen as the sound of a bolt action or a bullet going into the barrel of the gun. Appellant was in a shooting stance, looking at Koistinen, and starting to move the rifle. Koistinen testified that it appeared that appellant was aiming at him. Koistinen quickly knelt down between appellant's brother's car and his tow truck. Appellant then fired a shot from the rifle. Koistinen testified that he was afraid that appellant was going to shoot again so he got inside his tow truck, started it, drove away, and called 911 on his cellular telephone. Koistinen stated that he was scared for his life.
Appellant testified that he told Koistinen to "get off my property, you are trespassing." Appellant admitted that he was in a shooting stance and that he fired the rifle. Appellant stated that he was "embarrassed" at having shot the rifle, but still said to Koistinen a second time, "get off my property, you are trespassing."
It is undisputed that the district court discussed the proposed jury instructions with the prosecutor and defense attorney at the close of the state's case. Nothing regarding a lesser crime instruction was raised by the defense. In charging the jury, the district court gave the standard instructions on second-degree assault, fifth-degree assault, intentional discharge of a firearm, and reckless handling of a firearm. The defense did not object to the instructions given or request that any additional instruction be read to the jury.
Again, the defense made no request for any additional instruction with respect to the lesser degree of assault. The court responded by writing across the bottom of the note the following: "'Or' denotes the choice of an alternative." This definition was taken from the New Lexicon Webster's Encyclopedia/Dictionary of the English Language, Deluxe Edition.
The jury returned with its verdict the same day, finding appellant guilty of second-degree assault, fifth-degree assault, and recklessly handling a gun. This appeal followed.
Issues not raised in the district court will not be decided on appeal. State v. Mills, 562 N.W.2d 276, 284 (Minn. 1997). Regarding jury instructions, a party may not claim error in "any portion of the charge or omission therefrom unless the party objects thereto before the jury retires to consider its verdict." Minn. R. Crim. P. 26.03, subd. 18(3). In the absence of any objection, as in the present case, such a claim may be reviewed only if there was "plain error of a prejudicial nature" in relation to the jury instructions. State v. Bolte, 530 N.W.2d 191, 199 (Minn. 1995); see Minn. R. Crim. P. 26.03, subd. 18(3) (only an error in "fundamental law or controlling principle" will be reviewed if not objected to before jury retires). The United States Supreme Court stated that the plain error exception is to be "'used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result'." United States v. Young, 470 U.S. 1, 15, 105 S. Ct. 1038, 1046 (1985) (quoting United States v. Frady, 456 U.S. 152, 163 n. 14, 102 S. Ct. 1584, 1592 n. 14 (1982)).
It is undisputed that the district court discussed the jury instructions with counsel at the close of the prosecution's case. Nothing regarding the lesser-included offense instruction was raised by the defense. Even after the jury was given the instructions, including the elements of the offense, the defense stated that it had no objections to the instructions given and that there were no omissions in the instructions as given.
Next, this court must determine if the jury instructions constituted plain error and, therefore, allow appellant's challenge despite his lack of objection at the trial level. When reviewing the district court's instructions, this court does not look at a single instruction in isolation, but reviews the entire charge. State v. Roden, 380 N.W.2d 520, 524 (Minn. App. 1986), affirmed as modified, 384 N.W.2d 456 (Minn. 1986).
[T]hat whoever does an act with intent to cause fear in another person of immediate bodily harm or death or intentionally inflicts or attempts to inflict bodily harm upon another is guilty of assault.
See Minn. Stat. § 609.224, subd. 1(1), (2) (1996). The district court then defined and set out the elements of second- and fifth-degree assault following 10 Minnesota Practice, CRIMJIG 13.05, 13.06, 13.11, and 13.12 (1990). The jury instructions were written, and a copy was provided to the jury at the close of the case.
Third, defendant's act took place on (or about) _____, in _____ County.
If you find that each of these three elements has been proved beyond a reasonable doubt, defendant is guilty of assault in the second degree. If you find that any of these elements has not been proved beyond a reasonable doubt, defendant is not guilty of assault in the second degree.
CRIMJIG 13.06; see also Minn. Stat. § 609.222, subd. 1 (1996). The district court properly instructed the jury that appellant could not be convicted of second-degree assault if any element is lacking.
There is no dispute that fifth-degree assault is a lesser-included offense of second-degree assault. See Minn. Stat. § 609.04, subd. 1(1), (4) (1996) (lesser-included offense is lesser degree of same crime, or a crime necessarily proved if greater crime were proved). The only distinction between the two crimes is that second-degree assault contains the additional element of the use of a dangerous weapon.
Appellant claims the district court should have instructed the jury as to CRIMJIG 3.20, which states that "[i]f you find beyond a reasonable doubt that defendant has committed a crime but you have a reasonable doubt which crime has been committed the defendant is guilty of the lesser crime only."
CRIMJIG 3.20 was not necessary because the instructions in CRIMJIG 13.06 clearly and properly inform the jury on the question of reasonable doubt. Therefore, there was no need for the lesser-included offense instruction. See Bolte, 530 N.W.2d at 199 (no plain error if district court, without objection, did not give lesser-included offense instruction and did give reasonable doubt instruction). Based on the district court's instructions, the jury knew that if it concluded beyond a reasonable doubt that appellant had assaulted Koistinen, but had a reasonable doubt whether appellant used a dangerous weapon, it could not convict him only of second-degree assault. This is the same result that would have occurred if the district court had given the lesser-included offense instruction. It was not error, much less plain error, for the district court to instruct the jury as it did.
Finally, because appellant did not object, even if the failure to give CRIMJIG 3.20 instruction is considered "plain error," this court may reverse only if it "result[ed] in substantial and material prejudice to [appellant's] rights." State v. Dolbeare, 511 N.W.2d 443, 446 (Minn. 1994). "Any error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded." Minn. R. Crim. P. 31.01.
Here, appellant was not prejudiced. The only element distinguishing fifth-degree assault from second-degree assault is the element "with a dangerous weapon." Minn. Stat. §§ 609.222, subd. 1; 609.224, subd. 1 (1996). By his own testimony, appellant admitted that he held, cocked, and fired a semi-automatic rifle, which is indisputably a dangerous weapon. It is undisputed that a dangerous weapon was used.
There is no rational basis for a jury to return a verdict of guilty of assault in the fifth-degree and to acquit on the charge of assault in the second-degree, as appellant clearly used a dangerous weapon. Based on the evidence presented and appellant's own admission to using a dangerous weapon, he was not prejudiced by any possible error in not including CRIMJIG 3.20.


text:
CASE NAME: Barbara Berry, S.A. de C.V. v. Ken M. Spooner Farms, Inc.
Barbara Berry, S.A. de C.V. v. Ken M. Spooner Farms, Inc.
Argued and Submitted 8 November 2007.
Appeal from the United States District Court for the Western District of Washington; Franklin D. Burgess, District Judge, Presiding. D.C. No. CV-05-05538-FDB.
Before Canby, Graber and Gould, Circuit Judges.
Barbara Berry, S.A. de C.V. ("Barbara Berry"), a Mexican corporation, appeals the district court's grant of summary judgment in favor of Ken M. Spooner Farms, Inc. ("Spooner Farms"), a Washington state corporation, in Barbara Berry's action to recover damages for breach of contract. We have jurisdiction under 28 U.S.C. � 1292 and we reverse the district court's judgment and remand for further proceedings.
We review de novo a district court's decision to grant a motion for summary judgment. Buono v. Norton, 371 F.3d 543, 545 (9th Cir.2004). In evaluating the district court's grant of summary judgment in favor of Spooner Farms, we view the evidence in the light most favorable to Barbara Berry. See Summers v. A. Teichert & Son, Inc., 127 F.3d 1150, 1152 (9th Cir.1997). We also review de novo the district court's interpretation and application of treaty language. Ramsey v. United States, 302 F.3d 1074, 1077 (9th Cir.2002).
The United Nations Convention on Contracts for the International Sale of Goods ("the CISG") governs the formation of contracts for the sale of goods between parties whose places of business are located in different member states. CISG arts. 1, 4, April 11, 1980, 1489 U.N.T.S. 3. Both the United States and Mexico are parties to the CISG. Treaties in Force 528-29 (2006). Therefore, the principles of the CISG apply to the contract between Barbara Berry and Spooner Farms. See CISG, arts. 1, 4. The district court erred in failing to first analyze the formation of the Barbara Berry-Spooner Farms contract under the CISG. We reverse due to this error because, applying the CISG, there exist genuine issues of material fact as to when a contract was formed between Barbara Berry and Spooner Farms, what terms were included in the contract, and whether those terms were later varied.
In addition, the district court erred in failing to rule, prior to granting summary judgment in favor of Spooner Farms, on Barbara Berry's Federal Rule of Civil Procedure Rule 56(f) motion to continue discovery. See Garrett v. City of San Francisco, 818 F.2d 1515, 1519 (9th Cir.1987) (determining that a district court erred where it granted summary judgment for the opposing party prior to ruling on the discovery motion). Moreover, we are confident that this case is more likely to yield a correct resolution if the parties engage in a reasonable amount of discovery before the district court resolves the issue of contract formation.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
1. Because the parties are familiar with the factual and procedural history of this case, we do not recount it here.
2. If it is determined that the limitation of liability provision within Spooner Farms' invoice or printed on the top of the boxes in which the goods were shipped is a part of the contract that was reached between the parties, then we agree with the district court's analysis that such provision would be enforceable. However, it first must be determined under the CISG, taking into account its articles and any pertinent precedent interpreting them, if that provision was a part of the contract.
3. If after discovery the legal issues on contract formation and the terms of the contract can be resolved with no genuine issue of material fact, then we do not rule out the possibility of a post-discovery motion for summary judgment.

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


Notice is hereby given that on the 21st day of May 2018 the Board of Trustees of the Joaquin School District will hold a regular meeting at 6:00 p.m., at the Administration building, Joaquin, Texas.
§551.071 Private consultation with the board’s attorney.
§551.072 Discussing purchase, exchange, lease, or value of real property.
§551.073 Discussing negotiated contracts for prospective gifts or donations.
§551.074 Discussing personnel or to hear complaints against personnel.
§551.076 Considering the deployment, specific occasions for, or implementation of, security personnel or devices.
§551.082 Considering the discipline of a public school child, or complaint or charge against personnel.
consultation with representative of employee groups.
§551.084 Excluding witnesses from a hearing.
39.030 Discuss or adopt individual assessment instruments or assessment instrument items.
at a subsequent public meeting of the School Board upon notice thereof; as the School Board shall determine.
10 Designation of date and time of next meeting of the Board of Trustees of the Joaquin ISD – June 19th at 6:00 p.m.


text:
Attachment; motion to discharge; right of defendant.
The defendant may, at any time before judgment, upon reasonable notice to the plaintiff, move to discharge an attachment, as to the whole or part of the property attached.
Defendant who has given "forthcoming bond" may move to dissolve attachment, but not if he has given "discharge bond." Burnham-Munger-Root D. G. Co. v. Strahl, 102 Neb. 142, 166 N.W. 266 (1918).
Defendant cannot move to discharge attachment on ground that property is not his. Kneeland v. Weigley, 76 Neb. 276, 107 N.W. 574 (1906).
Mortgagee of attached property cannot move to discharge. Meyer, Bannerman & Co. v. Keefer, 58 Neb. 220, 78 N.W. 506 (1899).
Court cannot hear motion to discharge attachment filed before, but not submitted until after judgment. Herman v. Hayes, 58 Neb. 54, 78 N.W. 365 (1899).
Defendant may move to discharge attachment although, prior to levy, he has sold interest therein. Kountze v. Scott, 52 Neb. 460, 72 N.W. 585 (1897).
Issue on motion to discharge is not whether defendant owns property attached, but grounds for attachment. South Park Imp. Co. v. Baker, 51 Neb. 392, 70 N.W. 952 (1897).
Hearing of motion to discharge in attachment is a trial. Gibson v. Sidney, 50 Neb. 12, 69 N.W. 314 (1896).
Subsequent attaching creditors cannot move to dissolve attachment, but may intervene to have priorities determined. Deere, Well & Co. v. Eagle Mfg. Co., 49 Neb. 385, 68 N.W. 504 (1896).
Validity of mortgage executed by defendant cannot be determined on motion to discharge attachment. Landauer v. Mack, 43 Neb. 430, 61 N.W. 597 (1895).
Filing motion does not excuse failure to plead to petition. Stutzner v. Printz, 43 Neb. 306, 61 N.W. 620 (1895).
Motion must be made before judgment; but where submitted, court may rule on same after judgment for plaintiff. Stutzner v. Printz, 43 Neb. 306, 61 N.W. 620 (1895); Moline, Milburn & Stoddard Co. v. Curtis, 38 Neb. 520, 57 N.W. 161 (1893).
In a hearing under this section, the burden is upon the plaintiff to sustain by a preponderance of the evidence one or more of the grounds on which attachment is claimed. Ceres Fertilizer, Inc. v. Beekman, 205 Neb. 768, 290 N.W.2d 199 (1980).
Defendant, by filing answer to merits and motion to dissolve attachment on sufficiency and truthfulness of affidavit, made general appearance which waived defects in original summons. Johnson v. Larson, 96 Neb. 193, 147 N.W. 476 (1914).
Debtor alone can question grounds on which attachment is issued. Wagner v. Wolf, 75 Neb. 780, 106 N.W. 1024 (1906).
Defendant may contest, though he had disposed of all interest in property. Symns Gro. Co. v. Snow, 58 Neb. 516, 78 N.W. 1066 (1899).
Merits of case cannot be adjudicated on hearing to dissolve. McDonald v. Marquardt, 52 Neb. 820, 73 N.W. 288 (1897).
Plaintiff is estopped to deny interest of defendant to oppose attachment. Kountze v. Scott, 52 Neb. 460, 72 N.W. 585 (1897); McCord, Brady & Co. v. Bowen, 51 Neb. 247, 70 N.W. 950 (1897).
"Reasonable notice" defined. Sterling Mfg. Co. v. Hough, 49 Neb. 618, 68 N.W. 1019 (1896).

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