text:
An attachment regularly made in Rhode Island at the suit of a citizen of Rhode Island, of a debt due from a Rhode Island corporation to a citizen of Massachusetts, the day after the latter had filed in Massachusetts a petition for the benefit of the Massachusetts insolvent laws, but eight days before the publication of notice of the issue of a warrant on that petition, is a valid attachment, and is not dissolved by a subsequent assignment under those laws, notwithstanding the provision thereof dissolving attachments of the property of an insolvent debtor, made within four months before the first publication of such notice, that provision having no extra-territorial effect.
these proceedings, the assignee sold the claim against the Lippitt Woolen Company and one against another corporation to Theophilus King, a resident of Massachusetts, and he was substituted as plaintiff in the action in Massachusetts above referred to. The Lippitt Woolen Company pleaded the pendency of the trustee process against it in the Rhode Island court. The Massachusetts court entered judgment in favor of the plaintiff King and against the Lippitt Woolen Company and the garnishee Leonard. The court, however, directed that execution on the judgment be stayed and the parties enter into a stipulation that no execution should issue until the proceedings in the Rhode Island action had been fully determined. Thereupon King was allowed by the Rhode Island court to become a party to the action there pending so far as necessary to enable him to assert his title to the indebtedness due by the Lippitt Woolen Company and other corporations to the firm of Brown, Steese & Clarke, which debts were covered by the trustee process previously issued in Rhode Island under the circumstances already stated.
unaffected by the insolvency proceedings in Massachusetts and the action taken on the subject in the courts of that state. Motions for a new trial upon numerous grounds were filed on behalf of the Lippitt Woolen Company and the claimant King. These motions were heard before the Appellate Division of the Supreme Court of Rhode Island, and that court overruled them. 19 R.I. 220. The case was then brought to this Court by writ of error. In substance, the grounds relied on in this Court for a reversal are that at the time of the service of the trustee process, the Rhode Island court was wholly wanting in jurisdiction over the defendants in the action, residents of Massachusetts, and over their property, and that by charging the Lippitt Woolen Company as trustee for the benefit of the plaintiff Cross, the tribunal last mentioned failed to give full faith and credit to the judicial proceedings in the insolvency court in Massachusetts.
it is asserted that such court had no property of the firm within its control upon which to exercise its jurisdiction. True it is the Lippitt Woolen Company, which alone was charged by the judgment, was made a trustee under the Rhode Island process, and was indebted to the Massachusetts firm; but this fact, it is asserted, did not establish that there was any right in Rhode Island to be subjected to the jurisdiction of the courts of that state, for the following reasons: the situs of movable property is at the domicil of the owner of such property, and therefore the situs of the claim or credit held by the Massachusetts firm against the Lippitt Woolen Company was not in Rhode Island, where the Lippitt Woolen Company was resident, but was in Massachusetts, where the creditor firm was established. The contention, in substance, is that any process of foreign attachment predicated upon the assumed right to levy on debts due to nonresidents by persons within the state wherein the process issues is absolutely void, hence a denial of due process of law.
We need not enter into a review of the contentions thus presented, since they were all considered by this Court at its last term and held to be untenable. Chicago, Rock Island &c. Railway v. Sturm, 174 U. S. 710.
proceedings to be due to the firm without refusing to give effect to the proceedings in Massachusetts, and such refusal is therefore asserted to be the necessary result of the judgment of the court of Rhode Island which is before us for review.
The contention thus relied upon, it is argued, is not contrary to the settled rule that insolvency proceedings of the several states do not have extraterritorial operation, and it is also asserted that the claim here relied upon is not contrary to the decision of this Court in Security Trust Co. v. Dodd, 173 U. S. 624. In that case, it was held that a general assignment for the benefit of creditors, made by an insolvent under the insolvent laws of a state, did not operate to exempt tangible property situated at the time of the insolvent assignment in another state from seizure in the state where the tangible property was actually situated. This decision, it is claimed, was but an exemplification of the general rule limiting insolvency proceedings of one state to the jurisdiction of that state and depriving them of extraterritorial operation. A mere credit, however, it is asserted, conceding it to be subject to attachment or trustee process at the residence of the debtor, is governed by a different rule from that which controls tangible property. Such credit, the claim is, being at the situs of the domicil of the creditor, passes to the custody of the insolvent court when the insolvent law so provides, and therefore comes under the dominion and control of the insolvent court having jurisdiction of the person of the creditor. As by operation of law the credit from the date of insolvency proceedings at the residence of the creditor ceases to be under his dominion, but, on the contrary, is in gremio legis, the power to levy by garnishee or trustee process on the same at the residence of the debtor is destroyed. But the predicate upon which this contention rests is that the Massachusetts insolvent proceedings operated to deprive the insolvent of all control over his assets prior to or at the time when the suit in Rhode Island was commenced and the trustee process there issued. If this premise is unsound, the whole contention is without merit, and therefore the legal proposition deduced from it need not be examined.
"the assignment shall vest in the assignee all the property of the debtor, real and personal, which he could have lawfully sold, assigned, or conveyed, or which might have been taken on execution upon a judgment against him at the time of the first publication of the notice of the issuing of the warrant in case of voluntary proceedings."
petitioner admits that it could not, if the property of the insolvent had been actually assigned prior to the first of February, when the bankrupt law went into operation; but he contends that, as the assignment in this case was not actually made until the 7th of February, the whole proceedings were suspended or superseded. Upon consideration, we are of opinion that the proceedings under the commission are not to be thus separated, but that they are to be treated as the parts of one whole; that the assignment not only relates back to the first publication of the notice and vests all the property of the debtor, both real and personal, in the assignee, but that the debtor is divested of his property before such assignment by virtue of the warrant to the messenger and the taking of the property of the debtor into custody, by force of which a qualified property in the estate vests in the messenger insomuch that no act of the debtor, after the due service and publication of the warrant, can be lawfully done to make any transfer of his property or to affect the rights of any of his creditors; that the property is, by the act of publication, placed in the custody of the law in the person of the messenger, and that the judge or master alone can dispose of the same by the appointment of an assignee to receive it or by dissolving the process."
"The question then recurs, to what time does this assignment relate back? The statute, section 5, thus states it:"
"Which assignment shall vest in the assignees all the property of the debtor, both real and personal, which he could by any way or means have lawfully sold, assigned, or conveyed, or which might have been taken on execution on any judgment against him at the time of the first publication of the notice of issuing the above-mentioned warrant."
to take possession, etc., the second section provides as follows:"
"The said messenger shall forthwith give public notice, by advertisement, in such newspapers as shall be designated by the judge, and also such personal or other notice to any persons concerned as the judge shall prescribe."
"It seems to have been the obvious policy of the statute to fix some precise point of time at which the whole property and effects of the debtor shall be deemed to have passed from him and vested in the assignees. The legislature appears to have intended that a time should be fixed before which all transfers and conveyances of property by the debtor, made in good faith and not intended to give preferences, shall be valid; so, of all payments in the ordinary course of business and transfers of property made without the concurrence of the owner, as by seizure or levy on execution."
"We are now seeking to ascertain and fix the point of time intended by the statute as the time at which all the property of the debtor is changed and his power over it suspended -- that point, in other words, prior to which all payments, made by him or to him, all conveyances (not fraudulent) made by him, all seizures, levies, and extents of execution upon his property, shall be held valid, and all those made after void. It was competent for the legislature to have fixed any other time, as, for instance, the application to the judge, or the act of the judge in issuing the warrant, or the delivery of the warrant to the messenger. Either of these would have afforded security to the creditors, but might have unjustly interfered with the rights of those who had been dealing with the debtor in good faith and without notice. The time of first publication was fixed, obviously, because that act would, in most cases, afford actual notice to those immediately interested, and it was intended as constructive notice to all. But no such effect can be attributed to personal notice to one individual."
"One who has been charged as the trustees of H, by a judgment in the trustee process and has paid to the judgment creditor, on execution, the sum with which he has been so charged, will not be protected against H's assignee in insolvency if the first publication of the warrant in insolvency against H was before the rendition of the judgment in the trustee process, though he had no actual notice of H's insolvency until after payment."
"The payment by the defendants upon the judgment against them as trustees was a valid payment as against Holbrook, his executors and administrators. (Gen.Sts., c. 142, sec. 37.) But it had no validity against a party whose title intervened before the judgment against them was rendered, and whose title was superior to the attachment by which the fund had been held. Not only does the assignment, when made, relate back to the first publication of the notice in insolvency, and vest all the property of the debtor in the assignee, but before the assignment, the debtor is so far divested of his property by virtue of the issuing of the warrant that, from the first publication, no transfer or conveyance of it can be made which will have any validity against the assignee. Gen.Sts., c. 118, sec. 44; Clarke v. Minot, 4 Met. 346; Judd v. Ives, 4 Met. 401; Edwards v. Sumner, 4 Cush. 393; Gallup v. Robinson, 11 Gray 20."
law. This becomes evident when it is considered that the case as presented does not involve the power of a Massachusetts court to assert control over a citizen of that state in order to prevent him from prosecuting in Rhode Island an attachment levied by him upon property in Rhode Island, in supposed violation of the laws of Massachusetts. On the contrary, the question here is simply whether a citizen of Rhode Island was prevented in the courts of his own state from levying an attachment upon a debt due by a citizen and resident of Rhode Island to a citizen and resident of Massachusetts because such levy was in conflict with the Massachusetts insolvent statutes. And this although, by the statutes of Massachusetts, the debt levied on in Rhode Island by the citizen of the latter state, if such debt had been situate in Massachusetts, would have been subject to the disposition and control of the insolvent.
"As the attachments were made prior to the time when the assignment in insolvency took effect, and, having been made in other states, were not dissolved by the proceedings in insolvency in this commonwealth, and were valid by the laws of the states respectively in which they were made, they must prevail over the assignment unless the statutes of the commonwealth make a title so acquired by a citizen of the commonwealth void or voidable at the election of the assignees in insolvency."
"In the case at bar, the title to the credits attached, which passed to the assignees by virtue of the proceedings in insolvency, whether it be regarded as a legal or an equitable title, was a title subject to the attachments. As neither the common law nor our statutes give any right of action on the facts agreed in this case, the assignees cannot maintain their suit if the attachments were properly made."
See also Proctor v. National Bank of the Republic, 152 Mass. 223.
"SEC. 46. The assignment shall vest in the assignee all the property of the debtor, real and personal, which he could have lawfully sold, assigned, or conveyed, or which might have been taken on execution upon a judgment against him at the time of the first publication of the notice of issuing the warrant in case of voluntary proceedings, and at the time of the first publication of notice of the filing of the petition in cases of involuntary proceedings, and shall be effectual, subject to the provisions of the following section, to dissolve any attachment on mesne process made not more than four months prior to the time of the first publication aforesaid. The assignment shall vest in the assignee all debts due to the debtor or any person for his use, and all liens and securities therefor, and all his rights of action for goods or estate, real or personal, and all his rights of redeeming such goods or estate. The assignee may redeem all mortgages, conditional contracts, pledges, and liens of or upon any goods or estate of the debtor, or sell the same subject to such mortgage or other encumbrance, and if a mortgage is foreclosed, pending proceedings in insolvency, and before the appointment of an assignee, or within sixty days thereafter, the assignee, when appointed, may redeem the same at any time within sixty days after the appointment, with remedies similar to those provided by law for the redemption of mortgages before foreclosure."
"SEC. 5. The said judge shall, by an instrument under his hand and seal, assign and convey to the person or persons chosen or appointed assignees as aforesaid all the estate, real and personal, of the debtor, excepting such as may be by law exempted from attachment, with all his deeds, books, and papers relating thereto, which assignment shall vest in the assignees all the property of the debtor, both real and personal, which he could by any way or means have lawfully sold, assigned, or conveyed, or which might have been taken in execution on any judgment against him at the time of the first publication of the notice of issuing the above-mentioned warrant, although the same may then be attached on mesne process as the property of the said debtor, and such assignment shall be effectual to pass all the said estate, and dissolve any such attachment, and the said assignment shall also vest in the said assignees all debts due to the debtor, or to any person for his use, and all liens and securities therefor, and all his rights of action for any goods or estate, real or personal, and all his rights of redeeming any such goods or estate, and the assignees shall have power to redeem all mortgages, conditional contracts, pledges, and liens, of or upon any goods or estate of the debtor, or to sell the same, subject to such mortgage or other encumbrance. . . ."


text:
"What have future generations ever done for us?"
2. AND AS IF TO PROVE THE POINT, DOW CRACKS 11,000: Last time we reported on the Dow, it had just reached 8,000 (see C&C Newsletter for August, 1997, Page 5). Now, less than two years later, the Dow closed at 11,014.69 on May 3, 1999. (Footnote: The 225.65 point gain that day was the ninth-largest ever.) The 1,000-point move -- from March 29th's 10,000+ finish -- was the fastest in history. The previous fastest 1,000-point gain was 89 trading days, when the Dow moved from 6,000 in October, 1996 to 7,000 on February 13, 1997. Most analysts do not focus on the fact that an ever-changing mathematical formula is used to compute the Dow (see C&C Newsletter for April, 1997, Page 1).
3. DROP PLANS LIKELY TO GROW IN PUBLIC SECTOR: Currently, lump-sum distributions at retirement are available to only about 10% of employees in state and local governments, compared to more than 50% of employees in private sector plans who already have access to lump-sums. Thus, according to an article in the April 1999 Plan Sponsor, growth of Deferred Retirement Option Plans is most likely to take place in the public sector. A well-designed DROP can help employers smooth the transition of experienced employees from full time employment to retirement, while offering plan participants the opportunity to receive distributions in partial lump sums. The complexity of administering DROP plans, however, is one reason that they are being only gradually accepted. The piece lists the following usual distribution alternatives from a DROP account balance: taxable lump-sum distribution; tax favored rollover into an eligible plan, such as an IRA; conversion to a monthly benefit to enhance regular pension payments; or periodic distribution of a portion of the balance.
4. QDRO UNAVAILABLE FOR MUNICIPAL PENSION: In connection with a marital settlement agreement, husband agreed that wife would receive a portion of his municipal pension and "if a QDRO [Qualified Domestic Relations Order] can be entered upon the pension, it shall be done." However, the parties made no alternative provision if a QDRO was unavailable (which both parties ultimately agreed it was). Inasmuch as the pension board indicated it would honor the "functional equivalent" of a QDRO, the appellate court affirmed the trial court's order granting an alternative order securing payment of wife's portion of the pension. McDonald v. McDonald, 24 Fla. L. Weekly D1002 (Fla. 4th DCA, April 21, 1999). Before a pension board agrees to carry out the "functional equivalent" of a QDRO, counsel should be consulted to make sure that its interests are properly represented.
5. WORKERS' COMP FORFEITURE AMENDMENT NOT RETROACTIVE: Claimant was injured in an industrial accident in 1990. He subsequently pled nolo contendere to Workers' Compensation fraud. When he sought medical benefits in 1996 the employer/carrier denied them on the basis of Section 440.09(4), Florida Statutes, which took effect January 1, 1994: "An employee shall not be entitled to compensation or benefits under this chapter if any administrative hearing officer, court or jury convened in this state determines that the employee has knowingly or intentionally engaged in any of the acts described in s. 440.105 for the purpose of securing workers' compensation benefits." (A prior version required the employer/carrier to file a civil action to recover benefits paid pursuant to a claimant's misrepresentations or fraud.) Because the change is substantive and not remedial, the amendment cannot be retroactively applied. Rustic Lodge v. Escobar, 24 Fla. L. Weekly D1009 (Fla. 1st DCA, April 16, 1999).
"I generally avoid temptation, unless I can't resist it."
6. FIREFIGHTER AND POLICE OFFICER PENSION APPLICATIONS SHOULD BE AMENDED: As the preceding item indicates, one should not be able to benefit from one's own fraudulent acts. By creation of Section 175.195 and Section 185.185, Florida Statutes, House Bill 261 has gone one step further (see Special Supplement to C&C Newsletter dated March 15, 1999, Page 3). Now it is a crime for a person willfully and knowingly to make, or cause to be made, or to assist, conspire with, or urge another to make, or cause to be made, any false, fraudulent, or misleading oral or written statement or withhold or conceal material information to obtain any benefit available under a retirement plan receiving funding under Chapter 175 or Chapter 185. We strongly recommend that all applications for benefits be amended to contain the foregoing language as well as the following caveat: "In addition to any applicable criminal penalty upon conviction for a violation described above, a participant or beneficiary of this plan may, in the discretion of the board of trustees, be required to forfeit the right to receive any or all benefits to which the person would otherwise be entitled. For purposes hereof, 'conviction' means a determination of guilt that is the result of a plea or trial, regardless of whether adjudication is withheld."
7. TAXPAYER HAS STANDING TO CHALLENGE BROWARD DOMESTIC PARTNERSHIP LAW, BUT ENFORCEMENT WILL NOT BE TEMPORARILY ENJOINED: In two separate rulings on the same day, a Broward County Circuit Judge has ruled that (1) a county taxpayer has standing to challenge Broward County's Domestic Partnership Law and (2) pending such challenge, enforcement of the law would not be temporarily enjoined. Lowe v. Broward County, 6 Fla. L. Weekly Supp. 345 (Fla. 17th Cir., March 22, 1999).
"Remember, the squeaky wheel often gets replaced."
8. PUBLIC PENSION FUNDS HOLD THEIR OWN AGAINST CORPORATE FUNDS: Part of the national debate over investing Social Security funds in the stock market travels on the assumption that public pension funds underperform their corporate counterparts. Two studies commissioned by California Public Employees Retirement System and reported in BNA debunk that assumption. Over the past ten years, large public pension funds' returns have matched or exceeded those of private pension funds -- and at notably less risk. (An examination of median equity returns over that period reveals 15.6% for public versus 15.4% for private.) And although total returns for private funds were marginally better, the average corporate fund held 63% stocks compared to 52% for public funds. Because the President's proposal to invest part of the Social Security surplus in stocks is bottomed on the premise that public pension funds perform poorly relative to corporate funds, CalPERS' Chief Executive Officer concluded that "the tremendous success of public pension funds is being ignored and misrepresented in the debate over the merits of investing Social Security funds in the U.S. stock market.".
9. NON-SOCIAL SECURITY SURPLUS COULD FUND MASSIVE TAX CUTS: BNA has a report on a study released by the Congressional Research Service indicating that the projected non-Social Security surplus would be large enough to fund tax cuts totalling $5,307.00 per household over the next ten years. Predictably, spokesmen for Republicans and Democrats reacted differently: the former said the study bolstered GOP arguments that the surplus should be used for tax cuts, while the latter said the figures failed to account for funds that would be needed to ensure the long-term solvency of Social Security and Medicare.
"A penny saved is ridiculous."
10. NEW HAMPSHIRE EMPLOYEES TO GET INCREASED BENEFITS: Effective July 1, 1999 New Hampshire public employees will receive new benefits pursuant to a two-year contract. In addition to annual 3% pay hikes, employees' health plan has been preserved and the state will pay 100% of the premium. Also, pension benefits are improved by allowing employees credit for forty unused sick days (from thirty) toward final earnings. BNA reports that the contract will cost the state about $15 Million.
11. PUBLIC OFFICIAL SUED IN INDIVIDUAL CAPACITY NOT "EMPLOYER" UNDER FMLA: A former City Clerk, fired after seeking leave to care for her dying adult son, sued the City of South Miami and various public officials under the Family and Medical Leave Act. After a United States District Judge denied the officials' motion to dismiss them in their individual capacities, they took an interlocutory appeal (rarely permitted, but authorized in cases involving denial of qualified immunity). Because the Eleventh U.S. Circuit had previously interpreted the materially-identical definition under the Fair Labor Standards Act as excluding a public official in his or her individual capacity, the Court reversed the lower court's denial of the motion to dismiss. (The fact that the FLSA's definition encompasses corporate officers is not inconsistent with the current holding.) Wascura v. Carver, 12 Fla. L. Weekly Fed. C578 (11th Cir., March 9, 1999). Note that this appellate proceeding did not involve the City, against which claims were still pending in the district court. Our readers may remember that another federal trial court found that the Eleventh Amendment to the United States Constitution immunizes states from FMLA claims (see C&C Newsletter for October, 1998, Item 19).
12. ADA DOES NOT REQUIRE EQUAL MENTAL/PHYSICAL DISABILITY BENEFITS: A state disability plan that provides less benefits for mental disabilities (one year) than for physical disabilities (until age 65) does not violate the Americans With Disabilities Act. In a case reported by BNA, the U.S. Court of Appeals for the Fourth Circuit upheld dismissal of a complaint filed by a state employee who, after being diagnosed with panic-anxiety disorder, received only one year of benefits. The appellate court looked to a U.S. Supreme Court interpretation of the Rehabilitation Act, which uses language similar to ADA, and does not require equal benefits for different classes of handicapped persons. Rogers v. Department of Health and Environmental Control, Case No. 97-2780 (4th Cir., April 8, 1999).
13. SOCIAL SECURITY OFFSET AGAIN UNDER ATTACK: As we have previously reported, government retirees suffer a Social Security offset not applicable to private sector retirees (see C&C Newsletter for October, 1997, Page 6). Like prior unsuccessful proposed legislation, HR1217 would allow an offset only when the combined pension benefits and Social Security exceed $1,200.00 per month. The new House Bill has over 100 co-sponsors, so passage seems probable.
14. CEO COMPENSATION MIRRORS COMPANY PERFORMANCE: William M. Mercer Inc. has issued its annual Chief Executive Officers Compensation Report, a survey of 350 large U.S. companies. Reported by BNA, the survey found that CEOs last year saw a median increase in annual compensation of 5.2% (to $1,570,000.00), closely tracking a 5% increase in company profits. The finding appears to be significant, as in past years CEO compensation has not followed corporate profits -- meaning that companies may now be paying for performance more than ever before. In 1998 the median CEO total compensation package (salary, bonus, stock option gains and value of restricted stock) amounted to more than $2,600,000.00.
"It's lonely at the top, but the food is much better."
15. DOL SETTLES WITH CHICAGO PENSION FUND: An investigation by the Department of Labor of a Chicago electrical workers pension plan revealed that almost 200 plan participants had not received credit for military service due them under the Uniformed Services Employment and Reemployment Rights Act. The settlement requires the trustees to pay those participants almost $900,000.00 and to recalculate subsequent monthly benefits. Future increased liabilities are expected to exceed $1,000,000.00, reports BNA.
16. CALSTRS ATTAINS FULL FUNDING: Because of higher-than-anticipated returns, California State Teachers' Retirement System has over 100% of the funds it needs to pay benefits to its retirees. BNA says that CalSTRS will save the state over $700 Million in contributions next year. As of June 30, 1998, CalSTRS boasted assets in excess of $88 Billion.
17. IN WORKERS' COMP, PI AND PTD ARE ALTERNATIVE REMEDIES: In Workers' Compensation, permanent impairment (PI) benefits and permanent total disability (PTD) benefits are alternative -- not cumulative -- remedies. This decision should dispel any contention that PI benefits are not subject to a pension offset where otherwise appropriate. Claims Management, Inc. v. Drewno, 24 Fla. L. Weekly D682 (1st DCA, March 10, 1999).
18. "FIFTH MEMBER" OF POLICE PENSION BOARD WHOSE TERM HAS EXPIRED MAY REMAIN IN OFFICE: The City of Coral Springs Police Pension Fund is administered by a board of trustees selected in accordance with Section 185.05, Florida Statutes. The current "fifth member" was appointed for a two-year term ending January 27, 1999. Upon expiration of this member's term, a majority of the other four members could not agree upon a successor; two members favored the current office holder succeeding himself and two members favored seeking a replacement. Upon our advice as board counsel, the "fifth member" remained in office, but some question arose as to whether he could do so. The Attorney General concluded that the "fifth member" is authorized, but not required, to hold over as a de facto officer exercising the functions of the office until a successor has been selected and qualified. AGO 99-25 (May 5, 1999). Of course, counterpart Section 175.061, Florida Statutes, should be similarly interpreted as to a firefighters' pension fund.

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Subchapter II. International Fuel Tax Agreements.
§ 47–2305. Importers to render invoices except in cases of retail sales.
§ 47–2306. Payment of tax.
§ 47–2307. Records subject to inspection of Assessor and Collector.
§ 47–2308. Penalty for accepting fuel from importer without an itemized sale statement.
§ 47–2309. Fuel exported from District of Columbia exempted from taxation.
§ 47–2316. Procedure for determination, redetermination, assessment, or reassessment; interest penalty; liability for payment.
§ 47–2318. Refund for erroneous or illegal collection.
§ 47–2320. Contraband; declaration; forfeiture; seizure; search; confiscation; sale.
§ 47–2321. Rules and regulations by Mayor.
§ 47–2322. Severability; savings clauses.
The Provisions of this subchapter shall be subject to the provisions of the International Fuel Tax Agreement as required by subchapter II of this chapter.
Each importer engaged in the District of Columbia in the sale or other disposition or use of motor vehicle fuel shall render to the Assessor of the District of Columbia, on or before the 25th day of each calendar month, on forms prescribed, prepared, and furnished by the said Assessor, a sworn report of the total number of gallons of motor vehicle fuel within the District of Columbia sold or otherwise disposed of by such importer or used by him in a motor vehicle operated for hire or for commercial purposes, and of the number of gallons of such fuel so sold or otherwise disposed of for exportation from and resale without the District of Columbia, during the preceding calendar month. Such report shall be sworn to by one of the principal officers in case of a domestic corporation, by the resident general agent, or attorney in fact, or by a chief accountant or officer in case of a foreign corporation, or by the managing agent or owner in case of a partnership or association.
Invoices shall be rendered by importers and distributors to all purchasers from them of motor vehicle fuel within the District of Columbia except in case of retail sales. Said invoices shall contain a statement, printed thereon in a conspicuous place, that the liability to the District of Columbia for the tax herein imposed has been assumed by a licensed importer named in said statement and that the importer has paid the tax or will pay it on or before the 25th day of the calendar month next succeeding the purchase.
This section is referenced in § 47-2308.
(a) The tax in respect to motor vehicle fuel so sold or otherwise disposed of or used in any calendar month shall be paid by the importer on or before the 25th day of the next succeeding calendar month to the Collector of Taxes of the District of Columbia, who shall issue a receipt to the importer therefor.
(b) In the event a user obtains, sells, uses, or otherwise disposes of motor vehicle fuel in the District of Columbia upon which the tax imposed by this subchapter has not been paid, he shall be liable for the tax, penalties, and interest on such motor vehicle fuel as provided for in this subchapter.
The records of all purchases, receipts, sales, other dispositions, and uses of motor vehicle fuel of every importer, distributor, user, or dealer shall, at all times during the business hours of the day, be subject to inspection by the Assessor and the Collector of Taxes of the District of Columbia, or by their duly authorized agents or by any other agent duly authorized by the Mayor to make such inspection.
It shall be unlawful for any person to accept or receive from any importer or distributor, except in cases of retail sales, any motor vehicle fuel unless the statement provided for in § 47-2305 appears upon the invoice for the fuel. If any such motor vehicle fuel is received and accepted by any person upon the invoice of which said statement does not appear, such person shall pay to the Collector of Taxes the tax herein imposed.
No tax on motor vehicle fuels exported or sold for exportation from the District of Columbia to any other jurisdiction or nation shall be imposed.
When under authority of law gasoline or other motor vehicle fuel is sold by an agency of the United States within the District of Columbia, for use in privately-owned vehicles, such agency of the United States shall, by agreement with the Mayor of the District of Columbia, arrange for the collection of the tax herein authorized to be imposed, and for accounting to the Collector of Taxes of the District of Columbia for the proceeds of such tax collections.
The Mayor shall, pursuant to subchapter I of Chapter 5 of Title 2, issue rules to implement the provisions of this subchapter.
If a report required by this subchapter is not filed, or if the report when filed is incorrect or insufficient, or if the tax as imposed by this subchapter has been determined to be due from a licensee or another person, the amount of tax due shall be determined by the Mayor from information as may be obtainable. Notice of the determination shall be given to the licensee or other person required to file a report or pay the tax. Assessments of any deficiencies in the tax due under this chapter, or any interest and penalties thereon, shall be governed by § 47-4312.
This section is referenced in § 47-2319.
D.C. Law 13-305 rewrote the section.
For temporary (90 day) amendment of section, see § 3(d) of Office of Administrative Hearings Establishment Emergency Amendment Act of 2004 (D.C. Act 15-513, August 2, 2004, 51 DCR 8976).
For temporary (90 day) amendment of section, see § 3(d) of Office of Administrative Hearings Establishment Congressional Review Emergency Amendment Act of 2004 (D.C. Act 15-553, October 26, 2004, 51 DCR 10359).
Where any tax has been erroneously or illegally collected by the District, the tax shall be refunded if application under oath is filed with the Mayor for such refund within 3 years from the payment thereof. Such application must be made by the person upon whom such tax was imposed and who has actually paid the tax. Application for a refund as herein provided shall be deemed an application for a revision of tax, penalty, and/or interest complained of and the Mayor may receive evidence with respect thereto. After making his determination of whether any refund shall be made, the Mayor shall give notice thereof to the applicant.
Any person aggrieved by a final determination of tax or by a denial of a claim for refund, other than a refund of tax finally determined in § 47-2316, may within 6 months from the date of assessment of the deficiency, or from the date of the denial of a claim for refund, appeal to the Superior Court of the District of Columbia in the same manner and to the same extent as set forth in §§ 47-3303 and 47-3304 as amended.
(a) All motor vehicle fuels found in any place in the District of Columbia at such time and under such circumstances that the taxes levied and imposed by this subchapter should have been collected and paid, and on which such taxes have not been paid as required by this subchapter, shall be declared contraband goods and be forfeited to the District of Columbia. The Mayor may seize any such motor vehicle fuels wherever they are found.
(b) In any case where the Mayor has knowledge or reason to suspect that any vehicle is carrying motor vehicle fuel in violation of any provisions of this subchapter, the Mayor is authorized to stop such vehicle and to inspect the same for contraband motor vehicle fuel. If such vehicle is carrying motor vehicle fuel in violation of any provision of this subchapter, the motor vehicle fuel and the vehicle shall be confiscated.
(c) The Mayor shall not in any way be held responsible in any court for the seizure or the confiscation of any motor vehicle fuel or vehicles which are seized or confiscated under the provisions of this subchapter. Any motor vehicle fuel or vehicles so seized shall be sold in the same manner as personal property seized for the payment of District of Columbia taxes, and the proceeds of such sales shall be deposited to the credit of the District of Columbia. Notwithstanding the provisions of this section, if the Mayor believes that any failure to comply with the provisions of this subchapter is excusable, the Mayor may, in his discretion, return to the owner or owners thereof any motor vehicle fuel or vehicles seized under the provisions of this section.
Metropolitan police, Property Clerk, return of property to owner, property disposition, see § 5-119.06.
The Mayor may issue rules and regulations not inconsistent with the provisions of § 47-2005 or this subchapter or both, in order to properly administer the provisions of § 47-2005 or this subchapter, or both.
(a) If any provision of § 47-2005 or this subchapter, or both, including any amendment made by § 47-2005 or this subchapter, or both, or the application thereof to any person or circumstance, is held invalid, the remainder of the provisions of § 47-2005 or this subchapter, or both, including the remaining amendments thereof, and the application of such provision to other persons or circumstances shall not be affected thereby.
(b) The repeal or amendment by § 47-2005 or this subchapter, or both, or any provision of law shall not affect any act done or any right accrued or accruing under such provision of law before March 4, 1981, or both, or any suit or proceeding had or commenced before March 4, 1981, or both, but all such rights and liabilities under this subchapter and § 47-2005 shall continue, and may be enforced in the same manner and the same extent, as if such repeal or amendment had not been made.
(c) All offenses committed, and all penalties incurred, prior to March 4, 1981, or both, under any provision of law repealed or amended, may be prosecuted and punished in the same manner and with the same effect as if § 47-2005 and this subchapter, or both, had not been enacted.
Assessments in accordance with existing law shall be made for paving and repaving roadways, where such roadways are paved or repaved, with funds derived from the collection of the tax on motor vehicle fuels.
Any projects or portions of projects chargeable to the Gasoline Tax Road and Street Improvement Fund during the fiscal year 1925 and subsequent fiscal years and uncompleted at the close of those years shall be a continuing charge upon the Fund until completed and shall, except insofar as conditions beyond the control of the Mayor prevent, be given priority over projects subsequently made a charge upon such Fund.


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Osmium (from Greek ὀσμή osme, "smell") is a chemical element with symbol Os and atomic number 76. It is a hard, brittle, bluish-white transition metal in the platinum group that is found as a trace element in alloys, mostly in platinum ores. Osmium is the densest naturally occurring element, with a density of 7004225900000000000♠22.59 g/cm3. Its alloys with platinum, iridium, and other platinum-group metals are employed in fountain pen nibs, electrical contacts, and other applications where extreme durability and hardness are needed.
Osmium has a blue-gray tint and is the densest stable element, slightly denser than iridium. Calculations of density from the X-ray diffraction data may produce the most reliable data for these elements, giving a value of 7004225620000000000♠22.562±0.009 g/cm3 for iridium versus 7004225870000000000♠22.587±0.009 g/cm3 for osmium.
Osmium is a hard but brittle metal that remains lustrous even at high temperatures. It has a very low compressibility. Correspondingly, its bulk modulus is extremely high, reported between 7002395000000000000♠395 and 7011462000000000000♠462 GPa, which rivals that of diamond (7011443000000000000♠443 GPa). The hardness of osmium is moderately high at 7009400000000000000♠4 GPa. Because of its hardness, brittleness, low vapor pressure (the lowest of the platinum-group metals), and very high melting point (the fourth highest of all elements), solid osmium is difficult to machine, form, or work.
Os. However, the most notable application of Os isotopes in geology has been in conjunction with the abundance of iridium, to characterise the layer of shocked quartz along the Cretaceous–Paleogene boundary that marks the extinction of the dinosaurs 66 million years ago.
Osmium was discovered in 1803 by Smithson Tennant and William Hyde Wollaston in London, England. The discovery of osmium is intertwined with that of platinum and the other metals of the platinum group. Platinum reached Europe as platina ("small silver"), first encountered in the late 17th century in silver mines around the Chocó Department, in Colombia. The discovery that this metal was not an alloy, but a distinct new element, was published in 1748. Chemists who studied platinum dissolved it in aqua regia (a mixture of hydrochloric and nitric acids) to create soluble salts. They always observed a small amount of a dark, insoluble residue. Joseph Louis Proust thought that the residue was graphite. Victor Collet-Descotils, Antoine François, comte de Fourcroy, and Louis Nicolas Vauquelin also observed the black residue in 1803, but did not obtain enough material for further experiments.
In 1803, Smithson Tennant analyzed the insoluble residue and concluded that it must contain a new metal. Vauquelin treated the powder alternately with alkali and acids and obtained a volatile new oxide, which he believed to be of this new metal—which he named ptene, from the Greek word πτηνος (ptènos) for winged. However, Tennant, who had the advantage of a much larger amount of residue, continued his research and identified two previously undiscovered elements in the black residue, iridium and osmium. He obtained a yellow solution (probably of cis–[Os(OH)2O4]2−) by reactions with sodium hydroxide at red heat. After acidification he was able to distill the formed OsO4. He named it osmium after Greek osme meaning "a smell", because of the ashy and smoky smell of the volatile osmium tetroxide. Discovery of the new elements was documented in a letter to the Royal Society on June 21, 1804.
Osmium is the least abundant stable element in Earth's crust with an average mass fraction of 50 parts per trillion in the continental crust.
Neither the producers nor the United States Geological Survey published any production amounts for osmium. Estimations of the United States consumption date published from 1971, which gives a consumption in the United States of 2000 troy ounces (62 kg), would suggest that the production is still less than 1 ton per year. In 2012, the estimated US production of osmium was 75 kg.
Because of the volatility and extreme toxicity of its oxide, osmium is rarely used in its pure state, but is instead often alloyed with other metals. Those alloys are utilized in high-wear applications. Osmium alloys such as osmiridium are very hard and, along with other platinum-group metals, are used in the tips of fountain pens, instrument pivots, and electrical contacts, as they can resist wear from frequent operation. They were also used for the tips of phonograph styli during the late 78 rpm and early "LP" and "45" record era, circa 1945 to 1955. Although very durable compared to steel and chromium needle points, osmium-alloy tips wore out far more rapidly than competing but costlier sapphire and diamond tips and were discontinued.
Osmium tetroxide has been used in fingerprint detection and in staining fatty tissue for optical and electron microscopy. As a strong oxidant, it cross-links lipids mainly by reacting with unsaturated carbon–carbon bonds and thereby both fixes biological membranes in place in tissue samples and simultaneously stains them. Because osmium atoms are extremely electron-dense, osmium staining greatly enhances image contrast in transmission electron microscopy (TEM) studies of biological materials. Those carbon materials have otherwise very weak TEM contrast (see image). Another osmium compound, osmium ferricyanide (OsFeCN), exhibits similar fixing and staining action.
The tetroxide and a related compound potassium osmate are important oxidants for chemical synthesis, despite being very poisonous. For the Sharpless asymmetric dihydroxylation, which uses osmate for the conversion of a double bond into a vicinal diol, Karl Barry Sharpless won the Nobel Prize in Chemistry in 2001. OsO4 is very expensive for this use, so KMnO4 is often used instead, even though the yields are less for this cheaper chemical reagent.
In 1898 an Austrian chemist Auer von Welsbach developed the Oslamp with a filament made of osmium, which he introduced commercially in 1902. After only a few years, osmium was replaced by the more stable metal tungsten. Tungsten has the highest melting point among all metals, and using it in light bulbs increases the luminous efficacy and life of incandescent lamps.
The only known clinical use of osmium appears to be for synovectomy in arthritic patients in Scandinavia. It involves the local administration of osmium tetroxide (OsO4), which is a highly toxic compound. The lack of reports of long-term side effects suggest that osmium itself can be biocompatible, although this depends on the osmium compound administered. In 2011, osmium(VI) and osmium(II) compounds were reported to show anticancer activity in vivo, it indicated a promising future for using osmium compounds as anticancer drugs.
Finely divided metallic osmium is pyrophoric and reacts with oxygen at room temperature, forming volatile osmium tetroxide. Some osmium compounds are also converted to the tetroxide if oxygen is present. This makes osmium tetroxide the main source of contact with the environment.
Osmium tetroxide is highly volatile and penetrates skin readily, and is very toxic by inhalation, ingestion, and skin contact. Airborne low concentrations of osmium tetroxide vapor can cause lung congestion and skin or eye damage, and should therefore be used in a fume hood. Osmium tetroxide is rapidly reduced to relatively inert compounds by polyunsaturated vegetable oils, such as corn oil.
Osmium is usually sold as a minimum 99.9% pure powder. Like other precious metals, it is measured by troy weight and by grams. Its price in 2012 was about $400 per troy ounce (or about $13,000 per kilogram), depending on the quantity and its supplier.
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Anthony O'NEAL and Jana O'Neal v. BAMA EXTERMINATING COMPANY, INC.
Anthony O'Neal and his wife, Jana O'Neal, appeal from an order of the Tuscaloosa Circuit Court granting a motion to compel arbitration filed by Bama Exterminating Company, Inc. We affirm.
The O'Neals took possession of the house on October 2, 2010. Approximately two weeks after taking possession of the house, the O'Neals allege that they began to see “bugs” crawling on the walls. According to the O'Neals, they contacted Bama Exterminating, which performed another inspection of the house and confirmed the existence of a termite infestation. The O'Neals allege that an independent inspection of the house by another pest-control company ultimately revealed a termite infestation in nine areas of the house.
On February 22, 2011, the O'Neals sued Bama Exterminating and the Wilsons alleging negligence, wantonness, and breach of contract. The O'Neals attached to their complaint copies of the termite-inspection report and the service contract containing the arbitration provisions. On March 7 and 8, 2011, the O'Neals issued a notice of deposition for the Wilsons.
On May 6, 2011, counsel for Bama Exterminating sent an e-mail to counsel for the O'Neals regarding scheduling an inspection of the house. Counsel for the O'Neals responded that same day, stating “I will have to confirm, however, I don't expect that there is a problem․ My client is a fireman, though, and I will need to see what his hours are looking like right now ․” On May 10, 2011, counsel for Bama Exterminating e-mailed counsel for the O'Neals to confirm the house inspection for May 12, 2011.
On May 18, 2011, counsel for Bama Exterminating requested a “follow up” inspection of the house “for purposes of appraising damage and costs to repair.” This follow-up inspection took place on June 6, 2011.
On June 20, 2011, Bama Exterminating requested from the O'Neals an estimated cost of relocating them to a suitable residence during the course of the termite treatment. On July 6, 2011, Bama Exterminating notified the O'Neals that it wanted to have the house appraised. Bama Exterminating also sought from the O'Neals a settlement demand and suggested the possibility of mediation. On July 29, Bama Exterminating notified the O'Neals that it had retained a real-estate appraiser to appraise the house and sought from the O'Neals potential dates on which the appraisal could take place. The appraisal was performed on August 5, 2011. From August 22, 2011, through November 22, 2011, the parties continued to discuss the possibility of settlement and/or mediation.
On January 26, 2012, counsel for the O'Neals notified Bama Exterminating that they had discovered evidence of a new termite “dirt trail” in an area of the house not previously determined to have a termite infestation.
On April 4, 2012, the trial court set the case for trial on June 5, 2012. On April 9, 2012, the parties jointly moved the trial court to continue the case, stating that the parties had agreed to mediation and that little discovery had taken place. The parties expressly stated that “[n]o party [would] be unfairly prejudiced” by a continuance to allow for mediation and to conduct discovery. On April 10, 2012, the trial court entered an order continuing the case until October 2012.
On April 23, 2012, counsel for Bama Exterminating requested permission from the O'Neals to perform an additional inspection of the house in order to confirm their January allegations of a new active termite infestation in light of the fact that Bama Exterminating's own expert did not find an active termite infestation in the house. The O'Neals refused to give Bama Exterminating permission to conduct an additional inspection for termites. On May 1, 2012, Bama Exterminating again requested permission from the O'Neals to allow an additional termite inspection. On May 18, 2012, the O'Neals amended their complaint to assert a claim of fraudulent suppression against both the Wilsons and Bama Exterminating. On that same date, the O'Neals denied Bama Exterminating's second request for permission to conduct an additional termite inspection of the house.
On June 1, 2012, Bama Exterminating moved the trial court for an order compelling the O'Neals to provide access to and to permit it to perform a follow-up termite inspection of the house. On June 4, 2012, the O'Neals responded to the motion to compel inspection of their house, arguing that the motion to compel was untimely and without proper foundation because Bama Exterminating had failed to file a proper discovery request pursuant to Rule 34, Ala. R. Civ. P.
On June 6, 2012, the parties mediated the case, and mediation proved unsuccessful. On that same date, the O'Neals served Bama Exterminating with interrogatories and requests for production. On June 8, 2012, Bama Exterminating answered the amended complaint, again stating as an affirmative defense that all issues asserted in the amended complaint were subject to binding arbitration.
On June 11, 2012, Bama Exterminating served a request to inspect the O'Neals' house pursuant to Rule 34, Ala. R. Civ. P. The O'Neals responded that same day, agreeing to the inspection by Bama Exterminating. On June 12, 2012, Bama Exterminating filed a notice of intent to serve subpoenas on the O'Neals' expert, Warrior Pest Control, for the production of documents after the O'Neals had alleged the presence of an active termite infestation in the house.
On June 18, 2012, Bama Exterminating moved the trial court “for a judgment on the pleadings to limit damages” to $50,000, which is the amount it claimed it was obligated to pay under the service contract. On July 10, 2012, the O'Neals notified Bama Exterminating that it had yet to comply with their discovery requests. The O'Neals requested that Bama exterminating comply with those requests within five days. On July 16, 2012, Bama Exterminating informed the O'Neals that it was in the process of responding to the discovery requests. Bama Exterminating also informed the O'Neals that its response to the discovery requests “should not be interpreted by you ․ to mean Bama exterminating intends to waive its right to compel arbitration in this case.”1 On that same date, the O'Neals objected to Bama Exterminating's filing any motion to compel arbitration based on Bama Exterminating's participation in the litigation process. On July 18, 2012, the O'Neals moved the trial court for a clarification that it would treat Bama Exterminating's motion for a judgment on the pleadings as a motion for a summary judgment. On July 20, 2012, Bama Exterminating responded to the O'Neals' motion for clarification, arguing that the motion for a judgment on the pleadings should not be treated as a motion for a summary judgment because it did not require the trial court to consider matters outside the pleadings.
On August 7, 2012, Bama Exterminating moved the trial court to compel arbitration and to stay the proceedings until after the arbitration process was completed. On September 18, 2012, the O'Neals filed a response in opposition to the motion to compel arbitration and to stay the proceedings, arguing, among other things, that Bama Exterminating had waived its right to compel arbitration by substantially participating in the litigation process thereby substantially prejudicing the O'Neals if the case proceeds to arbitration. On September 24, 2012, the trial court entered an order granting the motion to compel arbitration and to stay the proceedings. The O'Neals appeal.
ClimaStor IV, L.L.C. v. Marshall Constr., L.L.C., 4 So.3d 452, 455 (Ala.2008). Rule 4(d), Ala. R.App. P., authorizes an appeal of an order either granting or denying a motion to compel arbitration. Hales v. ProEquities, Inc., 885 So.2d 100, 104 (Ala.2003). Accordingly, this appeal is properly before this Court despite a final disposition not having been made as to the claims asserted against the Wilsons. See Ex parte Directory Assistants, Inc., 49 So.3d 1172 (Ala.2009).
ClimaStor IV, 4 So.3d at 456 (quoting Paw Paw's Camper City, Inc. v. Hayman, 973 So.2d 344, 347 (Ala.2007)). “ ‘[A] presumption exists against a finding that a party has waived the right to compel arbitration.” ’ Zedot Constr., Inc. v. Red Sullivan's Conditioned Air Servs., Inc., 947 So.2d 396, 399 (Ala.2006) (quoting Conseco Fin. Corp.-Alabama v. Salter, 846 So.2d 1077, 1080 (Ala.2002)).
The O'Neals point to the following as indicative of Bama Exterminating's substantial invocation of the litigation process: (1) on three separate occasions Bama Exterminating requested that the O'Neals allow its experts (termite expert, construction and repair expert, and real-estate appraiser) to inspect the house; (2) on June 1, 2012, Bama Exterminating moved the trial court to compel the O'Neals to permit a fourth inspection by its termite expert; (3) on June 11, 2012, Bama Exterminating filed a discovery request seeking entry onto the O'Neals' property by its expert; (4) on June 18, 2012, Bama Exterminating moved the trial court for a judgment on the pleadings seeking an order from the trial court capping its damages under the service contract to $50,000; (5) on June 26, 2012, Bama Exterminating attended a hearing on its motion to compel inspection of the house; (6) on June 12, 2012, Bama Exterminating filed a notice to serve third-party subpoenas directed at the O'Neals' expert; and (7) on April 9, 2012, Bama Exterminating joined the other parties in filing a motion to continue the case after it had been set for trial.
This Court has stated that “[m]erely answering on the merits, asserting a counterclaim (or cross-claim) or participating in discovery, without more, will not constitute a waiver” of the right to arbitration. Voyager Life Ins. Co. v. Hughes, 841 So.2d 1216, 1219 (Ala.2001) (internal quotation marks omitted). Additionally, we have also noted that “the earliest point at which waiver of the right to arbitration may be found is ‘when the other party files an answer on the merits.” ’ Hughes, 841 So.2d at 1219–20 (some internal quotation marks omitted).
Initially, we note that Bama Exterminating raised arbitration as an affirmative defense in its first responsive pleading and again in its answer to the O'Neals amended complaint. Bama Exterminating never served the O'Neals with any interrogatories or requests for production of documents, nor did it notice any depositions. Bama Exterminating did not respond to the O'Neals' discovery requests and, although it did attend the depositions of the Wilsons, which were noticed by the O'Neals, it did so only after the O'Neals agreed that its attendance at those depositions would not be considered evidence of substantial participation in the litigation process.
Although Bama Exterminating entered the O'Neals' property on three occasions to confirm the alleged termite damage, to appraise the damage allegedly caused by the termite infestation and the costs to repair the damage, and to appraise the value of the house, it is clear from the record that Bama Exterminating was merely gathering the information necessary for purposes of mediation and/or settlement discussions.3 Bama Exterminating invoked Rule 34, Ala. R. Civ. P., and moved the trial court to compel a fourth inspection of the O'Neals' house only after the O'Neals had alleged, in January 2012, the presence of a new active termite infestation and had denied Bama Exterminating's termite expert access to the property to confirm the presence of a new infestation. Bama Exterminating also filed its notice of intent to serve third-party subpoenas on the O'Neals' expert after the O'Neals had alleged the presence of a new active infestation.
The O'Neals point to Bama Exterminating's motion for a judgment on the pleadings to limit its damages to $50,000 as evidence of its substantially participating in the litigation process. Bama Exterminating's request that the trial court limit its damages to $50,000 appears inconsistent with an intention to compel arbitration, because the issue of damages would generally be an issue to be determined by the arbitrator. However, “the mere filing of a pleading does not constitute a waiver of the right to compel arbitration.” Salter, 846 So.2d at 1081.
In Zedot Construction, supra, Zedot, a general contractor on a construction project, entered into a subcontract with Red Sullivan's Conditioned Air Services, Inc. (“CAS”), to perform certain work on the project. The subcontract contained an arbitration clause. Subsequently, Zedot terminated CAS and employed a new subcontractor. CAS sued Zedot, asserting various theories on which it sought recovery. Zedot moved the trial court to dismiss the complaint against it, arguing that the claims were barred by the applicable statute of limitations; the motion to dismiss made no mention of the arbitration clause. In support of its motion to dismiss, Zedot attached an affidavit. Because the trial court did not exclude the affidavit, Zedot's motion to dismiss was converted to a motion for a summary judgment. CAS filed a response in opposition to the motion for a summary judgment. The trial court denied Zedot's motion and ordered it to answer CAS's complaint. Zedot answered the complaint, pleading arbitration as an affirmative defense. Thereafter, Zedot moved the trial court to compel arbitration. CAS responded that Zedot had waived its right to compel arbitration by substantially participating in the litigation process. The trial court agreed and denied the motion to compel arbitration.
Zedot Constr., 947 So.2d at 399.
Bama Exterminating's motion for a judgment on the pleadings to limit its damages to $50,000 was based on a provision contained in the service contract the O'Neals appended to their original complaint in this case and, therefore, did not go beyond or outside the pleadings. This motion like the motion to dismiss in Zedot, did not impose a burden on the O'Neals to engage in discovery in order to oppose, especially as it was the O'Neals who appended the service contract to their complaint. In fact, the only opposition to the motion for a judgment on the pleadings offered by the O'Neals was their motion for a clarification contending that the motion should be treated as one for a summary judgment. The O'Neals offered no substantive opposition to the contract provision limiting Bama Exterminating's damages to $50,000. The motion was made after Bama Exterminating had twice raised arbitration as an affirmative defense to the claims asserted by the O'Neals. Subsequent to the filing of this motion, Bama Exterminating again made known its intention to compel arbitration when it informed the O'Neals that any response to their earlier discovery requests—which Bama Exterminating did not comply with—“should not be interpreted by you ․ to mean Bama Exterminating intends to waive its right to compel arbitration in this case.” Accordingly, we cannot say that Bama Exterminating waived its right to compel arbitration by moving the trial court for a limited judgment on the pleadings based on the facts in this case.
Finally, the O'Neals give great importance to the joint motion filed on April 9, 2012, seeking a continuance of the case after it had been set for trial, as indicative of Bama Exterminating's substantially invoking the litigation process. The O'Neals argue that the motion made no mention of Bama Exterminating's arbitration defense, stated that “additional discovery [was] needed for the parties to adequately prepare this case for trial,” and requested that the trial court set the case for trial at another time. Again, we cannot say that this joint motion filed by the parties constituted a waiver of Bama Exterminating's right to compel arbitration.
As noted above, Bama Exterminating had raised arbitration as an affirmative defense in its first responsive pleading and again in response to the O'Neals' amended complaint, which was filed after the joint motion to continue. Further, at the time the parties jointly moved the trial court for a continuance, the initial trial date was less than two months away on June 5, 2012. The parties had agreed to mediate the case but had not yet done so.4 The joint motion to continue informed the trial court that the parties had agreed to mediate the case and that little discovery had thus far been completed. Assuming mediation was unsuccessful, as was the case, should arbitration not have been ordered, the parties would have needed to conduct additional discovery in order to prepare the case for trial. The parties forthrightly informed the trial court of this in the joint motion to continue. When the joint motion to continue is viewed in this context, it cannot be considered as an intention by Bama Exterminating to waive its right to compel arbitration.
After reviewing the record in this case, we conclude that the O'Neals have failed to meet their heavy burden of establishing that Bama Exterminating waived its right to compel arbitration by substantially invoking the litigation process. Because we have concluded that Bama Exterminating has not substantially invoked the litigation process, we pretermit discussion of whether the O'Neals were prejudiced.
Bama Exterminating Company, Inc., did not move to compel arbitration for approximately a year and a half after the initial complaint was filed. Furthermore, during this year and one-half, Bama Exterminating sought to engage the trial court in more than one matter—including a motion that would have required the trial court to assess the validity of a contractual provision purportedly limiting Bama Exterminating's damages to $50,000 and to enter a judgment in its favor applying that provision—and otherwise participated in the litigation filed by Anthony and Jana O'Neal. Specifically, during the course of a year and half, (1) on three separate occasions Bama Exterminating requested that the O'Neals allow its experts (termite expert, construction and repair expert, and real-estate appraiser) to inspect the O'Neals' house; (2) on June 1, 2012, Bama Exterminating moved the trial court to compel the O'Neals to permit a fourth inspection of the house by its termite expert; (3) on June 11, 2012, Bama Exterminating filed a discovery request seeking entry onto the O'Neals' property by its expert; (4) on June 18, 2012, Bama Exterminating moved the trial court for a judgment on the pleadings seeking an order from the trial court capping its damages under the termite-service and repair contract to $50,000;5 (5) on June 26, 2012, Bama Exterminating attended a hearing on its motion to compel inspection of the O'Neals' house; (6) on June 12, 2012, Bama Exterminating filed a notice to serve a third-party subpoena directed at the O'Neals' expert; and (7) on April 9, 2012, Bama Exterminating joined in a motion to continue the case after it had been set for trial.
At least in the context of the year-and-a-half delay and the other litigation-related activities that occurred during this year and a half, I find noteworthy the motion filed near the end of this period by Bama Exterminating—whether properly deemed a motion for a judgment on the pleadings or a motion for a summary judgment—seeking from the trial court the entry of a judgment relieving it of any liability in excess of $50,000 on the O'Neals' claims. This motion specifically asked the trial court to assess the viability and applicability of a purported contractual limitation on damages not only in relation to the O'Neals' breach-of-contract claim, but also in relation to their tort claims of fraudulent suppression, negligence, and wantonness.
ClimaStor IV, L.L.C. v. Marshall Constr., L.L.C. 4 So.3d 452, 456 (Ala.2008)(quoting Paw Paw's Camper City, Inc. v. Hayman, 973 So.2d 344, 347 (Ala.2007), quoting in turn other cases (emphasis added)). Asking a trial court to enter a binding judgment fully or partially relieving the movant of liability with respect to claims pending in that court is not consistent with the intention to reserve the resolution of those claims for an arbitrator.
Finally, the delay involved here and the expenditure of time, effort, and financial resources by the O'Neals in connection with the above-described matters supply the prejudice necessary for a finding of a waiver of a contractual right to arbitrate.
Based on the foregoing, I respectfully dissent.
1. Bama Exterminating never responded to the O'Neals' discovery requests.
2. The O'Neals do not dispute that a “contract calling for arbitration” exists and that that contract “evidences a transaction affecting interstate commerce.” See Elizabeth Homes, L.L.C. v. Gantt, 882 So.2d 313, 315 (Ala.2003).
3. The parties first discussed settlement and mediation on July 6, 2011, and further discussed those topics on numerous occasions from August 22, 2011, through November 22, 2011.
4. As noted above, the trial court on April 4, 2012, set the case for trial on June 5, 2012, and five days later, on April 9, 2012, the parties filed their joint motion to continue. The mediation, which was unsuccessful, took place on June 6, 2012.
5. In connection with Bama Exterminating's motion seeking a judgment in its favor as to any amount in excess of $50,000, I recognize that cases such as Conseco Fin. Corp.-Alabama v. Salter, 846 So.2d 1077, 1081 (Ala.2002), stand for the proposition that “the mere filing of a pleading does not constitute a waiver of the right to compel arbitration.” A motion for judgment on the pleadings, however, is not itself a “pleading.” See Kaller v. Rigdon, 480 So.2d 536, 538 (Ala.1985) (“A motion, defined in Rule 7(b), [Ala. R. Civ. P.], as ‘an application to the court for an order,’ is not a pleading.”); Rule 7, Ala R. Civ. P. (distinguishing between pleadings and motions).
6. The facts of this case also can be contrasted with those of cases such as Conseco Finance Corp.-Alabama v. Salter, 846 So.2d 1077 (Ala.2002), and the case it primarily relied upon, First Family Financial Services, Inc. v. Jackson, 786 So.2d 1121 (Ala.2000). The facts in both cases were described as follows by the Court in Salter:“The First Family Court [stated]:“ ‘The record in this case shows unequivocally that First Family did not substantially invoke the litigation process before it moved to compel arbitration. The first document First Family filed was its motion to compel arbitration. Like the defendant in [Ex parte] Merrill Lynch[, Pierce, Fenner & Smith, Inc., 494 So.2d 1 (Ala.1986) ], First Family did not even answer the complaint. The only other documents in the record that First Family filed are its brief in support of its motion to compel arbitration, evidentiary filings also in support of that motion, and its notice of appeal to this Court. Jackson had the heavy burden of proving both that First Family had substantially invoked the litigation process and that he was prejudiced thereby. He did not meet that burden.’“786 So.2d at 1128 (citations omitted).“In this case[, i.e., Salter,] as in First Family, the record reflects that Conseco did not ‘bespeak an intention to abandon the right [of arbitration] in favor of the judicial process.’ Id. at 1128. Conseco initiated this action; however, the mere filing of a pleading does not constitute a waiver of the right to compel arbitration. See, e.g., Ex parte Smith, 736 So.2d 604 (Ala.1999). Additionally, as evidenced by the express language of the arbitration provision, the parties specifically agreed that Conseco retained the right to seek judicial relief ‘to enforce a security agreement relating to the manufactured home secured in a transaction underlying this arbitration agreement, to enforce the monetary obligation secured by the manufactured home or to foreclose on the manufactured home,’ and that the filing of such an action would not constitute a waiver of Conseco's right to seek arbitration. The relief requested by Conseco in its complaint falls within the parameters of the judicial relief specifically agreed to by Salter.”846 So.2d at 1081.In addition to the differences with the present case discernible from the foregoing descriptions, there is no indication that either Salter or First Family involved a delay approaching one and one-half years in duration between the time of the filing of the applicable claims and the pursuit in earnest of a motion to compel arbitration. In Salter, the delay was only two months.
STUART, SHAW, MAIN, WISE, and BRYAN, JJ., concur. MOORE, C.J., and PARKER and MURDOCK, JJ., dissent.

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§ 199-56 Powers and responsibilities.
§ 199-59 Alternate Zoning Board of Appeals members.
Creation and membership. There is hereby established a Zoning Board of Appeals having the powers authorized under the Consolidated Laws of the State of New York. Said Board shall consist of five members, appointed by the Town Board. Appointments shall be in accordance with § 267, Article 16, of Chapter 62 of the Consolidated Laws of the State of New York. An appointment to a vacancy occurring prior to expiration of term shall be for the remainder of the unexpired term.
Organization and procedure. The Zoning Board of Appeals shall determine rules of conduct and procedure as prescribed by § 267, Article 16, of Chapter 62 of the Consolidated Laws of the State of New York.
Hear and decide appeals and applications. The Zoning Board of Appeals shall have the power to hear and decide appeals where it is alleged that error or misinterpretation in any order, requirement, decision, grant or refusal was made by the Building Inspector or other administrative official in the carrying out or enforcement of the provisions of this chapter. The Zoning Board of Appeals shall also have all the powers, authority and responsibility of the former Village of Bloomingburg Zoning Board of Appeals to decide appeals and applications as set forth in an intermunicipal agreement, as may be amended, between the Town of Mamakating and the Village of Bloomingburg.
Approve special uses. The Zoning Board may authorize the Building Inspector to issue a building permit for a special use for which this chapter requires Zoning Board of Appeals approval. Such authorization shall follow proper notice, hearing and findings by the Board.
The Zoning Board of Appeals, on appeal from the decision or determination of the administrative official charged with the enforcement of such ordinance or local law, shall have the power to grant use variances.
The alleged hardship has not been self-created.
The Zoning Board, in granting use variances, shall grant the minimum variance that it shall deem necessary and adequate to address the unnecessary hardship proven by the applicant and at the same time preserve and protect the character of the neighborhood and the health, safety and welfare of the community.
The Zoning Board of Appeals shall have the power, upon appeal from a decision or determination of the administrative official charged with the enforcement of the zoning regulations, to grant area variances; provided, however, that application may be made to the Zoning Board of Appeals where a proposed special use permit or proposed site plan contains one or more features which do not comply with the zoning regulations without the necessity of a decision or determination of an administrative official charged with the enforcement of the zoning regulations.
Whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the Zoning Board but shall not necessarily preclude the granting of the area variance.
The Zoning Board, in the granting of area variances, shall grant the minimum variance that it shall deem necessary and adequate and at the same time preserve and protect the character of the neighborhood and the health, safety, and welfare of the community.
Imposition of conditions. The Zoning Board shall, in the granting of both use and area variances, have the authority to impose such reasonable conditions and restrictions as are directly related to or incidental to the proposed use of the property. Such conditions shall be consistent with the spirit and intent of this chapter and shall be imposed for the purpose of minimizing any adverse impact such variance may have on the neighborhood or community.
Permit building in bed of mapped streets. After due notice and hearing as provided for in the Consolidated Laws of the State of New York and in accordance with the provisions set forth therein, the Zoning Board may grant a permit for a building in the bed of a mapped street or highway shown upon the Official Map or plan of the Town of Mamakating, as it may be adopted and from time to time amended.
Interpret chapter. Upon appeal from a decision by the Building Inspector to decide any question involving the interpretation of any provision of this chapter and where uncertainty exists as to the boundaries of any zone district, the Zoning Board shall, upon written application or upon its own motion, determine the location of such boundaries of such districts as are established in § 199-3 hereof and as designated on the Zoning Map of the Town of Mamakating.
Authorize temporary uses. The Zoning Board of Appeals shall have the power to grant, after due notice and hearing, the temporary occupancy and use of a structure in any district for a purpose that does not conform to the district requirements, provided that such occupancy and use are truly of a temporary nature and subject to any reasonable conditions and safeguards which the Zoning Board may impose to minimize any injurious effect upon the neighborhood or to protect contiguous property. The approval of the Zoning Board and any permit based thereon for such temporary occupancy and use shall not be granted for a period of more than 12 months and shall not be renewable more than once, and then for a period of not more than 12 months.
Editor's Note: Section 2 of this local law provided as follows: "This local law is intended to and shall supersede any inconsistent provisions of Article 16, including but not limited to §§ 267 through 267-c, of the state Town Law."
An appeal to the Zoning Board from any ruling of any administrative officer administering any portion of this chapter may be taken by any person aggrieved or by an officer, department, board or bureau of the Town affected thereby. Such appeal shall be taken within 60 days after the filing with the officer from whose action the appeal is taken and with the Zoning Board by filing with the Secretary thereof a notice of appeal, specifying the grounds therefor.
The name and address of the applicant or appellant.
The name and address of the owner of the zone lot to be affected by such proposed change or appeal.
A brief description and location of the zone lot to be affected by such proposed change or appeal.
A statement of the present zoning classification of the zone lot in question, the improvements thereon and the present use thereof.
A reasonably accurate description of the present improvements, and the additions or changes intended to be made under this application, indicating the size of such proposed improvements, material and general construction thereof. In addition, there shall be attached a plot plan of the real property to be affected indicating the location and size of the lot and size of improvements thereon and proposed to be erected thereon.
The notice of appeal in any case where a permit has been granted or denied by the Building Inspector shall be filed within 60 days after the filing in the Town Clerk's office of any order, requirement, decision, interpretation, or determination of the Building Inspector. The Building Inspector shall forthwith transmit to the Zoning Board all papers constituting the record upon which the action appealed from was taken or, in lieu thereof, certified copies of said papers.
It shall be incumbent upon the Building Inspector to recommend to the Zoning Board a modification or reversal of his action in cases where he believes substantial justice requires the same but where he has not himself sufficient authority to grant the relief sought.
Procedure for the Zoning Board. The Zoning Board shall decide each appeal within 62 days after the conduct of a public hearing. The time within which the Zoning Board must render its decision may be extended by mutual consent of the applicant and the Board. Upon the hearing, any party may appear in person or be represented by an agent or attorney. The decision of the Board of Appeals on the appeal shall be filed in the office of the Town Clerk within five business days after the decision is rendered and a copy thereof mailed to the applicant. In the exercise of its functions upon such appeals or upon exceptions, the Zoning Board may, in conformity with the provisions of this chapter, reverse or affirm, wholly or partly, or modify the order, requirement, decision or determination appealed from or may make such order, requirement, decision or determination in accordance with the provisions thereof.
Appeal from decision of Zoning Board. All decisions of the Zoning Board are subject to court review in accordance with applicable laws of the State of New York.
When appealing action of the Building Inspector. In case of an appeal alleging error or misinterpretation in any order or other action by the Building Inspector, the following persons shall be notified: the Inspector, the appellant and the person or persons, if any, who benefit from the order, requirement, regulation or determination.
When appealing for variance or special use. In case of an appeal for a variance or in case of an application for a special use as provided for in this chapter, the following persons shall be notified: all owners of property within 500 feet of the nearest line of the property for which the variance or special use is sought and such other property owners as the Chairman of the Zoning Board may direct.
Adjournment of hearing. Upon the day of hearing any application or appeal, the Zoning Board may adjourn the hearing for a reasonable period for the purpose of causing such further notice as it deems proper to be served upon such other property owners as it decides may be interested in said application or appeal.
Required interval for hearings on applications and appeals after denial. Whenever the Board, after hearing all the evidence presented upon an application or appeal under the provisions of this chapter, denies the same, the Zoning Board shall refuse to hold further hearings on said or substantially similar application or appeal by the same applicant, his successor or assign for a period of one year, except and unless the Zoning Board shall find and determine from the information supplied by the request for a rehearing that changed conditions have occurred relating to the promotion of the public health, safety, convenience, comfort, prosperity and general welfare and that a reconsideration is justified.
Short title and applicability. This section shall be known and may be cited as the "Alternate Zoning Board of Appeals Members Act." This section shall apply to the appointment, term, functions, powers of alternate members appointed to serve on the Zoning of Appeals in the Town of Mamakating.
Policy. It is sometimes difficult to maintain a quorum of the Zoning Board of Appeals because members are ill, on extended vacation or find they have a conflict of interest situation on a specific matter before such Board. In such instances, official business cannot be conducted, which may delay or impede adherence to required timelines. The use of alternate members in such instances is hereby authorized pursuant to the provisions of this section.
An individual appointed by the Town Board to serve on the Town of Mamakating Zoning Board of Appeals when a regular member is unable to participate on an application or matter before the respective Board, as provided herein.
An individual appointed by the Town Board to serve on the Town of Mamakating Zoning Board of Appeals pursuant to provisions of the local law or ordinance which first established such Zoning Board of Appeals.
The Zoning Board of Appeals of the Town of Mamakating as established by the Town Board of the Town of Mamakating by local law, pursuant to the provisions of § 267 of the Town Law.
Authorization/Effect. The Town Board of the Town of Mamakating hereby enacts this section to provide a process for appointing two alternate members (Alternate A and Alternate B).
Alternate members of the Zoning Board of Appeals shall be appointed by the Town Board of the Town of Mamakating for a term of two years, which term shall expire on December 31 of the second year after the date of their appointment.
The Chairperson of the Zoning Board of Appeals shall designate an alternate to substitute for a member when such member is unable to participate on an application or matter before the Board. The Chairperson shall alternate the assignment of the alternate members so that each serves in such capacity, with Alternate A serving on the first occasion that a substitute member for the Zoning Board of Appeals is required. When so designated, the alternate member shall possess all the powers and responsibilities of such member of the Board. Such designation shall be entered into the minutes of the initial Zoning Board of Appeals meeting at which the substitute is made.
All provisions of state law relating to Zoning Board of Appeals member eligibility, vacancy in office, removal, compatibility of office and service on other boards, as well as any provisions of a local law/local ordinance relating to training, continuing education, compensation and attendance, shall also apply to alternate members.
Supersession of Town Law. This section is hereby adopted pursuant to the provisions of § 10 of the Municipal Home Rule Law and § 10 of the Statute of Local Governments. It is the intent of the Town Board of the Town of Mamakating, pursuant to § 10 of the Municipal Home Rule Law, to supersede the provisions of § 267 of the Town Law relating to appointment of members of the Town of Mamakating Zoning Board of Appeals.