text:
Scott has been practicing at Starnes for over 25 years. His practice is devoted to civil litigation including medical malpractice defense, healthcare litigation, and pharmaceutical/medical device litigation. Scott also has an active insurance litigation practice having represented insurers and policyholders in insurance coverage disputes, breach of contract and bad faith actions. Scott also handles commercial litigation, including identity theft litigation. He has tried approximately 50 complex civil cases, including the defense of doctors, hospitals, and corporations.
•Obtained a defense verdict on behalf of an urologist in a case alleging negligence in the performance of an adult circumcision.
•Obtained a judgment from the Supreme Court of Alabama affirming a summary judgment in an action involving claims of negligence against an obstetrician based on a shoulder dystocia that occurred at birth resulting in a permanent brachial plexus injury. The action alleged the obstetrician should have performed a cesarean section instead of a vaginal delivery because the mother had encountered a shoulder dystocia with a previous birth. Summary judgment was granted on the grounds that the plaintiff’s expert failed to establish a breach of the standard of care against the defendant obstetrician and that alternative claims against the defendant physician’s partner, who was not originally named in the action, were barred by the statute of limitations.
•Obtained summary judgment and affirmance in favor of excess insurance company in multi-million dollar breach of contract and bad faith action.
•Obtained a favorable opinion from the Supreme Court of Alabama in favor of a construction company client involving an insurance coverage dispute.
•Obtained summary judgment for Travelers in an insurance coverage dispute in Macon County, Alabama.
•Obtained a defense verdict on behalf of an obstetrician in a fetal death case involving complications associated with Parovirus B19.
•Obtained summary judgment for St. Paul Travelers in insurance allocation dispute brought by Canal Insurance to recover 1,000,000 paid by Canal in settlement of case.
•Successfully tried wrongful death action to a defense verdict in Barbour County, Alabama.
•Obtained a defense verdict for an anesthesiologist in a wrongful death case alleging improper use of running the CODE resulting in the patient’s death.
•Successfully defended a psychiatrist in a wrongful death case before a Federal Court jury involving allegations of informed consent and failure to consult a specialist related to electroconvulsive therapy.
•Obtained a defense verdict for an obstetrician and his practice in a case alleging malpractice related to gynecological surgery in Chambers County.
•Obtained summary judgment in an action brought on behalf of deceased fetus and mother alleging failure to properly monitor fetus after mother was diagnosed with Parvovirus, allegedly resulting in death of the fetus.
•Obtained summary judgment in infant wrongful death action and affirmance with opinion from the Alabama Supreme Court based on the statute of limitations and the argument that the action was not commenced within the applicable statute when the complaint was filed within the statute but service was not effectuated on the defendants for over four months.
•Successfully defended an emergency physician in a wrongful death trial alleging failure to diagnosis a basilar artery stroke in the emergency department, and inappropriate discharge from the emergency department.
•Successfully defended two internal medicine specialists in a wrongful death case alleging inappropriate management of a patient’s anticoagulation therapy subsequent to his diagnosis with deep vein thrombosis.
•Obtained judgment as a matter of law in a wrongful death action on issue of lack of proximate cause after precluding plaintiff’s expert witness.
•Obtained a jury verdict in favor of a hospital in a wrongful death case involving complications arising from conscious sedation during a shoulder reduction procedure.
•Obtained directed verdict after precluding plaintiff’s expert based on lack of qualifications in a brain damage case.
•Obtained summary judgment for hospital in professional liability action on ground that plaintiff failed to present evidence that alleged negligence proximately caused plaintiff’s injuries.
•Obtained summary judgment for physician in case alleging improper off-label use of medication.
•Public Disruptions in the Healthcare Industry, FDCC Annual Meeting, Banff, Alberta, CA, 2015.
•Preserving Error for Appeal - Winning at the Trial Court, FDCC Annual Meeting, Banff, Alberta, CA, 2015.
Reported Cases; Witherspoon v. Edwards, 2010 WL 3724755 (Ala.). Canal Ins. Co. v. St. Paul, 2006 WL 752979 (S.D. Ala. 2006). Bassie v. Aldridge, 828 So. 2d 280 (Ala. 2002). Ex parte Vaughan Regional Medical Center/Qureshi, 768 So. 2d 374 (Ala. 2000). Johnson v. Price, 743 So.2d 436 (Ala. 1999). Bennett v. Brewer, 682 So. 2d 448 (Ala. 1996). Ex parte Main, 658 So. 2d 384 (Ala. 1995). Patterson v. Hays, 623 So. 2d 1143 (Ala. 1993). Thomas v. Baptist Medical Center - Dekalb, 614 So. 2d 997 (Ala. 1993).

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


text:
Bhushan Power & Steel Ltd. Vs. Rajesh Verma & Ors.
1. All the aforesaid matters were heard analogously as they are inter- connected. In fact, it is the judgment dated 14.3.2012 passed in C.A. No. 2790 of 2012 which has become the trigger point of all other cases. C.A. No. 2790 of 2012 was filed by M/s. Bhushan Power and Steel Ltd. (formerly known as Bhushan Limited) (hereinafter referred to as 'BPSL'). That was an appeal against the judgment passed by High Court of Orissa whereby the High Court had dismissed the writ petition of the BPSL. Before proceeding further, we would like to narrate the nature of different cases and the background in which they came to be filed.
2. The erstwhile Bhushan Limited had proposed setting up of plant in some identified villages in the District of Sambalpur, Orissa. For this purpose it had made a request for acquisition of land, measuring 1250 acres, which was acquired for Bhushan Limited. It had also applied for grant of lease of mining of iron ore for use in the proposed plant. These applications were favourably considered by the State Government which agreed to accord due priority to Bhushan Limited for grant of suitable iron ore areas and also agreed to recommend the proposal to the Government of India for grant of a Coal Block.
Even a MOU was entered into between the State Government and Bhushan Limited containing the commitment of the State Government to recommend to the Central Government, grant of iron ore mines for its use in the proposed plant. For this purpose area earmarked for recommendation were Thakurani area with 96 million tonnes iron ore reserves and Keora Area, District Sundargarh for additional 128 million tonnes of iron ore; both for 50 years requirement of the plant. Though various statutory and other permissions required for setting up of the plant were granted and the plant was also set up, but due to some in-fight between the family members who owned Bhushan Limited, it faced difficulties in getting the grant of iron ore lease.
3. In so far as granting of mining lease of iron ore reserves in the aforesaid areas is concerned, it fell into rough weather. It resulted into show cause notice dated 18.1..2006 by the State Government which led to the decision that mining lease over the Thakurani area could not be allowed on various grounds and the application made by Bhushan Limited was premature. Thereafter, the Government of Orissa made a recommendation to the Central Government on 9.2.2006 to grant mining lease in favour of one M/s Neepaz Metallics (P) Ltd. in relaxation of Rule 59(1) of the Mining Rules, for a period of 30 years.
Challenging these orders, Bhushan Limited filed the writ petition in the High Court on 8.5.2006. This Writ Petition was dismissed by the High Court on 14.12.2007 and challenging this decision Special Leave Petition was filed which was granted converting the SLP into C.A. No. 2790/2012. This appeal was allowed by this Court vide judgment dated 14.3.2012 with the following directions: "Accordingly, we allow the appeal and set aside the judgment and order of the High Court of Orissa and also the decision of the State Government dated 9.2.2006, rejecting the Appellant's claim for grant of mining lease. During the course of hearing, we have been informed that Thakurani Block A has large reserves of iron ore, in which the Appellants can also be accommodated. We, accordingly, direct the State of Orissa to take appropriate steps to act in terms of the MOU dated 15.5.2002, as also its earlier commitments to recommend the case of the Appellants to the Central Government for grant of adequate iron ore reserves to meet the requirements of the Appellants in their steel plant at Lapanga".
5. The State of Orissa and its officials who are impleaded as Contemners in the CCP have filed their replies to the CCP expressing certain difficulties because of which they claim that the directions given in the judgment are incapable of enforcement. Simultaneously, Respondent No. 1/ State of Orissa has filed instant I.A. No. 14 of 2013 as well, in which certain subsequent developments which have taken place after the passing of the judgment dated 12.3.2012 are traversed. It is highlighted that there are certain other and legal proceedings filed by them are pending at various stages in the High Court or in this Court and the area claimed by them in those legal proceedings overlap with the area which is the subject matter of grant to BPSL.
A reference is also made to subsequent judgment in the case of Sandur Manganese & Iron Ore v. State of Karnataka; (2010) 13 SCC 1 which has changed the legal position thereby making it difficult for the State to recommend the case of the petitioner. It is also stated that the issue which is dealt with by this Court in Sandur Manganese (Supra) was not raised in the Writ proceedings/ Civil Appeal of the BPSL. On the basis of the aforesaid averment prayer made in the I.A. reads as under:- "Pass appropriate directions with regard to implementation of the directions contained in final order and judgment dated 14.3.2012 passed by this Hon'ble Court in Civil Appeal No. 2790 of 2012 in so far as it relates to the mining lease applications of the petitioner for an additional 128 million tonnes of iron ore over lands in Keora area of Sundergarh District".
6. In I.A. No. 14 of 2013, this I.A. is preferred by M/s. Shri Mahavir Ferro Alloys Pvt. Ltd. The grievance of this applicant is against the status quo order dated 21.4.2008 passed in the applications filed by the BPSL. It is alleged that the applicant has filed 9 applications for grant of Iron Ore Mining Lease of different areas, notified as well as non-notified, including the Thakurani area. However, because of the status quo order the applications of the applicant not being considered by the State Government which is adversely affecting the interest of the applicant.
"As indicated hereinbefore, on 21st April, 2008, this Court passed an interim order in the Special Leave Petition filed by Bhushan Limited directing the parties to maintain status quo with regard to the lands indicated in the application filed by the appellants for grant of mining lease. However, one of the most significant developments that subsequently took place was that on 25th November, 2011, Shri B.B. Singhal and Shri Neeraj Singhal, Vice-Chairman and Managing Director of Bhushan Steel and Strips Ltd. filed affidavits withdrawing all their claims and rights in the MOU dated 15th May, 2002, executed between the State Government and Bhushan Limited and declaring that the said MOU was and had always been in favour of Bhushan power & Steel Ltd. The above named persons also prayed for deletion of their names from the array of parties."
XXXXXXX The mutual settlement of the disputes between the members of the Bhushan Group has altered the situation considerably, since BSSL has withdrawn its claim under the MOU dated 15th May, 2002 and has declared that the said MOU was and had always been executed by the State Government in favour of Bhushan Power & Steel Ltd., which had set up its steel plant at Lapanga. As indicated hereinbefore, although, the MOU was entered into by the State Government with the Bhushan Group for setting up a steel plant at Lapanga, at a later stage, BSSL also laid claim under the MOU for setting up a separate steel plant at Mehramandali and a suggestion was also made for execution of a fresh MOU between the State Government and BSSL to this effect."
8. It is the case of the BSL in the present Writ Petition that BSL was a part of the then Bhushan Group. It executed a MOU dated 15.5.2002 with the State of Orissa. Consequent to a family settlement, M/s. Bhushan Steel and Strips Ltd. (BSSL) executed a separate MOA dated 3.11.2005 in which the State of Orissa had identical duties and obligations as those contained in 2002 MOU. On 12.4.2007, BSSL was re- named as BSL herein. It is thus claimed that BSL is identically situated as BPSL and, therefore, the benefit given to BPSL vide judgment dated 14.3.2012 needs to be extended to the BSL as well.
The direction in the nature of mandamus is sought to implement the decision of 12th IIAC Meeting dated 27.8.2003 and terms of MOA dated 3.11.2005 against the State Government by making appropriate recommendation to the Central Government for allotment of the remaining portion in Thakurani RF Block A, District Keonjhar i.e. 601.500 hectares applied while ML Application No. 882 and the areas applied vide ML Application No. 1079 i.e. 722.30 hectares approximately in village Kadalia, Kuriyakudar, Mithirda etc. under Bonai sub-division, District Sundegarh to meet the captive requirements of BSL plants.
9. In essence, the petitioner wants same treatment as is given to BPSL and, therefore, has prayed for the extension of the benefit of judgment dated 12.3.2012 to BSL as well.
10. This Writ Petition is filed by Jindal Steel and Power Limited (hereinafter referred to as 'Jindal Steel'). It had entered into MOU with the State of Orissa on 8.5.2002. It is stated in the writ petition that this petitioner became an intervenor in C.A. No. 2790 of 2012 to protect its interest which has been duly taken note of in the judgment dated 14.3.2012 in the following manner:- "Appearing for the Intervener, M/s. Jindal Steels Ltd., Mr. K.V. Vishwanathan, learned Senior Advocate, submitted that so long as any allotment made in favour of the Appellants did not impinge on the allotment made in favour of M/s. Jindal Steels Ltd;, it could have no grievance against a separate allotment being made in favour of the Appellants."
11. It is pleaded that the case of Jindal Steel is even on a better footing for grant of mining lease, application for which purpose are pending with the State of Orissa. It had also signed the MOU for setting up an integrated Steel Plant wherein similar promise was made by the State Government for grant of a mining lease. Additionally, Jindal Steel had the advantage of being an earlier applicant for the mining lease in regard to Thakurani RF Block A area which was also a part of an MOU by BPSL. It is further mentioned that 16 mining lease applications were received in respect of the said area and the Director of Mines vide his report dated 8.11.2002 rejected all other applications except that of Jindal Steel herein, BPSL and three other applicants.
In the case of Jindal Steel, recommendation was for 264 hectares in Thakurani RF Block A as against 383 Hectare in respect of BPSL. It is also stated that even when recommendation in respect of BPSL in Thakurani area is made by the State Government and approved by the Union of India, recommendation of Jindal Steel is still pending with the State Government. It is thus, pleaded that the case of the petitioner, Jindal Steel, is squarely covered by judgment dated 14.3.2012 passed in C.A. NO. 2790 of 2012 and benefit thereof be extended to this petitioner as well.
12. This Writ Petition is filed by Shri Mahavir Ferro Alloys Pvt. Ltd. It has also proposed to set up a 0.35 MTPA Captive Integrated Steel Plant with additional facilities and 60 MW Captive Power Plant in Sundargarh district had an overall investment of Rs. 435 crores. This petitioner claims that pursuant to MOU entered into with the State Government for grant of mining leases, it had submitted its application in this behalf. However, more than 10 years have elapsed but the State Government has not recommended its case, primarily because of status quo orders passed by this Court in C.A. NO. 2790 of 2012. It is pointed out that for this reason this petitioner has already filed I.A. No. 2 in I.A. NO. 14 of 2013 in C.A. NO. 290 of 2012. Case of this petitioner, again, is that it is equally circumscribed and placed as BPSL as well as Jindal Steel and, therefore, entitled to the grant of mining lease as done in favour of BPSL by this Court vide judgment dated 14.3.2012.
13. We have reproduced, hereinabove gist of the cases filed by different parties to get the favour of the proceedings. It becomes obvious and can be readily understood that in so far as BPSL is concerned, by means of Contempt Petition, it is seeking the enforcement of the directions contained in its favour in the judgment dated 14.3.2012 passed in C.A. NO. 2790 of 2012. Three other parties namely BSL, Jindal Steel and Mahavir Ferro Alloys (P) Ltd. have filed Writ Petitions claiming same relief as given to the BPSL vide judgment dated 14.3.2012 on the ground that they are placed in the similar or even better position than BPSL and, therefore, entitled to same treatment.
Further, as already pointed out above, the State Government has ventured to exhibit its helplessness in carrying out the directions contained in the judgment dated 14.3.2012 even qua the beneficiary of the said judgment namely BPSL. In so far as other three writ petitioners are concerned, not only same difficulties are sought to be projected, it is also mentioned that are precluded from seeking same relief as given to BPSL for various reasons. That apart, even the maintainability of the writ petitions under Article 32 of the Constitution filed by these petitioners is questioned. In such a scenario it is apposite to first deal with the CCP filed by BPSL.
(a) For grant of 96 million tonnes iron ore reserves in Joda Barbil Sector of Keonjhar (Thakurani area) for 50 years requirement of the plant.
(b) For additional 128 million tonnes of iron ore reserves in Keora, District Sundergarh, to meet a requirement of 1.6. million tonnes for 50 years.
15. It is not necessary to set out the detailed facts which have been noted in judgment dated 14.3.2012, pertaining to the grant of permissions by various authorities enabling BPSL to get the land, electricity, permission for installation of a Captive Power Plant etc. etc. Armed with those permission, the BPSL set up the plant in Lapanga in the district of Sambalpur, Orissa. BPSL claims that is has invested Rs. 25,000 crores in this project. It is further mentioned that for running of this steel plant, uninterrupted supply of iron ore is essential. This plant was set up in a backward area of Orissa persuant to the scheme of the State Government.
(a) Whether the Memorandum of Understanding dated 15th May, 2002 continues to subsist in favour of the appellants?
(b) Whether the State Government is obliged to make recommendations for the grant of iron ore mines in terms of the stipulations contained in the aforesaid MOU dated 15th May, 2002 and whether in respect of the areas which had not been notified under Rule 59(1), the State Government can make a recommendation for relaxation of Rule 59(1) under Rule 59(2).
16. The Court deliberated at length on these issues and decided in favour of BPSL holding that MOU dated 15.5.2002 still subsisted in favour of the BPSL and also that State Government was under obligation to make recommendations as per the said MOU. The most relevant part of discussion, in this behalf, reads as under: "Pursuant to the MOU with Bhushan Limited, the State Government had not only allotted land for the setting up of the steel plant at Lapanga, it had even extended all help for the commissioning of the plant, which, in fact, had already started functioning. However, it is the claim made by BSSL under the MOU executed on 15th May, 2002, that had created obstructions in the setting up of the steel plant at Lapanga.
Despite having allotted land and granted sanction to Bhushan Limited to take steps for construction of the said plant, it was subsequently contended that the application filed by Bhushan Limited was premature and could not, therefore, be acted upon. Specific instances have been mentioned hereinabove of the steps taken by the various departments in extending cooperation to Bhushan Limited to set up its steel plant at Lapanga. To now turn around and take a stand that the application made by Bhushan Limited was premature, is not only unreasonable, but completely unfair to Bhushan Limited, who have already invested large sums of money in setting up the plant.
The State Government had, on its own , entered into the MOU with Bhushan Limited on 15th May, 2002, and had even agreed to request the Central Government to allot mining areas and coal blocks for operating the steel plant. Whatever differences that may have resulted on account of the dispute within the Bhushan Group, which could have led to the rethinking on the part of the State Government, have now been laid to rest by virtue of the settlement arrived at between the Bhushan Limited (now BPSL) and BSSL.
The State Government has also accepted the said position. In addition to the above, the action taken by the State Government appears to us to be highly unreasonable and arbitrary and also attracts the doctrine of legitimate expectation. There is no denying the fact that the Appellants have altered their position to their detriment in accordance with the MOU dated 15th May, 2002. whatever may have been the arrangement subsequently arrived at between the State Government and BSSL, the original MOU dated 15th May, 2002, continued to be in existence and remained operative".
17. In so far as reserve of 96 million tonnes of iron ore in Thakurani mines are concerned, the State Government had made the recommendation to the Central Government, which has also approved the same in favour of the BPSL. The dispute now relates to Keora mines for a reserve of 128 million tonnes.
18. Respondents/ Contemners do not dispute (and in fact there is no scope for any dispute) that the aforesaid directions contained in the judgment have become final. Review Petition was filed by the State Government but unsuccessfully. One would, therefore, command for obeying these directions. However, the State Government/ Contemners have pleaded their helplessness by narrating certain circumstances which are captured herein below.
"(a) These areas fall almost entirely within the areas notified on 23.8.1991 under Rule 59(1) of the Mineral Concession Rules, 1960. The validity of the notification dated 23.8.1991 is an issue in SLP(c)No. 31593 of 2010 and connected cases which are now listed for hearing on 17.01.2013 before another Division Bench of this Hon'ble Court.
(b) Further, it is seen that the applied area is overlapping with the applied area of several other applicants, including M/s. Larsen & Toubro Limited and M/s. Tata Iron and Steel Co. Limited.
(c) It is also pointed out that earlier on 21.10.1997 an area of 998.93 hectares overlapping with applied area of the BPSL, was recommended in favour of M/s Larsen & Toubro Ltd. in puruance with the said company. However, this recommendation was withdrawn for certain reasons. Thereafter, even revised ML/ PL application of M/s. Larsen and Toubro Ltd. Were rejected. The said company challenged the order of rejection before the Revisional Authority i.e. Central Government which passed orders dated 10.7.2003 wherein direction is given to consider application of M/s. Larsen & Toubro Ltd. Alongwith about 196 applications for grant of mining lease and after granting an opportunity of hearing to all the applicants. However, BPSL is outside the 196 applications that were to be considered afresh.
(d) M/s. Larsen and Toubro Ltd has challenged the aforesaid orders of the Central Government by filing Writ Petition in the High Court which was dismissed by the Single Judge of Delhi High Court. Appeal thereagainst was dismissed by the Division Bench on 3.7.2012. Order of the Division Bench of the High Court is challenged by filing SLP (C) NO. 33812 of 2012 in which notice has been issued and as the matter is sub-judice in those proceedings it is difficult to pass any orders qua BPSL at this stage.
11. The process of simultaneous consideration of the applications filed over Khajhurdihi R.F. In Sundergarh and Rakma, Marsuanand Tiriba of Keonjhar district had remained stalled due to the various stay orders passed in litigations concerning such area. Subject to the orders, if any, passed by this Hon'ble Court in this application, the process of simultaneous consideration of applications will take considerable time in view of the large number of overlapping applications over the areas in question. Each of these applicants is required to be given an opportunity of personal hearing and credentials of these applicants are required to be evaluated for assessment of relative merits in terms of Section 11(3) of the MMDR Act."
19. It is thus, argued that the developments narrated above and the statutory mandate embodied in Section 11(4) of the MMDR Act, 1957 have come in the way of the Respondent State in implementing the final order and judgment dated 14.3.2012 in so far it relates to the Keora area of Sundergarh district. It is also sought to be argued that the question of entitlement of the petitioner to the recommendation of mines in the Keora area, which are almost entirely covered under notification issued under Rule 59(1) of MC Rules, 1960 with specific reference to Sections 11(4) and 11(3) of the MMDR Act was not raised in the Writ Proceedings/ Civil Appeal. During the course of the implementation of the order of this Hon'ble Court dated 14.3.2012 passed in Civil Appeal No. 2790 of 2012, the Respondent No. 1 is faced with the difficulties with regard to the Keora area as enumerated above. Hence, this application for appropriate directions.
20. The question is as to whether such a plea can be raised to avoid implementation of the directions contained in the judgment? Our answer is in the negative, having regard to the categorical and authoritative principle of law enunciated by various judgments of this Court. From the reading of these judgments one can comfortably get a complete answer to the so-called difficulties feigned by the State Government/ Contemners.
"10. When this order was passed, what remained for the respondent was only implementation of the order passed by this Court in furtherance of the action taken thereunder by the Corporation. It is now clear that instead of implementing the order, an attempt has been made to circumvent the same and deny the benefits to the petitioner. As stated earlier, the petitioner is a Corporation employee and the stand of the Government appears to be to give benefit to their employees.
So, an attempt has now been made to get into the rule position and to find whether the petitioner is eligible to be considered for promotion to the post of Executive Engineer, Superintending Engineer and Chief Engineer. It is now stated that according to the rules the petitioner would be eligible only as superintending engineer and not as Chief Engineer. When direction was given in LA. 3 of 1993, Government was a party to the proceedings and it was never brought to our notice that the petitioner was not eligible. On the other hand, the Division Bench of Karnataka High Court upheld the right of the petitioner which became final.
11. Question is whether it is open to the respondent to take at this stage this volte-face step. It is seen that all through Government was a party, when the direction was given in LA. No. 3 filed by the petitioner, it was not brought to out notice that the petitioner was not eligible for promotion, in contradiction with Dasegowda, or any other. When the claim inter se had been adjudicated and the claim of the petitioner had become final and that of Dasegowda was negatived, it is no longer open to the Government to go behind the order and truncate the effect of the orders passed by this Court by hovering over the rules to get round the result, to legitimise legal alibi to circumvent the orders passed by this Court. Thus, it is clear that the concerned officers have deliberately made concerted effort to disobey the orders passed by this court to deny the benefits to the petitioner. So, we are left with no option but to hold that the respondent has deliberately and wilfully, with an intention to defeat the orders of this Court, passed the impugned order."
22. Another judgment cited at the bar is Prithawi Nath Ram v. State of Jharkhand and Others; (2004) 7 SCC 261. Para 8 of the said judgment makes the following reading: "8. If any party concerned is aggrieved by the order which in its opinion is wrong or against rules or its implementation is neither practicable nor feasible, it should always either approach the court that passed the order or invoke jurisdiction of the appellate court. Rightness or wrongness of the order cannot be urged in contempt proceedings. Right or wrong, the order has to be obeyed. Flouting an order of the court would render the party liable for contempt.
While dealing with an application for contempt the court cannot traverse beyond the order, non-compliance with which is alleged. In other words, it cannot say what should not have been done or what should have been done. In cannot traverse beyond the order. It cannot test correctness or otherwise of the order or give additional direction or delete any direction. That would be exercising review jurisdiction while dealing with an application for initiation of contempt proceedings.
The same would be impermissible and indefensible. In that view of the matter, the order of the High Court is set aside and the matter is remitted for fresh consideration. It shall deal with the application in its proper perspective in accordance with law afresh. We make it clear that we have not expressed any opinion regarding acceptability or otherwise of the application for initiation of contempt proceedings".
23. This very principle has been reiterated by in Bihar Finance Service H.C. Coop. Soc. Ltd. v. Gautam Goswami and Ors.; (2008) 5 SCC 339 in the following words: "32. While exercising the said jurisdiction this Court does not intend to re-open the issues which could have been raised in the original proceeding nor shall it embark upon other questions including the plea of equities which could fall for consideration only in the original proceedings. The Court is not concerned with as to whether the original order was right or wrong. The court must not take a different view or traverse beyond the same. It cannot ordinarily give an additional direction or delete a direction issued. In short, it will not do anything which would amount to exercise of its review jurisdiction".
24. We cannot lose sight of the fact that there is a judgment, inter parties, which has become final. Even when the Civil Appeal was being heard, certain other parties claiming their interest in these very lands had moved intervention applications which were dismissed. At that time also it was mentioned that there are 195 applicants. However, notwithstanding the same, this Court issued firm directions to the State Government to recommend the case of the petitioners for mining lease in both the areas.
In view of such categorical and unambiguous directions given in the judgment which has attained finality, merely because another judgment has been delivered by this Court in Sandur Manganese case, cannot be a ground to undo the directions contained in the judgment dated 14.3.2012. In so far as law laid down in Sandur Manganese (Supra) is concerned, that may be applied and followed by the State Government in respect of other applications which are still pending. However, that cannot be pressed into service qua the petitioner whose rights have been crystallised by the judgment rendered in its favour. It cannot be re-opened, that too at the stage of implementation of the said judgment.
25. We would like to place on record the arguments of learned Senior Counsel for the petitioner that the total area under notification is 731.67 sq. kms. and out of this 406 sq. km. is yet to be allotted. The area which comes to the share of the petitioner under MOU is 13.91 sq. km. which is barely 3 percent of 406 sq. km and, therefore recommendation by the State Government in favour of the petitioner cannot be stalled or put to naught only on the basis of inchoate applications, fate whereof is yet to be decided.
It is also pointed out that in so far as the petitioners in other writ petitions are concerned area claimed by them is not overlapping with the petitioner's area. However, it may not even be necessary to go into these contentions in detail. Once we hold that the respondents are bound to implement the direction contained in judgment dated 14.3.2012, in so far as the State Government is concerned, it is obliged to comply therewith and such matters, alongwith other relevant considerations, can be left to the wisdom of the Central Government while taking a decision on the recommendation of the State Government.
26. In so far as intervention applications by Tatas and LNT are concerned these are dismissed as non maintainable, in view of law laid down in by this Court in Supreme Court Bar Association v. Union of India & Anr.; (1998) 4 SCC 409; "42. The contempt of court is a special jurisdiction to be exercised sparingly and with caution whenever an act adversely affects the administration of justice or which tends to impede its course or tends to shake public confidence in the judicial institutions. This jurisdiction may also be exercised when the act complained of adversely affects the majesty of law or dignity of the courts. The purpose of contempt jurisdiction is to uphold the majesty and dignity of the courts of law.
It is an unusual type of jurisdiction combining "the jury, the judge and the hangman" and it is so because the court is not adjudicating upon any claim between litigating parties. This jurisdiction is not exercised to protect the dignity of an individual judge but to protect the administration of justice from being [pic]maligned. In the general interest of the community it is imperative that the authority of courts should not be imperilled and there should be no unjustifiable interference in the administration of justice. It is a matter between the court and the contemner and third parties cannot intervene. It is exercised in a summary manner in aid of the administration of justice, the majesty of law and the dignity of the courts. No such act can be permitted which may have the tendency to shake the public confidence in the fairness and impartiality of the administration of justice".
27. As a consequence, we hold that the Respondents/ Contemners are in contempt of orders dated 14.3.2012 passed by this Court in not complying with the directions in respect of Keora area. However, we are giving one final opportunity to them to purge the contempt by transmitting requisite recommendations to the Central Government. It would be for the Central Government to consider the said recommendations on its own merits and in accordance with law. In case the recommendation is sent within one month from the date of copy of receipt of this order, we propose not to take any further action and the respondents/ contemners shall stand discharged from this Contempt Petition. However, in case the respondents do not purge in the manner mentioned above, it would be open to the petitioners to point out the same to this Court by moving appropriate application and in that event the Contemners shall be proceeded against.
29. In so far as three writ petitions are concerned we need not go into the detailed arguments advanced by Counsel for the petitioners in those petitions. As already noted above, for their own reasons all the three petitioners pray that the same directions as given in favour of BPSL in judgment dated 14.3.2012, be passed in their cases as well. This they claim on the basis of parity with BPSL. However, we are constrained to hold that, on the basis of such an argument, they cannot approach this court directly under Article 32 of the Constitution by filing writ petitions. It has already been authoritatively determined that no fundamental right of the petitioners is violated. No fundamental right is violated by non-granting of mining lease. (See (2012) 11 SCC 1 and (1973) 1 SCC 584).
30. That apart, there are few other aspects, aptly pointed out by Mr. L. Nageswara Rao, learned ASG, which come in the way of maintainability of the instant petitions. He, inter alia, submitted that atleast in respect of applications which are still pending and yet to be decided, judgment in Sandur Manganese (Supra) shall have to be applied as it does not remain virgin area, which was the position when the case of BPSL was decided. He had made various other submissions on merit as well. Without going into all these issues, we dismiss these petitions giving liberty to the petitioners to approach the High Court in the first instance and/ or any other forum which is available, as per law. We make it clear that in so far as these petitions are concerned we have not dealt with the issues on merits. Wherever the petitions are filed, it would be open to the said forum to deal with the question as to whether the petitioners would be entitled to the benefit of judgment dated 14.3.2012 passed in the case of BPSL or not. All other issues are also kept open to be agitated in those proceedings. Writ petitions are dismissed with liberty as aforesaid.

matches:
v.
Application No. 882
Application No. 1079
v.
v.
v.


2012-2015: PhD in Fine Art, University of the Arts London.
2010-2011: Post Graduate Certificate Teaching in Higher Education, (1H, Distinction), University of the Arts, London.
2008-2010: Masters in Fine Art, (1H, Distinction), Slade School of Fine Art, University College London.
2006-2007: B.A. in Fine Art and Art History, (Hons: 1H, Distinction), Crawford College of Art and Design, Cork.
2018: 'Beautiful Monsters', Portico Library, Manchester.
2018: 'Surfaced: Surface and Materiality in the Screen Environment', Thames-Side Gallery, London.
2018: 'Denton's Art Prize', Dentons, London (Shortlisted).
2017-18: 'Fully Awake', House for an Art Lover, Glasgow.
2017: 'Two: Northern Abstracts', Saul Hay Gallery, Manchester (Jan-Apr).
2017: 'Menzel's Foot', PS Mirabel, Manchester.
2016 'Donal Moloney: New works on paper', A Small View, Liverpool.
2016: 'Pleasure Islands', Artwork Atelier, Salford.
2016: 'The John Moores Painting Prize Exhibition', The Walker Art Gallery, Liverpool.
2016: 'The Abject Object', Wimbledon Space, London.
2015: ‘PhD Exhibition’, Chelsea College of Art, London.
2015: ‘Hammersmith Arts Festival’, Austin Forum Arts Centre, London.
2015: ‘Kaleidoscopic Eyes’, Austin Forum Arts Centre, London.
2015: ‘Under the Shadow of Natural Things’, Benzie Building, MMU.
2015: ‘Exhibition of Irish Art’, Sol Art Gallery, London.
2015: ‘There’s a Ghost in my House 2’, Crawford College of Art and Design, Cork.
2014: ‘Head to Head’, Standpoint Gallery, London.
2013: ‘At Home’, 137 Graham Road Project Space.
2013: ‘The Painting Parade,’ LeandaKateLouise Projects.
2013: Paint Club, Beaconsfield, London.
2012: A Wall is a Surface, Londonewcastle Project Space, London.
2011: Summer and Autumn Group Shows, Taylor Galleries, Dublin, Ireland.
2011: Royal Hibernian Academy Annual Exhibition, Dublin (Invited).
2011: Group Show, Taylor Galleries, Dublin, Ireland.
2010: Frank Phelan and Donal Moloney, Wandesford Quay Gallery, Cork, Ireland.
2010: Slade School of Fine Art Masters Degree Show, London.
2010: Backwater Twenty-10, Crawford Art Gallery, Cork, Ireland.
2009: Q-Art, A.P.T. Gallery, London.
2008: This Rather Than.., Galway Arts Centre, Galway, Ireland.
2008: Selected Works from the U.C.C. Collection, West Cork Arts Centre, Cork.
2007: Bloom Mural Project, Brussels, Belgium.
2007: C.I.T. Recent Acquisitions Exhibition, James Barry Exhibition Space, Cork.
2007: R.D.S. Student Art Awards, Dublin, Ireland.
2007: Iontas Small Works Exhibition and Competition, Sligo Art Gallery, Sligo.
2007: Crawford College of Art and Design B.A. Degree Show, Cork, Ireland.
2018: Denton's Art Prize (Shortlisted).
2016: John Moores Visitors' Choice Prize.
2013: Shortlisted for ‘100 Painters of Tomorrow’ Prize2016: John Moores Visiters' Choice Prize.
2013: Research Grant, Student Research Support Fund, U.A.L.
2011: Denys Holland Portrait Purchase Prize, University College London.
2009: Andor Scholarship, Slade School of Fine Art, London.
2008: Cork City Council, Arts Bursary, Cork.
2007-2008: Post-Graduate Studio Bursary, Backwater Artists Studios, Cork.
2007: University College Cork Purchase Prize, Cork.
2007: Cork Institute of Technology Registrars’ Purchase Prize, Cork.
2015-17: Senior Lecturer, Manchester School of Art.
2014-15: Associate Lecturer, Richmond American University.
2013-16: Associate Lecturer, Camberwell and Wimbledon College of Arts BA Prog.
2013-15: Part time Life Drawing Tutor, Slade School of Fine Art BA Prog.
2013-16: Sessional Tutor, University for the Creative Arts School of Further Education.
2013-16: Painting and Drawing Tutor, Open College of the Arts.
2012-17: Drawing and Painting Tutor, Slade School of Fine Art Summer School.
2013: Visiting Lecturer, The University of Wales-Trinity Saint David.
2013: Visiting Lecturer, Crawford College of Art, Cork.
2012: Visiting Practitioner, Central Saint Martins College of Arts and Design.
2010-2012: Associate Lecturer, Camberwell College of the Arts MA Prog, London.
2011: Visiting Lecturer, University of Wolverhampton.
2011/2014: Visiting Lecturer, University of Chichester.
2009-2010: Studio Assistant at the Slade School of Fine Art’s Summer School.
2018: 'Painting as Material', RHA, Dublin.
2015: Co-Organised ‘Teaching Painting: A Conference’ at Manchester School of Art.
2015: Presented paper at the ‘Arts in Society’ conference at Imperial College London.
2015: Chaired panel discussion ‘There’s a Ghost in my House 2,’ Crawford College of Art.
2014: Chaired ‘Painting as a Document’ with Barry Schwabsky and Clare Woods, Tate Britain.
2014: Presented at ‘Developing the Substrate’ Symposium, Chelsea College of Art.
2013: Presented at the ‘Behind the Eyes; Making Pictures’ Symposium at Northumbria University.
2012: Presented at the ‘Painting’s Sites and Processes’ Symposium at Chelsea College of Art and Design.
2008: Editor and organiser of Slade School of Fine Art’s Masters Print Publication.
2009: Presenter: Crawford College of Art and Design’s Professional Practice talks.
2016: 'Teaching Painting: A Book', Blackdog Publishing.
2013: Harland, B. (2013) Behind the Eyes; Making Pictures, Cornerhouse.
2010: Coakley, E. and Hurley, K. (2010) Backwater Twenty-10, Blurb Publishing.
2008-2009: ‘Slade Masters Print Publication,’ and ‘505 x 605, Slade Print Publication’.
2017: Associate Editor of the International Journal of the Arts in Society.
2016: Member of 'Teaching Painting: An Organisation' Steering Committee.
2013-present: Member of the Austin Forum Art’s Centre Steering Committee.
2012-present: Member of steering committee for U.A.L. Paint Club research group.
Krčma, E. (2010) ‘Frank Phelan and Donal Moloney’, Enclave Review, Vol 1 (2): 8.


text:
G.R. No. 197591, June 18, 2014 - TAGANITO MINING CORPORATION, Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.
TAGANITO MINING CORPORATION, Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.
Before the Court is a petition for review on certiorari1 assailing the Decision2 dated January 11, 2011 and the Resolution3 dated June 27, 2011 of the Court of Tax Appeals (CTA) En Banc in CTA EB No. 609 which reversed and set aside the Decision4 dated November 24, 2009 and the Resolution5 dated March 12, 2010 of the CTA First Division (CTA Division) in C.T.A. Case No. 7428, and ordered the dismissal of petitioner Taganito Mining Corporation’s (Taganito) claim for refund of excess input value-added tax (VAT) for having been prematurely filed.
The CIR filed a motion for reconsideration praying for the reversal of the partial refund granted in Taganito’s favor, which was, however, denied in a Resolution14 dated March 12, 2010.
(A) Zero-rated or Effectively Zero-rated Sales. – any VAT-registered person, whose sales are zero-rated or effectively zero-rated may, within two (2) years after the close of the taxable quarter when the sales were made, apply for the issuance of a tax credit certificate or refund of creditable input tax due or paid attributable to such sales, except transitional input tax, to the extent that such input tax has not been applied against output tax: x x x.
(D) Period within which Refund or Tax Credit of Input Taxes shall be Made. – In proper cases, the Commissioner shall grant a refund or issue the tax credit certificate for creditable input taxes within one hundred twenty (120) days from the date of submission of complete documents in support of the application filed in accordance with Subsections (A) and (B) hereof.
As correctly pointed out by the CTA En Banc, the Court, in the 2010 Aichi case, ruled that the observance of the 120-day period is a mandatory and jurisdictional requisite to the filing of a judicial claim for refund before the CTA. Consequently, non-observance thereof would lead to the dismissal of the judicial claim due to the CTA’s lack of jurisdiction. The Court, in the same case, also clarified that the two (2)-year prescriptive period applies only to administrative claims and not to judicial claims. In other words, the Aichi case instructs that once the administrative claim is filed within the prescriptive period, the claimant must wait for the 120-day period to end and, thereafter, he is given a 30-day period to file his judicial claim before the CTA, even if said 120-day and 30-day periods would exceed the aforementioned two (2)-year prescriptive period.
Sec. 4. Power of the Commissioner To Interpret Tax Laws and To Decide Tax Cases. – The power to interpret the provisions of this Code and other tax laws shall be under the exclusive and original jurisdiction of the Commissioner, subject to review by the Secretary of Finance.
Reconciling the pronouncements in the Aichi and San Roque cases, the rule must therefore be that during the period December 10, 2003 (when BIR Ruling No. DA-489-03 was issued) to October 6, 2010 (when the Aichi case was promulgated), taxpayers-claimants need not observe the 120-day period before it could file a judicial claim for refund of excess input VAT before the CTA. Before and after the aforementioned period (i.e., December 10, 2003 to October 6, 2010), the observance of the 120-day period is mandatory and jurisdictional to the filing of such claim.
In this case, records disclose that Taganito filed its administrative and judicial claims for refund on December 28, 2005 and March 31, 2006, respectively – or during the period when BIR Ruling No. DA-489-03 was in place. As such, it need not have waited for the expiration of the 120-day period before filing its judicial claim for refund before the CTA. In view of the foregoing, the CTA En Banc, thus, erred in dismissing Taganito’s claim on the ground of prematurity.
WHEREFORE the petition is PARTIALLY GRANTED. The Decision dated January 11, 2011 and the Resolution dated June 27, 2011 of the Court of Tax Appeals En Banc in CTA EB No. 609 are hereby REVERSED and SET ASIDE. Accordingly, the Decision dated November 24, 2009 of the Court of Tax Appeals First Division in C.T.A. Case No. 7428 ordering the refund to petitioner Taganito Mining Corporation of its unutilized input VAT for the period January 1, 2004 to March 9, 2004, in the amount of P537,645.43, is REINSTATED.
Brion, (Acting Chairperson),* Del Castillo, Perez, and Mendoza,** JJ., concur.
* Designated Acting Chairperson per Special Order No. 1699 dated June 13, 2014.
** Designated Acting Member per Special Order No. 1696 dated June 13, 2014.
2 Id. at 64-78. Penned by Associate Justice Erlinda P. Uy, with Presiding Justice Ernesto D. Acosta and Associate Justices Juanito C. Castañeda, Jr., Caesar A. Casanova, Olga Palanca-Enriquez, Esperanza R. Fabon-Victorino, Cielito N. Mindaro-Grulla, and Amelia R. Cotangco-Manalastas, concurring; and Associate Justice Lovell R. Bautista, dissenting.
4 Id. at 98-110. Penned by Associate Justice Lovell R. Bautista, with Presiding Justice Ernesto D. Acosta and Associate Justice Caesar A. Casanova, concurring.
5 Id. at 112-117. Penned by Associate Justice Lovell R. Bautista, with Presiding Justice Ernesto D. Acosta, concurring and dissenting, and Associate Justice Caesar A. Casanova, concurring.
8 Rollo, pp. 66-67. See also id. at 99-100.
11 See id. at 105-110.
17 See rollo, pp. 72-77.
22 See Republic v. GST Philippines, Inc., G.R. No. 190872, October 17, 2013.
23 G.R. Nos. 187485, 196113, and 197156, February 12, 2013, 690 SCRA 336.
25CIR v. San Roque Power Corporation, supra note 23, at 401-402.
26 Communities Cagayan, Inc. v. Nanol, G.R. No. 176791, November 14, 2012, 685 SCRA 453, 463; see Yano v. Sanchez, G.R. No. 186640, February 11, 2010, 612 SCRA 347, 358; and see also Loy, Jr. v. San Miguel Corporation Employees Union-Philippine Transport and General Workers Organization (SMCEU-PTGWO), G.R. No. 164886, November 24, 2009, 605 SCRA 212, 230.


text:
NEW ENGLAND MUTUAL INSURANCE COMPANY.
Suffolk. March 18, 1879. — July 10, 1880. AMES & LORD, J J., absent.
One who has made an oral contract to purchase a vessel has an insurable interest in her, notwithstanding the statute of frauds.
In an action on a policy of marine insurance, evidence of a deviation from the voyage insured, by an unreasonable delay in prosecuting it, is admissible under a general denial in the answer.
 THREE ACTIONS OF CONTRACT upon policies of marine insurance. At the trial in this court, before Morton, J., the jury returned a verdict for the plaintiffs; the case was reported for the consideration of the full court, and appears in the opinion.
A. S. Wheeler & E. W. Hutckins, for the defendants.
L. S. Dabney & R. H. Dana, Jr., for the plaintiffs.
ENDICOTT, J. Upon the facts reported, the court is of opinion that Machado had an insurable interest in the vessel at the time the policies attached, even if we assume that they took effect on July 5, 1876, the day of their date. On that day, the plaintiffs, as agents for Machado, made an oral agreement in New York with the owners of the vessel for her purchase for the sum of $11,000, payable on delivery of a proper bill of sale; and, having previously ascertained that the defendants would insure her, they gave directions to have the insurance closed. The policies were written on that day; the precise time of their delivery does not appear. The oral contract to purchase was reduced to writing and signed by the plaintiffs and the owners on July 7; and a portion of the purchase money was paid on that day. Possession was taken by Machado, the balance due was paid, and a bill of sale was duly executed to a third person in trust for Machado, who was a foreigner.
It is conceded by the defendants that Machado was the only person whose interest was insured, as appears by the declarations and the policies. But they contend that he had no insurable interest on July 5, for at that time he had only an oral contract for the purchase of the vessel; and that such a contract, being  within the statute of frauds, and incapable of being enforced, gives no insurable interest.
But the oral contract to purchase was not void or illegal by reason of the statute of frauds. Indeed, the statute presupposes an existing lawful contract; it affects the remedy only as between the parties, and not the validity of the contract itself; and where the contract has actually been performed, even as between the parties themselves, it stands unaffected by the statute. It is therefore to be "treated as a valid subsisting contract when it comes in question between other parties for purposes other than a recovery upon it." Townsend v. Hargraves, 118 Mass. 325, 336. Cahill v. Bigelow, 18 Pick. 369. Beal v. Brown, 13 Allen, 114. Norton v. Simonds, 124 Mass. 19. See also Stone v. Dennison, 13 Pick. 1. Machado had under his oral agreement an interest in the vessel, and would have suffered a loss by her injury or destruction. Eastern Railroad v. Relief Ins. Co. 98 Mass. 420. This interest he could have assigned for a valuable consideration, and, if he had assigned it, all the rights afterwards perfected in him would have enured to the benefit of his assignee. Norton v. Simonds, ubi supra. The case of Stockdale v. Dunlop 6 M. & W. 224, relied upon by the defendants, does not sustain their position, for reasons which are stated in Townsend v. Hargraves, ubi supra.
The several policies of the defendants insure the ship on a voyage "at and from New York, via Bangor, to St. Michael, Western Islands." She left New York on September 3, and arrived at Bangor on September 13, where she took in additional cargo; from that port she sailed on October 27, and was lost on her passage to St. Michael. The defendants offered evidence of unreasonable delay at Bangor, where the ship remained for forty-three days, contending that, under the general denial of the answer, they could show that she did not sail on the voyage insured; in other words, that there was a deviation.
Any departure from the route named in the policy to a port or place not named, and any delay in prosecuting the voyage, without necessity or just cause, or any delay at a port named in the policy, for the prosecution of business not connected with the business of the voyage, or any unreasonable delay at such port in prosecuting the business of the voyage, is a deviation. Whether  the risk is increased thereby is immaterial. The assured has no right to substitute a different voyage for that which is insured, and can only recover for a loss sustained while the ship is prosecuting the voyage named in the policy; and if she has deviated prior to the loss, she is not then prosecuting the voyage for which she was insured. Whenever, therefore, she departs from the route, or delays in the prosecution of it, it is incumbent on the assured to show that the departure was caused by necessity, or that the delay at a port named in the policy was reasonable under the circumstances in order to accomplish the objects of the voyage. Burgess v. Equitable Ins. Co. 126 Mass. 70, and cases cited. African Merchants v. British Ins. Co. L. R. 8 Ex. 154.
The declaration in each of these cases alleges that the defend ant insured the ship, "on a voyage at and from New York, via Bangor, to St. Michael, Western Islands; and while proceeding on said voyage said ship was wrecked, and totally lost by the perils and dangers of the seas." These are necessary allegations, which the plaintiff is bound to establish in order to recover, namely, that the ship was insured on that voyage, and while prosecuting it she was lost by the perils of the sea. The answers admit that the defendants insured the ship for that voyage, but they contain a general denial of each and every other allegation in the declaration. In this state of the pleadings, the plaintiffs introduced evidence to prove that the ship was prosecuting the voyage named in the policy when she was lost; that she sailed from New York to Bangor, and from Bangor to St. Michael, and was totally lost between those ports.
In this aspect of the case, we express no opinion upon the other questions raised in the report, and argued at the bar. They all relate to the admission of evidence, and to prayers for instructions, in regard to the unreasonable delay of the ship at New York. Many of them may not arise at a new trial, and, by the terms of the report, if any of the rulings made were erroneous, the verdicts are to be set aside. As we decide that Machado had an insurable interest in the ship when the policies attached, and that it was open to the defendants to show that there was unreasonable delay at Bangor, the cases must stand for trial upon the questions of delay at New York and at Bangor.
[*] On this point the plaintiffs cited Tidmarsh v. Washington Ins. Co. 4 Mason, 439, 441; 2 Greenl. Ev. §§ 395, 399, 403; Chit. PL (11th Am. ed ) 515 a.

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


In recent years, internet articles, discussion forums, and advertisements for various workshops have touted the potential danger to lenders in connection with real property foreclosures on which the United States holds an inferior lien position. Specifically, the discussion relates to the one-year post-foreclosure right of redemption in favor of the U.S. Small Business Administration (“SBA”) in connection with SBA 504 loans.
SBA loans, in general, are loans guaranteed or partially funded by the federal government to incentivize lenders to lend capital to small businesses nationwide. The SBA 504 loan program funds a percentage of the overall project cost and in return takes a second lien on the collateral (real property and/or machinery and equipment). It is this inferior lien position that is the crux of the redemption issue outlined in this article.
The right of redemption, and its surrounding confusion, appears to arise from a single sentence taken from a single federal statute; 28 U.S.C. § 2410 (referred to herein as the “Redemption Statute”). The right of redemption in favor of the United States pursuant to the Redemption Statute has created an environment of uncertainty for lenders foreclosing real property that is subject to an SBA 504 loan. This uncertainty is caused, in large part, due to the lack of a definitive answer on whether or not the right of redemption survives a non-judicial foreclosure (a foreclosure conducted without the necessity of the courts via a power of sale granted in a deed of trust).
To further this uncertainty, the SBA, at times, has even attempted to negotiate a release of its right of redemption with a foreclosing lender following a non-judicial foreclosure sale. While it is clear that the SBA does possess a one-year right of redemption following a judicial foreclosure (a foreclosure action conducted via a court proceeding), the SBA’s right of redemption following a non-judicial foreclosure is somewhat unfounded.
As set forth above, the confusion regarding the SBA’s right of redemption following a non-judicial foreclosure sale stems from an apparent misreading of the Redemption Statute coupled with a lack of any case law dealing with this specific issue. To understand the scope, applicability, and extent of the Redemption Statute as it relates to SBA 504 loans, it is essential to assess the overall context and structure of the statute as well as the language employed by Congress in drafting the statute.
Further, when assessing the post-foreclosure risk associated with the right of redemption, it is also imperative to understand the SBA’s view and application of the Redemption Statute. As such, this article is necessarily a hyper-technical analysis in order to illustrate the conclusion that the right of redemption under the Redemption Statute does not apply to non-judicial foreclosures. Regardless of whether the Redemption Statute is applicable or not applicable to non-judicial foreclosures, state law or contractual provisions may grant the SBA a right of redemption separate and apart from the Redemption Statute (note: Texas law does not grant such a right). Absent a right of redemption under applicable state law or contract, the Redemption Statute is the only vehicle for redemption of real property available to the SBA under a 504 loan.
An understanding of the effect of any statute must begin with an analysis of its provisions in its entirety and the context of the statute as a whole within the chapter and/or title of which it is found. The United States Supreme Court holds that in construing a statute, “we must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law…” U.S. Nat’l Bank of Oregon v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 454 (1993).
The Redemption Statute is located in U.S. Code, Title 28, Part VI, Chapter 161. Chapter 161 is entitled “United States as Party Generally” (emphasis added). The use of the word “party” in the title of Chapter 161 suggests a formal action, pleading, complaint or procedure in which parties will be named. The actual title of the Redemption Statute reads “Actions affecting property on which the United States has lien” (emphasis added). At least to this point, the Redemption Statute appears to relate solely to “actions” in which the United States is a “party” or, in the context of foreclosure, a judicial foreclosure action. The actual language and structure of the Redemption Statute, discussed below, furthers this view.
The Redemption Statute consists of five sub-sections, (a) through (e) (sub-section (d) and (e) relate to required amounts to be paid by the United States to redeem property and to the process of obtaining a release of a lien in favor of the United States. These subsections are not relevant to the analysis and are not discussed in this article). The first sub-section under the Redemption Statute, subsection (a), is a permissive provision allowing the United States to “be named a party in any civil action or suit in any district court, or in any State court having jurisdiction of the subject matter....to foreclose a mortgage or other lien.” (See 28 U.S.C. § 2410(a)(2)).
The second sub-section of the Redemption Statute, sub-section (b), describes the specific pleading and service requirements that a plaintiff must follow when naming the United States as a party to such an action or lawsuit. It is not until the third sub-section of the Redemption Statute, sub-section (c), that the right of redemption is addressed. The fourth sentence in subsection (c) of the Redemption Statute states “where a sale of real estate is made to satisfy a lien prior to that of the United States, the United States shall have one year from the date of sale within which to redeem...” As one can see, this sentence plucked from the statute and quoted out of context could be cause for legitimate concern to a lender conducting a non-judicial foreclosure sale involving an SBA 504 loan. This sentence, however, must be read in the context of the Redemption Statute as a whole.
The second sentence of subsection (c) of the Redemption Statute states that “an action to foreclose a mortgage or other lien, naming the United States as party under this section, must seek a judicial sale” (emphasis added).
Many lenders, experienced in real property foreclosures, are all too familiar with the effects of a federal tax lien and the post-foreclosure right of redemption granted to the Internal Revenue Service (“IRS”) in connection with these liens. The right of redemption granted to the IRS under 26 U.S.C. § 7425 (referred to herein as the “IRS Statute”) clearly applies to both judicial and non-judicial foreclosures. It is this express and unequivocal application to both judicial and non-judicial foreclosures that highlights the relevance of the IRS Statute in construing the meaning of the Redemption Statute.
In any analysis of the Redemption Statute, it is important to assess and compare the IRS Statute. Although the IRS certainly qualifies as the “United States” in connection with the Redemption Statute, the right of redemption available to the IRS pursuant to a federal tax lien is governed solely by the IRS Statute, not the Redemption Statute.
Pursuant to the IRS Statute, the post-foreclosure redemption period for the IRS is limited to 120 days from the date of foreclosure. As set forth above, the Redemption Statute grants the United States a right of redemption for one year after the foreclosure if the United States holds an inferior lien on the subject property.
In fact, the Redemption Statute specifically references the IRS Statute (See28 U.S.C. § 2410(d)) which is quite revealing regarding the application of the one-year right of redemption to non-judicial foreclosures. It should be noted that while the Redemption Statute never employs the term “non-judicial sale,” the IRS Statute expressly states that the 120-day right of redemption applies “to a nonjudicial sale.” Congress’ omission of the term “non-judicial sale” in the Redemption Statute likely reveals its intent to specifically limit the Redemption Statute’s application to judicial foreclosures.
According to SOP 50-51-3, Chapter 10, Section F(1)(a), the SBA’s redemption rights are “granted by statute” and “as an agency of the Federal Government, 28 U.S.C. § 2410(c) provides SBA (but not a 7(a) Lender or CDC) with one year from the date of a judicial foreclosure sale to redeem” (emphasis added). Moreover, in referencing foreclosures in subsequent provisions, the SOP employs terms such as “order confirming the foreclosure sale” (SOP 50-51-3, Chapter 10, Section F(3)(b)(2)(d)) and “foreclosure action,” (SOP 50-51-3, Chapter 10, Section F(3)(c)(1)). Both terms suggest that the SBA views the redemption rights under the Redemption Statute to be triggered only by a judicial foreclosure (involving a complaint, lawsuit, action etc.) rather than a non-judicial foreclosure.
Effective March 1, 2013, the SBA will institute SOP 50-57, which furthers the view that the Redemption Statute only applies to a judicial foreclosure. While SOP 50-57 specifically applies to SBA 7(a) loans only, its language and treatment of the Redemption Statute proves telling and may put an end to the confusion. In discussing the right of redemption of the SBA in the 7(a) loan context, the SOP states that “Under federal law, as an Agency of the Federal Government, SBA (but not a 7(a) Lender) has one year from the date of a judicial foreclosure sale to redeem, i.e., buy back, the foreclosed-upon property (28 U.S.C. § 2410(c)).” (SOP 50-57, Chapter 13, Section C(3)(d)(1)) (emphasis added).
In addition to the SOP provisions stated above, the SBA sets forth specific guidelines/formulas to assess its economic position with respect to a property and whether or not to bid on the property at the actual foreclosure sale or to redeem the property post-foreclosure. The negative effects of any potential redemption appear to be somewhat softened by the practicalities of the SBA’s redemption process.
In all likelihood, the SBA has already analyzed its position with respect to the foreclosed property prior to foreclosure and if it elected not to bid on the property at the non-judicial foreclosure sale, then, absent some drastic change in circumstances (increase in property value, unusually low foreclosure bid, etc.), it will likely not elect to redeem under the Redemption Statuteat some point in the future (assuming arguendo that a redemption right even exists). And last, but certainly not least, it should also be noted that many title insurers, who hold a significant financial risk in this issue, recognize, at least in Texas, that the Redemption Statute applies only in the judicial foreclosure context.


The respondents were represented by Marie Gallo-Hall, Esq., Montstream & May, LLP, PO Box 1087, Glastonbury, CT 06033-6087.
This Petition for Review1 from the April 23, 2015 Finding and Dismissal of Michelle D. Truglia the Commissioner acting for the Seventh District was heard December 18, 2015 before a Compensation Review Board panel consisting of Commissioners Stephen M. Morelli, Ernie R. Walker and Christine L. Engel.
STEPHEN M. MORELLI, COMMISSIONER. The claimant has appealed from an April 23, 2015 Finding and Dismissal wherein the trial commissioner, Michelle D. Truglia, concluded that the claimant was not entitled to temporary total disability benefits during the period from October 26, 2004 to October 30, 2014. The claimant asserts that this decision contravenes legal precedent and is unsupported by the evidence on the record. We have examined the legal issues raised by the claimant and the precedent interpreting § 7-433c C.G.S. We are satisfied the trial commissioner properly applied the law in this case. As to the substantive merits of the claim for temporary total disability benefits, we are satisfied that the trial commissioner’s conclusions are supported by evidence on the record she found probative and persuasive. We find no error and affirm the Finding and Dismissal.
The trial commissioner reached the following factual findings at the conclusion of the formal hearing. She took administrative notice of all prior proceedings in this claim, including a prior Finding and Dismissal dated April 6, 2005 involving a claim for temporary total disability for an earlier time period. She took administrative notice of § 7-433c C.G.S. and its amendments subsequent to its 1971 passage. She noted the respondents stipulated the claimant was entitled to and receiving benefits under this Act. She also noted the claimant was declared to be at maximum medical improvement on January 17, 1996 and had been paid for a 58% permanent partial disability of the heart.
The trial commissioner restated the testimony of the claimant at the formal hearing. He said he retired from the respondent’s police force in 1983 when he was 37 years old. Since that time, the claimant never sought any sort of vocational retraining or employment, despite at least two job offers being made to him. He has attended numerous Workers’ Compensation hearings on his own behalf and served as the president of the Municipal Police and Fire Heart and Hypertension Association from 1990 to 1994. In addition, the claimant has assisted other policemen with their heart/hypertension claims and has appeared before the Freedom of Information tribunal in 2012, 2013 and 2014. He also testified that he is able to take care of his activities of daily living and, in addition, he reads the newspaper every day and drives without restriction. He goes out to dinner with his wife and visits with friends and family and recently went on a Caribbean cruise. He also attends his grandchildrens’ recitals and soccer games. The claimant acknowledged that he testified at his May 15, 2014 deposition that his daily routine hasn’t really changed in the past 10 years. The trial commissioner also noted that the claimant had received seven years of benefits under § 31-308a C.G.S. without performing work searches.
The claimant’s medical history was reviewed by the trial commissioner. He had an angioplasty and catherization performed on February 17, 2005 which included placement of a stent to address his coronary artery disease. On June 8, 2010 he had a nuclear cardiology evaluation to rule out ischemia. Shortly thereafter, on June 17, 2010 the claimant underwent a cardiac catherization and angioplasty. The claimant’s treating cardiologist, Dr. Stephen Marshalko, evaluated the claimant on June 25, 2010 and identified that his blood pressure was 128/75. Dr. Marshalko asked the claimant at that time to increase his physical activities. On September 23, 2010 Dr. Marshalko’s report noted that the claimant’s ejection fraction had improved from 51% to 60% since June. On March 9, 2011 the claimant presented for a routine checkup with Dr. Marshalko, who noted his recent stress tests “now shows complete resolution of the previously noted anterior anterolateral ischemia. Perfusion imaging is now normal post stenting performed last June. Left ventricular function is low normal with an ejection fraction of 51%.” Findings, ¶ 18. Dr. Marshalko’s March 14, 2012 examination concluded “Carl is doing well, though his stress levels continue to increase. He is having no chest pain, lightheadedness, shortness of breath or dyspnea, no fevers, chills or cough. The claimant has no syncope (fainting) or headaches. He has no abdominal complaints, no urinary complaints and no falls. The claimant’s blood pressure is 130/70; his heart rate is 70; his HEENT exam is normal; his lungs are clear, his heart shows regular rate and rhythm . . . .” Findings, ¶ 20.
The commissioner also reviewed the medical records of Dr. Myl Rama, who was a treating physician for the claimant for internal medicine. On January 7, 2013 Dr. Rama concluded the claimant was totally disabled due to his level of medication, which included 50 mg of Metoprolol two times a day along with Avapro 300 mg daily, along with 20 mg of Zocor for high cholesterol, Humalog 75/25, 30 units SC bid and Metformin 850 mg three times a day. Dr. Rama noted the claimant has migraine headaches and vasospasm angina [Vaso Spastic Angina] when he experiences emotional stress and is under treatment with Zoloft 100 mg po daily and also takes Cardizem 60 mg three times a day. A March 13, 2013 visit with Dr. Rama reported no new physical ailments but noted the claimant “has been under increasing stress due to his court litigations involving his disability/Medicare claims. Findings, ¶ 23. On March 18, 2013, the claimant underwent an echocardiogram at the Cardiology Diagnostic Center in Bridgeport, Connecticut. Dr. Michael Logue performed the evaluation and concluded the claimant’s condition was essentially unchanged from 2010.
On May 21, 2014, the deposition of Dr. Rama was taken by the respondents. Dr. Rama states that he has been treating the claimant since 1983 for labile (fluctuating) hypertension. When he first saw the claimant, he had already been diagnosed with heart disease and Dr. Rama noted he has consistently advised the claimant to lose weight and avoid stress in order to control his blood pressure. Dr. Rama described the insertion of stents into the claimant as having been successful. He testified to the variety of non-cardiac ailments the claimant suffers from and the medications required to address these ailments. Dr. Rama testified that the claimant’s work “capacity is partially impaired, not because of heart and hypertension because of his emotional status. He’s very emotionally labile. When he gets angry, he gets chest pain angina and he has to use more nitroglycerin to relieve the chest pain.” Findings, ¶ 38. Dr. Rama agrees with the claimant’s cardiologist, Dr. Marshalko, that the claimant is doing relatively well from a cardiac standpoint. In Dr. Rama’s opinion, the claimant could work in a low stress occupation.
The trial commissioner also considered the report and deposition of the respondents’ medical examiner, Dr. Martin Krauthamer. Dr. Krauthamer, a cardiologist, examined the claimant on July 11, 2014 and opined the claimant’s cardiac condition appeared to be stable. Dr. Krauthamer noted the claimant was a knowledgeable individual and in his opinion, from a cardiovascular point of view, the claimant was employable in a low-level sedentary occupation. “He clearly could not be a police officer in any way. The major obstacle to his employment would be his emotional status.” Findings, ¶ 29. At his deposition Dr. Krauthamer indicated there were no signs of congestive heart failure and the claimant’s heart tones were normal. He also noted there were no murmurs in the claimant’s heart, suggesting that there were no problems with his heart valves. In addition his cardiogram of July 11, 2014 was normal with no signs of a heart attack and a sinus rhythm of 71. Dr. Krauthamer diagnosed the claimant with arteriosclerotic coronary artery disease with normal heart and muscle function; he had a normal left ventricular function and left anterior descending function. Dr. Krauthamer testified that he feels the claimant is capable of a sedentary occupation because his heart muscle is normal, he had several angioplasties so the blood vessels are open and coronary circulation is quite good. He further noted that both of the claimant’s treating physicians ascribed the claimant’s impairments to conditions other than heart and hypertension conditions.
The claimant filed a Motion to Correct this Finding and Dismissal. The gravamen of this Motion was his assertion that he was, as a beneficiary of § 7-433c C.G.S. benefits, not subject to the provisions of Chapter 568. The claimant asserted that this was because had the commissioner properly applied the version of the heart and hypertension law in effect in the late 1970’s, she would have found there was no need to prove a continued disability from a cardiac ailment to award benefits. In the claimant’s view, once he was disabled from being a police officer he need not provide any further proof of disability to receive benefits. The claimant also took issue with the trial commissioner’s characterization of the medical evidence presented at the hearing. The trial commissioner denied this motion in its entirety and the claimant then commenced the instant appeal.
In his appeal the claimant restates the issues he presented in his Motion to Correct. He places great emphasis on a Second Circuit Court of Appeals federal decision, Green v. Commissioner of Internal Revenue, 60 F3rd 142 (1995), (“Green”) which he argues supports his interpretation of § 7-433c C.G.S. He has also filed a Motion to Submit Additional Evidence, which included various Public Acts, documents as to the Tax Court decision which was the basis of the aforementioned Green Second Circuit decision, and a union contract with the City of Bridgeport. The respondents objected to this Motion, but we have overruled their objection as we deem these documents refer to legal arguments and are not factual evidence.
We note the standard of deference we are obliged to apply to a trial commissioner’s findings and legal conclusions on appeal is well-settled. “The trial commissioner’s factual findings and conclusions must stand unless they are without evidence, contrary to law or based on unreasonable or impermissible factual inferences.” Russo v. Hartford, 4769 CRB-1-04-1 (December 15, 2004), citing Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). Moreover, “[a]s with any discretionary action of the trial court, appellate review requires every reasonable presumption in favor of the action, and the ultimate issue for us is whether the trial court could have reasonably concluded as it did.” Burton v. Mottolese, 267 Conn. 1, 54 (2003). “This presumption, however, can be challenged by the argument that the trial commissioner did not properly apply the law or has reached a finding of fact inconsistent with the evidence presented at the formal hearing.” Christensen v. H & L Plastics Co., Inc., 5171 CRB-3-06-12 (November 19, 2007). The claimant focuses his appeal on his belief the trial commissioner did not properly apply the law in force at the time he was injured. Upon reviewing relevant precedent we do not agree.
The claimant argues that when he was originally deemed to qualify for § 7-433c C.G.S. benefits over 30 years ago, the law in force did not require a claimant to prove continued entitlement to temporary total disability benefits. However, we find the facts and legal argument presented herein indistinguishable from an Appellate Court case that evaluated the standard for § 7-433c C.G.S. benefits at that time, Revoir v. New Britain, 2 Conn. App. 255 (1984). In Revoir the claimant sustained a heart attack on October 10, 1980 and retired from the fire department in January 1981. Id., 257.3 The commissioner awarded the claimant benefits “equal to those of Chapter 568” and the claimant appealed arguing § 7-433c C.G.S. provided for permanent disability benefits. Id. Applying § 7-433c C.G.S. as it stood at that time, the Appellate Court rejected that argument. They found “the statute clearly provides that benefits for compensation and medical care shall be payable ‘in the same amount and the same manner as that provided under chapter 568....’ Therefore, once it is established that a claimant qualifies under § 7-433c, chapter 568 then controls the amount of benefits to which he is entitled.” Id. 259. The Appellate Court then reiterated “we find that it is clear that such claimant is not entitled to permanent disability benefits because of his inability to work specifically as a fire fighter or policeman.” Id., 260.
The claimant in the present case argues that since § 7-433c C.G.S. is “bonus legislation” beyond the eligibility limitation of Chapter 568 it should be afforded an expansive application. The Appellate Court considered and rejected that argument in Revoir noting that the “bonus” in the heart and hypertension law went to removing the claimant’s burden of proof as to initial causation, not to expanding the level of benefits. “We cannot accept the plaintiff’s claim that § 7-433c additionally provides, as a bonus for firemen and policemen, that the claimant’s incapacity to work as a fireman or policeman in and of itself establishes a statutory right to permanent disability benefits.” Id., 260.
Section 31-307 provides benefits when a compensable injury results in a claimant’s ‘total incapacity to work.’ Section 7-433c ‘did not create a permanent total disability benefit.’ Mascata v. Stamford, 5 Conn. Workers’ Comp. Rev. Op. 144, 146, 377 CRD-7-85 (July 22, 1988) (emphasis added); see also Herwerth v City of Groton, Case No. 3105 CRB-2-95-6 (Dec. 24, 1996), aff’d, 45 Conn. App. 922 (1997). A claimant who receives benefits pursuant to § 7-433c must satisfy the requirements of § 31-307 in order to receive temporary total disability benefits. Mascata, supra.
The claimant appealed our decision. It was affirmed by the Appellate Court, per curiam, 51 Conn. App. 905 (1999). We may now treat this decision as the “law of the case” in accordance with the precedent in Waterbury Hotel Equity, LLC v. Waterbury, 85 Conn. App. 480 (2004).
Nonetheless, were a decision reached by a tribunal of superior jurisdiction to have directly undermined the statutory interpretation we have applied in this case, we would need to revisit this issue at this juncture. The claimant asserts that the Second Circuit Green decision did just that. We have carefully reviewed that decision and do not concur with the claimant’s understanding of that opinion. Green addressed solely the issue of whether earnings received from a § 7-433c C.G.S. award were taxable gross income under the Internal Revenue Code. Since the presumption of compensability for any heart related disability allowed for § 7-433c C.G.S. awards which were not restricted solely to a work related disability, the Second Circuit affirmed a Tax Court decision that such awards were part of a taxpayers’ taxable gross income. Id., 143. The Second Circuit decision did not reference Revoir, supra, or any Connecticut appellate precedent regarding the manner § 7-433c C.G.S. benefits were to be administered. Since the Green decision addressed only a claimant’s obligations under the Internal Revenue Code, we decline the claimant’s entreaty to apply it to issues not addressed within the four corners of this opinion.4 In addition, we note that in the 21 years since Green was decided, it has not been cited once as authority by any Connecticut court, nor has it been cited in a federal court as authority concerning § 7-433c C.G.S. Since Green did not address the issue presented herein, we do not find this precedent governs our application of § 7-433c C.G.S.
There is no dispute that if the claimant was disabled from any suitable employment as a result of heart disease or hypertension that he would be entitled to an award for temporary total disability. Conversely if the claimant had a work capacity notwithstanding his heart disease, or if he were disabled for reasons unrelated to the statutorily compensable injury under § 7-433c C.G.S., he would not be entitled to temporary total disability benefits. The trial commissioner concluded the evidence on the record did not support the claimant’s bid for benefits. We must determine if this was a reasonable conclusion, or if the trial commissioner’s discretion was an abuse of her discretion.
In reviewing the Findings, we note that the three medical witnesses who were relied upon by the trial commissioner (Dr. Krauthamer, Dr. Marshalko and Dr. Rama) all indicated that the claimant’s cardiac condition was essentially stable and well managed by his medications. We also note that the evidence cited by the trial commissioner consisting of opinions from these three physicians supported her conclusion that the claimant’s cardiac condition did not prevent him from having a work capacity at some level. The trial commissioner concluded that to the extent the claimant’s work capacity was impaired, it was due to medical conditions outside the scope of his compensable heart condition. Recently in Kladanjcic v. Woodlake at Tolland, 5995 CRB-1-15-3 (March 2, 2016) we pointed out that it is the trial commissioner’s job to ascertain from the evidence whether medical treatment in a contested case is due to a compensable injury or some noncompensable ailment. A similar inquiry is required when a claimant seeks disability benefits. The trial commissioner must ascertain if the claimant’s disability is the result of a compensable injury.
The trial commissioner in the present case determined that whatever disability the claimant presently has from work was not due to his compensable cardiac condition. It is black letter law that “[w]hen the board reviews a commissioner’s determination of causation, it may not substitute its own findings for those of the commissioner . . . . A commissioner’s conclusion regarding causation is conclusive, provided it is supported by competent evidence and is otherwise consistent with the law.” Dengler v. Special Attention Health Services, 62 Conn. App. 440, 451 (2001) (Internal citations omitted.) We note that the claimant previously sought temporary total disability benefits for his § 7-433c C.G.S. claim for an earlier time period and was denied benefits. We affirmed that denial on appeal. Liano v. Bridgeport, 4934 CRB-4-05-4 (April 13, 2006). Had the claimant’s condition deteriorated since that time, he may have presented a persuasive case for § 31-307 benefits. Schenkel v. Richard Chevrolet, Inc., 5302 CRB-8-07-12 (November 21, 2008), aff’d, 123 Conn. App. 55 (2010). The evidence credited by the trial commissioner, however, suggested the claimant’s cardiac condition was stable and had not deteriorated. It is the trial commissioner’s responsibility “to assess the weight and credibility of medical reports and testimony. . . .” O’Reilly v. General Dynamics Corp., 52 Conn. App. 813 (1999). We must defer to her evaluation of the evidence in this case. In addition, we point out as per our precedent in Burns v. Southbury, 5608 CRB-5-10-11 (November 2, 2011), that the respondents do not have the burden of disproving the link between a compensable injury and a subsequent ailment. It was always the claimant’s burden in this case to establish entitlement to temporary total disability benefits and the evidence he presented proved unpersuasive to the trial commissioner. We conclude the trial commissioner’s determination on this issue was a reasonable exercise of her discretion.
The Finding and Dismissal is affirmed.


FindACase | Walls v. Corecivic, Inc.
This matter is before the court on pro se Plaintiff Alexander Walls' Motion to Compel Discovery Materials (ECF No. 37). The court has considered the Motion, and Defendant CoreCivic, Inc.'s (“CoreCivic”) Response (ECF No. 38). No reply was filed and the deadline to do so has now expired. Also before the court are CoreCivic's Motion to Compel Responses to Written Discovery (ECF No. 42), Motion for Order (ECF No. 47), and Motion to Extend Discovery Deadlines (ECF No. 49). Mr. Walls did not respond to CoreCivic's Motion to Compel and the deadline to do so has now expired. These Motions are referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(A) and LR IB 1-3 of the Local Rules of Practice.
Mr. Walls is a prisoner currently in the custody of the Federal Bureau of Prisons in Coleman, Florida. In September 2016, the court entered an Order (ECF No. 31) granting Walls' Motion for Appointment of Counsel (ECF No. 27) and referring this case to the Pilot Pro Bono Program. The order stated the court could not guarantee a volunteer lawyer would be willing and available to accept the appointment. CoreCivic subsequently requested new discovery deadlines. See Mot. Set Discovery Deadlines (ECF No. 32).
Despite diligent attempts to find a volunteer lawyer for nearly a year, the Pilot Pro Bono granted CoreCivic's motion and set the following new discovery deadlines: (a) close of discovery: March 28, 2018; (b) expert disclosures: January 26, 2018; (c) rebuttal expert disclosures: February 26, 2018; (d) interim status report: January 26, 2018; (e) extensions or modifications of the discovery plan and scheduling order: March 8, 2018; (f) dispositive motions: April 27, 2018; and (g) joint pretrial order: May 28, 2018. See Sept. 29, 2017 Order (ECF No. 34).
Unless the court orders otherwise, written discovery, including discovery requests, discovery responses, deposition notices, and deposition transcripts, must not be filed with the court. Originals of responses to written discovery requests must be served on the party who served the discovery request, and that party must make the originals available at the pretrial hearing, at trial, or when ordered by the court….
LR 26-8 (emphasis added). The court may strike improperly filed discovery documents from the docket. See, e.g., Ready Transp., Inc. v. AAR Mfg., Inc., 627 F.3d 402, 404 (9th Cir. 2010); Adobe Sys. Inc. v. Christenson, 891 F.Supp.2d 1194, 1201 (D. Nev. 2012).
A party served with written discovery requests is obligated to provide complete and truthful responses to all types of discovery requests. See Fed. R. Civ. P. 26(g)(1). Rule 26(b) permits “discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.” Fed.R.Civ.P. 26(b)(1). However, all discovery is subject to the limitations imposed by Rule 26(b)(2)(C). Rule 26(e) requires a party to supplement or correct its initial disclosures or discovery responses in a timely manner if the party learns “the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been known to the other parties during the discovery process or in writing.” Fed.R.Civ.P. 26(e)(1).
A motion to compel discovery may only be filed when a timely discovery request has been served, the opposing party has not responded or has inadequately responded, and the moving party has attempted in good faith to resolve any dispute about the adequacy of the discovery responses without the court's intervention. See Fed. R. Civ. P. 37(a); LR 26-7. The Local Rules state that discovery motions will not be considered unless the movant (1) has made a good-faith effort to meet and confer before filing the motion, and (2) includes a declaration setting forth the details and results of the meet-and-confer conference about each disputed discovery request. LR 26-7(c). The “meet and confer” process requires the parties “to communicate directly and discuss in good faith the issues required under the particular rule or court order.” LR IA 1-3(f).
Rule 37(a)(3) explicitly provides that an evasive or incomplete disclosure, answer, or response to a discovery request “is to be treated as a failure to disclose, answer, or respond.” Goodman v. Staples The Office Superstore, 644 F.3d 817, 827 (9th Cir. 2011). A party who fails to comply with its initial disclosure requirements and duty to timely supplement or correct disclosures or responses may not use any information not disclosed or supplemented “to supply evidence on a motion, at a hearing, or at trial, unless the failure was substantially justified or is harmless.” Fed.R.Civ.P. 37(c)(1); see also Ollier v. Sweetwater Union High Sch. Dist., 768 F.3d 843, 861 (9th Cir. 2014).