If you have been looking for a history of Mississippi law on termination of alimony due to cohabitation, you need look no further than the MSSC’s decision in Heiter v. Heiter, by Sheffield, handed down June 9, 2016.
Patrick and Lindalyn Heiter were divorced in 2001. At the time of the divorce, Lindalyn had been diagnosed with several cognitive conditions that impaired her ability to perform simple tasks such as counting money or writing checks. Her ability to hold a job was impacted by her inability to coordinate or manage time properly. She could complete small tasks, but lacked organizational skills. Dr. Koch, a professional who examined her, opined that she would need to reside in an assisted-living situation; she had attempted living on her own after the separation, but those attempts ended poorly. Patrick agreed to pay Lindalyn $650 a month in periodic alimony.
Soon after the divorce, the court appointed co-guardians, one for her person, and the other for her estate. Sheffield, an attorney whose name appears in the style of the case, was appointed guardian of her estate, and Stepro was appointed guardian of the person.
In 2007, Patrick filed a petition for modification to terminate alimony, alleging that Lindlyn was cohabiting with a male, Curtis Cole. Patrick also claimed that she was receiving SSI, but that proved to be untrue.
. . . [I]t is clear that Lindalyn is also unable to maintain employment. . . .
There is ample evidence that both Curtis and Lindalyn are supporting each other financially, and that Lindalyn would not be able to survive if she did not share finances with him. . . . Lindalyn only pays half of the rent and utilities on the house, while Curtis picks up the remaining expenses. . . . Curtis is currently on disability and does not work. . . .
The chancellor denied Patrick’s request to terminate alimony, and he appealed.
¶5. Patrick sought to be relieved from paying alimony to Lindalyn. Patrick alleged that Lindalyn was cohabiting with a male and was receiving SSI benefits. Patrick further averred that there had been “a substantial and material change in circumstances since the original decree was entered,” and that the original decree should be modified to terminate or reduce his alimony obligation. Traditionally, alimony payments cease only if the receiving party remarries or either party dies. McDonald v. McDonald, 683 So. 2d 929, 931 (Miss. 1996). However, a chancellor has authority to modify alimony “upon a finding of a substantial change in circumstances, regardless of any intent expressed by the parties to the contrary.” Id.
¶6. In 1961, this Court was first faced with whether “a chancery court [could] divest a wife of future alimony payments on the ground of misconduct of the wife after the divorce.” Rubisoff v. Rubisoff, 242 Miss. 225, 233, 133 So. 2d 534, 536 (1961). Citing Bunkley and Morse’s Amis on Divorce and Separation in Mississippi [Fn 4] and 17 American Jurisprudence, Divorce and Separation, the Rubisoff Court concluded that a chancery court could exercise its powers by modifying or revoking its prior alimony award. Rubisoff, 242 Miss. at 236, 133 So. 2d at 538. The Court further determined that “it was the duty of the trier of facts to determine whether or not the alleged misconduct . . . was of such nature as to forfeit [the] right to future alimony.” Rubisoff, 242 Miss. at 236, 133 So. 2d at 538.
[Fn 4] 4 J.W. Bunkley Jr. & W.E. Morse, Bunkley and Morse’s Amis on Divorce and Separation in Mississippi, § 6.12 (1957); 17 Am. Jur. Divorce and Separation, § 755.
¶7. Twenty years later, the issue arose again in McRae v. McRae, 381 So. 2d 1052 (Miss. 1980). The Court held that “[n]o hard and fast rule or mold may be laid down to fit at once all of the spectrum of misconduct. The question must be faced and determined on a case-by-case basis.” McRae, 381 So. 2d at 1055.
¶8. Relying on Rubisoff and McRae, the Court later affirmed the judgment of a chancellor who found that a recipient spouse “had forfeited her right to future support from appellee because her admitted adultery during the period following her divorce was of sufficient duration and frequency to justify the holding of the chancellor.” McHann v. McHann, 383 So. 2d 823, 826 (Miss. 1980). The Court stated that “[t]o hold otherwise would be to condone adultery and in effect would penalize a divorcee for marrying but reward her for cohabitation without benefit of marriage.” Id.
¶9. Our law further evolved in Hammonds v. Hammonds, 641 So. 2d 1211 (Miss. 1994), in which the Court held that Rubisoff and its progeny “clearly reflect a moral judgment that a divorced woman should not engage in sexual relations; the penalty for such activity is forfeiture of her right to support from her ex-husband.” Hammonds, 641 So. 2d at 1216. The Hammonds Court departed from the prior line of cases and remanded the case for the chancellor to consider the “financial, rather than moral aspect of cohabitation” and further held there is a “presumption that the divorced woman’s partner/cohabitant is providing financial support, thereby eliminating or reducing her need for support from her ex-husband” unless the unique facts of the case direct otherwise. Id. at 1216-17. The Hammonds Court adopted a two-prong test which requires chancellors to consider whether a third party provides support to the recipient spouse and whether the recipient spouse contributes to the support of the third party. Id.
¶10. In Ellis v. Ellis, 651 So. 2d 1068 (Miss. 1995), the Court again remanded a case for a chancellor to determine (1) if there was cohabitation, (2) if the ex-wife was being supported by or was supporting her suitor, and (3) if her financial needs had changed due to the cohabitation and/or support. Ellis, 651 So. 2d at 1074. The Ellis Court cited a Florida [Fn 5]case which stated that cohabitation will raise a presumption of a material change in circumstances, but cohabitation alone does not require an automatic reduction or termination of alimony. Id. at 1072.
[Fn 5] DePoorter v. DePoorter, 509 So. 2d 1141 (Fla. App. 1 Dist.1987).
¶11. In Scharwath, this Court officially adopted the Florida rule and held “that proof of cohabitation creates a presumption that a material change in circumstances has occurred.” Scharwath v. Scharwath, 702 So. 2d 1210, 1211 (Miss. 1997). This presumption shifts the burden to the recipient spouse to produce evidence contradicting mutual financial support. Id. However, the paying spouse still must show that the cohabitation results in “a situation of mutual support between the recipient spouse and another individual which alters the recipient spouse’s financial needs” before alimony can be modified. Id.
¶12. At the conclusion of the presentation of evidence by Patrick, the chancellor denied Lindalyn’s motion to dismiss, satisfied that Patrick had offered sufficient evidence of cohabitation and mutual support, which required Lindalyn to offer evidence related to mutual financial support. Lindalyn admitted that she lived with Curtis, but without sexual relations, and that they mutually supported one another. However, she denied that her financial needs had been altered due to the cohabitation and mutual support. After the parties concluded presentation of their proof, the chancellor announced she would take the case under advisement and would issue a written opinion.
¶13. The chancellor reviewed the evidence, considered the law, and issued an extensive, nine-page Findings of Fact and Conclusions of Law. The chancellor found that Patrick had failed to prove that Lindalyn’s financial needs were altered by her cohabitation with Curtis or the mutual support provided by Curtis. The chancellor found that there was no doubt that Lindalyn was receiving mutual financial support from Curtis. However, the chancellor noted that this was a “factually unique scenario . . . in which [Lindalyn] has no choice but to cohabit with another individual in order to survive.” The testimony presented by Brenda Stepro and Haidee Sheffield, Dr. Koch’s psychological report, and evidence of Lindalyn’s prior living arrangements all support the chancellor’s finding that Lindalyn must live with another person.
¶14. The chancellor held that “[w]ithout the $650.00 she receives from Patrick, Lindalyn would not be able to meet her financial obligations each month without accruing . . . penalties from withdrawals on the retirement account.” Reviewing the evidence submitted to the chancellor, there is sufficient proof that the support provided by Curtis to Lindalyn was not enough to justify eliminating or reducing Lindalyn’s support from Patrick. We find that the chancellor did not abuse her discretion in denying Patrick’s motion to terminate or modify alimony.
That’s about as concise a statement as you will find on the evolution of Mississippi law in this area.
Oh, and the court also affirmed the chancellor’s award of an attorney’s fee to Lindlyn based on testimony of her inability to pay. That’s some authority you might want to file away for future use, because getting an award of attorney’s fees in a modification such as this is not something you see every day.
Does the analysis change if the issue arises during the divorce proceeding because one spouse moved in with a paramour? I.e., not modification/termination of alimony, but the decision whether to award it in the first place?
Yes, because marital fault is one of the Armstrong factors for award of alimony. Also, financial need is a factor, and a live-in would impact need in two ways: one, that the live-in is contributing (or should) to the household expenses; and two, that if the live-in is being supported by the spouse, that would be an unreasonable expense that should not be counted to support his or her financial need.
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Today our organizations write to strongly endorse and call for swift committee consideration and passage of the “Clean Up Government Act of 2011” (H.R. 2572), legislation that would provide critically needed amendments to the federal criminal statutes.
As you are well aware, last year’s Supreme Court decision in Skilling v. United States eviscerated an entire category of deceptive, fraudulent and corrupt conduct from the scope of what was known as the honest services fraud statute (18 U.S.C. § 1346). For decades government attorneys have used § 1346 to prosecute public officials who engage in malfeasance, such as undisclosed self-dealing, that is not as simple as a direct quid pro quo or a freezer full of money. Unfortunately, the Skilling decision effectively struck down as unconstitutionally vague the honest services language and consequently, there is now a gaping hole in the Department of Justice’s (DOJ) ability to address a vast swath of public corruption.
H.R. 2572 is constitutionally sound and heeds the Supreme Court’s directive for more clarity and specificity. The “Clean Up Government Act” directly and effectively addresses concerns raised about previous versions regarding over overcriminalization and prosecutorial abuse because of vagueness and lack of clarity. The bill borrows existing language from 18 U.S.C. § 208, a well-established federal conflict-of-interest statute that already applies to the executive branch and, more importantly, has been upheld as constitutionally sound by the Supreme Court and U.S. Court of Appeals for the Fifth Circuit. Further, as DOJ correctly testified at the hearing, under the proposed statute no public official could be prosecuted unless he or she knowingly conceals, covers up, or fails to disclose material information, which the official already is already required by law or regulation to disclose, with the specific intent to defraud. As crafted, H.R. 2572 removes the risk that a public official can be convicted for unwitting conflicts of interest or mistakes.
The legislation also overturns other misguided court decisions limiting the use of the illegal gratuities statute. By reversing the Supreme Court’s decision in United States v. Sun-Diamond Growers, 526 U.S. 398 (1999), the bill revives the federal government’s power to criminally charge public officials who receive gifts because of their governmental positions with accepting illegal gratuities. In addition, responding to United States v. Valdes, 475 F.3d 1319 (D.C. Cir. 2007), the bill makes clear government officials who accept private compensation for using the powers their jobs afford them may be subject to criminal prosecution.
We urge you to ensure that any modifications made to the bill before it is reported out of committee leave intact these critically needed legislative reforms. Only then can we hold accountable public officials who secretly act in their own financial self-interest, rather than in the interest of the public.
[ 1] United States v. Hedges, 364 U.S. 520 (1961).
[ 2] United States v. Richard J. Nevers, 7 F.3d 59 (5th Cir. 1993).


The court said that for an order dismissing paragraph 3B of the violation petition as jurisdictionally defective pursuant to Family Court Act §311.2, in that it allegedly is not “sufficiently supported by non-hearsay allegations,” and further that it is not a condition of the Respondent’s current order of probation; and for a dismissal of the entire violation petition “for reasons of res judicata;” and also pursuant to Family Court Act §315.2 for such other and further relief as the Court may deem appropriate.
On February 24, 2005, petition B was filed alleging a violation of the order of probation of January 28, 2005, in that Respondent left her placement at Brentwood Outreach House and had not returned to the program. That petition was settled, without admission, on February 24, 2005, whereby, on consent, Respondent was continued on her probation pursuant to order dated January 28, 2005.
On January 26, 2006, a third violation petition was filed alleging that Respondent was in violation of various provisions of the order of probation dated September 2, 2004. A fact-finding hearing was held with respect to petition C on February 21 and February 22, 2006, resulting in this Court’s dismissing the entire petition after Petitioner’s case; and the prior order of probation dated January 28, 2005 was continued.
Violation petition D was then filed on August 7, 2006, alleging that Respondent violated her order of probation dated January 28, 2005, in that she left the residence and did not return, that her mother (with whom she resided) filed a missing persons report, and that Respondent’s whereabouts remained unknown. The Court also issued a warrant of arrest for the Respondent. The warrant was executed on August 23, 2006, and a denial was entered, Respondent was remanded to the Juvenile Detention Center, and the matter was set down for a conference on August 25, 2006, at which time the Presentment Agency withdrew the petition.
Thereafter, and on August 25, 2006, a fifth violation petition was filed alleging four specific violations of the order of probation supervision of January 28, 2005. On Respondent’s motion, the fourth allegation was dismissed upon res judicata grounds; and the second and third allegations were dismissed as, even if they were proven, they did not amount to a violation of the order of probation. That left one allegation, which was the subject of a hearing on September 20, 2006. After hearing, that petition E was dismissed.
Initially, Respondent claims that the current violation petition is jurisdictionally defective, in that it is not supported by non-hearsay allegations. Although until recently the failure to include non-hearsay allegations to support a petition alleging a violation of probation was jurisdictionally defective, mandating a dismissal of the petition, this no longer is the law.
The Family Court Act makes no reference to the amendment of VOP petitions from which Markim would have us draw the unlikely inference that they cannot be amended at all, even to correct ministerial errors. But we do not infer from the Legislature’s silence that it intended, for some hard to imagine reason, to make every word in a VOP petition sacrosanct. We conclude, rather, that, because a VOP petition is not a jurisdiction— creating document, the Legislature felt no need to specify when it can or cannot be amended; it left that issue, like the amendment of most documents filed at interlocutory stages of most proceedings, to the discretion of Family Court. VOP petitions are amendable with Family Court’s permission (citations omitted).
Lastly, Respondent argues that pursuant to Family Court Act §315.2, the instant petition should be dismissed “in the interest of justice,” and Respondent has thoroughly reviewed each of the seven factors which the Court may take into account, in order to grant such a dismissal. However, §513.2 is addressed solely to the underlying petition itself, regarding acts which would be crimes if the Respondent were an adult, and is not addressed to petitions alleging a violation of probation. Firstly, the very first sentence of that section states that it may be applicable to avoid “a finding of delinquency,” and many of the seven criteria specifically mention the word “crime.” Again, a violation of probation need not allege a crime and in fact the violation petition at bar alleges no crime, but merely violations of the Respondent’s probation. In addition, that section is at the beginning of Article 3 which deals solely with an original under-lying petition, and does not appear further in that Article, dealing with violations of probation.
In another interesting argument, Respondent alleges that, since the period of probation supervision has been stayed, that she therefore is no longer subject to the conditions of probation supervision, and therefore she could not have violated any such condition.
Family Court Act §360.2(4) states that when a violation petition is filed, alleging violations of an order of probation supervision or of a conditional discharge, then the time of probation or conditional discharge “shall be interrupted as of the date of filing of the petition. Such interruption shall continue until a final determination” of the petition has been made.
Accordingly, this statute is simply a tolling of the probationary period, and precludes the termination of the probationary period while the petition is pending. Although the statute tolls the probationary period, it in no way temporarily vacates it. Respondent’s counsel does not cite any statute or case law to the contrary, nor for her proposition that all of the conditions of probation supervision are somehow suspended so that the Respondent need not comply with any of them.
Were it otherwise, then all any Respondent would have to do would be to violate her conditions of probation, and immediately upon the filing of a violation petition, she would be free of any probationary conditions, including drug testing, drug treatment, meeting with the probation officer, conditions regarding schooling, therapy, counseling and the entire panoply of services usually mandated for probation supervision. In this Court’s opinion, such a result cannot have been contemplated by the Legislature when §360.2 was enacted, and this Court declines to give the statute such an interpretation. It is this Court’s considered opinion, that although the probationary period is tolled during the pendency of the violation petition, in no way is the Respondent released from the conditions of probation.
Respondent further argues, in effect, that if the violations in the petition at bar occurred, that they did not violate any of the conditions of Respondent’s order of probation of January 28, 2005, and that the petition must be dismissed for that reason. As mentioned earlier in this decision, the probation order of January 28, 2005 contains the usual conditions of probation, together with the following: “cooperate with Brentwood Outreach House residential substance abuse treatment as directed by Probation.” The Court notes that the three specific conditions of the order of probation supervision of September 2004, do not appear in the order of January 28, 2005.
Accordingly, Respondent’s instant motion to dismiss is denied in its entirety.
If you want to contest the case filed against you, you will need the legal expertise of Stephen Bilkis and Associates. Call us now. We have offices throughout New York City, including locations in Queens, Long Island, the Bronx, Brooklyn and Staten Island.


(j) Lights or Flags on Loads Projecting to Rear of Vehicles. When the load upon a vehicle extends four feet or more beyond the rear bed or body of the vehicle, two red taillights and two red reflectors visible to the rear must be illuminated during the times specified in sec. 10 of this chapter, and located to indicate maximum width. On each side, one red light visible from a distance of at least 600 feet to the side and located so as to indicate maximum overhang must also be illuminated. At all other times, red flags, at least 12 inches square, must be displayed marking the extremities of the load at each point where a light would otherwise be required by this section.
A. If the load on a vehicle extends to the rear four feet or more beyond the bed or body of the vehicle, two red lights or two lanterns and reflectors, one on each side, plainly visible from a distance of at least five hundred feet to the sides and rear shall be displayed at the extreme rear end of the load, at the times specified in section 28-922. The red light or lantern required by this section is in addition to the red rear light required on every vehicle.
B. At any other time, a red flag or cloth not less than eighteen inches square shall be displayed at the extreme rear end of the load. The flag or cloth shall be displayed so that the entire area is visible to the driver of a vehicle approaching from the rear.
(a) Whenever the load upon any vehicle extends to the rear four feet (4′) or more beyond the bed or body of the vehicle, there shall be displayed at the extreme rear end of the load, at the times specified in § 27-36-204 , a red light or lantern plainly visible from a distance of at least five hundred feet (500′) to the sides and rear.
(b) The red light or lantern required under this section shall be in addition to the red rear light required upon every vehicle.
(c) At any other time, there shall be displayed at the extreme rear end of the load a red or fluorescent orange flag or cloth not less than sixteen inches (16″) square.
a single solid red or fluorescent orange flag or cloth not less than 18 inches square if the projecting load is two feet wide or less. Two warning flags or cloths are required if the projecting load is wider than two feet. Flags or cloths shall be located to indicate maximum width of loads that extend beyond the sides or rear of the vehicle.
Whenever the load upon any vehicle extends to the rear four feet or more beyond the bed or body of such vehicle, there shall be displayed at the extreme rear end of the load, at the time specified in section 42-4-204, a red light or lantern plainly visible from a distance of at least five hundred feet to the sides and rear. The red light or lantern required under this section shall be in addition to the red rear light required upon every vehicle. At any other time, there shall be displayed at the extreme rear end of such load a red flag or cloth not less than twelve inches square and so hung that the entire area is visible to the driver of a vehicle approaching from the rear. Any person who violates any provision of this section commits a class A traffic infraction.
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§ 4343 Lamp or flag on projecting load.
(a) Whenever the load upon any vehicle extends to the rear 4 feet or more beyond the bed or body of such vehicle there shall be displayed at the extreme rear end of the load, at the time specified in § 4331 of this title, a red light or lantern plainly visible from a distance of at least 500 feet to the sides and rear. The red light or lantern required under this section shall be, in addition to the red rear light required upon every vehicle. At any other time there shall be displayed at the extreme rear end of such load a red flag or cloth not less than 12 inches square and so hung that the entire area is visible to the driver of a vehicle approaching from the rear.
316.228 Lamps or flags on projecting load.
(1) Except as provided in subsection (2), whenever the load upon any vehicle extends to the rear 4 feet or more beyond the bed or body of such vehicle, there shall be displayed at the extreme rear end of the load, at the times specified in s. 316.217, two red lamps visible from a distance of at least 500 feet to the rear, two red reflectors visible at night from all distances within 600 feet to 100 feet to the rear when directly in front of lawful lower beams of headlamps and located so as to indicate maximum width, and on each side one red lamp visible from a distance of at least 500 feet to the side and located so as to indicate maximum overhang. There shall be displayed at all other times on any vehicle having a load which extends beyond its sides or more than 4 feet beyond its rear, red flags, not less than 18 inches square, marking the extremities of such load, at each point where a lamp would otherwise be required by this section. A violation of this section is a noncriminal traffic infraction punishable as a nonmoving violation as provided in chapter 318.
(2) Any commercial motor vehicle or trailer transporting a load of unprocessed logs or pulpwood, which load extends more than 4 feet beyond the rear of the body or bed of such vehicle, must have securely fixed as close as practical to the end of any such projection one amber strobe-type lamp equipped with a multidirectional type lens so mounted as to be visible from the rear and both sides of the projecting load. If the mounting of one strobe lamp cannot be accomplished so that it is visible from the rear and both sides of the projecting load, multiple strobe lights must be used to meet the visibility requirements of this subsection. The strobe lamp must flash at a rate of at least 60 flashes per minute and must be plainly visible from a distance of at least 500 feet to the rear and sides of the projecting load at any time of the day or night. The lamp must be operating at any time of the day or night when the vehicle is operated on any highway or parked on the shoulder or immediately adjacent to the traveled portion of any public roadway. The projecting load must also be marked with a red flag as described in subsection (1).
(a) Except as provided in subsection (b) of this Code section, whenever the load upon any vehicle extends to the rear four feet or more beyond the bed or body of such vehicle, there shall be displayed at the extreme rear end of the load, at the times specified in Code Section 40-8-20, a red light plainly visible from a distance of at least 500 feet to the sides and rear. The red light required under this Code section shall be in addition to the red rear light required upon every vehicle. At any other time there shall be displayed at the extreme rear end of such load a flag or flags as described in subsection (c) of this Code section not less than 18 inches square and so hung that the entire area is visible to the driver of a vehicle approaching from the rear.
(b) Any motor vehicle or trailer transporting a load of logs, long pulpwood, poles, or posts which extend more than four feet beyond the rear of the body or bed of such vehicle shall have securely affixed as close as practical to the end of any such projection one amber strobe type lamp equipped with a multidirectional type lens so mounted as to be visible from the rear and both sides of the projecting load. If the mounting of one strobe lamp cannot be accomplished so that it is visible from the rear and both sides of the projecting load, multiple strobe lights shall be utilized so as to meet the visibility requirements of this subsection. The strobe lamp shall flash at a rate of at least 60 flashes per minute and shall be plainly visible from a distance of at least 500 feet to the rear and sides of the projecting load any time of the day or night. The lamp shall be operating at any time of the day or night when the vehicle is operated on any highway or parked on the shoulder or immediately adjacent to the traveled portion of any public roadway. The projecting load shall also be marked with a flag or flags as described in subsection (c) of this Code section.
321.394 Lamp or flag on projecting load. Whenever the load upon any vehicle extends to the rear four feet or more beyond the bed or body of such vehicle there shall be displayed at the extreme rear end of the load, at the times specified in section 321.384, a red light or lantern plainly visible from a distance of at least five hundred feet to the sides and rear. The red light or lantern required under this section shall be in addition to the red rear light required upon every vehicle. At any other time there shall be displayed at the extreme rear end of such load a red flag or cloth not less than sixteen inches square.
Whenever the load upon any vehicle extends to the rear four feet or more beyond the bed or body of such vehicle there shall be displayed at the extreme rear end of the load, at the time specified in R.S. 32:301, a red light or lantern plainly visible from a distance of at least 500 feet to the sides and rear. The red light or lantern required under this Section shall be in addition to the red rear light required upon every vehicle. At any other time there shall be displayed at the extreme rear end of such load a red flag or cloth not less than 12 inches square and so hung that the entire area is visible to the driver of a vehicle approaching from the rear.
(b) a red reflector visible at night at all distances from 100 feet to 600 feet to the rear when directly in front of lawful lower beams of headlamps.
(2) The red lights and reflectors required under this section must be in addition to the red lights required upon a vehicle. At any other time there must be displayed at the extreme rear end of the load a red flag or cloth not less than 12 inches square, marking the extremities of the load, at each point where a lamp or reflector would otherwise be required by this section.
Michigan Vehicle Code requires that if a load extends 4 feet or greater from the bed or body of a vehicle, a red flag is required to be attached to the far rear end of the load. It specifies that the flag must be red and at least 12 inches square. A red light is required to be attached one half hour after sunset and one half hour before sunrise.
MCL 257.693 Lamp or flag on projecting load.
Whenever the load upon any vehicle extends to the rear 4 feet or more beyond the bed or body of such vehicle there shall be displayed at the extreme rear end of the load, at the times specified in section 684 hereof, a red light or lantern plainly visible from a distance of at least 500 feet to the sides and rear.
169.52 PROJECTING LOAD; LIGHT OR FLAG.
When the load upon any vehicle extends to the rear four feet or more beyond the bed or body of such vehicle there shall be displayed at the extreme rear end of the load, at the times when lighted lamps on vehicles are required in this chapter, a red light or lantern plainly visible from a distance of at least 500 feet to the sides and rear. The light or lantern required under this section shall be in addition to the rear light required upon every vehicle. At any time when no lights are required there shall be displayed at the extreme rear end of such load a red, yellow or orange flag or cloth not less than 16 inches square.
NRS 484D.860 Display of red lights or flag on load. The driver of every vehicle operating a half hour after sunset to a half hour before sunrise and carrying a load extending 4 feet or more beyond the end of the vehicle shall attach at the extreme end of the load two red lights plainly visible under normal atmospheric conditions from a distance of not less than 500 feet from the rear and sides. At any other time the driver shall attach at the extreme end of such load a red flag or cloth at least 16 inches square.
266:46 Lamp or Flag on Projecting Load. – Whenever the load upon any vehicle extends to the rear 4 feet or more beyond the bed or body of such vehicle there shall be displayed at the extreme rear end of the load, at all times during lighting periods specified in RSA 266:31, a red light or lantern plainly visible from a distance of at least 500 feet to the sides and rear. The red light or lantern required under this section shall be in addition to the red rear light required upon every vehicle. At any other time there shall be displayed at the extreme rear end of such load a red flag or cloth not less than 12 inches square and so hung that the entire area is visible to the driver of a vehicle approaching from the rear.
(a) Whenever the load upon any vehicle extends to the rear 4 feet or more beyond the bed or body of such vehicle there shall be displayed at the extreme rear end of the load, at the times when lighted lamps are required 2 red lamps, visible from a distance of at least 500 feet to the rear, 2 red reflectors visible from the rear and located so as to indicate maximum width, when the width of the overhang load is in excess of 50% of the width of the vehicle, otherwise one red lamp is required, and on each side one red lamp, visible from a distance of at least 500 feet to the side, located so as to indicate maximum overhang. There shall be displayed at all other times on any vehicle having a load which extends beyond its sides or more than 4 feet beyond its rear, red flags, not less than 18 inches square, marking the extremities of such loads, at each point where a lamp would otherwise be required by this section.
(2) The rearmost edge of the projecting load at its outermost extremity shall be marked with a red lamp visible from the rear and side.
(c) Projecting load marker lamps shall conform to the requirements for clearance, side-marker and identification lamps.
66-3-824. Lamp or flag on projecting load.
A. Whenever the load upon any vehicle extends to the rear four feet or more beyond the bed or body of such vehicle there shall be displayed at the extreme rear end of the load, at the times specified in Section 66-3-802 NMSA 1978 hereof, a red light or lantern plainly visible from a distance of at least five hundred feet to the sides and rear. The red light or lantern required under this section shall be in addition to the red rear light required upon every vehicle. At any other time there shall be displayed at the extreme rear end of such load a red flag or cloth not less than twelve inches square and so hung that the entire area is visible to the driver of a vehicle approaching from the rear.
§ 20-117. Flag or light at end of load. (a) General Provisions. – Whenever the load on any vehicle shall extend more than four feet beyond the rear of the bed or body thereof, there shall be displayed at the end of such load, in such position as to be clearly visible at all times from the rear of such load, a red or orange flag not less than 18 inches both in length and width, except that from sunset to sunrise there shall be displayed at the end of any such load a red or amber light plainly visible under normal atmospheric conditions at least 200 feet from the rear of such vehicle. At no time shall a load extend more than 14 feet beyond the rear of the bed or body of the vehicle, with the exception of vehicles transporting forestry products or utility poles.
39-21-13. Lamp or flag on projecting load. Whenever the load upon any vehicle extends to the rear four feet [121.92 centimeters] or more beyond the bed or body of the vehicle there must be displayed at the extreme rear end of the load, at the times specified in section 39-21-01, a red light or lantern plainly visible from a distance of at least six hundred feet [182.88 meters] to the sides and rear. The red light or lantern required under this section must be in addition to the red rear light required upon every vehicle. At any other time there must be displayed at the extreme rear end of a load a red flag or cloth not less than twelve inches [30.48 centimeters] square and so hung that the entire area is visible to the driver of a vehicle approaching from the rear.
(1) The lights shall be red in color.
(2) The lights shall be either a lighted light or lantern.
(3) The lights shall be placed at the extreme rear end of a load.
(b) Red flags and lights.--If the load on any vehicle extends more than four feet beyond the rear of the vehicle, a red flag or cloth not less than 12 inches square shall be displayed at the end of the load. During hours of darkness, a red light shall be displayed in the same position in lieu of the flag or cloth.
Whenever the load upon any vehicle extends to the rear or front four feet (4') or more beyond the bed or body of the vehicle, there shall be displayed at the extreme rear end or front of the load, at the time specified in § 31-24-1, a red light or lantern plainly visible from a distance of at least five hundred feet (500') to the sides, rear and front. The red light or lantern required under this section shall be in addition to the red rear light required upon every vehicle. At any other time there shall be displayed at the extreme rear or front end of such load a red flag or cloth not less than twelve inches (12") square and so hung that the entire area is visible to the driver of a vehicle approaching from either direction. Violations of this section are subject to fines enumerated in § 31-41.1-4.
32-22-6. Flagging or lighting extended loads--Violations as misdemeanors. During daylight hours if the load on any vehicle extends more than four feet beyond the rear of the bed or body thereof, there shall be displayed at the end of the load in a position which is clearly visible at all times from the rear of the load a red flag not less than twelve inches both in length and width. A violation of this flagging requirement is a Class 2 misdemeanor. During the time period one-half hour after sunset and one-half hour before sunrise there shall be displayed at the end of the load a red light plainly visible under normal atmospheric conditions at least two hundred feet from the rear of the vehicle. A violation of this lighting requirement is a Class 2 misdemeanor.
From one half (1/2) hour before sunset to one half (1/2) hour after sunrise and at all other times when lights are required to be displayed, any motor vehicle or trailer transporting intrastate a load of logs, long pulpwood, poles, or posts that projects four feet (4') or more beyond the rear of the body or bed of such vehicle, when the vehicle is operated on any highway or parked on the shoulder or immediately adjacent to the traveled portions of such highway, shall have securely affixed as close as practical to the end of any such projecting load either: o (1) One (1) amber strobe-type lamp, complying with SAE J595, equipped with a multidirectional type lens so mounted as to be visible from the rear and both sides of the projecting load. If the mounting of one (1) amber strobe lamp cannot be accomplished so that it is visible from the rear and both sides of the projecting load, multiple amber strobe lights, complying with SAE J595, shall be utilized so as to meet the visibility requirements of this subdivision (e)(1). The amber strobe lamp shall flash at a rate of at least sixty (60) flashes per minute and shall be plainly visible from a distance of at least five hundred feet (500') to the rear and sides at a radius of one hundred eighty degrees (180 degrees) of the projecting load. At all other times one (1) red flag, at least eighteen inches (18'') square, made of cloth, synthetic or man-made material, shall be so displayed; or o (2) One (1) amber light-emitting diode (LED) light, complying with SAE J595, equipped with a multidirectional type lens, mounted so as to be visible from the rear and from both sides of the projecting load. If the mounting of one (1) amber LED light cannot be accomplished so that it is visible from the rear and from both sides of the projecting load, multiple amber LED lights, complying with SAE J595, shall be utilized so as to meet the visibility requirements of this subdivision (e)(2). The amber LED light shall flash at a rate of at least sixty (60) flashes per minute and shall be plainly visible from a distance of at least five hundred feet (500') from the rear and sides at a radius of one hundred eighty degrees (180 degrees) of the projecting load. Any LED light shall be constructed of durable, weather resistant material and may be powered by the vehicle's electrical system or by an independent battery system, or both. If the LED light is powered by an independent battery system, the driver of the vehicle shall have in the driver's immediate possession charged, spare batteries for use in case of battery failure. Any solid state LED lighting that consists of multiple LED lights shall not have less than eighty-five percent (85%) of the LED lights in operable condition. At all other times one (1) red flag, at least eighteen inches (18'') square, made of cloth, synthetic or man-made material, shall be so displayed.
(3) two red lamps, one on each side, that indicate the maximum overhang and are visible at a distance of at least 500 feet from the side.
(3) are placed where a lamp is required by this section.
41-6a-1606 Load extending beyond rear of vehicle -- Duty to display lamps and reflectors or flags.
(1) If a load on a vehicle extends to the rear four feet or more beyond the bed or body of the vehicle, the operator shall display lamps, reflectors, or flags at the extreme rear end of the load in accordance with this section.
(b) two red lamps, one on each side with one red lamp located so as to indicate maximum overhang.
(3) (a) At a time other than the time indicated under Subsection (2), on a vehicle having a load which extends beyond its sides or more than four feet beyond its rear, red flags shall be displayed marking the extremities of the load, at each point where a lamp or reflector is required under Subsection (2).
(b) The red flags shall be at least 12 inches square.
§ 46.2-1121. Flag or light at end of load.
Whenever the load on any vehicle extends more than four feet beyond the rear of the bed or body thereof, there shall be displayed at the end of the load, in such a position as to be clearly visible at all times from the rear of the load, a red flag, not less than twelve inches, both in length and width. Between sunset and sunrise, however, there shall be displayed at the end of the load a red light plainly visible in clear weather at least 500 feet to the sides and rear of the vehicle.
§17C-15-14. Lamp or flag on projecting load.
Whenever the load upon any vehicle extends to the rear four feet or more beyond the bed or body of such vehicle there shall be displayed at the extreme rear end of the load, at the times specified in section two of this article, a red light or lantern plainly visible from a distance of at least five hundred feet to the sides and rear. The red light or lantern required under this section shall be in addition to the red rear light required upon every vehicle. At any time there shall be displayed at the extreme rear end of such load a red flag or cloth not less than twelve inches square and so hung that the entire area is visible to the driver of a vehicle approaching from the rear.
347.20 Lamp or flag on projecting load or fixture.
347.20(1)(1) No person shall operate on a highway during hours of darkness any vehicle with a load or fixture thereon extending more than 4 feet beyond the rear of the bed or body thereof unless there is displayed at the extreme rear end of the load or fixture a red light or lantern plainly visible from a distance of at least 500 feet to the sides and rear. The red light or lantern shall be in addition to any tail lamp or clearance lamp which the vehicle is required to carry.
(2) No person shall operate on a highway, at times other than hours of darkness, any vehicle with a load or fixture thereon extending more than 4 feet beyond the rear of the bed or body thereof unless there is displayed at the extreme rear end of such load or fixture a red flag or cloth not less than 12 inches square and so hung that the entire area is visible to the operator of a vehicle approaching from the rear.
(3) This section does not apply to vehicles loaded with loose hay or straw.
31 5 919. Lamps, reflectors and flags on projecting loads.
Whenever the load upon any vehicle extends to the rear four (4) feet or more beyond the bed or body of the vehicle there shall be displayed at the extreme rear end of the load, at the times specified in W.S. 31 5 910, two (2) red lamps, two (2) red reflectors located so as to indicate maximum width, and on each side one (1) red lamp located so as to indicate maximum overhang. There shall be displayed at all other times on any vehicle having a load which extends beyond its sides or more than four (4) feet beyond its rear, red or fluorescent orange flags, not less than twelve (12) inches square, marking the extremities of the load, at each point where a lamp would otherwise be required by this section. Lamps and reflectors required in this section shall comply with the regulations of the superintendent.
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Hispanic Americans are at high risk of not enrolling or graduating from institutions of higher education.
Disparities between the enrollment of non-Hispanic white students and Hispanic students in postsecondary education are increasing. Between 1973 and 1994, enrollment of white secondary school graduates in 4-year institutions of higher education increased at a rate two times higher than that of Hispanic secondary school graduates.
Despite significant limitations in resources, Hispanic-serving institutions provide a significant proportion of postsecondary opportunities for Hispanic students.
Relative to other institutions of higher education, Hispanic-serving institutions are underfunded. Such institutions receive significantly less in State and local funding, per full-time equivalent student, than other institutions of higher education.
could imperil the financial and administrative stability of such institutions.
There is a national interest in remedying the disparities described in paragraphs (2) and (4) and ensuring that Hispanic students have an equal opportunity to pursue postsecondary opportunities.
expand and enhance the academic offerings, program quality, and institutional stability of colleges and universities that are educating the majority of Hispanic college students and helping large numbers of Hispanic students and other low-income individuals complete postsecondary degrees.
The Secretary shall provide grants and related assistance to Hispanic-serving institutions to enable such institutions to improve and expand their capacity to serve Hispanic students and other low-income individuals.
A prior section 1101, Pub. L. 89–329, title V, § 500, as added Pub. L. 102–325, title V, § 501(a), July 23, 1992, 106 Stat. 653, set forth findings of Congress and purpose of this subchapter, prior to the general amendment of this subchapter by Pub. L. 105–244.
Another prior section 1101, Pub. L. 89–329, title V, § 501, as added Pub. L. 99–498, title V, § 501(a), Oct. 17, 1986, 100 Stat. 1495, related to statement of purpose and applicability of this subchapter, prior to the general amendment of this subchapter by Pub. L. 102–325.
Another prior section 1101, Pub. L. 89–329, title V, § 511, Nov. 8, 1965, 79 Stat. 1255; Pub. L. 90–35, § 3(a)(3), (b), June 29, 1967, 81 Stat. 85; Pub. L. 90–575, title II, § 231 (a), (b)(1), Oct. 16, 1968, 82 Stat. 1039; Pub. L. 91–230, title VIII, §§ 804(b), 805(a), Apr. 13, 1970, 84 Stat. 190, 191; Pub. L. 92–318, title I, § 141(a)(1)(A), (c)(1)(C), June 23, 1972, 86 Stat. 284, 285; Pub. L. 93–380, title VIII, § 835(a)(1), Aug. 21, 1974, 88 Stat. 605; Pub. L. 94–482, title I, §§ 151(a)(5)(A), 152(a), Oct. 12, 1976, 90 Stat. 2152; Pub. L. 96–49, § 6(a), Aug. 13, 1979, 93 Stat. 353; Pub. L. 96–374, title V, § 501(a), Oct. 3, 1980, 94 Stat. 1459, set forth statement of purpose and authorization of appropriations for Teacher Corps program, prior to repeal by Pub. L. 97–35, title V, § 587(a)(2), Aug. 13, 1981, 95 Stat. 480, eff. Oct. 1, 1982.
A prior section 501 of Pub. L. 89–329 was classified to section 1102 of this title prior to the general amendment of this subchapter by Pub. L. 105–244.
Another prior section 501 of Pub. L. 89–329 was classified to section 1091 of this title prior to repeal by Pub. L. 94–482.
Subchapter effective Oct. 1, 1998, except as otherwise provided in Pub. L. 105–244, see section 3 of Pub. L. 105–244, set out as an Effective Date of 1998 Amendment note under section 1001 of this title.
Pub. L. 102–325, title XIV, § 1412, July 23, 1992, 106 Stat. 822, authorized Secretary of Education to conduct study on feasibility of establishing national and regional clearinghouses to operate national and regional teacher job banks and to contract one or more entities to establish a national or regional teacher job bank clearinghouse, prior to repeal by Pub. L. 105–332, § 6(b)(2), Oct. 31, 1998, 112 Stat. 3128.
Pub. L. 102–325, title XV, § 1531, July 23, 1992, 106 Stat. 834, authorized Secretary of Education to make grants to local education agencies, in consortia with one or more institutions of higher education, to establish programs to provide training and technical assistance to school-based decisionmakers in local education agencies implementing system-wide reform, prior to repeal by Pub. L. 105–332, § 6(b)(3), Oct. 31, 1998, 112 Stat. 3128.


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FindACase | The General Hospital Corp. v. Sienna Biopharmaceuticals, Inc.
The General Hospital Corp. v. Sienna Biopharmaceuticals, Inc.
Appeal from the United States Patent and Trademark Office, Patent Trial and Appeal Board in No. 106, 037.
Philippe Bennett, Alston & Bird LLP, New York, NY, argued for appellant. Also represented by Walter Scott; Aoife Butler, Chicago, IL; Peter Carl Lauro, Brian Landry, Saul Ewing Arnstein & Lehr LLP, Boston, MA.
Brenton R. Babcock, Knobbe, Martens, Olson & Bear, LLP, Irvine, CA, argued for appellee. Also represented by Edward M. Cannon.
Before Moore, Reyna, and Taranto, Circuit Judges.
General Hospital Corp. ("GHC") appeals the Patent Trial and Appeal Board's dismissal of an interference determining it lacked standing because claims of U.S. Patent Application No. 13/789, 575 lacked sufficient written description under § 112 of the Patent Act. It further appeals the Board's denial of its contingent motion to add a new claim. We vacate the Board's termination of the interference and remand for further proceedings.
The claims at issue relate to methods of removing hair using nanoparticles to damage hair follicles. GHC is the named applicant on the '575 application, and Sienna Biopharmaceuticals, Inc. ("Sienna") owns U.S. Patent No. 8, 821, 941. On October 8, 2015, at GHC's suggestion, the Board declared an interference. The Board identified claim 1 of the '941 patent as the sole count. Claim 1 is directed to a method of localizing thermal damage to a hair follicle by applying a composition comprising a plurality of unassembled plasmonic nanoparticles to a skin surface. Relevant to this appeal, claim 1 requires "the unassembled plasmonic nanoparticles have a concentration of 109 to 1023 particles per ml of the composition, wherein said concentration is sufficient to, after exposure to irradiation, induce thermal damage in the hair follicle."
The Board identified claims 65-67 of the '575 application and claims 1-20 of the '941 patent as corresponding to that count. Claim 65 is representative of the '575 claims. Like claim 1, it is directed to a method of localizing thermal damage to a hair follicle by applying a composition comprising a plurality of unassembled plasmonic nanoparticles to a skin surface. In claim 65, "the unassembled plasmonic nanoparticles have a concentration of about 6.6 × 1011 particles per ml of the composition." The Board construed "about" as it appears in claim 65 to mean "within 10%." Therefore, "about 6.6 × 1011 particles per ml" encompasses of a range of at most from 5.94 × 1011 to 7.26 × 1011 particles per ml.
Sienna moved for a determination that claims of the '575 application were unpatentable for failure to meet the written description requirement. The disclosure in the '575 application describes formulations by reference to optical density (OD) rather than particles per ml. The parties disputed the proper extinction coefficient to be used in converting optical density to concentration in particles per ml. The Board accepted an extinction coefficient of 4.2, crediting the testimony of Sienna's expert Dr. Tao over the testimony of GHC's expert Dr. Dmochowski. Applying this coefficient, the Board found no concentrations disclosed in the '575 disclosure were between 5.94 × 1011 and 7.26 × 1011 particles per ml. The Board, therefore, found claims 65-67 lack written description support and are unpatentable under § 112.
GHC moved to add new claim 74 expressly limiting the nanoparticles to have "an Optical Density of 250 O.D. when measured at a wavelength of about 810 nm." The Board denied this motion, determining that GHC did not show interference-in-fact with Sienna claim 1, or correspondence to Count 1, and failed to provide supporting evidence that this claim was patentable.
GHC appealed. We have jurisdiction under 28 U.S.C. § 1295(a)(4)(A).

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Resumo: As universidades deixaram de ser apenas geradoras e conservadoras de conhecimento e passaram a contribuir, por meio de suas pesquisas, para as demandas criadas pela sociedade industrial/empresarial. Um dos principais mecanismos capazes de atuar sobre tais demandas são os spin-offs acadêmicos (SOA), criados para explorar a propriedade intelectual gerada nas instituições acadêmicas. Esses empreendimentos propiciam o a transferência tecnológica e colaboram com o desenvolvimento socioeconômico. Assim, este estudo tem por objetivo, por meio de um levantamento na literatura acerca do assunto, identificar e analisar os fatores críticos para o processo de criação dos SOA, permitindo uma compreensão mais profunda desse fenômeno. O trabalho apresentou 8 fatores principais e representa uma nova oportunidade de pesquisa e desenvolvimento no cenário científico e social.
Abstract: Universities has no longer being institutions focused just on creating and maintaining knowledge, but, nowadays, they contribute, through researches, for attending the demand created by the industrial/business society. A main tool that can interfere in this demand is the academic spin-off, which is created for exploring the intellectual property generated in academic institutions. This kind of ventures becomes the technology transference possible and contributes for the social and economic development. This study aims to, using a literature review, identify and analyze the crucial factors in academic spin-off creation, making possible a better comprehension about this subject. This study has presented 8 main factors for this process and offers new research and development opportunities in social and scientific environment.
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Q. The hospital has been covering my client?s Medicaid share of cost (aka spend down), thus allowing her to obtain outpatient overage for her chronic condition early in the month. I understand that the facility has followed this policy for a number of beneficiaries. The provider is now telling my client that it cannot pay the share of cost because of HIPAA. Is this correct?
A. Medicaid-participating providers may be exposing themselves to the risk of a civil money penalty if they routinely pay their patients? spend down amounts so that the patients can qualify for Medicaid.
Thirty-five states and the District of Columbia have medically needy programs. In these states, individuals qualify for Medicaid by spending down?incurring medical expenses that are sufficient to bring their incomes to a level at or below the state-set medically needy income level. See 42 C.F.R. § 435.811(a). Operationally, incurred medical expenses are deducted during the budget period?a period of between one month and six months as selected by the State. Id. at § 435.831(a). To apply a medical bill toward the spend down, it need only be incurred and not necessarily paid up front. 42 U.S.C. § 1396a(a)(17)(D). Medical expenses incurred by the applicant, family member, or financially responsible relative count toward the spend down if they are not subject to payment by a ?liable third party.? 42 C.F.R. § 435.811(d). A liable third party is defined as ?[a]ny individual, entity or program that is or may be liable to pay all or part of the cost of medical or remedial treatment for injury, disease, or disability of an applicant or recipient of Medicaid ? CMS, State Medicaid Manual § 3628. In this context, liability connotes a legal liability to pay all or part of the cost.
Federal and State Medicaid authorities have instituted fraud and abuse programs since the early days of the Medicaid program. In 1976, Congress established the Office of Inspector General (OIG) within the U.S. Department of Health and Human Services as an independent unit responsible for conducting audits and investigations and developing fraud control policies. In addition to these federal responsibilities, the OIG works with State fraud control programs. 42 U.S.C. § 1396a(a)(61).
[a]ny person (including an organization, agency, or other entity, but excluding a beneficiary, ?) that ? (5) offers to or transfers remuneration to any individual eligible for benefits under ? a State health care program [including Medicaid] ? that such person knows or should know is likely to influence such individual to order or receive from a particular provider, practitioner, or supplier any item or service for which payment may be made, in whole or in part, under ? a State heath care program?.
HIPAA, § 231(h) (adding § 1128A(a)(5) to the Social Security Act, codified at 42 U.S.C. § 1320a-7a(a)(5)); see also 42 C.F.R. §§ 1003.100(b)(1)(xii), 1003.102(b)(13) (implementing regulations).


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Opinion Filed December 20, 1927.
A Writ of Error to the Circuit Court of Hillsborough County; Hon. F. M. Robles, Judge.
Reversed and new trial awarded.
Plaintiff in Error, as plaintiff below, sued the defendant in error to recover damages for malicious prosecution. The trial resulted in a directed verdict and judgment for the defendant, to review which judgment this writ of error is taken.
This action grew out of a former prosecution of the plaintiff Anderson by the defendant Bryson before a Justice of the Peace of Hillsborough County in which the plaintiff Anderson was charged with having committed the offense of issuing a worthless check in violation of Chapter 9328, Laws of 1923, which prosecution resulted in a discharge of the plaintiff Anderson after hearing, and which prosecution the plaintiff alleges was instituted by the defendant falsely, maliciously and without probable cause, to the damage of the plaintiff.
At the trial plaintiff introduced in evidence, without objection from the defendant, a certified transcript of the record of the proceedings before the Justice of the Peace, including the affidavit sworn to by the defendant Bryson, the warrant for the plaintiff issued pursuant thereto, with the officer's return thereon, together with a copy of the docket entries showing the discharge of the plaintiff Anderson after hearing.
"Q. Is Mr. Anderson, the plaintiff in this case, the same Anderson whose name is signed to the copy of the alleged worthless check issued in March?
The same Anderson. I will put him on the stand."
"Q. Mr. Anderson, I will get you to state to the jury the circumstances and conditions under which you gave Mr. Bryson this $712.00 check."
The question was objected to by the defendant, upon which the trial judge made the following ruling: "My understanding of the law is that when he (the defendant) admits that paper in evidence (referring to the transcript from the justice of the peace court) it shows that that man was illegally held and improperly prosecuted. I really think you can go on and prove damages to your man. Go on and prove your damages and then as Mr. Watson — if he attempts to testify in this case you may show all the reasons why."
The plaintiff proceeded with proof of his damages and rested his case.
"In the argument of counsel for the defense, in his argument to the court, he produced a check and argued it was a post dated check, and came within the statutes of 1923, which affected, the making of checks, drafts or orders, and the court holds this is at least an order, and the post dating of it, if not paid, was an offense against the State of Florida, and the defendant had the right to sue out the warrant. The court instructs a verdict for the defendant."
The plaintiff then moved the court to allow him to reopen his case and "permit plaintiff to prove by R. M. Anderson (the plaintiff) that at the time said check was given it was post dated and given with the understanding that it was to be held by Frank Bryson (the defendant) for a later date than the 30th for plaintiff to raise funds to pay it; that the said Bryson knew and was so informed by plaintiff that plaintiff had no funds in the bank with which to pay said check. This motion is made in view of the fact that the court had already ruled when plaintiff was on the witness stand that plaintiff by the introduction of the certified transcript from the justice court had made a prima facie case." This motion was denied.
In sustaining the defendant's objection to the question originally propounded to the plaintiff for the purpose of eliciting the circumstances under which the check in question was given, the trial judge ruled in effect that the introduction in evidence of the transcript of the proceedings before the justice of the peace showing a hearing on the criminal charge and the consequent discharge of this plaintiff, disclosed, prima facie, a want of probable cause for the prosecution, from which malice might be inferred, and that in the absence of contrary evidence, the plaintiff had made out a prima facie case upon which he was entitled to go to the jury. See Stewart v. Sonnerborn, 98 U.S. 187, 25 L.Ed. 116; Wheeler v. Nesbitt, 24 How. (U.S.) 544, 16 L.Ed. 765; Tatum Bros. Real Estate Inv. Co. v. Watson, 109 So.2d Rep. 623; Torsch v. Dell, 41 Atl. Rep. 903; Stubbs v. Mulholland, 67 S.W. Rep. 650; Butcher v. Hoffman, 73 S.W. Rep. 266. See also notes to Jenkins v. Gilligan (108 N.W. Rep. 237), 9 L. R. A. (N. S.) 1087.
In an action for malicious prosecution, the question of probable cause is a mixed question of law and fact. When the facts relied on to show probable cause are in dispute, their existence is a question of fact for the determination of the jury; but their legal effect, when found or admitted to be true, is for the court to decide as a question of law. Stewart v. Sonnerborn, supra; Brown v. Selfridge, 224 U.S. 189; 56 L.Ed. 727.
The action of the trial court in granting the defendant's motion for a directed verdict, and in denying the plaintiff's motion to re-open his case to show the existence of a contemporary agreement between himself and the defendant concerning the future payment of the check, can be sustained only on the theory that the admission of the plaintiff that he is the same person who signed the alleged worthless check conclusively shows, as a matter of law, the existence of probable cause for the criminal prosecution, even though the drawer of the check (the plaintiff) advised the payee (this defendant) when the check was issued that it was a post dated check and that there was no funds in the bank to cover the same; and even though the issuance of the check was attended by a contemporaneous agreement that the payee would hold the same until a future date in order that the drawer might raise funds with which to pay it.
Chapter 9328, Laws of 1923, provides, in effect, that any person who "with intent to defraud, shall make, draw, utter or deliver any check, draft, or order for the payment of money upon any bank or depository, knowing at the time * * * that the drawer has not sufficient funds in or credit with such bank or other depository for the payment of such check, draft or order in full upon its presentation, shall be guilty of a misdemeanor * * *." The statute further provides that as against the maker or drawer thereof, the making, drawing, uttering or delivering by such maker or drawer of a check or other order, payment of which is refused by the drawer because of insufficient funds, shall be prima facie evidence of the intent to defraud and of knowledge that the drawer has insufficient funds in or credit with the drawee.
Our statute just mentioned is closely analogous to the California statute on the same subject, and is almost identical in terms with the Georgia statute of 1919 (Laws, page 220). See Hollis v. State, 108 S.E. Rep. 783. The purpose of our statute is to restrain and punish fraudulent practices associated with the issuance of worthless checks, drafts or equivalent orders for the payment of money, thereby preserving the integrity of those classes of commercial paper in trade, commerce and banking. Under our statute, the intent to defraud is an indispensable element of the offense. In that respect our statute differs materially from the Kansas statute construed in State v. Avery, 207 Pac. Rep. 838. Without the element of fraud, the statute might be repugnant to Section 16 of the Declaration of Rights, which provides that "no person shall be imprisoned for debt, except in cases of fraud."
It has been held by the Supreme Court of California, under a statute quite similar to our own, that a case is not excepted from the operation of such statute merely because the check in question was post dated. See People v. Bercovitz, 126 Pac. Rep. 479, 43 L. R. A. (N. S.) 667. On the other hand, it has been held by the Supreme Court of Arkansas that such a statute relates to checks drawn against a present, and not against a future, deposit or account; that a post dated check relates to a future deposit or account; implies within itself a want of funds to pay the same and therefore the mere issuance of a post dated check is not an offense under the statute. See Smith v. State, 226 S.W. Rep. 531. See also 7 C. J. 674. It is unnecessary, however, for us to here decide whether the mere issuance and subsequent dishonor of a post dated check constitutes the offense denounced by the statute.
When the check in question is issued and delivered prior to the date it bears, and it is dated as of a subsequent date as a time at which it is to be paid, the drawer informing the payee at the time of delivering the check that he did not then have sufficient funds in the drawee bank to pay the check, but promises that he would have such funds upon the future date borne by the check; and the payee with such knowledge chooses to rely upon the drawer's promise to provide funds upon the date stated in the check, the issuance of such a "check" or "order" under those circumstances and its subsequent dishonor when presented by the payee on or after the date it bears, does not constitute the offense denounced by Chapter 9328, supra. An intent to defraud in the issuance of such a "check" is effectively negatived by the attendant circumstances. The payee knows when he accepts it that the drawer has insufficient funds to pay the check and that its payment depends upon the performance of the drawer's promise to subsequently provide funds for that purpose. Under those circumstances, the payee voluntarily elects to rely, not upon the check, but upon the promise. There is nothing in the statute under consideration which makes it unlawful to promise and fail to pay at a future date. Such a transaction amounts to no more than a promise by the drawer to pay a debt in the future, of which debt the "check" is merely the evidence. Such a check is not an unconditional order to pay "at any event", but is conditioned upon a performance of the drawer's promise to provide funds of which the payee has knowledge and to which he voluntarily assents. Under those circumstances, the wrong, if any, subsists, not in the issuance of the check, but in the failure to comply with the promise to deposit sufficient money to cover the check. See Neidlinger v. State, 88 S.E. Rep. 687; Smith v. State, 226 S.W. Rep. 531; State v. Winter, 82 S.E. Rep. 419; People v. Bercovitz, supra; Hammock v. State, 75 So.2d Rep. 436.
The mere issuance and dishonor of such a check in the hands of the original payee under the circumstances just stated, which were the circumstances the plaintiff attempted to show, would not constitute probable cause to suppose that the drawer of the check here in question had violated Chapter 9328, supra.
The plaintiff was precluded from showing those circumstances in his evidence in chief by the rulings of the court hereinabove set out. His motion to re-open was therefore timely.
Under the circumstances stated, the trial court erred in directing a verdict for the defendant. The judgment is therefore reversed, and a new trial awarded.
WHITFIELD, P. J., AND TERRELL AND BUFORD, J. J., concur in the opinion.

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At JLM Wholesale, we stock more than just door hardware; we stock quality people as well. JLM’s technical ability to solve your problems is second to none. With years of experience in the security hardware business, JLM provides sales assistants that are trained and up to date on the latest advances in the industry.
Offering wholesale prices, superior sales assistance, top of the line products, large inventory and a customer focused attitude, JLM can lead you to new areas of higher profits and success, rather than leaving you wondering what went wrong.
If there are any products you think we should stock, give us a ring and we’ll see what we can do.
In 1918 a man with a vision of the American dream walked down Gratiot Avenue with a cart in the beautiful city of Detroit. From the cart, Victor Mirku offered key cutting, scissor sharpening and other miscellaneous services to whomever walked along his path. His start was so successful that he opened up his own shop on Gratiot Avenue. He continued to offer his locksmithing services and products. After only a few years with his new business, Victor was struck down with pneumonia. Victor’s son, David V. Mirku, had to step in and help his mother manage the family business. David V. was 19 years old at the time.
David V. was very devoted to the company. He worked long hours and offered the same great quality workmanship and customer service that his father did. As a result, he developed the “Mirku Lock Company” into a successful full service company.
David V. Mirku married Freda Hartline in 1941 and together they raised two children, David F. and Dennis. David V. soon opened a general hardware store in the same location as his locksmithing shop, but chose to close it down in 1959 when a “supermarket type store,” K-Mart, moved in nearby. K-Mart offered wholesale prices to his customers. David V. went back to offering the quality products and services that Mirku Lock was built on.
In 1961 David F. Mirku entered the family business with hopes of carrying on the family tradition. A year later he married Janet Ross and together they brought one child, Annette, into the world. Meanwhile, Dave (David F.) realized that the world was turning toward electronic security products.
In 1970, Dave’s foresight became a reality for the family. Dave started “Electronic Security Systems.” This company offered new electronic products to their clients. They combined a solid locksmithing background with employees who knew electronics. Offering only the best electromechanical products and services, “ESS” soon grew into the best total security provider in S.E. Michigan.
Dave’s daughter, Annette, met Ray Baldwin in high school. They married in 1983 and have two children, Kristine and Kayla.
In 1984 the products that ESS had to offer were very popular. Supply was shorter than demand and factory lead times became longer. Dave and his wife Janet realized that there were few wholesale suppliers of these products. They started a new security hardware business, JLM Wholesale. Since Dave was still busy with ESS, Jan started JLM Wholesale.
Since past vendor relationships were already established, JLM was able to pick from any product lines available. JLM chose only a few select manufacturers to wholesale. However, product lines were not enough. JLM had to offer each product line in depth and at wholesale prices.
Sadly, in 1990 David V. Mirku passed on from pancreatic cancer.
After years of hard work, Dave and Jan retired in 1997 from their respective positions. JLM Wholesale’s control was turned over to Ray Baldwin. By December of that year Ray purchased ownership of JLM Wholesale from Dave and Jan. Ray started his own path in the wholesale hardware business.
In 1999 he opened a new branch of JLM in Charlotte, N.C. (JLM Wholesale S.E.) by purchasing an existing company that distributed security hardware and washroom accessories.
In July 2000 JLM Wholesale launched the industry’s first and only online Internet ordering website. Featuring available In-stock quantities and Individual customer pricing with live up to date information.
In 2012 JLM Wholesale opened a third branch in Plano, Texas in order to offer customers in the south central and south west United States shorter shipping lead times.
Today we are in an age of manufacturers merging, wholesalers selling direct to end users and mass merchandisers offering products to the public. JLM Wholesale supports installers and security integrators by providing the best products and technical services currently available.
Quality service consists of many different things. At JLM we believe that it is a mixture of people, products, competitive prices and technical abilities. Whether pushing a cart on the sidewalks of Gratiot, providing locksmithing services to the public, selling and installing high-tech security products or wholesaling millions of dollars in security products to dealers, one thing has stayed consistent over the years – Quality.

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Robert B. McKinstry, Jr. (Marc Davies, of Ballard Spahr Andrews & Ingersoll, LLP, Philadelphia, Pennsylvania, and Roger P. Thomasch and Denise S. Maes, of Ballard Spahr Andrews & Ingersoll, LLP, Denver, Colorado, with him on the briefs), of Ballard Spahr Andrews & Ingersoll LLP, Philadelphia, Pennsylvania, for Plaintiff-Appellant/Cross-Appellee.
Michael R. Thorp (Marcy G. Glenn and Tiffany W. Smink, of Holland & Hart, Denver, Colorado, and Peter J. Nickles and Gerald N. Magliocca, of Covington & Burling, Washington, D.C., with him on the briefs), of Heller, Ehrman, White & McAuliffe, Seattle, Washington, for Defendant-Appellee/Cross-Appellant.
Before TACHA, Chief Judge, ALDISERT(*), and SEYMOUR, Circuit Judges.
Raytheon Constructors, Inc. ("Raytheon") appeals the decision of the district court holding it liable to ASARCO Corporation ("ASARCO") as an "operator" and an "arranger" under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. §§ 9601 et seq., in relation to the environmental cleanup at the Rawley Mine site in Saguache County, Colorado. ASARCO cross-appeals regarding damages. We reverse as to Raytheon's liability and therefore need not reach the cross-appeal regarding damages.
The mine at issue in this case was owned by the Colorado Corporation when, in 1925, it encountered financial difficulties and defaulted on several debts, including those owed to Stearns-Roger (the predecessor in interest to Raytheon), ASARCO, and Metals Exploration Company. Those three entities together created Rawley Mine, Inc. ("RMI") as a part of a reorganization plan to recover the outstanding debts. They invested the necessary funds in RMI in different proportions (ASARCO at forty percent, Metals Exploration at forty percent, and Stearns-Roger at twenty percent), and each received stock corresponding to their liens against Colorado Corporation. At the initial meeting of the board of directors of RMI, Mr. Stearns, the president of Stearns-Roger, was elected chairman and president of RMI. In 1929, after RMI had repaid Stearns-Roger's loans, ASARCO purchased all of Stearns-Rogers' RMI stock and Mr. Stearns resigned as RMI's president and executive committee chairman. This ended Stearns-Roger's association with RMI. We note in reciting these facts that the role played by Stearns-Roger, which never owned more than twenty percent of RMI, is best characterized as that of minority shareholder rather than "parent" company.
In 1996, Raytheon sought a declaratory judgment that it was not liable to ASARCO under CERCLA for the costs ASARCO incurred through cleanup in connection with the Rawley Mine site. ASARCO counterclaimed, arguing Raytheon was liable under CERCLA and state common law as Stearns-Rogers' successor in interest. The parties filed cross-motions for partial summary judgment. The district court denied ASARCO's motion. The court granted Raytheon's motion on the issue of "owner" liability, but denied its motion on the issues of "operator" or "arranger" liability. The court then bifurcated the issues of liability and damages, and after a bench trial held Raytheon liable for CERCLA contribution as an operator and an arranger.
Prior to the damages portion of the trial, Raytheon moved for reconsideration of the liability decision based on a new Supreme Court opinion, United States v. Bestfoods, 524 U.S. 51 (1998). The district court treated that motion as one pursuant to Fed.R.Civ.P. 60(b), even though it acknowledged that Raytheon was seeking reconsideration of an interlocutory order rather than a final judgment. After considering Bestfoods, the court denied Raytheon's motion in a second order. It subsequently held Raytheon responsible to ASARCO for a portion of ASARCO's "recoverable costs." See 42 U.S.C. § 9607(a); 40 C.F.R. § 300.700.
On appeal, Raytheon argues the district court misapplied Bestfoods in making its "operator" liability determination. Raytheon contends the underlying reasons for reversal of "operator" liability also support reversal of the "arranger" liability determination. In analyzing the district court's opinion, we must first determine our standard of review.
The district court was incorrect to treat Raytheon's motion for reconsideration under Rule 60(b), which only applies to final orders or judgments. Instead, "any order . . . however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties . . . is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties." Fed.R.Civ.P. 54(b). Thus we will not review the district court's order for abuse of discretion, as we would a ruling on a Rule 60(b) motion. Rather, we review de novo the district court's conclusions of law in its reconsideration of its order on liability. See, e.g., Elder v. Holloway, 510 U.S. 510, 516 (1994).
The central issue in this appeal is whether Raytheon may be held liable for the actions of RMI under section 107(a) of CERCLA, 42 U.S.C. § 9607(a). Section 107(a) lists four classes of liable parties: (1) owners and operators of hazardous substance sites; (2) persons who owned or operated such sites at the time of disposal; (3) persons who have arranged for the disposal of hazardous substances; and (4) persons who have transported hazardous substances for disposal. See Florida Power & Light Co. v. Allis Chalmers Corp., 893 F.2d 1313, 1317 (11th Cir. 1990). RMI itself is liable as an owner, an operator, and an arranger. Raytheon, as successor in interest to Stearns-Roger, may only be held liable if it can be determined that the operation and arrangement functions of RMI may be attributed directly to Stearns-Roger as a stockholder.
In Bestfoods, the Supreme Court clarified the standard to be used in making this determination. First, it "sharpen[ed] the definition [of "operator"] for purposes of CERCLA's concern with environmental contamination." Bestfoods, 524 U.S. at 66. The Court stated "an operator must manage, direct, or conduct operations specifically related to pollution, that is, operations having to do with the leakage or disposal of hazardous waste, or decisions about compliance with environmental regulations." Id. at 66-67. Furthermore, the Court emphasized the necessary connection between the potential "operator" and the facility itself, rather than with the subsidiary per se: "The question is not whether the parent operates the subsidiary, but rather whether it operates the facility, and that operation is evidenced by participation in the activities of the facility, not the subsidiary." Id. at 68 (quotation omitted). Because the Court in Bestfoods was addressing a situation involving a parent and subsidiary, we must accordingly modify our inquiry as appropriate to suit the situation of a minority shareholder such as Stearns-Roger. The focus on the facility remains the crucial consideration.
it cannot be enough to establish liability here that dual officers and directors made policy decisions and supervised activities at the facility. The Government would have to show that, despite the general presumption to the contrary, the officers and directors were acting in their capacities as [parent] officers and directors, and not as [subsidiary] officers and directors when they committed those acts.
Although my Findings and Conclusions rest, in part, on evidence that Stearns-Roger . . had a significant stake in [RMI] in terms of stock, capital, and voting power, such evidence is not necessary to a finding that Stearns-Roger (and, therefore, Raytheon) was directly liable for the operations of RMI's facility, the Rawley Mine. Moreover, contrary to Raytheon's assertions, it is clear that Mr. Thomas Stearns, president of Stearns-Roger and president and chairman of RMI, acted on behalf of Stearns-Roger, not simply as an RMI board member. As I stated in my Findings and Conclusions, Stearns himself, as sole stockholder and president of Stearns-Roger, served in a representative capacity as the primary liaison between the two entities.
Aplt. Appx. at 100 (quotation and citation omitted). We note, however, that serving as the primary liaison between two corporations does not rebut the presumption of wearing separate hats in separate corporate roles. Mr. Stearns' role as president of Stearns-Roger does not lead to the conclusion reached by the district court  i.e., that he acted on behalf of Stearns-Roger rather than RMI. Indeed, none of these facts rebut the Bestfoods presumption.
Of course, Mr. Stearns's personal involvement in the purchase of land to collect Rawley Mine tailings most pointedly illustrates Stearns-Roger's direction of environmental decision-making at RMI. While this evidence serves as the basis of Raytheon's liability as both an arranger and an operator, it is not the only reason for finding Raytheon liable as an operator of RMI. As I held earlier, Mr. Stearns was far more than a figurehead, and Stearns-Roger, along with ASARCO and Metals Exploration, ran RMI.
Id. (quotation and citation omitted). Again, the district court misinterpreted Bestfoods. There is no evidence to rebut the presumption that Mr. Stearns' involvement in the purchase of land for RMI was undertaken in any capacity other than as president of RMI and a member of its board. As such, his involvement in the purchase cannot serve as the basis for operator or arranger liability of Stearns-Rogers.
Other evidence listed by the district court in support of its legal conclusion included the fact that Mr. Stearns wrote a letter to RMI stockholders regarding financial and operating conditions of the company, that he negotiated for RMI an ore smelting contract with ASARCO, that he submitted board licenses and agreements with a mineral separation company and had unanimous approval to sign those documents, that he submitted to the board a contract for electrical power supply to the mines and had approval to sign that contract, that he signed an installation order and a chattel mortgage for new transformers, that he had board approval to execute demand notes for cash advances, and that as a member of the board, he helped supervise and replace the on-site manager. Id. at 100-01. The critical point, however, is that nothing indicates Mr. Stearns undertook any of these actions while wearing any hat other than his RMI president hat. The crucial consideration here is not what Mr. Stearns did, but what Stearns-Roger did. As long as Mr. Stearns acted as an executive and board member of RMI, Bestfoods tell us that his actions cannot be attributed to Stearns-Roger. While the district court believed that Mr. Stearns himself was an operator of RMI's facilities, id. at 101, that does not suffice to make Stearns-Roger, as a minority shareholder, an operator. The suit here is against the company, not Mr. Stearns personally. We hold that as a matter of law, this evidence is insufficient to support the district court's conclusions.
In its original Findings of Fact and Conclusions of Law, although the district court recognized that the need to resolve the "arranger" issue was obviated by the determination that Stearns-Roger was an "operator," the court nevertheless addressed the issue as an alternative basis for liability. In so doing, the court concluded that Raytheon was liable as an arranger because Stearns-Roger "actually arranged for the disposal of RMI mine tailings at the lower tailings area." Id. at 89. Here the court relied upon evidence that "in his capacity as an RMI board member, [Stearns] directed the purchase of property with the knowledge and intent that it serve as a disposal site for the mine tailings." Id.
To be held liable under CERCLA as an arranger, a party must satisfy three requirements. First, the party must be a "person" as defined in CERCLA. Second, the party must "own" or "possess" the hazardous substance at issue. Third, the party must, by contract, agreement or otherwise, arrange for the transport or disposal of such hazardous substances. See 42 U.S.C. § 9607(a)(3). As to the questions of ownership or possession, the district court found that Stearns-Roger's twenty percent stockholder ownership interest along with its "now-established operator status" created a "nexus" between Stearns-Roger and the disposal of the hazardous substance. Aplt. Appx. at 88 (citing Transportation Leasing Co. v. State of Cal. (CalTrans), 861 F. Supp. 931, 941 (C.D. Cal. 1993), and Gen. Elec. Co. v. AAMCO Transmissions, Inc., 962 F.2d 281, 286 (2d Cir. 1992)). The court further noted that under Transportation Leasing, constructive ownership or possession may be demonstrated by a party's selection of a site for disposal. Because Mr. Stearns was involved in this type of decision-making for RMI, the district court found he satisfied the requirement.
Once again, the district court made the mistake of automatically attributing Mr. Stearns' action to his role with Stearns-Roger and not to his role with RMI. The Bestfoods holding regarding operator liability also logically applies to cases involving arranger liability. See Carter-Jones Lumber Co. v. Dixie Distrib. Co., 166 F.3d 840, 846 (6th Cir. 1999). Because the district court relied on its erroneous conclusion regarding operator liability, it also erred in reaching its conclusion on arranger liability.
Thus, for example, in arranging for the supply of electrical power to RMI's Bonanza mines or negotiating a detailed contract for the smelting of raw materials from all of RMI's mines, Mr. Stearns -- and, by extension, Stearns-Roger -- helped the mines to function. Inasmuch as the functioning of these facilities produced hazardous waste which leaked or was improperly disposed of, Stearns-Roger "manag[ed], direct[ed], or conduct[ed] operations specifically related to pollution."
Aplt. Appx. at 101 (citation omitted). This reasoning is fatally flawed by the district court's unsupported assumption that Mr. Stearns' actions may be considered, by extension, to be those of Stearns-Roger. To the contrary, we are required by Bestfoods to presume that Mr. Stearns' actions in "helping the mines to function" were taken in the ordinary course of his role as RMI president. The facts do not support a rebuttal of that presumption. This error goes to the analysis of both operator and arranger liability. As the Court stated in Bestfoods, "it cannot be enough to establish liability here that dual officers and directors made policy decisions and supervised activities at the facility." Bestfoods, 524 U.S. at 69-70.
In sum, the correct analysis results in a conclusion that Raytheon, as successor in interest to Stearns-Roger, may not be held liable either as an operator or as an arranger in connection with the environmental cleanup at issue in this case. This determination renders moot the cross-appeal on the issue of damages.
Accordingly, we REVERSE the decision of the district court.
*. Honorable Ruggero J. Aldisert, Senior United States Circuit Judge for the Third Circuit, sitting by designation.
1. To the extent that the district court considered the actions of Mr. Gordon, who wore only a Stearns-Roger hat, we point out that the Supreme Court in Bestfoods also addressed the separate possibility that an agent of the parent with no subsidiary hat to wear might manage or direct activities at the facility. On this point, the Court stated that activities that "involve the facility but which are consistent with the parent's investor status . . . should not give rise to direct liability." Id. at 72. Thus, the Court directed lower courts considering these issues to determine "whether . . . actions directed to the facility by an agent of the parent alone are eccentric under accepted norms of parental oversight of a subsidiary's facility." Id. On the record here, the actions of Mr. Gordon are wholly consistent with investor status, particularly given Stearns-Rogers' position as a minority shareholder.