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Lets say you are baking a cake. Instead of following the recipe you decide to “wing it” and put it the amounts you think should be there. That sounds like a recipe for disaster. Our maybe you are building a house and instead of looking at the blueprints, you simply put walls where you think they should be. That’s a blueprint for failure. Or your at school, and instead of following the proper steps to solve a math problem, you guess. Or your building a Lego set and putting the pieces wherever you want hoping it will eventually look like the picture.
In all of these scenarios, accuracy is important.
If I were to say to you, “I want you to go to that store, buy 5, and come back on time” I would be setting you up for failure. Why? Because I haven’t told you where to go, what to buy, or when to return! Accuracy is vital!
Last week as we examined how Priscilla and Aquila instructed Apollos, we saw a repeated emphasis on accuracy. When teaching and preaching the Word of God, accuracy is vital.
As we look at this picture (S) you may wonder why there are three darts in the bulls eye. There are three darts in the bulls eye because accuracy is needed more than once.
If someone hits the center of the target once and never again, we assume it is an accident or a chance occurrence. However, when someone regularly hits the bulls eye, it is clearly a matter of practice and ability.
When teaching and preaching the Word of God, it is important to be consistently accurate. Occasional accuracy or accuracy on only one topic will not bring consistent growth to the body of Christ.
Paul has embarked on his third missionary journey. This journey is one of encouragement and strengthening as he visits the churches he has planted.
While accurate teaching is needed in all areas, we will only consider two.
Accuracy in these two areas will result in personal and corporate spiritual growth.
Personal growth enables us to handle life with maturity. Corporate growth enables us to accomplish our mission.
There is much confusion in our world about salvation.
Are works necessary for salvation? Am I saved the moment I believe, or sometime later? Once I am saved can I lose salvation or reject salvation? What about people who never hear the gospel?
These questions and more can be answer clearly from Scripture. Yet the failure of many to teach and preach about salvation with accuracy, has resulted in confusion!
We won’t answer all of those questions this morning. But from this passage we will answer some of them.
We saw in ch. 18 that Apollos went to Achaia and now we find that he ended up in Corinth. Paul arrives in Ephesus sometime after that (S). All of the events in ch. 19 take place while Paul is in Ephesus.
Paul has been strengthening the churches he planted. Arriving in Ephesus he finds some people described as disciples. This word is used here in its technical sense.
Disciples – μαθητής (mathētēs) disciple. A student who adheres to (and travels with) a teacher.
What we will learn in a moment is that these men were not yet believers in Jesus, they were disciples of John the Baptist.
Paul meets these men and he asks them a very important question. Did they receive the Holy Spirit?
We need to pause for a minute and establish something important. Look at (S).
If you do not have the Holy Spirit, you do not belong to Jesus. What Paul is asking here is whether or not they are saved.
This is a very important point. Someone who does no have the Holy Spirit is not saved. While they may believe truth about Jesus they do not know Jesus. They have not begun a personal relationship with Him.
Let me make a few points here.
Accurate teaching requires accurate questions.
These people don’t even know about the Holy Spirit at all! Paul would never have known that if he didn’t ask.
Ask theological and spiritual questions.
Accurate teaching requires accurate answers.
They don’t pretend to know. They want to learn, so they answer accurately and honestly.
There are people today we do not know or believe the truth about the Holy Spirit. We should not be waiting to be asked. We should take the initiative and find out where they are spiritually. Paul is not content to “live and let live”. He is not content to leave them in unbelief! Are we?
How did Paul know to ask this question?
Paul understands that belief comes with the gift of the Holy Spirit. Anyone without that gift has not truly placed their faith in Jesus Christ.
v. 1 – They are disciples but haven’t received the Spirit yet. This highlights the transitional nature of Acts.
Verse 3 is where we find out they are disciples of John the Baptist. We mentioned this last week with Apollos. He only knew the baptism of John. Apparently, that is all these folks know as well.
In verse 4, Paul clarifies the problem. The problem is that they didn’t know Jesus had come in fulfillment of prophecy as the one for whom John prepared the way.
They had not yet believed in Jesus Christ.
This is the focus of faith. The object of our belief is Jesus!
We are not saved by knowing about Him. We are saved by believing in Him. We can intellectually know that Jesus died to take away sin. However, we must personalize this knowledge in order to be saved. Jesus Christ died for my sin!
These verses demonstrate for us how essential it is to define our terms. These people were baptized, believing, disciples; but they were not saved because they hadn’t believed in Jesus, hadn’t been baptized because of their faith in Him, and they were followers of the wrong man. They had even repented, but were not saved because they didn’t have accurate information.
Every time we see the word “repentance” it doesn’t mean the topic is salvation. We must do our hermeneutic work in the text before we know what is being discussed.
Here the topic is a recognition that the Jewish religion had strayed from truth and a return to Old Testament Law. However, what was needed was faith in Christ.
I love their reaction. They could have ignored Paul. They could have said “you have your truth and I have mine”. Instead, they listen, believe, and are saved and baptised.
This is vital. When we hear truth, we need to listen to it and allow it to change us. Don’t be so married to your opinion that you refuse to hear anything else!
Accurate teaching is effective only as it is heard.
Here we have confirmation of their salvation. They receive the Spirit and speak in tongues and prophesy. This is something we haven’t seen since ch. 10. Many people have been saved since then, but there is no record of speaking in tongues or anything else.
Why does this happen here? I see 2 reasons. 1 – This establishes the apostleship of Paul. The Holy Spirit is given through him as it is through Peter in 8:17. 2 – This demonstrates that it isn’t about John, it is about Jesus!
Though we have discussed this before, let me make two important points.
vv. 5-7 – They receive the Spirit and speak in tongues and prophesy. Why does this happen here? I see 2 reasons. 1 – This establishes the apostleship of Paul. The HS is given through him as it is through Peter in 8:17. 2 – Also demonstrates that it isn’t about John, it is about Jesus!
1 - The tongues used in Scripture are always known and recognized languages. 2 - Most prophecy in Scripture is declaring truth not foretelling the future.
2 - Most prophecy in Scripture is declaring truth not foretelling the future.
Verse 7 tells us there were 12 men in this group.
Paul could have left these men in their error. Many today would. They have a belief system, they know some truth; why don’t we just leave them alone?
Paul had been taught the truth and commissioned to teach it to others. He took that responsibility seriously.
Accurate teaching requires both speaking and listening.
These verses teach us that salvation is about belief. It is not about what we know or what we have done. It is about what we believe.
Do you notice how similar this is to every other time Paul comes to a new city? What do we learn from that? Here’s my take away. The church does not need something new and exciting in order to share the gospel. This is what many are trying to do. What the church needs is faithful obedience to take advantage of the opportunities we already have.
Paul mentions his understanding of what we do when we share the gospel in (S).
There are only three roles. Plant, Water, Grow.
The first thing we do is plant.
That is what Paul does here in v. 8.
As Paul reasons and persuades about the kingdom, he is presenting the gospel.
Paul is able to do this for three months. This seems like a long time in light of how quickly opposition came in other places.
Paul speaks boldly. He reasons. He persuades.
If we are going to plant, if we are going to be men and women who share the gospel, we must be able to do these three things.
We’ve talked about there being boldness and courage in community. We need one another. We also need to recognize that we serve an always present, all-powerful God. His presence in our lives ought to give us boldness.
Paul reasons. People can ask Paul questions and he gives responses. Scripture is the foundation of the Gospel. This book is the only place we learn about Jesus. It is objective truth written for us. Paul’s ability to reason is directly connected to his knowledge of Scripture.
People are persuaded when they hear passion coupled with knowledge. If we are not bold enough to have these conversations, we will not reach people.
Be bold. Know Scripture. Speak passionately. This is how we plant.
The second thing we do is water.
To keep the planting metaphor, both believers and unbelievers need to be watered with the Word.
For the unbeliever the seed planted is watered until it eventually grows. For the believer, the plant needs more water so that it can keep growing.
Here Paul has planted and watered when there is a reaction. They are hardened.
They are hardened. Satan blinds the minds, hardens the hearts. Still being called “the way” (9:2).
Hardened – σκληρύνω (sklēryno) harden. To be stubborn. To be or become stubborn, conceived of as being or becoming hardened or inflexible.
One of the things we learn as we study theology is that doctrines are connected.
In this verse we have soteriology, eschatology, ecclesiology, Christology, hamartiology, anthropology, and theology proper. What does that mean? It means that in order for Paul to talk about the kingdom of God, He must talk about salvation, future things, the church, Christ and His finished work, sin, man and his fallen nature, as well as God and His plan.
With the idea of planting and watering, picture soil that is hard, dry, and rocky. How does this happen? (S).
v. 8 – Reasoning and persuading.
Satan blinds the minds, he hardens the hearts.
There is a progression here. They are hardened, do not believe, and ultimately oppose.
Their opposition takes the form of deliberately foul and abusive language concerning Christianity.
At this point, Christianity is still being called “the way” we first saw this in 9:2.
v. 9 – They are hardened. Satan blinds the minds, hardens the hearts. Still being called “the way” (9:2).
Paul determines that his best course of action is to withdraw and no longer teach at the synagogue. This way, those who are willing to listen can still come.
What I want to call attention to here is who he takes with him. The disciples. Those who have listened and are growing go with Paul to hear more teaching and continue to grow.
They move to the school of Tyrannus. Tradition states that Paul used the school for his ministry during the afternoon hours when classes were not conducted. Paul is there daily. This is how the seed Paul planted gets watered, through daily conversation.
We plant. We water. God brings growth.
Two years Paul reasons in the school. The end result is that everyone in Asia hears the message of the Lord Jesus.
What message? The gospel! Christ died for our sins according to the Scriptures, He was buried and rose again the third day according to the Scriptures!
This message spreads to all. How did Paul ministering in one place accomplish this? Ephesus was a major trade city and people went from there and shared!
This makes it clear that it is God who brings the increase.
v. 10 – 2 years reasoning in the school of Tyrannus until all of Asia hears the gospel! How did Paul ministering in one place accomplish this? Ephesus was a major trade city and people went from there and shared!
We do not get people saved. We do not drag them kicking and screaming into the kingdom. We preach the Word and share the message of the gospel. We do it boldly and with persistence but we trust God to do what He has promised and bring people to Himself.
Accurate teaching builds on the foundation of Jesus Christ.
Jesus is the ultimate basic. Always come back to him.
Salvation is about the basics. Plant, water, and trust God to bring the increase.
Our world is in desperate need of accurate teaching about salvation.
Salvation comes by grace through faith. It is about what you believe. Salvation comes as we plant the seed of the gospel, water that seed, and trust God to make it grow in His will, way, and timing.
What kind of authority do we have? Can we cast out demons? Should we? Can we proclaim sickness to be banished and poverty to be no more? Can we bind Satan? Learn the names of his fallen angels?
These are questions that come up in our society and culture. What we learn from Paul in these verses help us to understand what authority is and is not as well as how authority works in our personal lives.
There are churches today where they believe and teach that what we refer to as the “sign gifts” are still active today. One of the difficulties I have with that belief is their inability to replicate what Paul does here. Three observations will make it clear that they cannot do what Paul is doing here. They also teach something different than we see him practice.
1 - There is no mention of faith to be healed.
While not all churches who embrace the sign gifts teach this, there are many who claim the person healed must have enough faith. If they are not healed it is because they didn’t have enough faith. However, the implication here is that people took things from Paul to sick and possessed people and they were healed. No faith required.
2 - There was no one who couldn’t be healed.
Verse 12 states that when the objects were brought from Paul to these people, they were healed. Period.Everyone was healed.
It was never expected that this type of healing would be normative for the church. This was always to be an exception instead of a rule.
Because Paul has a relationship with Jesus Christ, he has power. The power is not his, it is the power of Christ flowing through him.
This is what the gift of healing is like. This gift is not seen even by the end of Acts. Paul doesn’t send a hankie to Timothy to heal his “often infirmities”. Nor does he spread his tentmaking apron over Epaphroditus when he almost dies of an illness. Either Paul was cruel, or this unique ability to heal was done.
vv. 11-12 – This is what the gift of healing is like. This gift is not seen even by the end of Acts. Paul doesn’t send a hankie to Timothy to heal his “often infirmities”.
We believe it was over because its purpose was to establish the authority of Paul. By the end of Acts his authority as an apostle has been well established.
In these verses we see God’s power and God’s healing operating through Paul because of their personal relationship.
Now we get to see how no relationship results in no power.
There is a lot of confusion here. These men are confused about the source of authority and power.
They mistakenly assume that knowing a certain name is enough! Notice, there is not even the slightest claim to relationship here.
They name drop. Paul and Jesus are not magic words that give authority and power! There must be a relationship.
Apparently these men thought that being the sons of a Jewish chief priest gave them some sort of authority. Position does give authority. It is all about who you know.
These men are going around, finding people possessed by evil spirits and attempting to cast them out using the names of Paul and Jesus.
However, because there is no relationship, these actions result in serious consequences.
Because there is no relationship, they are unknown.
Something very interesting is that Jesus the demon knows by experience. Paul he knows intellectually.
The sons of Sceva are not known at all.
Where there is no relationship, there is no power.
Spiritually speaking, this is what happens when we don’t understand authority. Authority does not come from position or prestige. Authority comes from our relationship with Jesus Christ.
That authority doesn’t mean we are able to command demons or cast off sickness. It means we will have the ability to accomplish what God calls us to.
When we step outside of God’s will and plan, we are left naked and wounded, running from the enemy.
Only through relationship do we have power and authority.
We need accurate teaching on this topic. People need to know that simply naming the name of Jesus is not enough. We need to know Him personally. We need to trust Him alone. We need believe on the Lord Jesus Christ.
That’s the first lesson. Authority is about personal relationship.
This is how revival starts. It begins when we learn who our God is. We hear of His power and might. We see evidence of His hand at work.
As we observe the activity of our infinite and powerful God we develop a healthy fear of Him.
With a recognition of His power and a fear of Him we begin to glorify and honor our King of kings and Lord of lords.
Only our God can use a failed attempt at casting out demons to cause people to praise Him.
Something Satan no doubt intended to cause division and strife results in confession and cleansing!
As people learn to fear God and praise, honor, and glorify Jesus Christ, the natural result is confession.
This is how revival is born. As we rid our lives of sin and begin to address those areas we have let slide.
v. 17 – the failed attempt of the songs of Sceva to cast out demons brings fear (reverence) and causes Christ to be magnified!
Revival is carried forward as we remove stumbling blocks from our lives.
v. 18 – The fear and magnification lead to confession.
These various practitioners of magic burn their books as a public, visible, and permanent separation from sin.
When we are serious about removing sin from our lives, we are not worried about the cost. I’ve heard it said that this is the modern equivalent of millions of dollars. Is freedom from sin worth millions?
Personal revival is about our submission to God’s authority. Only when we are under His authority will we be able to see lives transformed. This transformation must begin with our own.
The fear, praise, confession, cleansing, and revival result in growth.
v. 19 – Others destroy books on magic.
A plant must have the proper environment for growth to occur. In the same way, God’s Word grows when given a proper environment.
The proper environment for the growth of God’s Word is one free from sin.
v. 20 – The word of God grows mightily.
The idea behind this verse is that God’s Word accomplished what God intended. Meaning that people were being saved and added to the body of Christ.
What these verses reveal is that there is a cost to discipleship. Jesus made that very clear in (p. 1203).
Now great multitudes went with Him. And He turned and said to them, “If anyone comes to Me and does not hate his father and mother, wife and children, brothers and sisters, yes, and his own life also, he cannot be My disciple. And whoever does not bear his cross and come after Me cannot be My disciple. For which of you, intending to build a tower, does not sit down first and count the cost, whether he has enough to finish it—lest, after he has laid the foundation, and is not able to finish, all who see it begin to mock him, saying, ‘This man began to build and was not able to finish.’ Or what king, going to make war against another king, does not sit down first and consider whether he is able with ten thousand to meet him who comes against him with twenty thousand? Or else, while the other is still a great way off, he sends a delegation and asks conditions of peace. So likewise, whoever of you does not forsake all that he has cannot be My disciple.
Jesus is clear. There is a cost to being His disciple. The Ephesians paid that price. Will we?
Paul wrote this to the church in Rome. (S).
Sometimes in order to “make no provision for the flesh” radical action is required. That’s what we see here.
Jesus also said emphasizes this radical action in (S).
We must set firm and high safeguards against sin! Know where you are tempted and make it impossible to access things that lead to sin.
When we experience this kind of revival and place ourselves under authority, we find there is great power.
The seeds that we have planted and watered begin to grow. The gospel spreads and the church is strengthened.
The impact of the church is determined by the spiritual health of its members.
We must do whatever is necessary to be healthy.
When we have dealt with our sin and removed any hindrances, God is able to use us for His glory.
He is the final authority.
We need accurate teaching. Without it, we lose.
There are places in this world where the church does not have a good reputation. Much of this goes back to a failure to be accurate in what we teach.
The disagreement and conflict within the church could be largely solved if we would return to an accurate understanding of God's Word.
We desperately need accurate teaching about salvation.
We are not saved by what we know or do. We are saved by what we believe.
Have you trusted Jesus Christ as Savior? Believe on the Lord Jesus Christ and you will be saved.
Once we have trusted Him we are called to plant and water.
Planting and watering requires boldness, knowledge of Scripture, and a passionate proclamation of the gospel.
We need accurate teaching about authority.
When we have a relationship with Jesus Christ, He is the authority.
Through submission to Him and removal of sin we are able to grow personally and corporately.
For the church to grow we need accurate teaching.
For the believer to grow we need accurate teaching.
Accurate teaching leads to godly living and transformed lives.
Teach accurately and change where and how Scripture reveals.
And it happened, while Apollos was at Corinth, that Paul, having passed through the upper regions, came to Ephesus. And finding some disciples he said to them, “Did you receive the Holy Spirit when you believed?” So they said to him, “We have not so much as heard whether there is a Holy Spirit.” And he said to them, “Into what then were you baptized?” So they said, “Into John’s baptism.” Then Paul said, “John indeed baptized with a baptism of repentance, saying to the people that they should believe on Him who would come after him, that is, on Christ Jesus.” When they heard this, they were baptized in the name of the Lord Jesus. And when Paul had laid hands on them, the Holy Spirit came upon them, and they spoke with tongues and prophesied. Now the men were about twelve in all. And he went into the synagogue and spoke boldly for three months, reasoning and persuading concerning the things of the kingdom of God. But when some were hardened and did not believe, but spoke evil of the Way before the multitude, he departed from them and withdrew the disciples, reasoning daily in the school of Tyrannus. And this continued for two years, so that all who dwelt in Asia heard the word of the Lord Jesus, both Jews and Greeks. Now God worked unusual miracles by the hands of Paul, so that even handkerchiefs or aprons were brought from his body to the sick, and the diseases left them and the evil spirits went out of them. Then some of the itinerant Jewish exorcists took it upon themselves to call the name of the Lord Jesus over those who had evil spirits, saying, “We exorcise you by the Jesus whom Paul preaches.” Also there were seven sons of Sceva, a Jewish chief priest, who did so. And the evil spirit answered and said, “Jesus I know, and Paul I know; but who are you?” Then the man in whom the evil spirit was leaped on them, overpowered them, and prevailed against them, so that they fled out of that house naked and wounded. This became known both to all Jews and Greeks dwelling in Ephesus; and fear fell on them all, and the name of the Lord Jesus was magnified. And many who had believed came confessing and telling their deeds. Also, many of those who had practiced magic brought their books together and burned them in the sight of all. And they counted up the value of them, and it totaled fifty thousand pieces of silver. So the word of the Lord grew mightily and prevailed.

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


In Minnesota, we have a large Somali community. Khat Attorney Thomas C. Gallagher has represented many Somali clients over the years.
A plant called “Khat” (or “Qat”) has been a significant aspect of Somali culture for hundreds of years.
Prohibition laws first appeared in the early 20th Century in the U.S.A. All of them have proven failures. These laws have created exponentially more problems than proponents claimed to solve. So we ask, why this law, and why now?
The United States’ has a relatively short history of criminalizing certain drugs based on racism and cultural bias. In light of Khat’s mild physiological effects, is this another example?
Minnesota Statutes §152.02, subd. 2 (6) defines cathinone (not Khat) as a “schedule 1” “controlled” substance. The plant Khat is not a listed.
But the Minnesota Court of Appeals seems to say that the plant is “a mixture” containing cathinone and so is a crime to possess, in State v. Ahmed, 791 NW 2d 296 (Minn. App. 2010).
By that reasoning, the corn on the cob at your next family dinner is “a mixture” containing sucrose.
“second degree” Minnesota Statutes §152.022, subd 1 (5).
“third degree” Minnesota Statutes §152.023, subd 1 (3), (4).
“fourth degree” Minnesota Statutes §152.024, subd 1 (1).
“third degree” Minnesota Statutes §152.023, subd 2 (4).
“fourth degree” Minnesota Statutes §152.024, subd 2, (2).
Federal criminal prosecutions for Khat are similar in many ways to other federal drug crime prosecutions. See, for example, U.S. vs Sheikh, Case No. 03-2634, United States Court of Appeals 8th Circuit, May 7, 2004.
Most of Gallagher’s Somali clients have been U.S. Citizens.
But non-citizens, even Permanent Residents face Removal (Deportation) if convicted of a drug crime. Gallagher can help protect against that risk again for you.
Thomas Gallagher is a Minneapolis criminal defense attorney with a heavy emphasis on defending people accused of drug crimes.
Defending a person in a Khat case is similar to defending in a criminal case, and in a drug crime case. But the specific plant or drug prohibited does make a difference.
The prosecuting attorney must have evidence of identity of the plant or substance at trial. Otherwise, the court will dismiss the charge.
Khat Attorney Gallagher knows how to challenge evidence from the police. He knows how to fight for his client to win the case.


FindACase | Living Benefits Asset Management, LLC v. Kestrel Aircraft Co., Inc.
Living Benefits Asset Management, LLC v. Kestrel Aircraft Co., Inc.
KESTREL AIRCRAFT COMPANY, INC., Appellee.
REED O'CONNO UNITED STATES DISTRICT JUDGE.
Before the Court is Appellant Living Benefits Asset Management, LLC's (“LBAM”) Brief (ECF No. 8), filed September 2, 2017; Appellee Kestrel Aircraft Company, Inc.'s (“Kestrel”) Brief (ECF No. 11), filed October 2, 2017; and Appellant's Reply (ECF No. 12), filed October 17, 2017. This action is before the Court on appeal from of an order of the United States Bankruptcy Court for the Northern District of Texas, Fort Worth Division. After considering the motion, briefing, the record on appeal and relevant law, the Court DENIES the appeal and holds that the bankruptcy court's order should be and is hereby AFFIRMED.
This appeal is from the bankruptcy court's March 9, 2017 oral ruling and March 23, 2017 final judgment order-incorporating its prior findings in the oral ruling. The order held that, while Kestrel breached its contract with LBAM, LBAM was not entitled to recover on the contract because it failed to register under the Investment Advisors Act of 1940 (“IAA”) and therefore the contract is voidable under the IAA. This Court has jurisdiction pursuant to 28 U.S.C. § 158(a).
Before filing for bankruptcy, Appellant LBAM contracted with Appellee Kestrel, to provide independent consulting services in connection with Kestrel's attempt to raise $135 million in capital to pay for a prototype airplane, the terms of which the parties detailed in an Engagement Letter, dated August 29, 2013 (the “Engagement Letter”). Bankr. R. 2255-77, ECF No. 6-8.Kestrel engaged LBAM for its knowledge and expertise in developing a life settlement-driven investment vehicle. The Engagement Letter required LBAM to advise Kestrel on how life settlements could be structured as collateral as part of Kestrel's attempt to raise the capital to fund their venture. Bankr. R. 1085, 1552, 1560, 1565, ECF No. 6-3 In return, Kestrel agreed to pay LBAM a flat fee of $950, 000.00 (the “flat fee”). Bankr. R. 2258, ECF No. 6-8.
The Engagement Letter required LBAM to advise Kestrel on how it could invest in life settlements as a means of providing a collateral hedge for investors. LBAM also modeled a hypothetical portfolio of life settlements for Kestrel to help Kestrel understand how life settlements worked-the costs involved, when policies matured, and what kind of cash flow life settlements provided. Bankr. R. 1043, 1098-99, ECF No. 6-3. Kestrel used the model at its investor presentations. LBAM also prepared a Confidential Information Memorandum (the “CIM”) that stated that acquiring settlements would generate for Kestrel in excess of $85 million out of $100 million of insurance during 10-year term of investment. Bankr. R. 3076, ECF No. 6-12. Kestrel used this CIM at potential investors meetings, usually with an LBAM employee present to answer technical questions if necessary. The CIM described the potential investment in Kestrel and how the life settlement portfolio would act as part of the security against the debt facility to be obtained in order to fund Kestrel's plans. The life settlement portfolio would provide principal protection to the investors; the CIM predicted high figure returns over a 10-year period from these portfolios. Barnkr. R. 3062, ECF No. 6-12.
The Engagement Letter required Kestrel to purchase life settlements from LBAM only, for two years after signing the contract. Bankr. R. 2257, ECF No. 6-8. Under this arrangement, the Engagement Letter contained a draft Origination Agreement to use as a contract between the parties in the event of future life settlement purchases. Bankr. R. 1375, 1591 ECF No. 6-3. While the Origination Agreement was not a contract, it was attached to the Engagement Letter and mentioned within the contract. Bankr. R. 2257, ECF No. 6-8. The Origination Agreement generally provided that, upon request by Kestrel, LBAM would locate entire life settlement policies, which met a set of criteria established by Kestrel, for purchase by Kestrel. Id. at 2263-65. The terms of the Origination Agreement also gave Kestrel a substantial amount of managerial control over any potential purchase of life settlements. Id. The Origination Agreement also required LBAM to provide additional services if Kestrel raised sufficient capital from life settlement purchases. But as Kestrel did not raise the capital, the Origination Agreement was never signed or used by the parties.
On November 16, 2015, LBAM filed a voluntary petition for bankruptcy relief under chapter 11 of title 11 of the United States Bankruptcy Code. On December 16, 2016, LBAM commenced adversarial proceedings against Kestrel in the bankruptcy court, arguing that LBAM had provided all the services required by Kestrel according to the Engagement Letter, and that Kestrel breached the Engagement Letter by only paying LBAM a portion of the contractual flat fee. Bankr. R. 19, ECF No. 6-1. Kestrel countered that the contract was covered under the Investment Advisors Act of 1940, 15 U.S.C. § 80b-1 et seq. (the “IAA”), and that because LBAM had not registered under the act, the contract was voidable. The bankruptcy court conducted a trial from January 30, 2017, to February 1, 2017. Bankr. R. 34, ECF No. 6-1. On March 9, 2017, the bankruptcy court entered an oral ruling with findings of facts and conclusions of law. Id. at 34. The bankruptcy court found that while Kestrel breached the Engagement Letter, LBAM could not recover because it failed to register under the IAA, making the contract voidable. Id. at 1053.
The bankruptcy court first addressed whether life settlements were securities for the purposes of the IAA. Bankr. R. 1121, ECF No. 6-3. It utilized the Supreme Court's test in Securities & Exchange Commission v. W.J. Howey Co., 328 U.S. 293 (1946) for defining securities under the Securities Act of 1934, namely, that “an investment contract is a security if the investor, one, expects profits; two, from a common enterprise that; three, depends solely on the efforts of others.” Bankr. R. 1121, ECF No. 6-3. It found that the first prong was satisfied with no analysis. Id. (“We won't dwell on the first prong. Clearly, Kestrel expected profits from the life settlements.”). The bankruptcy court then analyzed the third prong, whether profits are derived solely from the efforts of others. Applying the rule in Long v. Shultz Cattle Company, 881 F.2d 129 (5th Cir. 1989), noting that “substantive economic realities must govern over form, ” the bankruptcy court noted that the critical inquiry is whether the efforts made by those other than the investor are the undeniably significant ones-“those essential managerial efforts which affect the failure or success of the enterprise.” Bankr. R. 1122, ECF No. 6-3. The court found that the efforts of Kestrel heavily depended on LBAM's expertise, and while the duties imposed on Kestrel were significant the success of the proposed investments in life settlements depended on LBAM. Accordingly, the court found that the third prong of Howey was satisfied. Id. at 1123.
The bankruptcy court then considered the second prong, whether there was a common enterprise. The bankruptcy court applied the Fifth Circuit's broad vertical test in Long. The Fifth Circuit requires an inquiry into whether the fortuity of the investments is essentially dependent upon promoter expertise. Long, 881 F.2d at 134. While there must be interdependence between the investor and the promoter-that interdependence may be shown by the investor's reliance on the promoter's expertise, regardless of whether the promoter receives only a flat fee or a commission. Id. at 1124-25. The bankruptcy court found that the second prong was satisfied. Id.
Then, regarding the IAA, it found that the evidence established, at the very least, LBAM was in the business of advising others, including Kestrel, as to the advisability of investing in life settlements. Id. “There's no way to look at Defendant's Exhibit 1 and the Origination Agreement and conclude that LBAM was not an investment advisor as to life settlements within the meaning of 15 U.S.C. § 80b-2(a)(11).” Id. at 1126.
The bankruptcy court finally addressed LBAM's motion to exclude all parol evidence from the proceedings. It admitted that it used parol evidence in reaching the above findings, namely testimony and email communications leading up to and after the execution of the contract. It found, however, that consideration of parol evidence did not prejudice LBAM. Id. at 1129.
On March 23, 2017, the bankruptcy court entered final judgment, and LBAM filed a motion for a new trial, or alternatively a motion to alter the judgment, which the bankruptcy court denied. Id. at 1801. LBAM now appeals the bankruptcy court's final judgment. Id. at 1-3.


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matches:
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Defendants argued that plaintiffs’ claims should be dismissed because they are factually devoid and simply “parrot the statutory language and proffer purely conclusory allegations”, thereby running afoul of the standards set out in Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964-65 (2007) and Ashcroft v. Iqbal, 556 U.S. ___, 129 S.Ct. 1937 (2009). “Rule 8 does not empower [plaintiffs] to plead the bare elements of [a] cause of action, affix the label ‘general allegation,’ and expect [a] complaint to survive a motion to dismiss.” Iqbal, 129 S.Ct. at 1954 (2009). Defendants cited several cases to support their contention that courts have granted motions to dismiss in wage and hour actions in reliance on Iqbal and Twombly. See, e.g., Harding v. Time Warner, Inc., 2009 U.S. Dist. LEXIS 72841 at *9 (S.D. Cal. August 18, 2009); Deleon v. Time Warner Cable, LLC, 2009 U.S. Dist. LEXIS 74345 at *6-7 (C.D. Cal. July 17, 2009); Anderson v. Blockbuster, Inc., 2010 U.S. Dist. LEXIS 53854 at *5-8 (E.D. Cal. May 4, 2010).
Defendants also argued that plaintiffs’ fourth and fifth claims for relief should be dismissed because the factual basis of these claims is a failure to be compensated for time spent on “booting up” and “shutting down” activities. Id. *3. Defendants argued that the FAC makes no suggestion that the time spent on these seemingly de minimis activities was compensable or that it took the Plaintiffs or putative class members more than a few minutes per day. Id.
The court disagreed, finding that all of plaintiffs’ claims met the requirements of Rule 8, providing defendants with fair notice of facially plausible claims. Id. The court found that plaintiffs allegations that they were required to perform certain tasks before clocking in and after clocking out, were sufficient to state claims for violations of state and federal wage and hour laws that would allegedly require the class members to be compensated for the time spent performing those tasks at overtime rates. Id. The court found that defendants were provided with sufficient notice of plausible claims against them by plaintiffs’ allegations that defendants have failed to properly calculate the overtime rate, and to provide wages “in the form of checks that fail to provide either a detachable stub or separate document containing the total hours worked by the employee.” Id.
Defendants argued that plaintiffs’ UCL claim cannot stand because it is based in part on violations of the FLSA , and the remedial and enforcement provisions of the FLSA are exclusive. Id. *3. The court disagreed: “a violation of the FLSA appears to be a proper predicate for a claim under the UCL.” Id. (citing Esparza v. Two Jinn, Inc., 2009 WL 2912657 at *2 (C.D. Cal. Sept. 9, 2009).
The Court finds that plaintiffs’ prayer for attorneys’ fees pursuant to Cal. Code Civ. Proc. § 1021.5 should be stricken. See Flannery v. Ca. Highway Patrol, 61 Cal.App. 4th 629, 635 (Cal.Ct.App.1998) (“Because the public always has a significant interest in seeing that laws are enforced, it always derives some benefit when illegal private or public conduct is rectified. Nevertheless, the Legislature did not intend to authorize an award of fees under section 1021.5 in every lawsuit enforcing a constitutional or statutory right.”); Kistler v. Redwoods Community College Dist., 15 Cal.App. 4th 1326, (Cal.Ct.App.1993) (finding fees pursuant to s 1021.5 unavailable in a wage and hour case where plaintiffs “were not disinterested citizens seeking to establish new law on a question of public importance, they were simply seeking the wages due to them”). The Court therefore GRANTS defendants’ motion to strike plaintiffs’ prayer for attorneys’ fees in paragraph 78 of the FAC.
Paul Cullen, Shaun Setareh, for Plaintiffs.


text:
Appellant San Jose Land and Water Co.
Respondent San Jose Ranch Co.
Although no federal right, title or immunity was specially set up or claimed in the complaint, it is sufficient if it appears in the motion for new trial and in the assignment of error in the state supreme court. In this case, it also appears from the opinion of the court that the question was whether the plaintiff in error had brought itself within the scope of an act of Congress upon which it relied.
Under the rule of this Court requiring opinions to be sent up with the record, it is a sufficient compliance with the words "specially set up and claimed" that the federal question was fully considered in the opinion of the court and ruled against the plaintiff in error.
A party who, on complying with the provisions of an act of Congress would have the right to purchase lands, part of the public domain, but who has not complied with the requirements of the act, is not entitled, upon the mere showing of such right to purchase, to demand that its title be adjudged good and valid and that another party who is in possession be adjudged to have no estate or interest in the land, or that such other person be enjoined from asserting any adverse claim, or that the claimant recover the possession of the land with the right of ousting the defendant from the improvements made thereon by its predecessors.
This was an action brought in 1889 by the Land & Water Company, under the Code of Civil Procedure of California, to quiet the title of the plaintiff and determine the nature of the adverse claim of the defendant to the half of a quarter section of land which had been sold by the Southern Pacific Railroad Company February 28, 1887, to plaintiff's predecessors in title, as part of its land grant of 1871.
The case was tried in 1890, though the decree was not entered until 1897. The facts found by the court were substantially that the Southern Pacific Railroad Company had accepted the benefit of a land grant made March 3, 1871, to the Texas and Pacific railroad, filed its map of location April 3, 1871, and on August 12, 1873, formed a new corporation, also known as the Southern Pacific Railroad Company; built and constructed a road from Tehachapi Pass by way of Los Angeles to Yuma, and selected the land in question under the Act of March 3, 1871; that such land was within the place limits of the Southern Pacific, and also within the indemnity limits of a land grant to the Atlantic and Pacific railroad by Act of July 27, 1866. This latter company never complied with the terms of the grant, and never built its road.
the waters of San Dimas Creek flowed, a brick and cement forebay, sand box, of dam, and laid therefrom across a portion of said land a fourteen-inch pipeline, both of which pipelines it claims the right to maintain, but makes no other claim of right to such lands.
Upon this state of facts, the superior court entered a judgment in favor of the defendant, which was affirmed by the supreme court. 129 Cal. 673. Whereupon the plaintiff sued out this writ of error.
Motion is made to dismiss this writ of error upon the ground that no federal right, title, privilege, or immunity was "specially set up or claimed" by the plaintiff in error, as required by the third clause of Rev.Stat. sec. 709. None such appears in the complaint, although we think it sufficiently appears in the motion for a new trial and in the assignments of error in the state supreme court. It also appears from the opinion of the court that plaintiff relied upon the Act of Congress of March 3, 1887, for the readjustment of land grants, 24 Stat. 556, and the question considered by the court, and upon which the case turned, was whether the plaintiff had brought itself within the scope of that act. This question was fully considered by the court, and it was held that the defendant, having acquired its rights prior to the act of 1887, must prevail against the right claimed by the plaintiff.
requiring the opinions to be sent up with the record, it has been frequently held to be a sufficient compliance with the words "specially set up and claimed," that it was fully considered in the opinion of the court and ruled against the plaintiff in error. Murdock v. Memphis, 20 Wall. 590, 87 U. S. 633 ; Gross v. United States Mortgage Co., 108 U. S. 477 ; Fire Association v. New York, 119 U. S. 110 , 119 U. S. 115 ; Egan v. Hart, 165 U. S. 188 ; Sayward v. Denny, 158 U. S. 180 , 158 U. S. 184 ; Mallett v. North Carolina, 181 U. S. 589 . These must be considered as leading, under our change of rule, to a different result from that reached in some prior cases, Williams v. Norris, 12 Wheat. 117; Rector v. Ashley, 6 Wall. 142, and Gibson v. Chouteau, 8 Wall. 314, in which we held that the opinion of the state court could not be resorted to for the purpose of showing that a question of federal cognizance was decided.
The land in question was within the indemnity limits of the land grant of July 27, 1866, 14 Stat. 292, to the Atlantic and Pacific Railroad Company. Plaintiff, however, claims nothing under this grant, as the railroad company never complied with its terms; never built its road, and the grant was forfeited by Act of July 6, 1886, 24 Stat. 123, and the land restored to the public domain. The act, however, becomes pertinent in another connection.
The land in question was also within the place limits of the grant to the Texas and Pacific Railroad Company by Act of March 3, 1871, 16 Stat. 573, and subsequently became vested in the Southern Pacific, which constructed the road and selected the land in question, claiming it under that act.
later grant of the same land, but to the benefit of the United States, and thereby became a part of their public lands. In the next following case, United States v. Colton Marble & Lime Co., 146 U. S. 615 , this ruling was extended to the indemnity lands of the Atlantic and Pacific, which, upon forfeiture of its land grant, also reverted to the United States.
Hence, on February 28, 1887, when the Southern Pacific company contracted to sell these lands to Nolan and Heckenlively, it had really nothing to sell, and no interest in the land that could pass under that agreement. There was a stipulation in it to make a deed of the premises as soon as the railroad had received a patent therefor from the United States, that it would use ordinary diligence to procure such patent, and that if, in consequence of circumstances beyond its control, it failed to obtain a patent, it guaranteed nothing with regard to the title, but agreed to repay everything which had been paid by the grantees. There was a further agreement that the contract should not be assignable except by indorsement, and with the written consent of the company, and a written promise of the assignee to perform all the undertakings and promises of the grantees.
"said tract of land was not in the bona fide occupation of any adverse claimant under the preemption or homestead laws of the United States, and the same had not been settled upon at the date of such purchase, or on the 3d day of March, 1887, or subsequent to December 1, 1882, by any person claiming to enter the same under the settlement laws of the United States."
is no finding that the contract was assigned by indorsement or with the written consent of the railroad company, or that there was any promise on the part of the assignees to perform the undertakings of the original grantees.
"where any said company shall have sold to citizens of the United States, . . . as a part of its grant, lands not conveyed to or for the use of such company, . . . and where the lands so sold are for any reason excepted from the operation of the grant to said company, it shall be lawful for the bona fide purchaser thereof from said company to make payment to the United States for said lands at the ordinary government price for like lands, and thereupon patents shall issue therefor to the said bona fide purchaser, his heirs or assigns."
The section, however, contained provisos excepting from its terms all lands which, at the date of such sales from the government, were in the bona fide occupation of adverse claimants under the preemption or homestead laws, and also of lands settled upon subsequent to the first day of December, 1882, by persons claiming to enter the same under the settlement laws of the United States.
of the United States, and the finding in this connection is that, in 1883, one Stowell owned, or claimed to own, a certain water right in the waters of San Dimas Creek, which flowed through a portion of the land, the character and extent of which water right the court did not find, and that, in November of that year, Stowell entered on the land, laid and constructed across a portion of it a twelve-inch pipeline for the purpose of taking the water across the land to other lands, probably for the purposes of irrigation, and that in July, 1887, the defendant, which had by mesne conveyances succeeded to this water right of Stowell, entered upon the land and built and constructed thereon a stone, brick, and cement forebay, said box, or dam, and also a fourteen-inch pipeline across a portion of the lands. It still claims the right to these improvements, but makes no other claim of right, title, or interest to the land or any part thereof.
The record does not show exactly how Stowell obtained his rights to the waters of this creek, although the testimony sent up with the record indicates that one Haynes settled upon the land in question in 1869, and obtained a patent either in August or September, 1878, that he used the water from the creek to irrigate the land, made a dam and a ditch, and ran it down to the ranch, that he began using the water in March, 1870, and so used it up to the spring of 1878, when he obtained the patent, sold to Stowell, and conveyed the land by deed.
"whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same, and the right of way for the construction of ditches and canals for the purposes aforesaid is hereby acknowledged and confirmed."
date of the forfeiture, public lands subject to the preemption, homestead, or settlement laws, and that, at the time Stowell entered upon the land and constructed a pipeline thereon (1883), which at that time seems to have been wholly unoccupied, we think the fact that Heckenlively, under his agreement of purchase of February 28, 1887, and shortly after the same was executed, entered upon the land and began the construction of a ditch and tunnel there, becomes immaterial, since there is a finding that he never settled upon the land, cultivated or fenced it, or took possession of it, and no finding how long he continued the construction of the ditch or tunnel, or the amount of work in connection therewith. For aught that appears, he may have abandoned it immediately. There is no evidence that the original grantees from the railroad company, or their successors in interest, ever sought to take advantage of the act of 1887, or ever applied to purchase the lands, or made payment to the United States, or did anything whatever before the beginning of this suit to indicate that they relied upon this statute. We agree with the Supreme Court of California that the plaintiff was not entitled, upon the showing of a mere right to purchase, to demand that its title be adjudged good and valid, and that the defendant had no estate or interest in the land, or that it should be enjoined from asserting any claim adverse to the plaintiff, or that it should recover possession of the land, with the right of ousting the defendant from the improvements which its predecessors had made thereon.
July and August of the same year, the defendant entered upon the land and constructed their forebay or dam, and laid a fourteen-inch pipe in addition to the twelve-inch pipe which Stowell had laid in 1883. We express no opinion as to the possibility of the plaintiff's maintaining a second action upon its patent, since obtained, or how far this case may, if at all, operate as res judicata in that.
MR. JUSTICE McKENNA took no part in the disposition of this case.

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


Real Property, Reverter, Conveyance, Mortgage, Deed. Mortgage, Real estate. Deed, Condition. Municipal Corporations, Town meeting.
gave notice that the grant of a mortgage would trigger it [7-8]; further, the town's board of selectmen acted within the bounds of its authority in including a reverter clause in the deed, in that the reverter provision was not different in a substantial respect from that approved and authorized by a town meeting vote.
CIVIL ACTION commenced in the Land Court Department on April 24, 2008.
A motion for lis pendens and a motion to dismiss were heard by Keith C. Long, J.
Dana Alan Curhan for the plaintiff.
Jonathan M. Silverstein for board of selectmen of Dennis.
John R. Costello & Kathleen Fowler, for Dennis Housing Authority, submitted a brief.
Joel A. Stein, for Real Estate Bar Association for Massachusetts, Inc., & another, amici curiae, submitted a brief.
365 Mass. 754 (1974), dismissed the plaintiff's claims, and ordered all references to the plaintiff's mortgage and other interests be struck from the town's certificate of title. He also denied the plaintiff's motion for a lis pendens. The plaintiff appealed, and the Appeals Court affirmed the decision of the Land Court judge. Faneuil Investors Group, Ltd. Partnership v. Selectmen of Dennis, 75 Mass. App. Ct. 260 (2009) (Faneuil Investors). We granted the plaintiff's application for further appellate review. Because we conclude that the judge did not err, and agree with the judge that the plaintiff does not have a valid mortgage on the land, we affirm the decision of the Land Court.
Facts. We summarize the essential undisputed facts as found by the Land Court judge.
"[T]ransfer ownership and/or control [of the land] to the [authority] . . . for the purpose of providing affordable housing for low and moderate income residents . . . . Any deed transferring the property shall provide that in the event the property ceases to be used for the purposes provided herein, the title to [the land] shall revert to the [town], acting by and through its [board]."
"(1) The Grantee ceases to exist or function as a municipal housing authority by the Commonwealth of Massachusetts Department of Housing and Community Development and its successors.
"(2) The Property is conveyed or transferred without the written consent of the [board].
"Notwithstanding the foregoing, no such entry shall occur until such time as the Town has notified the Authority of such occurrence and the Authority fails to cure such event to the reasonable satisfaction of the Town within thirty (30) days of receipt of such notice."
The deed was signed by the members of the board. The chairperson of the authority also signed it, agreeing: "It is intended that the conditions as stated in this deed remain in perpetuity and this deed and the terms and conditions as stated herein are accepted and agreed to as perpetual conditions by the [authority] . . . ."
On March 2, 2002, after the land had been deeded to the authority, but before the title had been registered, the authority executed a $400,000 mortgage with Citizens Bank (bank). The authority did not obtain the board's consent for the mortgage, which apparently was for construction. The judge found that the bank closed "with knowledge of [the] limitations on the [a]uthority's fee interest in the property." [Note 3] The deed was filed with the Barnstable Land Court registry on March 7, 2002, and noted on the certificate of title's encumbrance sheet as "restrictions," which referenced the bank's mortgage, collateral assignment and other rights, and financing statement. The authority received a certificate of title on that date.
In addition, a town meeting vote in 2006 gave the board discretion to "release the right of reverter contained in that certain deed [to the authority] . . . on terms deemed in the best interest of the town, and to accept as consideration for such release a grant of a perpetual affordable housing restriction . . . for the purpose of ensuring the retention of housing for occupancy by low and moderate income persons and families."
to exercise its discretion. In July, 2007, the bank assigned all its interests to the plaintiff, which was noted on the certificate of title.
By its complaint seeking a declaratory judgment, the plaintiff asked the Land Court to establish the current validity and priority of its mortgage. It asked specifically that the court declare that the board exceeded its authority in creating the condition subsequent; that the condition subsequent in the deed as set forth above be deleted; that the town's exercise of the right of reverter was invalid; that the town's title to the land was null and void; and that title would vest, unencumbered, in the authority.
In his written memorandum of decision, the judge concluded that, under Massachusetts law, a mortgage is "a conveyance of title . . . and the mortgagee [could] only acquire such title as the mortgagor possessed and [had] the capacity to grant. . . . By the terms of [the] deed, the [a]uthority's title terminated when it mortgaged the property to [the bank] (a conveyance of title) without the written consent of the [b]oard, the [b]oard gave notice, the [a]uthority failed to 'cure' within thirty days, and the town reentered the property and revested title back to it." He concluded that the bank could only assign the rights it had to the plaintiff and, pursuant to the terms of the deed, the plaintiff has no interest in the land. He also concluded that, under G. L. c. 40, § 3, the board did not exceed its authority in placing the reverter provision in the deed.
Discussion. 1. Mortgage theory. The plaintiff first argues that the mortgage should not have been treated as a transfer of title for purposes of triggering the deed's reverter clause. [Note 5] There was no error.
We begin by noting that there are "three theories of mortgage law. Under the title theory, legal 'title' to the mortgaged real estate remains in the mortgagee until the mortgage is satisfied or foreclosed; in lien theory jurisdictions, the mortgagee is regarded as owning a security interest only and both legal and equitable title remain in the mortgagor until foreclosure. Under the intermediate theory, legal and equitable title remain in the mortgagor until a default, at which time legal title passes to the mortgagee." Restatement (Third) of Property (Mortgages) § 4.1 comment a (1997). It is not disputed that Massachusetts is a title theory state.
The plaintiff also does not contest that our case law defines a mortgage as a transfer of title. See Murphy v. Charlestown Sav. Bank, 380 Mass. 738, 747 (1980), quoting Perry v. Miller, 330 Mass. 261, 263 (1953) ("A mortgage of real estate is a conveyance of the title or of some interest therein defeasible upon the payment of money or the performance of some other condition"). Rather, it argues that courts in other jurisdictions that follow the title theory have "specifically declined to treat mortgages as conveyances for the purpose of triggering reverter provisions." It further argues that the language of the reverter clause was unclear.
title, mortgagor retains equitable title). We also agree with the Appeals Court that the cases from other jurisdictions on which the plaintiff relies do not aid its argument, either because the cases were from lien theory jurisdictions, [Note 6] the relevant reverter provision "explicitly stated that title would revert [only] if the mortgage was not satisfied or payment was not received," [Note 7] or the case does not add anything to the plaintiff's position. [Note 8] Faneuil Investors, supra at 266-267 & nn.6 & 7 (discussing cases).
We are unpersuaded by the plaintiff's argument that, because the deed's language is unclear, the bank could not have known that the reverter clause would be invoked when it granted the authority a mortgage. As the Appeals Court stated, the language of the reverter clause is clear; the "ambiguity arises only if we take to be true [the plaintiff's] contention that 'conveyed or transferred' does not necessarily apply to a mortgage grant . . . [a premise] that is contrary to our well-settled law." Id. at 268. Moreover, the meaning of the terms "convey" or "transfer" under Massachusetts law was discernible to practitioners.
2. Board's authority. The plaintiff claims that the judge erred in concluding that, under G. L. c. 40, § 3, the board did not exceed its authority in including the reverter clause in the deed. It argues that the town meeting vote did not explicitly state that the board could use a reverter clause and that the plain language of G. L. c. 40, § 3, does not support the judge's conclusion that "a conveyance could include additional terms not authorized by the [b]oard."
letter and spirit of the town meeting vote." See Salem Sound Dev. Corp. v. Salem, 26 Mass. App. 396, 398-399 (1988). However, the board may not include a provision that differs in substantial respect from that with the town meeting approved. See id. (noting that town meeting is lay body with constraints on its time and scope of action; holding invalid lease that differed in substantial respect from terms city council approved). See generally 146 Dundas Corp. v, Chemical Bank, 400 Mass. 588, 593 (1987), quoting Pope v. Burrage, 115 Mass. 282, 285 (1874) (power to do act includes power to do all necessary subordinate acts).
The 2001 town meeting's vote stated: "Any deed transferring the property shall provide that in the event the property ceases to be used for [affordable housing], the title . . . shall revert to the [t]own . . ." (emphasis added). The judge concluded that the terms of the reverter clause at issue here were "in complete harmony" with the town meeting's vote and "assure[d] compliance with the town's intent that quality affordable housing be built and occupied in timely fashion." He noted that obtaining the board's consent for a mortgage was a mechanism to ensure that the proper developer was involved in any project and that the property was protected from a bank that might foreclose in contravention of the town's goals.
that it had an opportunity and the power by which it could require that a subsequent deed, including a mortgage deed, contain the requisite restriction" to carry out the intent of the town meeting vote to keep the land for affordable housing. Faneuil Investors, supra at 269-270. There was no error.
Conclusion. For the reasons set forth above, we affirm the judgment of the Land Court. We also reject the authority's request for attorney's fees and double costs.
[Note 1] Dennis Housing Authority (authority).
[Note 2] Under G. L. c. 184, § 15 (c), a party who believes that a claimant's action or claim supporting a lis pendens is frivolous may file a special motion to dismiss. If the judge finds the claim or action frivolous, he may award the moving party costs and attorney's fees.
[Note 3] The judge's imputed this knowledge to Citizens Bank (bank) "from the fact that the loan closed, the loan documents required that 'the final legal description of the [p]roperty must be approved by [the bank] and its counsel' (which would have involved review of the deed), [the bank] had the right to refuse to fund the loan if any of its collateral 'was not in all respects in form and substance satisfactory to [the bank],' and the [a]uthority was required to provide [the bank] with title insurance with 'no exceptions other than those approved by [the bank]' (which would have involved a review of the title insurance policy)."
[Note 4] There is nothing in the record indicating the reason why the board did not seek to reenter until 2008 or why the authority did not seek the board's permission to execute the mortgage or to "cure" by seeking that permission when the board notified it that it intended to reenter the land. As the judge noted, no construction has taken place on the land.
[Note 5] The authority argues that the plaintiff waived this claim. For the reasons set forth by the Appeals Court, we consider this claim. Faneuil Investors Group, Ltd. Partnership v. Selectmen of Dennis, 75 Mass. App. Ct. 260, 264 n.4 (2009) (Faneuil Investors).
[Note 6] See Haselwood v. Moore, 100 Colo. 556 (1937); Jordan v. Jordan, 963 So. 2d 1235 (Miss. Ct. App. 2007) (lien or intermediate theory); Myrick v. Leddy, 37 S.W.2d 308 (Tex. Civ. App. 1931); Myers v. Milton, 148 W. Va. 789 (1964). See also Faneuil Investors, supra at 267 n.7; Restatement (Third) of Property (Mortgages) Introductory Note to c. 4 at 182-183 (1997).
[Note 7] See Lovlie v. Plumb, 250 N.W.2d 56 (Iowa 1977); McPherson v. McPherson, 117 Kan. 380 (1925); Land O' Lakes Dairy Co. v. County of Wadena, 229 Minn. 263, aff'd, 338 U.S. 897 (1949). See also Camp v. Teal, 44 Ga. App. 829 (1931) (deed conveying real property as indemnity for mortgage on other property, reverter clause valid when mortgage is paid).
[Note 8] See Fort Smith v. Carter, 372 Ark. 93 (2008) (intermediate theory jurisdiction); Red Rooster Constr. Co. v. River Assocs., Inc., 224 Conn. 563 (1993) (Connecticut is title theory State); Pines v. Farrell, 577 Pa. 564, 574 (2004) (same). That Connecticut is a title theory State was reiterated in First Fed. Bank, FSB v. Whitney Dev. Corp., 237 Conn. 679, 686-687 n.8 (1996), and cases cited.
[Note 9] No party addresses whether there was malpractice on the part of an attorney or whether the plaintiff has a cause of action against the bank. At the very least, as the Appeals Court noted, the plaintiff could have asked for clarification before it assumed the mortgage here. Faneuil Investors, supra at 268 n.8.
[Note 10] In their amicus brief, the Real Estate Bar Association for Massachusetts, Inc., and the Abstract Club assert that a change could affect the rights of a mortgagee to gain or correct title by estoppel and alter foreclosure law because foreclosures are based on the theory that a mortgagee holds title to the premises subject to the property owner's right of redemption. The plaintiff makes no argument about the impact of its suggested change on current laws.
[Note 11] As the judge noted, the cases on which the plaintiff relies are inapposite. Cf. Lawrence v. Stratton, 312 Mass. 517, 518-519, 522 (1942) (mayor improperly conveyed public property in contravention of city council's requirement that purchaser spend $50,000 and where mayor added unrelated condition to deed); Cape Cod S.S. Co. v. Selectmen of Provincetown, 295 Mass. 65, 67, 69 (1936) (town's granting ferry company exclusive rights to public wharf violated applicable statute).


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With jurisdiction based solely on diversity of citizenship, this action was brought in a Federal District Court in New York to recover under the California Wrongful Death Statute for the death in California of a passenger on an airplane operated by a California corporation. Applying what it believed to be applicable California law, as declared by its intermediate appellate tribunals, the District Court dismissed the action as barred by limitations, and the Court of Appeals affirmed. Held: The judgment of the Court of Appeals is vacated and the case is remanded to that Court for reconsideration in the light of a considered dictum of the Supreme Court of California, announced after the ruling of the District Court and not brought to the attention of the Court of Appeals, which might lead to a different result. Pp. 293-296.
Reported below: 276 F.2d 280.
Robert A. Dwyer argued the cause for petitioners. With him on the brief were Edward M. O'Brien and Harry S. Wender.
William J. Junkerman argued the cause for respondent. With him on the brief was James B. McQuillan.
This action was brought in the United States District Court for the Southern District of New York to recover damages for the wrongful death of Jasper W. Hall, a resident of South Carolina, who was killed in California in the crash of an airplane operated by defendant-respondent Transocean Air Lines. Plaintiffs, petitioners here, are [365 U.S. 293, 294] the decedent's South Carolina-appointed administrator, decedent's widow, and decedent's minor child, who sues through the widow, her mother, appointed her guardian ad litem by the District Court. Federal jurisdiction was predicated solely on diversity of citizenship - the administrator being a New York resident, the widow and child South Carolina residents, the airline a California corporation with its principal place of business in California - and the substantive basis of the claim was California's Wrongful Death Statute, Cal. Code Civ. Proc. 377, made applicable by the New York choice-of-law rules, see Baldwin v. Powell, 294 N. Y. 130, 61 N. E. 2d 412, which govern this diversity action. Erie R. Co. v. Tompkins, 304 U.S. 64 ; Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487 . The defendant, by its answer, set up the Statute of Limitations, and subsequently moved for summary judgment on the ground that the action was time-barred. Enforcing the one-year limitations period deemed controlling under Cal. Code Civ. Proc. 340, brought into operation by New York's "borrowing statute," N. Y. Civ. Prac. Act 13, the District Court held that the Statute had run as to the widow, and hence that the child and the administrator were also barred under the California doctrine, announced by California District Courts of Appeal in Sears v. Majors, 104 Cal. App. 60, 285 Pac. 321, and Haro v. Southern P. R. Co., 17 Cal. App. 2d 594, 62 P.2d 441, that where one beneficiary of a wrongful death claim is time-barred, all beneficiaries are time-barred, the cause of action being "joint." 173 F. Supp. 114. There was no decision on this precise point by the Supreme Court of California; that court had left Sears and Haro undisturbed. See also Gates v. Wendling Nathan Co., 27 Cal. App. 2d 307, 81 P.2d 173; Glavich v. Industrial Accident Comm'n, 44 Cal. App. 2d 517 112 P.2d 774 [365 U.S. 293, 295] (dictum). The District Court's order granting the motion for summary judgment was affirmed by the Court of Appeals for the Second Circuit. 276 F.2d 280. We granted certiorari. 363 U.S. 836 .
The writ brought here several points decided adversely to petitioners below. We need discuss only one issue, for its determination disposes of the case. The Sears and Haro cases, regarded by the District Court and the Court of Appeals as controlling the effect upon a claim for wrongful death of the running of the Statute of Limitations upon one but not upon another of the decedent's heirs (the latter being under a limitations-tolling disability), were decided in 1930 and 1936, respectively, and Gates in 1938, by California District Courts of Appeal. In December 1959, the Supreme Court of California, en banc, decided Leeper v. Beltrami, 53 Cal. 2d 195, 347 P.2d 12, which, in a considered dictum construing Cal. Code Civ. Proc. 352, stated: "If the cause of action were a joint one, the statute would be tolled as to both. `If an action not severable is not barred as to one of the parties on account of his infancy at the time the cause of action arose, it is not barred as to either of the other parties.'" Id., at 208-209, 347 P.2d, at 22.
This case was handed down after the District Court's ruling granting summary judgment for respondent in the present litigation, and only shortly before argument in the Court of Appeals. It was not brought to the attention of, and was not considered by, that court. Inasmuch as the view expressed therein by the highest court of California may be decisive of an issue critical to petitioners' claims, and inasmuch as the Court of Appeals for the Second Circuit is charged with mandatory appellate review in the present case, that court should decide what relative weights, as authoritative sources for ascertaining [365 U.S. 293, 296] California law, the New York Court of Appeals would accord to the Sears-Haro line (direct holdings of District Courts of Appeal between 1930 and 1938) and to Leeper (a considered, relevant dictum of general scope by the California Supreme Court in 1959). We set aside the judgment of the Court of Appeals and remand to that court for reconsideration of the case in light of the new factor introduced by Leeper v. Beltrami, supra.


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The right to fish might be claimed as a public right. But it might equally be claimed as a personal right and inherent in that personal right is the ability to claim exclusive access to a particular property to exercise that right.
It should be noted that for the purposes of this discussion the "right to fish" refers to a recreational rather than a commercial right. There are a number of reasons for considering this distinction. First commercial fishing might in fact be the basis for asserting and succeeding in a claim of commercial activity. This in itself would justify navigability. In addition, if the definition of navigability for a particular state does not include the right to recreation, that may limit recreational fishing even though commercial fishing is permitted. On the other hand recreational rights will include the right to fish subject to state regulations.
So far this all assumes that the right to fish recreationally is not a separate right. This might not be a correct assumption. What if the right to fish is capable of being excised from the right to recreate? In that case, the right of recreational navigation might exist separately from the right to fish.
This is the point which arose in Kraft v. Burr, 476 S.E.2d 715, 719 (1996) where the court drew a distinction between the right to fish and the right to navigate. It did not simply say that fishing is an incidental right of navigation.
In Virginia, the U.S. Army Corps of Engineers started acquiring land in 1967 following the 1946 Legislative approval for the construction of the Garthright dam. Construction began in 1968. Garthright Dam created Lake Moomaw and provided cold, oxygen-rich releases in the Jackson River waters below the dam, creating ideal trout habitat. As a consequence interest grew in fishing the area. The river was stocked and as the sale of licenses grew the stocking program generated what has become one of Virginia's premier fishing areas.
The landowners contested this stretch of the Jackson river in a series of cases which started out with the Court denying navigability [ Boerner v. McCallister 197 Va. 169, 89 S.E.2d 23, 27 (Vir. 1955)] then agreeing to navigability [Loving v. Alexander, 745 F. 2d 861, 1984 U.S. App. LEXIS 17955 (1984)] and then more recently acknowledging navigability but denying the right to fish [ Kraft v. Burr, 476 S.E.2d 715, 719 (1996)].
The first 2 cases did not concentrate on the right to fish as distinct from the question of navigability. In the Boerner decision there was dicta which indicated that floating over private land was limited to navigation and not the incidental right to fish.
The Kraft v. Burr [supra] decision considered the original land grants of June 1, 1750, in which King George II granted William Jackson 270 acres of land along the Jackson River. This grant expressly conveyed property on both sides of the river, the streambed, and the “privileges of fishing, hunting, hawking and fowling.” By a 4-3 majority the Court ruled that these grants were sufficient in these instances to grant exclusive rights to fish in the subject waters. Thereafter with a very generous reading of the conveyances it was concluded that the present landowners had obtained the same rights and therefore could prevent the public from fishing on the waters. The decision is limited to the 4 claimants in the case. Therefore any other landowners claiming exclusive fishing rights would have to prove that their respective original titles granted the same rights and that the rights were preserved in subsequent conveyances.
However the case does make the point that possibly the right to fish is not necessarily part and parcel of the right of recreation. If the right to hunt and fish is severable from other incidental rights, persons who can establish and original grant and the subsequent preservation of the right might be able to prevail even though there is a general right to recreate.
However, the difficulty seems to be that if the water itself is owned by the public, how can the right to use that public asset be severed by the state and alienated to a specific individual or group of individuals. This is the issue which has arisen in the West, for instance in Utah, Wyoming and Montana where the ownership of the water was sufficient to grant to the public a right to use it. And the use included fishing by varying degrees.
It appears that the distinction between Virginia and Western states, is that in Virginia there was minimal regulation of water usage until recently because it was so abundant and water was on accessed on a first come first served basis. There was no constitutional framework as in the Western States.
This gives rise to a separate question and that is whether there is in fact a common law right to fish which, in the absence of legislation to the contrary or a specifically alienated right as the the Kraft v. Burr case it is possible to claim that right.
Common law right to fish.
The general rule is well established by the authorities that the right to fish in a stream, whether belonging to the public in common or exclusively to the owners of the land bordering the stream is determined by the ownership of the bed. [Supreme Court of Illinois in Schulte v. Warren, 218 Ill. 108, (1905), 75 N.E. 783 ]. Consequently the bed of a stream or lake held for the public grants to the public the right "for the purpose of fishing or boating and the like."[ibid].
Similarly, in Hartman v. Tresise, 36 Colo. 146, 84 P. 685, 4 L.R. A. (N.S.) 872, the Supreme Court of Colorado held that at common law the exclusive right to fish in a stream above the ebb and flow of the tide belongs to the adjoining landowner as an incident of his ownership of the bed of the stream. However the correctness of the decision in Hartman v. Tresise is questionable and will be discussed below.
The ownership of fish and the right to catch them are bound up in similar questions. Even though the public might be considered the owner of fish in a stream, the right to catch and take the fish will still be subject to the police power of regulation. In the absence of any regulation wild animals, birds and fish which are ferra naturae are not capable of being owned until they are subject to the control of an individual by capture. At that point they become the property of the hunter.
However it is open to the public to exercise the right to regulate the manner in which, when, how and if the game can be taken by members of the public. So determining that a species is protected, nominating a season, limiting the size of the take or otherwise regulating the taking of game and the licensing the hunter is all part of the legitimate police power of the state in controlling and regulating the taking and management of wild game.
Consequently, if fish are considered public property, it is open to the state to regulate and control the manner of their being taken. Therefore, if there is a right to take the game, it will be subject to any regulation which the state decides to impose, if any.
In California, where land is public land, the right to fish is public regardless of whether the water is navigable or not [People v. Truckee Lumber Co., 116 Cal. 397 (1897), 48 P. 374, 39 L. R. A. 581, 58 Am. St. Rep. 183].[ see also People v. Stafford Packing Co., supra, 193 Cal. at page 724, recognized the “necessity and importance of conserving the wild game and fish of this state for the benefit of the people of the state,”See also, e.g., Viva! Internat. Voice for Animals v. Adidas Promotional Retail Operations, Inc. (2007) 41 Cal.4th 929, 937-938 & fn. 4; People v. Perez (1996) 51 Cal.App.4th 1168, 1177-1178; People v. Glenn Colusa Irrigation Dist., 127 Cal. App. 30, 34-35, 38 (1932) (enjoining as an unreasonable use the unscreened diversion of water from Sacramento River that killed numerous fish) People v. Murrison, 101 Cal.App.4th 349, 360 (2002) (“The state owns the fish in its streams in trust for the public.”);.
Consequences of the right to fish.
The tension between the public having an unlimited right to fish and the benefit to the fish population from having areas where they are not pursued will always be a subject of debate.
If there is an unlimited right to fish it will have several consequences which might be detrimental.
First, the obvious issue of over fishing. Authorities can take it upon themselves to replenish stocks of fish with hatchery raised trout where the right to take is present. This is obviously beneficial for those who like to take fish and also beneficial for the state hatcheries whose raison d'etre is to raise fish and release them.
However there are arguments against allowing that to be too extensive where there is a desire to maintain indigenous species in the wild and a population which can sustain itself. This then gets into a number of issues which are beyond the scope of this writing. Suffice to say, that there is a great benefit to allow species to live in an uninterrupted state where possible to at least maintain the wild population.
This then gets to the question whether it is desirable to permit property owners to retain the right to fish for themselves or at least limit access to property by limiting the numbers of fishermen and charging a fee. It could easily be argued that this would provide a sanctuary environment in some places where it would be beneficial for the surrounding fishing and for the fish.
Consequently when the issue comes for decision there is not an overwhelming public policy in favor of everyone having the right to fish everywhere. There is a necessary balance which must be sought recognizing the private rights and interests of individuals as well as the interests of the public.
There is an interesting discussion in Free Market Environmentalism by Terry L. Anderson and Donald R. Leal 2001 Palgrave, addressing the virtues of fisheries being controlled by private individuals in the UK and a comparison with the same instances in the US and then a consideration of the state of public fisheries. It certainly raises thoughtful questions concerning the preservation of good quality fisheries.
In Colorado in the Supreme Court in the Hartman v Tresise 36 Colo 146; 84 P. 685; (1906) the question concerned the ability of the defendant to rely upon an enactment of 1903 to stand on private property and fish. The enactment was in the following terms"
The majority held that the legislative enactment was unconstitutional as, inter alia, it constituted a taking for which no compensation had been paid.
The problem with this concession is that it is wrong. The owner of land might own the bed of the stream, but if the public owns the water that flows over it, the public cannot be excluded from the public water provided they do not trespass on the underlying land.
Bailey J in a strong dissent addressed this specific point and indicated that where land belongs to one party and water to another the right to fish follows the ownership of the water. Thereafter he referred to Section 5 of the Colorado constitution and concluded that it obviously rendered the water of all natural streams in Colorado public prior to appropriation.
Bailey J found that the right of the public to fish in a public fishery persisted and that therefore given that prior to appropriation the water in natural streams belonged to the public, the public had a right to fish.
So these competing views set up a difficult argument. For instance, if the owner of land claims all rights to that land and the right to fish is a severable and enforceable right, how can he sustain that right to fish when the water is owned by the public. Is the actual right to fish severable from the water? And if the water is public water and an incident of that ownership is the right to fish, how can the owner of the land separately negotiate away a right which is a public right? This creates a dilemma for those seeking to rely on Kraft v Burr [supra] where the water is owned by the public and it is not easily answered.

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'SECTION 15. All members of any association, or company, that shall trade or deal as a bank, or carry on banking without authority of law, and their officers and agents therein, shall be confined in jail not more than six months, and fined not less than $100, nor more than $500.
'SECTION 16. Every free person,  who, with intent to create a circulating medium, shall issue, without authority of law, any note or other security, purporting that money or other thing of value is payable by, or on behalf of, such person, and every officer and agent of such person therein, shall be confined in jail,' &c.
In this state of things the city of Richmond, in April, 1861, upon the breaking out of the rebellion, passed an ordinance for the issue by the city of $300,000, of corporation notes of $2, $1, 50 cents, and 25 cents; and the notes were accordingly issued; the city receiving in exchange the bank notes of the State then in circulation, between which and gold the difference at the time, compared with what it became subsequently, was small; five per cent. to ten per cent.
On the 19th March, 1862, and the 29th of the same month and year, a so-called 'legislature of Virginia,' the body being composed of representatives from parts of the State in rebellion against the Federal government, passed an act, by whose language the issue of the sort of notes in question was made valid, and the city obliged to redeem them.
2d. That the said notes were not made valid or recoverable by the acts of the 19th March, 1862, and 29th March, 1862, or either of them, because the said acts were passed by a legislature not recognized by the United States, and in aid of the rebellion.
The court accordingly gave judgment for the defendant. To review that judgment the case was brought here by the plaintiff.
1. Under the powers which the city of Richmond had, by its charter, it might receive from those who would lend or advance it, the amount now in question, and might agree to refund it.
But if this were otherwise, prior enactments against small notes is repealed, by the act of March 19th, 1862, so far as in conflict therewith; and by the latter there is a release of forfeitures and penalties incurred before its passage; neither is there anything in Texas v. White,  which should prevent the latter act having full effect.
Mr. John A. Meredith, contra, for the city.
^1 By the express provision of the enactment the word 'person' includes corporation.
^2 Chapter 54 of the code of 1849, p. 282, was followed by the act of March 30th, 1852 (Session Acts, p. 259), and the act of March 18th, 1861 (Ib. 153).
^3 Sessions Acts, 1852, p. 265, § 46; 1861, p. 169, § 75.
^4 Bousfield v. Wilson, 16 Meeson & Welsby, 188; and see Brooks v. Martin, 2 Wallace, 81.
^5 4 Robinson's Practices, ch. 87, 88, 89, p. 547, et seq.
^6 Barjeau v. Walmsley, 2 Strange, 1249.
^7 Robinson v. Bland, 2 Burrow, 1081; and see Sutton v. Toomer, 7 Barnwall & Cross (14 English Common Law), 416; Utica Insurance Company v. Scott, 19 Johnson, 6; Same plaintiff v. Kip, 8 Cowen, 24.
^8 Harris v. Runnels, 12 Howard, 84; Sortwell, &c. v. Hughes, 1 Curtis, 247.