4. The Interstate Commission shall not bear any costs relating to the defaulting state unless otherwise mutually agreed upon in writing between the Interstate Commission and the defaulting state. Another reason for dental negligence is carelessness. Even if the dentist correctly diagnoses the problem and provides adequate treatment, if he or she acts carelessly while providing dental treatment an injury may result. If an operation is not correctly performed or if dental instruments are not handled properly the patient may suffer an injury. Regardless of the cause of the injury, victims of negligence may be awarded compensatory damages for personal injuries resulting from dental negligence. Sydney plays host to the Family Law Section of the Law Council of Australias 16th National Family Law Conference in October 2014. As you've come to expect from the Dental Hacks, Jason gives an honest account of the good, the bad and the ugly of his startup history. If you've ever thought about starting a practice from scratch or are pretty sure you don't want to.you should listen. Personal Injury Representation From Attorneys You Can Count On Lipscomb County TX. Involved in managing your own caseload dealing with clinical risk claims across all areas including cerebral palsy, oncology, paediatrics and plastic surgery Under EMTALA, hospitals with emergency departments have two obligations. First, if any individual comes to the emergency department requesting examination or treatment, a hospital must provide for an appropriate medical screening examination within the capability of the hospital's emergency department. (42 U.S.C. � 1395dd(a).) Second, if the hospital determines that the individual has an emergency medical condition, it must provide within the staff and facilities available at the hospital for such treatment as may be required to stabilize the medical condition and may not transfer such a patient until the condition is stabilized or other statutory criteria are fulfilled. (Id., � 1395dd(b) & (c).) 3 Brockovich started investigations in 1991 into exposure to chromium 6 in drinking water in the town of Hinkley, California. In 1996, she and lawyer Ed Masry won a landmark $333 million settlement with Pacific Gas and Electricity over claims of toxic exposure. You should also pay careful attention to the types of medical bills or pain you may be feeling as a result of the case. The lawyer may be able to refer you to a specialist that can help examine you for further injury. They will report back to the lawyers with any findings that they may have. Any attempt by a patient's lawyer to combine a cause of action under 395.1041 with a garden variety emergency room malpractice claim will undoubtedly be met by numerous defenses. The first reaction will likely be an argument that 395.1041 was only intended by the Legislature to create a cause of action in those instances where the patient is discriminated against because the patient is indigent or uninsured. There is some indication in the legislative committee reports that treatment and transfer decisions based on economics were one of the Legislature's primary concerns in enacting 395.1041.11 However, under applicable rules of statutory construction the court is not permitted to look outside the language of a statute for legislative intent, unless the court first finds the language of the statute to be ambiguous.12 Even if a court were to believe that the Legislature meant to say something else, rules of statutory construction would not allow the court to rewrite an otherwise unambiguous statute for the Legislature.13 Vehicle sensors and other safety technology help drivers avoid accidents by letting them know what's going on around the vehicle, alerting them to possible dangers, and making it easier to steer or stop the vehicle safely. However, every driver still has a responsibility to pay attention to the road and avoid accidents. If you've been injured in a car accident, the experienced auto accident lawyers in San Diego at Jurewitz Law Group can help. Call us today at (888) 332-5020 for a free consultation.
For an employee, taking dental is usually a good idea as your employer pays part of your�premium and thus your coverage will provide better value. In Balbuena v IDR Realty, LLC (6 NY3d 338 , 363 2006), we held that an injured employee's status as an undocumented alien does not preclude recovery of lost wages in a personal injury action against a landowner under the state's Labor Law. This appeal asks us to look at the other side of the coin and decide if an employer's statutory rights under the Workers' Compensation Law are extinguished merely because its injured employee is an undocumented alien; specifically, whether the employer may still invoke section 11's shield against third-party claims for common-law contribution and indemnification. We conclude that, under the facts and circumstances presented by this case, the employees' immigration status does not affect the employer's rights under Workers' Compensation Law � 11, and therefore affirm the Appellate Division. This may be a pyrrhic victory for Salt Lake County but the result, in my opinion, is inescapable. Judge Doory also determined that Mixter had maintained the Railey litigation in bad faith and without substantial justification. Not only did the Respondent bring and pursue the case in bad faith but he engaged in abusive, harassing and frivolous discovery practices throughout the entire case. Judge Doory found that Respondent had represented Nancy Railey, plaintiff, before the Circuit Court for Washington County against, inter alia, a group known as the Cochran Defendants. According to Judge Doory, after Ms. Railey's deposition, it became clear that there was no legal basis for Ms. Railey's claims. Judge Doory observed that, nevertheless, Mixter had frivolously and in bad faith continued the action against the Cochran Defendants and had refused to dismiss a named defendant unless the defense counsel drafted the line of dismissal: Direct Costs: The guidance makes clear that, in certain circumstances, program administration (e.g., secretarial staff dedicated to a specific program) can be reported as direct, rather than as indirect, costs. Law Solicitor For Medical Negligence Lipscomb County TX
Mejia, Lorenzo v. The State of Texas-Appeal from County Court of Victoria County See the revised Form 74.44 Notice of Application to Pass Accounts on the Ontario Court Forms website. Orville C. Pratt was the first judge to preside in an official capacity in Polk county. While others did act prior to Oregon becoming a territory in performing the judicial duties, Pratt was the first to represent the authority of the United States, and more particularly the federal government since his court was a U. S. District Court as were all territorial courts. Medical malpractice cases can be some of the most complex injury claims due to their technical nature. You need an attorney on your side who has a network of experts and who can build a successful compensation claim so you get the money you deserve. According to the American Academy of Pediatrics , the following positioning errors were found when it comes to new parents installing car seats for their infants:
Call�an experienced medical malpractice attorney toll free at 800-391-4525 Online Lawyers directory gives Best Malpractice Lawyers as legal help to create successful lawsuits plus, dental malpractice lawyers, legal malpracticelawyers, hospital malpractice lawyers, medical malpractice lawyers along with divorce lawyers, DWI lawyers, real estate lawyers, business litigation lawyers, immigration lawyers, accident lawyers or probate lawyers and more for all your needs making it easy to receive legal help to ensure successful lawsuits and find personal injury lawyer who is one of the best malpractice lawyers. Providing the best possible legal service means coming. Workers who are injured while on the job in Georgia are often eligible for workers compensation benefits either temporarily or permanently, depending on the injury. State and federal workers' compensation plans are intended to provide employees with the support they need after an injury on the job. This includes such things as payments for medical expenses and payments to make up for the loss of income when the worker cannot return to work for a period of time or permanently. Law Solicitor For Medical Negligence Lipscomb County Deborah Ann Shipp, however, testified that she and Wolsieffer were lovers 4) Parents should bring babies in at the first sign of a tooth or if they notice anything abnormal with the gums or mouth. Initial visits are mainly for parents' edification, covering topics like pediatric dental nutrition and cleanings. Hartford Hospital in Connecticut has been deficient since 1999, failing to perform 12 heart transplants in any calendar year. Of those performed 6 out of 17, a survival rate of approximately 65%, died within a year.
The proffered defense listing of mitigating factors was argumentative and therefore not appropriate. (People v. Gordon (1990) 50 Cal.3d 1223, 1276, 270 451, 792 P.2d 251.) Thus, the trial court properly declined to give that part of the instruction. We offer LATE appointments Wednesday nights. We offer EARLY RISERS - 7AM daily APPENDIX A The Domestic Lawyer's application shall include: 1. the applicant's residence and business address; 2. the name, address and phone number of each client sought to be represented; 3. the courts before which applicant has been admitted to practice and the respective period(s) of admission; 4. whether the applicant (a) has been denied admission pro hac vice in this state, (b) had admission pro hac vice revoked in this state, or (c) has otherwise formally been disciplined or sanctioned by any court in this state. If so, specify the nature of the allegations; the name of the authority bringing such proceedings; the caption of the proceedings, the date filed, and what findings were made and what action was taken in connection with those proceedings; 5. whether any formal, written disciplinary proceeding has ever been brought against the applicant by a disciplinary authority in any other jurisdiction and, as to each such proceeding: the nature of the allegations; the name of the person or authority bringing such proceedings; the date the proceedings were initiated and finally concluded; the style of the proceedings; and the findings made and actions taken in connection with those proceedings; 6. whether the applicant has been held formally in contempt or otherwise sanctioned by any court in a written order for disobedience to its rules or orders, and, if so: the nature of the allegations; the name of the court before which such proceedings were conducted; the date of the contempt order or sanction, the caption of the proceedings, and the substance of the court's rulings (a copy of the written order or transcript of the oral rulings shall be attached to the application); 7. the name and address of each court or agency and a full identification of each proceeding in which the applicant has filed an application to appear pro hac vice in this state within the preceding two years; the date of each application; and the outcome of the application; 8. an averment as to the applicant's familiarity with the Georgia Rules of Professional Conduct, local rules and court procedures of the court before which the applicant seeks to practice; and 9. the name, address, telephone number and bar number of an active member in good standing of the bar of this state who will sponsor the applicant's pro hac vice request. The bar member shall appear of record together with the Domestic Lawyer. The Domestic Lawyer's application may provide the following optional information: 10. the applicant's prior or continuing representation in other matters of one or more of the clients the applicant proposes to represent and any relationship between such other matter(s) and the proceeding for which applicant seeks admission. 11. any special experience, expertise, or other factor deemed to make it particularly desirable that the applicant be permitted to represent the client(s) the applicant proposes to represent in the particular cause. Rule 4.5. Entries of Appearance and Withdrawals by Members or Employees of Law Firms or Professional Corporations The entry of an appearance or request for withdrawal by an attorney who is a member or an employee of a law firm or professional corporation shall relieve the other members or employees 10 Powerful Representation for injury victims throughout Kentucky and Indiana. Free consultation, no charge unless we win money for you! Neck and Spinal Cord Injuries. Back and Neck Injuries. Shoulder and Rotator Cuff Injuries. Hand, Wrist and Amputation Injuries. Foot and Ankle Injuries. Scarring and Disfigurement Injury. Scaffolding and Ladder Falls. Bicycle and Pedestrian Accidents. Motorcycle and Truck Accidents. Liquor, Bar and Restaurant Liability. Medical and Dental Malpractice. $825,000.00 Motor Vehicle Accident. $250,000.00 Motor Vehicle Accident. $35,000.00 Motor Vehicle Accident. $250,000.00Construction Site Injury/Workers� Compensation. $150,000.00 Trip and Fall. $140,000.00 Premises Liability/Ice and Snow/Fall. $180,000.00 Premises Liability/Warehouse Accident. $150,000.00 Medical Malpractice/Unnecessary Surgery. $82,000.00 Action Against Real Estate Agent/Consumer Protection. Don� t Settle For Less. Personal Injury Lawyer in Lynnfield, MA. Massachusetts Personal Injury and Workers' Compensation� Attorneys in Lynnfield, Lynn, Quincy, Brockton and the� Greater Boston areas. At Powers and DiCicco, we are a law firm that helps people find solutions to their specific legal issue � whether it be a personal injury, workers' compensation, wrongful death or malpractice claim. Whether you need a lawyer who understands the inner workings of an insurance company, or you need assistance getting monetary compensation for an injury you have sustained, we are here to guide you through each stage of your case. To sit down with an attorney who has been representing people throughout eastern Massachusetts and the surrounding Boston area for over 25 years, e-mail or call us at our office in Lynnfield, Quincy or Brockton, Massachusetts, 866.596.0074 and schedule a free consultation. Select an Experienced Attorney to Represent You. When seeking out advice about a legal concern, whether it involves monetary damages or workers' compensation benefits, the experience of your attorney can play a major factor in the results you receive. While each case is unique with varying circumstances and facts, having an attorney who understands the legal system can have a tremendous impact on the success of your case. At Powers and DiCicco, each of our attorneys has over 25 years of legal experience. From the negotiation table to the courtroom, we have achieved countless successes for our clients because of our skill and legal knowledge � we have represented both injured victims and insurance companies. Personal Injury - Workers' Compensation - Malpractice. For over 25 years, the lawyers at Powers and DiCicco have been handling legal issues for people and companies throughout eastern Massachusetts. Repeatedly, clients refer their friends and family members to us knowing that we will provide quality legal representation. We will personally handle your case, never passing it on to a junior associate or paralegal. Our firm dedicates itself to helping people get the maximum monetary damages possible in their case. We understand how confusing this process may be and want you to know that you can trust us to handle your case professionally and thoroughly. To find out more about your legal concerns, contact one of our lawyers at Powers and DiCicco to schedule a free consultation at one of our three office locations. Neck and Spinal Cord Injuries. Back and Neck Injuries. Shoulder and Rotator Cuff Injuries. Hand, Wrist and Amputation Injuries. Foot and Ankle Injuries. Scarring and Disfigurement Injury. Scaffolding and Ladder Falls. Bicycle and Pedestrian Accidents. Motorcycle and Truck Accidents. Liquor, Bar and Restaurant Liability. Medical and Dental Malpractice. 210 Broadway, Suite 104, Lynnfield, MA 01940. 25 Foster Street, Quincy, MA 02169. At Powers and DiCicco, we have three convenient locations in Lynnfield, Quincy and Brockton, Massachusetts, to represent people throughout the North Shore and South Shore, including the cities of Lynn, Peabody, Weymouth, Salem, Beverly, Boston, Saugus, Randolph, Braintree, Quincy, Brockton, Lynn, Saugus, Plymouth, Lynnfield, Middleton, Peabody, Dan The Dental Board's lawsuit accuses DentalWorks of lying for nearly 10 years about its relationship with North Carolina practices. Instead of merely managing the practices, the board says, DentalWorks has secretly owned and controlled them. Of course, some parties may want an "intuitive" decision-maker, and may be convinced that the prospect of a favorable result in that forum far outweighs the risk of a less than perfect decision. They may even be correct. But that is just another factor in the mix of issues and interests to be sorted out. 19 General Statutes � 31-275(16)(B) provides in relevant part: �Personal injury' or �injury' shall not be construed to include �(ii) A mental or emotional impairment, unless such impairment arises from a physical injury or occupational disease� As the overall cancer rates drop, skin cancer continues to buck the trend, growing by about 6% each year. Early recognition and treatment of melanomas, a form of skin cancer, is imperative to positive outcomes, and a misdiagnosis of a melanoma or other form of skin cancer may prove disastrous to a patient's recovery
Cases of dental and medical malpractice in Saskatchewan involve surgical errors, delayed or incorrect diagnosis, hospital errors, medication errors, birth injuries, and other deviations from the standard of care. Dental Insurance is meant to be an aid in receiving dental care. Many parents think their insurance pays 90-100% of all dental fees. This is not true! Most plans only pay between 50-80% of the average total fee with some plans paying more and some paying less. The percentage paid by the insurance provider is usually determined by the contractual relationship between the insurance provider and your employer. If we have received all of your insurance information on the day of the appointment, we will be happy to file your claim for you as a courtesy to you. You must be familiar with your insurance benefits; however, we will collect from you the estimated amount insurance is not expected to pay. By law, your insurance is required to pay each claim within 30 days of receipt. We file all insurance electronically so your insurance company will receive each claim within 24 hours of the treatment. After 30 days you are responsible for any balance on your account, whether insurance has paid or not. Our top priority is providing you great service, and we know that can't happen without providing an easily accessible dentist office near you. That's why we have over 25 locations in Las Vegas, North Las Vegas, Henderson, Summerlin, Reno, Sparks, and throughout Nevada. And that list is always growing! The worst law firm of all time\r In my experience with Wilbur Smith and it was not my first choice it was base on word to mouth I found him to be u United States Bankruptcy Appellate Panel FOR THE EIGHTH CIRCUIT No. 12-6043 In re: LGI Energy Solutions, Inc.; LGI Data Solutions Company, LLC, Debtors. _ Appeal from the United States John R. Stoebner, Trustee, Bankruptcy Court for the District of Minnesota Plaintiff - Appellee v. San Diego Gas & Electric Company, Defendant - Appellant No. 12-6044 In re: LGI Energy Solutions, Inc.; LGI Data Solutions Company, LLC, Debtors. _ Appeal from the United States John R. Stoebner, Trustee, Bankruptcy Court for the District of Minnesota Plaintiff - Appellant v. Southern California Edison Company, Defendant - Appellee Submitted: October 23, 2012 Filed: November 14, 2012 FEDERMAN, VENTERS and SALADINO, Bankruptcy Judges VENTERS, Bankruptcy Judge. In these consolidated appeals, Defendants San Diego Gas & Electric Company (SDG&E) and Southern California Edison Company (SCE) appeal the bankruptcy court's judgments against them under 11 U.S.C. � 547(b) for 1 payments they received from the Debtors in the 90 days prior to the bankruptcy petition date. After giving credit for certain new value transfers, the bankruptcy court entered judgment against SCE for $131,267.63 and against SDG&E for $31,242.63. The Defendants assign error to three aspects of the bankruptcy court's ruling. They argue: 1) that the transfers at issue weren't preferential because the Defendants weren't creditors of the Debtors, as required by � 547(b)(1); 2) that the transfers were not on account of antecedent debts, as required by � 547(b)(2); and 3) that the bankruptcy court erred in limiting the Defendants' new value credits to 1 Because the two Debtor's estates have been consolidated, for convenience all references herein will be to the Debtors, although a particular fact might pertain to a single Debtor. 2 the value of the utility services they provided to the Debtors' customers in the preference period. For the reasons stated below, we affirm the bankruptcy court's decision with regard to its determination that the payments the Defendants received from the Debtors are avoidable under 11 U.S.C. � 547(b), but we reverse on the bankruptcy court's calculation of the Defendants' new value credits. JURISDICTION The bankruptcy court's judgment is a final order over which we have jurisdiction under 28 U.S.C. �158(b). BACKGROUND The facts are undisputed. On February 6, 2009, separate involuntary Chapter 7 bankruptcy petitions were filed against the Debtors. An Order for Relief was entered in each case on March 3, 2009, and the Debtors' bankruptcy estates were substantively consolidated on February 2, 2011. The Debtors' business was to provide utility-management and bill-payment services to restaurants and other businesses. As originally conceived, the Debtors' business worked in the following manner: The Debtors would receive invoices from a utility provider on behalf of a customer and then periodically report to the customer regarding those invoices. The customer then would transfer funds to the Debtors in an amount that corresponded to the amount of the invoice report and, after receiving those funds from the customer, the Debtors would send the utility provider a check drawn on the Debtors' bank account. All of the transfers at issue in this appeal relate to two of the Debtors' and Defendants' mutual customers: Buffets, Inc. (and related entities) and Wendy's 3 2 International, Inc. The Debtors provided bill-payment services to Buffets pursuant to an Energy Services Agreement dated January 5, 2007. The Debtors and Wendy's were parties to an Energy Services Agreement dated May 1, 2007. In the 90 days prior to the petition date of February 6, 2009, the Debtors made the following 24 transfers to Defendant SCE totaling $183,512.74: Check No. Check Amt. Check Date Rcvd. by SCE Clear Date 6077932 $4,178.52 10/21/08 11/12/08 11/14/2008 6077954 $4,224.86 10/21/08 11/12/08 11/14/2008 6076652 $5,943.93 10/17/08 11/14/08 11/18/2008 6076653 $8,125.06 10/17/08 11/14/08 11/17/2008 6076654 $9,620.77 10/17/08 11/14/08 11/17/2008 6076656 $9,996.85 10/17/08 11/14/08 11/17/2008 6078508 $7,948.76 10/23/08 11/12/08 11/14/2008 6078516 $8,156.87 10/23/08 11/12/08 11/14/2008 6078532 $8,188.20 10/23/08 11/19/08 11/21/2008 6078537 $7,827.17 10/23/08 11/18/08 11/20/2008 6078554 $7,435.41 10/23/08 11/18/08 11/20/2008 6078566 $7,804.13 10/23/08 11/18/08 11/20/2008 6078617 $7,678.34 10/23/08 11/13/08 11/17/2008 6079360 $7,371.65 10/27/08 11/13/08 11/17/2008 6079362 $10,844.50 10/27/08 11/13/08 11/17/2008 6079363 $9,514.28 10/27/08 11/13/08 11/17/2008 6079379 $7,860.50 10/27/08 11/17/08 11/19/2008 6079380 $6,322.93 10/27/08 11/17/08 11/19/2008 6079381 $6,628.53 10/27/08 11/17/08 11/19/2008 6079382 $7,970.53 10/27/08 11/17/08 11/19/2008 6079943 $8,460.80 10/28/08 11/12/08 11/14/2008 6080543 $6,881.98 10/29/08 11/17/08 11/19/2008 6080554 $7,461.95 10/29/08 11/25/08 11/28/2008 6080946 $7,066.22 10/30/08 11/20/08 11/24/2008 2 Only SCE provided utility service to Wendy's. 4 All 24 of the transfers were made by checks drawn on a checking account at U.S. Bank in the name of debtor LGI Energy Solutions, Inc., account no. xxxx- 3321. The first two checks, nos. 6077932 and 607954, totaling $8,403.38, related to Wendy's; the other 22 checks related to Buffets. In the 90 days prior to the petition date of February 6, 2009, the Debtors made eight transfers to Defendant SDG&E totaling $75,053.85. All eight of the transfers were made by checks drawn upon account no. 3321 and related to utility services provided to Buffets. Check No. Check Amt. Check Date Rcvd by SDG&E Clear Date 6075058 $5,773.59 10/13/08 11/12/08 11/14/08 6078518 $10,402.58 10/23/08 11/12/08 11/17/08 6078952 $9,093.92 10/24/08 11/18/08 11/20/08 6079349 $10,468.59 10/27/08 11/10/08 11/12/08 6079949 $8,514.01 10/28/08 11/20/08 11/24/08 6080548 $11,097.37 10/29/08 11/17/08 11/19/08 6081120 $10,062.69 10/31/08 11/25/08 11/26/08 6081126 $9,641.10 10/31/08 11/26/08 11/28/08 The 3321 account was a basic, unrestricted business checking account. Both the monthly statements for the 3321 account and the checks drawn on the 3321 account indicate that LGI Energy Solutions, Inc. was the sole holder of the account. Wendy's and Buffets last made deposits into the 3321 account on November 3, 2008, and November 4, 2008, respectively. Thereafter, Wendy's and Buffets made their payments to the debtors via other accounts owned by the Debtors at M & I Marshall & Ilsley Bank. Between November 3, 2008, when Wendy's made its last deposit into the 3321 account, and November 28, 2008, when the last of the 24 checks was debited against the 3321 account, the balance of the 3321 account was overdrawn or drawn to a nominal amount every business day. 5 On and after November 10, 2008, through the petition date, SCE sent 32 Wendy's invoices to the Debtors, which they then reported to Wendy's. Wendy's remitted payment for these invoices, but the Debtors never paid the related invoices of SCE. The Debtors received a total of $41,426.39 pursuant to these invoices. On and after November 10, 2008, through the petition date, Defendant SCE sent 32 Buffets invoices to the Debtors, which they then reported to Buffets. Buffets remitted payment to the Debtors for these invoices, but the Debtors never forwarded those payments on to SCE. The Debtors received a total of $157,886.99 pursuant to these invoices. On and after November 10, 2008, through the petition date, Defendant SDG&E sent 21 Buffets invoices to the Debtors, which they then reported to Buffets. Buffets remitted payment for these invoices, but the Debtors never forwarded those payments on to SDG&E. The Debtors received a total of $97,475.50 pursuant to these invoices. The bankruptcy court held a hearing on the Trustee's preference claims 3 (Count I) against Defendants on June 11, 2012, although the court declined to hear oral argument; it took the case on written submissions instead and entered judgments later that day - against SCE for $131,267.63 and against SDG&E for $31,242.63. The Defendants timely appealed. 3 On May 3, 2012, the Defendants filed motions for summary judgment seeking the dismissal of all counts (I, II, and III) of the Amended Complaint(s). The Trustee voluntarily dismissed Counts II and III, and the bankruptcy court denied summary judgment on Count I. 6 STANDARD OF REVIEW We review the bankruptcy court's legal conclusions de novo and its findings 4 of fact under a clearly erroneous standard. A finding is clearly erroneous when there is evidence to support it but the court reviewing the entire evidence is left 5 with the definite and firm conviction that a mistake has been committed. Whether the Defendants were creditors of the Debtor and whether the transfers were made in payment of antecedent debts are factual questions which we review for clear error. The bankruptcy court's application of � 547(c)(4) is a mixed question of law and fact. DISCUSSION As summarized above, the Defendants appeal three aspects of the bankruptcy court's ruling. They argue: 1) that the Defendants weren't creditors of the Debtors, 2) that the transfers were not on account of antecedent debts, and 3) that the bankruptcy court miscalculated the value of the Defendants' new value credits. Each argument is addressed in turn. A. The Defendants were creditors of the Debtors The Bankruptcy Code defines creditor as an entity that has a claim against a debtor that arose at the time of or before the order for relief concerning the debtor.6 A claim, in turn, is defined as a: (A) right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or; 4 See Drewes v. Vote (In re Vote), 276 F.3d 1024, 1026 (8th Cir. 2002). 5 See Lovett v. St. Johnsbury Trucking, 931 F.2d 494, 500 (8th Cir. 1991). 6 11 U.S.C. �101(10). 7 (B) right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduce to judgment, fixed, contingent, matured, 7 unmatured, disputed, undisputed, secured, or unsecured. The bankruptcy court held that the Defendants were creditors of the Debtors on two grounds. It found that the Defendants were beneficiaries of a trust created between the Debtors and their customers and that the Defendants became creditors when the Debtors violated the trust by depleting the customer deposits without paying the Defendants' invoices. Alternatively, the bankruptcy court found that the Defendants were contractual third-party beneficiaries with direct claims against the Debtors. Neither of these findings is clearly erroneous. 1. Trust Beneficiary Claims Minnesota law requires three elements for the creation of a trust: (1) a 8 trustee; (2) a beneficiary; and (3) a definite trust res. No particular form and no specific words are necessary to create a trust. Even though the settlor's language be inept, clumsy, or even unsuitable, it is adequate if it reveals an intent to create the incidence of a trust relationship.9 The Debtors' agreements with Wendy's and Buffets both evince an intent to create a trust. Paragraph 3b of the agreement between the Debtors and Buffets provides that Buffets will provide money to the Debtors to be used for the specific purpose of paying the bills of utility companies and states that at no time shall LGI have a legal or equitable interest in the Customers funds and Customer grants no security interest to LGI.10 The Debtors' agreement with Wendy's provides that 7 11 U.S.C. � 101(5). 8 See e.g., In re Bush's Trust, 81 N.W.2d 615, 620 (Minn. 1957). 9 Id. at 619-20. 10 Technically, this language would not create a trust, inasmuch as the trustee of a trust holds legal title to the res while the beneficiaries hold an equitable interest in the res. See Farmers State Bank of Fosston v. SIG Ellingson & Co., 16 N.W. 2d 8 the funds tendered to the Debtors are to be used for the specific purpose of paying Wendy's utility bills. The Debtors' and Buffets' intent to create the incidence of a trust is further evidenced by the state-court complaint attached to Buffets' proof of claim, which repeatedly invokes trust language: ? As a result, the Debtor held Plaintiff Buffets' funds in trust. (� 3) ? Defendant M & I Marshall & Ilsley Bank knew the Debtor did not have any ownership interest in Plaintiff Buffets' funds and that the Debtor held Plaintiff Buffets' funds in trust subject to fiduciary duties. (� 4) ? The Contract provided that the Debtor would directly receive the utility invoices .to wire transfer or ACH transfer this gross amount to a bank account Debtor designated where Plaintiff Buffets' monies were held in trust for the payment of utility invoices (� 30) Having determined that a trust was created, the bankruptcy court held that the Debtors' dissipation of the trust res, i.e., the customer deposits, constituted a breach of the trust, giving the Defendants general, unsecured claims against the Debtors for the amounts the Debtors failed to forward to them pursuant to the Energy Services Agreements. The Sixth Circuit Court of Appeals, in First Federal of Michigan v. 11 Barrow, came to the same conclusion under analogous circumstances. In First Federal, a mortgage broker and servicer of mortgages received payments from borrowers and, despite being contractually bound to forward those payments 319, 322 (N.D. 1944). Nevertheless, this language could be interpreted as evidence of the parties' intent to preclude the Debtors from treating customer funds as their own money, which in turn could be interpreted as an intent to create a trust, albeit clumsily expressed. 11 878 F.2d 912, 917-918 (6th Cir. 1989). 9 (minus its fees) to the investors, taxing authorities, insurers, etc., it dissipated the payments almost immediately upon receipt and made select payments to certain creditors with later deposits. The Court of Appeals analyzed the situation as follows: Initially, the monthly payments collected in trust from the mortgagors, including the pro rata amounts for the superior mortgages, taxes, hazard insurance and investors which had originally been held in trust for the mortgagors and which were deposited into the Salem Central Account, subsequently lost their identity as a result of commingling with other unidentified debtor funds derived from numerous other miscellaneous sources and became the property of the debtors' estate. Additionally, for at least ninety days immediately preceding debtors' declaration of bankruptcy and probably for some time prior thereto when it became apparent that debtors' exploding expenses hopelessly exceeded income and the Salem Central Account consistently carried a five figure negative balance, and when monies from that account were disbursed to honor previously issued checks in satisfaction of pre-existing indebtedness, the mortgagors as well as the appellant taxing authorities and investors were stripped of their status as beneficiaries of any trust or constructive trust that may have existed while the mortgage payments were identifiable in segregated escrow accounts and they became general creditors of the debtors and the debtors' bankrupt estate because the debtors' conversion of the mortgage payments had occurred at the moment when the identifiable funds were deposited into Salem's negative balance Central Account from which transfers were made to satisfy debtors' pre-existing indebtedness to the mortgagors and appellants. Accordingly, the appellants' charge that the transfers here in controversy were not in payment of pre-existing indebtedness must fail and the repayments to 12 the appellants must be declared to be voidable preferences. 12 Id. (emphasis added). 10 Like the appellants in First Federal, the Defendants here became general, unsecured creditors of the Debtors at the moment the Debtors depleted the customer deposits, which the evidence shows happened on a daily basis and, most importantly, before the Debtors used those deposits for their intended purpose. In sum, consistent with the intent to create a trust, Wendy's and Buffets entrusted the Debtors with specific, identifiable property that they were to hold in trust for payment to the Defendants and other utility companies. The Debtors' failure to preserve trust property was a breach of trust which gave the Defendants unsecured claims against the Debtors. Thus, the bankruptcy court's holding that the Defendants were creditors of the Debtors for purposes of � 547(b)(1) is not clearly erroneous. 2. Third-Party Beneficiary Claims It is the prevailing rule in Minnesota and other jurisdictions in the United States that a third party may sue on a contract made for his direct benefit.13 If, by the terms of the contract, performance is directly rendered to a third party, he is intended by the promisee to be benefited. And where a promisor agrees to pay the debts of another - as was the case here - the intended third-party beneficiary 14 possesses the primary claim against the promisor for the debt. At oral argument, the Defendants conceded that SDG&E and SCE were third-party beneficiaries with regard to the transfers received on account of the utility services provided to Buffets. They continue to maintain, however, that the language in the Energy Services Agreement with Wendy's precludes a claim by 13 Buchman Plumbing Co., Inc. v. Regents of the Univ. of Minnesota, 215 N.W.2d 479, 483 (Minn. 1974). 14 In re Maurer, 256 B.R. 495, 502 (B.A.P. 8th Cir. 2000). 11 15 the Defendants as third-party beneficiaries. Specifically, they point to the provision in the Agreement stating that LGI shall not be required to incur any liability in connection therewith. The bankruptcy court rejected this interpretation of the Energy Services Agreement. That finding is not clearly erroneous. First, the context of the quoted passage suggests that it was intended only to reinforce the parties' agreement that LGI had no duty to extend credit, i.e., pay a utility bill for which Wendy's had not yet forwarded payment. To wit, page 7 of the agreement provides in larger part: LGI shall then be obligated to pay each utility invoice within two business days of receipt of Wendy's ACH transfer. LGI shall in no event be required to advance any of its funds or to utilize LGI's credit in connection with or on behalf of Wendy's, nor shall LGI be required to incur any liability in connection therewith. Wendy's shall indemnify and hold harmless LGI from and against any and all claims, liabilities, costs and expenses relating to utility invoices that have 16 been processed in accordance with this Agreement. Second, the italicized portion can be interpreted as establishing LGI's receipt of funds from Wendy's as a condition precedent to LGI's obligation to pay utility providers. Finally, the Energy Services Agreement's statement that LGI was not required to incur any liability does nothing to actually prevent LGI from incurring 15 Minnesota follows the Restatement (Second) of Contracts, see Cretex Companies, Inc. v. Constr. Leaders, Inc., 342 N.W.2d 135, 139 (Minn. 1984), which permits a promisor and promise to contractually restrict (or eliminate) the rights of a third-party beneficiary. (1) Unless otherwise agreed between promisor and promisee, a beneficiary of a promise is an intended beneficiary if recognition of a right to performance in the beneficiary is appropriate to effectuate the intention of the parties. Restatement (Second) of Contracts � 302. 16 Emphasis added. 12 a debt to a utility company as a result of its breach of the agreement by, for example, using the funds it received from Wendy's for another purpose. This interpretation would be more consistent with the subsequent sentence which specifically contemplates potential claims against LGI by the utilities. For these reasons, we hold that the bankruptcy court's finding that the Defendants were creditors of the Debtors as a consequence of their status as third- party beneficiaries of the Energy Services Agreements is not clearly erroneous. B. The preferential transfers to the Defendants were made in payment of antecedent debts as required by 11 U.S.C. � 547(b)(2) The Defendants argue that the transfers at issue were not preferences because they weren't made in payment of antecedent debts. According to the Defendants, the Debtors would not actually owe a debt to the Defendants until the Debtors breached their agreements with Buffets and Wendy's by failing to make timely payments to the Defendants. Essentially, they argue that a debt created by contract does not arise until the promisor repudiates or breaches the contract. They 17 point to the Eighth Circuit case, In re Bridge Information System, Inc., to support their argument. The Defendants' argument on this point is without merit and their reliance on In re Bridge Information Systems, Inc. is misplaced. The Bankruptcy Code does not define when the debtor incurs a debt, but it does define a debt as a liability on a claim.18 Thus, the concept of a debt and a 19 claim are coextensive under the Code, and a debtor incurs a debt to a creditor for purposes of � 547(b)(2) as soon as the creditor would have had a claim against the 17 327 B.R. 382 (B.A.P. 8th Cir. 2005), aff'd 474 F.3d 1063 (8th Cir. 2007) 18 11 U.S.C. � 101(12). 19 See In re Energy Co-op. Inc., 832 F.2d 997, 1001 (7th Cir. 1987) (By defining a debt as a �liability on a claim,' Congress gave debt the same broad meaning it gave claim.). 13 debtor's estate. The Defendants here had a claim against the Debtors when the Debtors received funds from Buffets and Wendy's. The rights and duties of a third-party beneficiary contract depend upon, and are measured by, the terms of the contract. Under the Buffets Energy Services Agreement, the Debtors were obligated to the timely payment of invoices upon receipt of the customer funds. Under the Agreement with Wendy's, the Debtors were required to pay each utility invoice within two business days of receipt of Wendy's ACH transfer. The fact that the Debtors had a time within which to perform their obligations before they would be in breach of the contract does not mean that the obligation did not arise until those deadlines were upon them or past, just as the prepayment of a loan before an installment due date or the maturity date constitutes 20 payment on an antecedent debt. The key to determining whether a transfer for or on account of a debt owed by a debtor is whether a creditor would be able to assert a claim against the estate absent payment. Here, the Defendants (or the customers, as the primary promisees) had (and, indeed, did file) claims for all the funds paid by a customer that were not paid to the Defendants for utility services when the involuntary bankruptcy petitions were filed against the Debtors. Furthermore, Bridge Information Systems, Inc., does not stand for the proposition the Defendants attribute to it, i.e., that a contractual duty to pay does not arise until a party is in breach of that duty. Rather, the question in that case was whether a payment pursuant to a settlement agreement was in payment of the lessor's alleged prior breach of a lease or a contemporaneous buy out of the 21 lessee's renewal options. If the payment made by the debtor-lessor was in satisfaction of damages caused by its purported prior breach - as the bankruptcy 20 See, e.g., In re Bennett Funding Group, Inc., 220 B.R. 739 (B.A.P. 2nd Cir. 1998). 21 In re Bridge Information Systems, Inc., 327 B.R. at 387-89. 14 court held - then the payment would have been in satisfaction of an antecedent debt and, therefore, avoidable as a preference. However, if the transfer was payment for the defendant-lessee's option rights - as the Bankruptcy Appellate Panel held - then the transfer was not in payment of an antecedent debt and not a preference. Quite simply, the holding of Bridge Information Systems, Inc., is inapposite here. For these reasons, we conclude that the bankruptcy court did not err in its determination that the transfers at issue here were made in payment of antecedent debts for purposes of 11 U.S.C. � 547(b)(2). C. The Defendants' new value credit was improperly determined Section 547(c)(4) of the Bankruptcy Code provides: The trustee may not avoid under this section a transfer - (4) to or for the benefit of a creditor, to the extent that, after such transfer, such creditor gave new value to or for the benefit of the debtor � (A) not secured by an otherwise unavoidable security interest; and (B) on account of which new value the debtor did not make an otherwise unavoidable transfer to or for the benefit of such creditor. New value is defined as money or money's worth in goods, services, or new credit including proceeds of such property. 11 U.S.C.� 547(a)(2). The bankruptcy court held that the plain language of � 547(c)(4) - specifically, its reference to such creditor - requires that new value be supplied by the creditor that received the preferential transfer. Accordingly, it limited the 15 Defendants' new value credit to the value of the utility services they provided to Buffets and Wendy's during the preference period. The Defendants contend that under the Eighth Circuit Court of Appeals case, Jones Truck Lines, Inc. v. Central States, Southeast and Southwest Areas Pension 22 Fund (In re Jones Truck Lines, Inc.), the Defendants' new value credit should not be limited to the value of the utility services provided to the Wendy's and Buffets customers during the preference period. Rather, they argue, they are entitled to a credit for all of the payments Wendy's and Buffets made to the Debtors subsequent to each transfer, regardless of when the utility services were provided. We concur with the Defendants' interpretation of the holding in Jones Truck Lines. In Jones Truck Lines, a Chapter 11 debtor-employer sued to recover, as preferential transfers, payments to a Health and Welfare Fund and to a Pension Fund 23made on behalf of its employees. The bankruptcy court and district court held that under � 547(c)(4), the defendant-Funds could not offset their preference liability with the value provided by the debtor's employees (in the form of continued services rendered to the debtor); rather, the Funds themselves had to 24 provide new value to the debtor. In reversing the lower courts' decisions, the Court of Appeals examined the parties' tripartite relationship and held that the employee services provided to the debtor during the preference period qualified as new value which could be applied as an offset against the Funds' preference 25 liability. Notably, the Court of Appeals found that the Funds were creditors of the debtor in their own right but did not limit the Funds' new value credit to any value they provided to the current employees. And, as a practical matter, it is unlikely that the current employees received any contemporaneous benefit from the Pension 22 130 F.3d 323 (8th Cir. 1997). 23 Id. at 325-36. 24 Id; In re Jones Truck Lines, Inc., 196 B.R. 483, 492 (Bankr. W.D. Ark. 1995.) 25 In re Jones Truck Lines, Inc., 130 F.3d at 328-29. 16 Fund. Hence, the bankruptcy court's calculation of new value in this case is not consistent with the Eighth Circuit's binding holding in Jones Truck Lines. Arguably, because the Defendants were found to be creditors in their own right, as opposed to just transferees of payments that benefitted a creditor (Wendy's or Buffets), the holding of Jones Truck Lines would appear to be contrary to the plain terms of � 547(c)(4), which requires such creditor, i.e., the creditor that received the transfer (or the benefit of the transfer) to provide the new value. However, the holding in Jones Truck Lines can be harmonized with the statute by interpreting it as a recognition that in tripartite relationships where the transfer to a third party benefits the primary creditor, new value can come from that creditor, even if the third party is a creditor in its own right. And that is exactly the nature of the tripartite relationship here. In fact, as trust beneficiaries and third- party beneficiaries, the Defendants are creditors of the Debtors precisely because the payments made to them were intended to benefit the creditor(s) that provided the new value (i.e., the Debtors' customers, Wendy's and Buffets). Giving the Defendants credit for all of the payments Wendy's and Buffets made to the Debtors on account of utility services provided by the Defendants, SDG&E's liability is reduced to zero and SCE's liability is reduced to $25,625.75. The charts below show the calculation of the Defendants' new value credits based 26 on the figures contained in the record. SCE - WENDY'S NEW VALUE ANALYSIS Transfer Preferential Transfer to Net Comment Date Transfer Debtor Preference 11/14/2008 $4,178.52 $4,178.52 11/14/2008 $4,224.86 $8,403.38 11/20/2008 $40.00 $8,363.38 26 All of these figures are contained in the Stipulations of Fact filed in the underlying bankruptcy court cases, Stoebner v. SCE, 11-4066 (Doc. 39) and Stoebner v. SDG&E, 11-4065 (Doc. 38). 17 Transfer Preferential Transfer to Net Comment Date Transfer Debtor Preference 11/20/2008 $2,447.73 $5,915.65 11/20/2008 $40.00 $5,875.65 11/20/2008 $2,647.66 $3,227.99 11/21/2008 $40.00 $3,187.99 11/21/2008 $2,604.31 $583.68 11/25/2008 $40.00 $543.68 11/25/2008 $2,848.46 ($2,304.78) Preference Liability Eliminated SCE - BUFFETS NEW VALUE ANALYSIS Transfer Preferential Transfer to Net Comment Date Transfer Debtor Preference 11/14/2008 $4,178.52 $4,178.52 11/14/2008 $4,224.86 $8,403.38 11/14/2008 $7,948.76 $16,352.14 11/14/2008 $8,156.87 $24,509.01 11/14/2008 $8,460.80 $32,969.81 11/14/2008 $7,003.12 $25,966.69 11/14/2008 $138.53 $25,828.16 11/17/2008 $8,125.06 $33,953.22 11/17/2008 $9,620.77 $43,573.99 11/17/2008 $9,996.85 $53,570.84 11/17/2008 $7,678.34 $61,249.18 11/17/2008 $7,371.65 $68,620.83 11/17/2008 $10,844.50 $79,465.33 11/17/2008 $9,514.28 $88,979.61 11/18/2008 $5,943.93 $94,923.54 11/19/2008 $6,114.90 $88,808.64 11/19/2008 $864.00 $87,944.64 11/19/2008 $960.11 $86,984.53 11/19/2008 $4,832.03 $82,152.50 11/19/2008 $4,570.59 $77,581.91 11/19/2008 $7,033.00 $70,548.91 11/19/2008 $6,168.70 $64,380.21 11/19/2008 $5,294.10 $59,086.11 11/19/2008 $5,253.98 $53,832.13 11/19/2008 $7,860.50 $61,692.63 11/19/2008 $6,322.93 $68,015.56 11/19/2008 $6,628.53 $74,644.09 11/19/2008 $7,970.53 $82,614.62 11/19/2008 $6,881.98 $89,496.60 18 Transfer Preferential Transfer to Net Comment Date Transfer Debtor Preference 11/20/2008 $21.30 $89,475.30 11/20/2008 $5,283.78 $84,191.52 11/20/2008 $5,410.79 $78,780.73 11/20/2008 $5,728.54 $73,052.19 11/20/2008 $5,280.57 $67,771.62 11/20/2008 $6,118.07 $61,653.55 11/20/2008 $7,827.17 $69,480.72 11/20/2008 $7,435.41 $76,916.13 11/20/2008 $7,804.13 $84,720.26 11/21/2008 $8,188.20 $92,908.46 11/24/2008 $7,066.22 $99,974.68 11/28/2008 $5,470.19 $94,504.49 11/28/2008 $5,058.94 $89,445.55 11/28/2008 $7,803.90 $81,641.65 11/28/2008 $6,438.30 $75,203.35 11/28/2008 $4,826.31 $70,377.04 11/28/2008 $7,461.95 $77,838.99 12/1/2008 $71.29 $77,767.70 12/1/2008 $5,256.98 $72,510.72 12/1/2008 $6,067.03 $66,443.69 12/1/2008 $4,771.92 $61,671.77 12/1/2008 $6,218.99 $55,452.78 12/1/2008 $5,148.72 $50,304.06 12/9/2008 $6,107.77 $44,196.29 12/9/2008 $5,577.87 $38,618.42 12/9/2008 $6,892.98 $31,725.44 12/9/2008 $6,099.69 $25,625.75 Preference Liability SDG&E - BUFFETS NEW VALUE ANALYSIS Transfer Preferential Transfer to Net Comment Date Transfer Debtor Preference 11/12/2008 $10,468.59 $10,468.59 11/13/2008 $3,126.29 $7,342.30 11/13/2008 $1,747.28 $5,595.02 11/13/2008 $5,255.58 $339.44 11/13/2008 $7,208.34 ($6,868.90) New Value credit does not carry 11/13/2008 $2,167.03 $0.00 forward. 11/14/2008 $5,773.59 $5,773.59 19 Transfer Preferential Transfer to Net Comment Date Transfer Debtor Preference 11/17/2008 $10,402.58 $16,176.17 11/19/2008 $11,097.37 $27,273.54 11/20/2008 $7,487.70 $19,785.84 11/20/2008 $2,328.80 $17,457.04 11/20/2008 $9,093.92 $26,550.96 11/24/2008 $8,514.01 $35,064.97 11/25/2008 $8,195.65 $26,869.32 11/25/2008 $1,855.14 $25,014.18 11/26/2008 $10,062.69 $35,076.87 11/28/2008 $8,254.95 $26,821.92 11/28/2008 $1,955.21 $24,866.71 11/28/2008 $9,641.10 $34,507.81 12/1/2008 $1,667.01 $32,840.80 12/1/2008 $8,236.52 $24,604.28 12/1/2008 $7,942.75 $16,661.53 12/1/2008 $2,055.03 $14,606.50 12/5/2008 $7,509.62 $7,096.88 12/5/2008 $1,788.17 $5,308.71 12/5/2008 $1,609.64 $3,699.07 12/5/2008 $7,454.17 ($3,755.10) Preference Liability 12/5/2008 $7,880.45 ($11,635.55) Extinguished 12/5/2008 $1,750.17 ($13,385.72) CONCLUSION For the foregoing reasons, the portion of the bankruptcy court's judgment determining that the Defendants received preferential transfers is affirmed. The court's calculation of the Defendants' new value credit, however, is reversed. SCE is entitled to a new value credit for all but $25,625.75 of the transfers it received and SDG&E is entitled to a new value credit to the full extent of the transfers it received. _ 20 The Court has review the petition and Answer and finds the State agency had sufficient funds within its appropriated budget to pay the claim and, for this reason, the claimant is entitled to an award from the respondent. 5 Paragraph (c) prohibits lawyers from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. Such conduct reflects adversely on the lawyer's fitness to practice law. In some circumstances, however, prosecutors are authorized by law to use, or to direct investigative agents to use, investigative techniques that might be regarded as deceitful. This Rule does not prohibit such conduct. attorneys work hard to achieve the best possible outcome for your case.
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