Gastineau v. Gastineau Brief

Gastineau v. Gastineau, 151 Misc. 2d 813, 573 N.Y.S.2d 819 (N.Y. 1991)

Procedural History:

            Lisa Gastineau sued Marcus Gastineau for divorce and charged that he dissipated some of the marital assets.  While the trial was in progress the court ordered Marcus to make payments to Lisa to cover expenses.  Marcus fell $71,707 behind and the court ordered the sequestration of his net severance pay of $83,000.  This removed it from his possession and control until the court rendered its decision.

Facts:

            At beginning of trial Mrs. Gastineau testifies to specific allegations of cruel and inhuman treatment committed by Mr. Gastineau.  Mr. Gatineau neither admitted nor denied this.  The court granted a divorce based on cruel and inhuman treatment based on DRL section 170(1).

            The New York Jets in college drafted Mr. Gastineau.  Mrs. Gastineau never finished college nor did she work during the marriage.  The parties purchased a house in New York for $99,000.  The spent an additional $250,000 in other renovations.  Mr. Gastineau’s salary beginning in 1979 increased substantially each consecutive year beginning with $55,000 and ending 1987 with $953,531.  The last year he played he was contracted for $775,000 with $50,000 in bonuses. 

            In 1988, Mr. Gastineau began an illicit relationship.  When the other party of this relationship was diagnosed with cancer Mr. Gastineau stopped playing because he could not concentrate on football.  He left after the sixth game breaking his contract.  Players in the National Football League are paid one-sixteenth of their contract at the end of each game.  Mr. Gastineau played six games and received $290,662 plus $50,000 in bonuses.

Issue:

            Can a spouse dissipate marital assets in order to lessen the amount of property to divide upon dissolution of marriage?

Holding:

            No.  The court will find that a defendant will still owe based on the amount that they may potentially make.

           

Rationale:        

            In equitable distribution it is a guiding principle that parties are entitled to receive equitable awards, which are proportionate to their contributions to their marriage, Ullah v. Ullah, 555 N.Y.S.2d 834 (2^nd Dep’t 1990).  The defendant’s decision to voluntarily terminate his contract with the New York Jets, depriving the plaintiff and the parties’ child of the standard of living to which they had become accustomed, his failure to obtain meaningful employment thereafter and the indirect contributions made by plaintiff during the course of the marriage warrant an award to the plaintiff of one third of the parties’ marital assets.

            The court used the tax returns from the 19988/99 season and used the value that the husband could have made had he not quit the team in the middle of the year which was $484,437.  The court considered the tax returns of the parties with reference to their tax consequences and took judicial notice of the fact that compensation for service constitutes income, which is taxable. IRC [26 USC] section 61(a)(1).

Decision:

            The court found that Marcus dissipated marital assets.  In the equitable distribution of marital assets they are treated as if they still exist.

Cantwell v. Connecticut Brief

Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900 (1940)

Procedural History:

            Newton Cantwell and his two sons were arrested for violating a Connecticut statute and inciting a breach of the peace.  After trial in the Court of Common Pleas they were all convicted on the third count, which charged a violation of the General Statutes of Connecticut, and on the fifth count, which charged commission of the offense of inciting a breach of the peace.  They appealed to the Supreme Court of Connecticut and that court convicted them.  The U.S. Supreme Court granted writ of certiorari based on the substantial question under the Federal Constitution.

Facts:

            Newton Cantwell and his two sons were arrested for violation of a Connecticut statute requiring solicitors to obtain a certificate from the secretary of the public welfare council before soliciting funds from the public and breach of the peace.  Newton and his sons were Jehovah’s witnesses and were trying to spread their religion in a heavily catholic neighborhood.  They were going door to door with books and pamphlets and a portable phonograph with sets of records.  One of the materials named Catholics as “enemies”.  Citizens in the neighborhood who heard the Cantwells were outraged and almost acted against the Cantwells aggressively.  The Cantwell’s were arrested for inciting a breach of the peace and violating a statute requiring registration of religious solicitors.

Issue: 

Did the solicitation statute or the "breach of the peace" ordinance violate the Cantwells' First Amendment free speech or free exercise rights?

Holding: 

Yes.  This is because the statute allowed local officials to determine which causes were religious and which ones were not, it violated the First and Fourteenth Amendments.

Rationale:

            The purpose of the Connecticut statue is to protect the public from fraud in the solicitation of money or other valuables under the guise of religion.  The statute as construed and applied to the appellants deprives them of their liberty without due process of law in contravention of the Fourteenth Amendment.  The fundamental concept of liberty embodied in that amendment embraces the liberties guaranteed by the First Amendment.  The fact that an application must be sent in to the secretary of the public welfare council before asking for funds makes the Cantwell’s be in violation of the Connecticut Statute.  The Supreme Court states that this is in breach of the fourteenth amendment because it is up to an official to determine if a cause is a religious one or a charitable one.  Such a censorship of religion as the means of determining its right to survive is a denial of liberty protected by the First Amendment and included in the liberty which is within the protection of the Fourteenth.

Decision: 

The lower courts ruling that Mr. Cantwell was in violation of the solicitation statute in the State of Connecticut and also that he violated the breach of the peace ordinance is reversed.

Keller v. Koca Brief

Procedural facts

            Plaintiff brought action against defendant for negligent supervision and premises liability.  Trial court finds in favor of plaintiff and awards damages.  Defendant appeals and the decision is affirmed.  Supreme Court granted defendants petition of certiorari.

Issue

            1)  Was sexual assault of a twelve-year-old girl committed on employer’s premises by an employee a foreseeable risk by the employer? 

2)  Does an employer owe a duty to protect all those on the employer’s premises regardless if their employees or if it’s during business hours?

Holding

            1)  Sexual assault of someone other than an employee and during business hours is not a foreseeable risk by the employer. 

2)  The employer owes no duty to protect those other than his employee’s and not during business hours.

Facts

            The plaintiff brought testimony of three former employees that Uzan sexually assaulted them while working for Keller during business hours.  Keller did not take any corrective action against Uzan.  The plaintiff did not present any evidence at trial that Keller knew or should have known that Uzan would bring a twelve year-old girl, with no connection to the dry cleaners, to Keller’s place of business when it was closed and then sexually assaulted there. 

Rationale

            In Ryder v. Mitchell a negligence claim fails where the law does not impose a duty on the defendant to act for the plaintiff’s benefit.  Whether a defendant in a particular negligence action owes a legal duty to the plaintiff is not a question of fact but is a question of law to be determined by the court.  After existence of a legal duty is established, the finder of fact is to determine whether the defendant breached that duty.

            In Moses V. Diocese, liability is established when the plaintiff must prove the employer has a duty to prevent an unreasonable risk of harm to third persons to whom the employer knows or should have known that the employee would cause harm.

            According to vicarious liability, an employer is responsible for torts committed by employees working within the scope of their employment.

            In Fletcher v. Baltimore and Destefano v. Diocese of Colorado Springs the court found that the duty imposed on the defendant was to take reasonable steps to prevent the foreseeable harm of a known risk.  That known risk was to female employees during business hours.

Disposition

            The Supreme Court reverses the decision of the court of appeals and remands this case to that court to consider the plaintiff’s alternate theory of premises liability.

                       

10 Paralegal Tips

• When drafting e-mails, paralegals should be mindful that they may be discoverable and they should omit personal references and comments.  Attorney, Client, and Work Product notations should be included on e-mail messages where appropriate.
• Clients often do not understand the legal or factual import of some interrogatories, or they may misunderstand a word or phrase in an interrogatory.  Using their unedited answers to interrogatories can therefore be damaging to the client’s case.  Preparing answers using information from the attorney’s work file may inadvertently waive a discovery privilege or immunity.  It is imperative that the attorney and/or paralegal carefully peruse the questions that are posed and decide the best source of an answer, if any answer is to be given. 
• Be familiar with the content and know where to final all rules, codes, and other regulations governing the attorneys in your firm and locale.
• Confirm answers to any ethical questions you may have by consulting the regulations and following up with your supervising attorney. 
• Know that an attorney’s livelihood demands that paralegals strictly adhere to the ethical rules.
• Make it clear to prospective clients or existing clients with new matters that only the attorney may agree to provide legal services.
• Tell individuals who are persistent in asking for an estimate of the fee that it is unethical for you to quote fees.
• When speaking with a client, close the doors and make sure that no third party is listening to the conversation.
• Protect your computer screen from being read by other persons by turning it away from office doors and windows or by obtaining a filter screen to place over the monitor.
• Do not talk about work-related matters when socializing with friends or in any public place.

Aloi v. Union Pacific Railroad Corp Brief

Aloi v. Union Pacific Railroad Corp., 123 P.3d 999 (Colo. 2006)

Facts:

            On August 27, 1998, Union Pacific assigned Frank Aloi to conduct a train.  Before the train departed, Aloi tripped and fell while descending interior stairs on the locomotive.  He also noticed a loose rubber mat that covered a vertical riser on a step.  Aloi told the locomotive’s engineer that he had tripped and the engineer inspected the stairwell.  Aloi telephoned the Union Pacific manager later that day and reported that he tripped.  Union Pacific safety manager and yard manager inspected the locomotive.  The morning after Aloi filed a personal injury report. 

Procedural History:

            Frank Aloi brought a personal injury action against Union Pacific.  Prior to trial, Union Pacific destroyed documents relevant to the litigation.  As a sanction for spoliation of evidence, the trial court instructed the jury it could draw an inference that the evidence contained in the destroyed documents would have been unfavorable to Union Pacific.  The jury returned a verdict for Aloi and Union Pacific appealed.  The court of appeals reversed the trial court’s judgment.  The Supreme Court of Colorado granted certiorari.  The Supreme Court affirmed in part and reversed in part and remanded the case to the court of appeals for consideration of remaining issues.

Issue:

1.      Did the trial court abuse its discretion in granting an adverse inference instruction to the jury?

2.      Did the trial court abuse its discretion in giving the adverse inference instruction three times?

Holding:

            1.  No, the trial court did not abuse its discretion in granting an adverse inference instruction to the jury.

            2.  No, the trial court did not abuse its discretion in giving the adverse inference instruction three times to the jury.

Rationale:

            The ability to provide the jury with an adverse inference instruction as a sanction for spoliation of evidence derives from the trial court’s inherent powers.  In Pena v. District Court, 681 P.2d 953, 956 (Colo. 1984) the case said that trial courts possess all powers reasonably required to enable a court to perform efficiently its judicial functions.  A trial court has broad discretion to permit the jury to draw an adverse inference from the loss or destruction of evidence.

            In the case of People v. Welsh, 80 P.3d 296 (Colo. 2003), the court will not overturn the trial court’s imposition of an adverse inference unless the sanction is manifestly arbitrary, unreasonable, or unfair.

            The Supreme Court cited two cases that decided on the issue of repetition.  These included Pletchas v. Von Poppenheim, 148 Colo. 127, 365 P.2d 261 (1961) and Pizza v. Wolf Creek Ski Dev. Corp., 184 Colo 418, 520 P.2d 745 (1974).  In Pletchas, the trial court refused to provide an instruction tendered by the defendant because the trial court has already devised an instruction that rendered the defendant’s instruction duplicative.  The case stated “repetition of instructions, under whatever guise, giving undue prominence to one feature of a case, is deemed bad practice and should be avoided.”  In Pizza, the court stated, “We have held in the past that it is error to give two instructions, virtually the same, which would tend to confuse the jury by overly emphasizing a defense.”

            However, the Supreme Court stated that although they have made general statements discouraging repetition, they have never held that repetition of a jury instruction alone constitutes an abuse of discretion.  The Supreme Court states that the repetition discussed in these two cases differs from the type of repetition analyzed in this case.  In this case the trial court made it clear that it was repeating the same instruction, so the potential for juror confusion did not exist.

            The Supreme Court used the case People v. Welsh, 80 P.3d 296, 304 (Colo. 2003) to decide if the trial court addressed the appropriate objections and articulated the reasoning for its decision.  The trial court stated that it used the adverse inference instruction several times after a great deal of testimony had been given so it was necessary to further the jury’s comprehension.

           

Decision:

            The Supreme Court held that the trial court did not abuse its discretion by providing the jury with an adverse inference instruction.  They also held that the trial court did not abuse its discretion by repeating the adverse inference instruction and by interrupting a cross-examination to give the instruction.  They affirm in part and reverse in part the decision of the court of appeals, and remand the case to the court of appeals for consideration of remaining issues.

Allan v. Farrow Brief

Allen v. Farrow, 197 A.D.2d 327, 611 N.Y.S.2d 859 (N.Y. App. Div. 1994)

Procedural History:

            Allen started dating one of Farrow’s daughters soon yi.  When Farrow found out about the affair a highly publicized custody trial ensued.  Allen went to court asking for custody of Satchel, Moses and Dylan or for better visitation than Farrow was allowing him.  He objected to supervised visitation.  The trial court denied Allen’s request.  Farrow was granted custody and counsel fees.  Allen has now appealed to the Supreme Court, Appellate Division.

Facts:

            Mr. Allen started a relationship with one of Farrow’s daughters named Soon Yi Previn.  Mr. Allen was also accused of having sexual abuse with the younger daughter Dylan.  From the beginning of Mr. Allen and Farrow’s relationship Mr. Allen wanted nothing to do with Ms. Farrow’s kids.  The couple tried for six months to get pregnant.  They decided to adopt a child, Dylan, only to find that Ms. Farrow was pregnant.  Mr. Allen showed little or no interest in the pregnancy.

            When Satchel was born Ms. Farrow displayed extreme attachment to the child at the expense of the other children.  Because of this Mr. Allen displayed more feelings for Dylan thinking it would hurt her.  Upon later diagnosis by experts they say that Mr. Allen’s attention to Dylan was abnormally intense.

           

Issue:

            May an adoptive father/biological father obtain increased visitation rights or custody of children when the father is known to have had a sexual relationship with one child and is alleged to have an inappropriate relationship with another child?

Holding:

            No.  However, the court found that it would be detrimental if the father didn’t see the children at all so supervised visits would be allowed.

Rationale:

            In determining who to give custody to the court used Domestic Relations Law section 70: Eschbach v. Eschbach, 56 N.Y.2d 167,171 that any determination of issues of child custody or visitation must serve the best interests of the child.  The issue of Mr. Allen’s inappropriately intense relationship with Dylan can be resolved only in a therapeutic setting.

            The trial court denied unsupervised visitation with Satchel.  Allen has an inability to understand the impact his words and actions have on the emotional well being of the children.  The expert medical testimony said it would be beneficial to have Mr. Allen in the picture still as well as their older sibling Ms. Previn.  However, it would be detrimental for the children to see both of them together so the court denied unsupervised visits with the children.

Decision:

            The Supreme Court Appellate Division affirmed the trial courts decision in favor of Farrow’s custody, visitation and counsel fees.

Dicta:

            Justice Carro offers a dissention in part to this case.  Carro disagrees with the courts decision of Mr. Allen’s son Satchel saying it is unduly restrictive.  Carro says that they have a warm and loving relationship and that this relationship is is jeopardy because Mr. Allen is being estranged and alienated from his son by the current custody and visitation arrangement.

Your Guide to Divorce in Colorado

Divorce with Children of Marriage (Flow-Chart)

The first step to divorce in Colorado is to decide if you’re filing jointly or on your own.

If filing on your own complete forms-       çè     If filing jointly complete forms-

            Case information                                                 Case information

                    Petition                                                                Petition

                  Summons

ê

Either party must reside in Colorado for at least 90 days-

File in the county either party resides in and pay the filing fees.

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Review documents that you receive by the court

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Complete Forms:

Certificate of Compliance

Sworn Financial Statement

Parenting Plan

Separation Agreement

Decree

Support Order

Pretrial Statement-only complete this if you and your spouse do not agree on all the issues identified in the separation agreement.

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Attend Status Conference and Parenting Class

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If you and the other party agree on all issues-

Attend final hearing— The decree and support order may be entered on or after the 91^st day.

ê

If you and the other party do not agree on all issues-

You may be required to attend Mediation

A contested hearing may be set

Divorce without Children of Marriage (Flow-Chart)

The first step to divorce in Colorado is to decide if you’re filing jointly or on your own.

If filing on your own complete forms-       çè     If filing jointly complete forms-

              Case Information                                              Case information

                     Petition                                                             Petition

                   Summons

ê

Either party must reside in Colorado for at least 90 days-

File in the county either party resides in and pay the filing fee.

ê

Review documents that you receive by the court

ê

Complete service-if filing on your own-

A disinterested person who is 18 years or older must serve copies of all documents to the other party.

Provide proof of service to the court

ê

Complete forms-

Certificate of Compliance

Sworn Financial Statement

Affidavit for decree without appearance

Decree

Pretrial Statement

ê

Status Conference-You may be required to attend-

Bring forms requested by the court

ê

If you and the other party agree on all the issues-

The decree may be issued on the 91^st day

ê

If you and the other party do not agree on all the issues-

You may be required to attend a mediator

A contested hearing may be set

The Decree may be entered at the conclusion of your hearing once all issues have been resolved.

In order to be divorced the marital relationship must have

“Irretrievable Breakdown”

C.R.S. 14-10-110 (2008) 

The situation that exists between either or both spouses no longer are able or willing to live with each other, there by destroying their husband and wife relationship with no hope of resumption of spousal duties.

Colorado is a no-fault ground for divorce.

            This means that the reason for seeking a divorce does not have to be proof of wrongdoing by the other spouse. 

Mandatory Restraining Orders in Colorado Dissolutions

            Once the spouse is served or signs a waiver, an automatic injunction goes into effect prohibiting both parties from:

1. Removing the children from Colorado without permission from the other spouse or the family law court.

2. Disturbing or harassing the other spouse.

3. Hiding, destroying, transferring or disposing of marital property, except in the ordinary course of business.

4. Canceling or modifying any insurance (health, auto, life, etc.) without your spouse's written consent or the Colorado divorce court's permission.

Pursuant to C.R.S. 14-10-107 (2006)

        Status Conference

For parties seeking to resolve their divorce through mediation, the parties are required to go to a “status conference.”  This is an informal meeting conducted by a family court facilitator.  At the status conference, the judicial officer monitors the parties’ exchange of information and discussed tasks and established time-lines to move the case forward.

Temporary Orders

                  Temporary Orders are optional for parties.  When you meet with the Family Court Facilitator, Magistrate, or Judge during an Initial Status Conference you should discuss this issue, or you may request the Court to make temporary decisions about property, debts, and spousal support/maintenance, if applicable, by requesting a Temporary Orders Hearing.  A Motion for Temporary Orders cannot be filed without prior approval of the Court pursuant to Colorado Rule of Civil Procedure 16.2(c)(4)(B).

Mandatory Disclosures

Pursuant to C.R.C.P. 16.2(e)(2)

(a)     Financial Statement. 

(b)     Income Tax Returns (Most Recent 3 Years). 

(c)     Personal Financial Statements (Last 3 Years). 

(d)     Business Financial Statements (Last 3 Years). 

(e)     Real Estate Documents. 

(f)      Personal Debt. 

(g)     Investments. 

(h)     Employment Benefits. 

(i)      Retirement Plans. 

(j)      Bank/Financial Institution Accounts. 

(k)     Income Documentation. 

(l)      Employment and Education-Related Child Care Documentation. 

(m)    Insurance Documentation. 

   (n)     Extraordinary Children’s Expense Documentation.

Separation Agreement

            The parties can enter into a separation agreement if they are separated or are about to separate but do not necessarily want a divorce.  The agreement discusses property division, child custody, child support and maintenance of spouse.

Child Support

            Child support in Colorado depends on the number of overnights the child or children spend with each spouse.  A calculation worksheet is to be completed which uses factors such as income, how much is spent on the child’s welfare by each parent and how many overnights each spouse has with the children.

Child Custody

            The courts decision in awarding custody is based on the best interest of the children.  Factors the court uses to establish custody and parenting time include:  wishes of the child’s parents, wishes of child if they are sufficiently mature, the relationship between child and parents, if either party has been a perpetrator of child abuse or neglect.

Property Division

Property of the marriage is to be divided "equitably." Equitably does not mean equally, but fairly.  Marital property means all property acquired by either spouse subsequent to the marriage except property acquired by gift or inheritance

Maintenance

            If one spouse is unable to be self-supporting through employment or assets set aside to them, the court may grant them maintenance (called alimony in some other states). Unlike property division, alimony is to be paid out of future income.
The order of maintenance is to be an amount the court deems just after considering the following factors:

(a) The financial resources of the party seeking maintenance (b) The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment and that party's future earning capacity; (c) The standard of living established during the marriage; (d) The duration of the marriage; (e) The age, physical and emotional condition of the spouse seeking maintenance; and (f) The ability of the spouse from whom maintenance is sought to meet their needs while meeting those of the spouse seeking maintenance.

Phil Watkins, P.C. v. The Krist Law Firm, P.C. Brief

Phil Watkins, P.C. v. The Krist Law Firm, P.C., 2003 Tex. App. Lexis 6693

Procedural History:

            Krist sued Watkins and the clients that Krist formerly represented because they did not pay Krist an amount that was previously settled for including fees and expenses.  The trial court found in favor for Krist based on a contract sent to Watkins from Krist.  Watkins then appealed the case.

Facts:

            Krist law firm represented two clients Sorrells and Sides in a case against DuPont for damages to their pecan orchards caused by Benlate fungicide manufactured by DuPont.  The reached a settlement where the plaintiff would receive $200 per affected acre owned.  The clients of Krist discharged after this settlement was reached without just cause.  The clients hired Watkins to represent them.  Watkins re-litigated the case and received a settlement larger than the one settled for previously by the Krist Law firm.  Krist sued Watkins and the clients for not paying him fees and expenses that were required according to the agreement sent by Krist to Watkins.

Issue:

1.      Was there consideration for the contract?

2.      Is the contract ambiguous?

Holding:

1.      Yes there was consideration for the contract because even though it wasn’t specifically stated the agreement showed that Krist was still asserting its rights to recover attorneys’ fees and expenses.

2.      Yes.  If an agreement is uncertain and doubtful in any way than the contract is ambiguous.

Rationale:

            City of Bunker Hill Village v. Memorial villages Water Auth., 809 S.W.2d 309, 310-311 (Tex. App. 1991) held that reversing summary judgment because the contracts in question were ambiguous and holding that agreement of parties that a contract is unambiguous does not proven an appellate court from finding ambiguity under the ordinary rules of contract construction.

            If a written instrument is so worded that it can be given a certain legal meaning, then it is not ambiguous and is construed as a matter of law. 

            Lenape Resources Corp. v. Tennessee Gas Pipeline Co., 925 W.E.2d 565, 574 (Tex. 1996) found if a written instrument’s meaning is uncertain and doubtful or it is reasonably susceptible to more than one meaning, then it is ambiguous and its meaning must be resolved by a finder of fact.

            It’s unlikely that Krist would forfeit half a million dollars in the case that Watkins received a bigger settlement.  Krist would still have a claim against the clients based on quantum meruit.

            The problem with the agreement sent from Krist to Watkins is that it doesn’t state the amount that was settled for by the Krist firm.  Also, in the sentence of the agreement where it states that if Watkins recovered more than what the Krist firm recovered than Krist will forfeit all its fees and expenses is uncertain and doubtful according to the appellate court.

            In another case A.W. Wright & Associates, P.C. v. Glover, Anderson, Chandler & Uzick LLP., 993 S.W.2d 466, 470 (Tex. App. 1999) the holding was that language in referral contracts between attorneys was uncertain and doubtful and therefore ambiguous.  If the agreement between the parties is uncertain or doubtful in any way than the court will find it ambiguous.  The appellate court found the agreement to be uncertain and doubtful and therefore ambiguous and remands the case to the trial court.

Decision:

            The appeals court reverses the trial courts award and remands this case to the trial court so that the trier of f ct may determine the true intent of the paties.

Living Will

                        I, Chauncey Philips, being of sound mind and at least eighteen years of age, direct that my life shall not be artificially prolonged under the circumstances set forth below, and hereby declare that:

1.      If, at any time, my licensed, attending physician and one other licensed physician certify in writing that:

a.       I have an injury, disease, or illness which is not curable or reversible and which, in their judgment, is an incurable, terminal condition; and

b.      For a period of seven consecutive days or more, I have been unconscious, comatose, or otherwise incompetent so as to be unable to make or communicate responsible decisions concerning my person, then

I direct that, in accordance with Colorado law, life-sustaining procedures shall be withdrawn and withheld pursuant to the terms of this declaration, it being understood that life-sustaining procedures shall not include any medical procedure or intervention for nourishment considered necessary by the attending physician to provide comfort or alleviate pain.  However, I may specifically direct, in accordance with Colorado law, that artificial nourishment be withdrawn or withheld pursuant to the terms of this declaration.

            2.  In the event the only procedure I am being provided is artificial nourishment, I direct that artificial nourishment shall not be continued when it is the only procedure being provided for.

            3. I execute this declaration as my free and voluntary act this 14^th day of August, 2008.

            _________________________________

Chauncey Philips

            The foregoing instrument was signed and declared by Chauncey Philips to be his declaration, in the presence of us, who, in his presence, in the presence of each other, and at his request, have signed our names below as witnesses, and we declare that, at the time of the execution of this instrument, the declarant, according to our best knowledge and belief, was of sound mind and under no constraint or undue influence.

_________________                                      __________________

Witness                                                            Witness

_________________                                      __________________

Date                                                                 Date

State of Colorado         )

                                    ) ss.

County of Larimer        )

            Subscribed and sworn to before me this 14^th day of August, 2008, by Chauncey Philips, the declarant, and ______________and____________, witnesses, as the voluntary act and deed of the declarant.

                        Witness my hand and official seal.

                        My commission expires:________________

                                                            _______________________

                                                            Notary Public

Remedies at Law

Damages always result in the payment of money.  However, the basis or purpose for awarding damages determines how much money is awarded.  The purpose of damages always is to make the plaintiff whole, but making the plaintiff whole means different things in different situations.

            Damages must have been foreseeable at the time a contract is made or at the time the tort occurs.  Damages which are too far removed from the contract are not foreseeable and cannot be awarded.  In addition, the plaintiff has a duty to mitigate his damages.  In other words, he must take reasonable steps to minimize his losses.  If he fails to mitigate, his damage award is reduced by the amount of loss that could have been prevented through mitigation.  Both compensatory damages and restitution must be proved with a “reasonable degree of certainty” at the time of trial.  This means the plaintiff must provide evidence of his losses when he seeks either compensatory damage or restitution.

Compensatory Damages

            Compensatory damages focus on the plaintiff’s losses.  Compensatory damages are further classified as either general damages or special damages.  Special damages may be called consequential damages in some jurisdictions.  By black-letter definition, general damages are those losses which anyone in the plaintiff’s situation would incur.

            The goals of general damages and special damages are the same in both contract and tort cases, because the basis for the losses are different, the damages may seem to be different. 

Punitive Damages

            Sometimes called exemplary damages, the purpose of punitive damages is to punish the defendant for outrageous conduct, such as causing injury while driving under the influence of alcohol or a controlled substance.  Punitive damages are not allowed in some states.  Where they are allowed, they serve the purpose of teaching a lesson to the defendant.

Nominal Damages

            The purpose of nominal damages is to vindicate a right which has been violated when no monetary loss has occurred.  A court typically awards a trivial amount plus court costs in that situation. 

Liquidated Damages

            Liquidated damages arise in contract cases only.  They are damages agreed to by the parties at the time the contract is made, and they represent the parties’ reasonable estimate of losses in the event of breach.

The Judicial System

Although the legal assistant must be familiar with all aspects of the American legal system, the practice of law typically revolves around the judicial branch.  The function of the judicial branch is to apply law to facts in resolving disputes between adversaries, which is accomplished through the trial and appellate processes. 

Each legal system has its own judicial branch, which operates through a system of courts.  A court is classified by the system in which it operates and by the types of cases which it is authorized to hear. These classifications are part of a court’s jurisdiction.  Jurisdiction is the power or authority of a court to hear a specific case.  Both subject matter jurisdiction and personal jurisdiction must exist before a court can decide the merits of a particular case.

Subject Matter Jurisdiction

            Subject matter jurisdiction relates to the type of case in which a court is authorized to hear.  If a court does not have subject matter jurisdiction, it lacks the power to decide the merits of the case.  In that situation, any action taken by it is void; it has no effect whatsoever.  Because it relates to a court’s power to act, subject matter jurisdiction never can be waived.

Limited or General Jurisdiction

            Every court is either a court of limited jurisdiction or a court of general jurisdiction.  No court can be both.  Limited Jurisdiction means that the court cannot hear every type of case presented to it; it can hear only those types of cases which are listed in its creating constitutional provision or statute.  Because of the federal government is one of limited powers, every federal court is a court of limited jurisdiction.

           

            General Jurisdiction means that the court can hear any type of case presented to it unless exclusive jurisdiction has been granted to some other court for a particular type of case.  Every state has at least one court of general jurisdiction, sometimes called a district or superior court.

Original or Appellate Jurisdiction

            Every court is either a court of original jurisdiction or a court of appellate jurisdiction, but some courts are both.  Original Jurisdiction means that actions are commenced in this court for particular types of cases.  A court of original jurisdiction is the trial court for those types of cases specified in its creating constitutional provision or statute.

            Appellate Jurisdiction means that the court is authorized to review decisions of an inferior court in certain types of cases.  A single court may have original jurisdiction in one type of case and appellate jurisdiction in another type of case.  

Concurrent Jurisdiction

            Concurrent jurisdiction means that more than one court is authorized to hear a specific type of case.  This allows a plaintiff to choose between those courts having concurrent jurisdiction of the subject matter of the case.

Personal Jurisdiction

            A court must have both subject matter jurisdiction and personal jurisdiction, some times called in personam jurisdiction, before it can hear and decide the merits of a particular case.

            Personal Jurisdiction refers to the court’s power or authority over the parties to the litigation.

            A court acquires personal jurisdiction over a plaintiff when they file their complaint or petition.  Personal jurisdiction over a defendant usually can be acquired with one of the following ways.

• Defendant’s consent;
• Defendant’s domicile in the same state where the action is file;
• Long-arm statutes