Emphasis added. The Court has found that the Brusers violated the CCD by not paying the Trustee Fee as determined by the state court. Under the CCD, therefore, BOH, as Lessor, is entitled to attorneys’ fees and costs.10 BOH may also be entitled to prejudgment and postjudgment interest. “The general rule is that ‘[i]n diversity actions, state law determines the rate of prejudgment interest, and postjudgment interest is governed by 10 Given the 7/21/15 Order and the Stipulation, the instant decision addresses a claim brought only by BOH. To the extent that any other parties to this action believe that they are entitled to attorneys’ fees and costs, each must file a motion pursuant to Federal Rule of Civil Procedure 54(d) and Rule 54.3 of the Local Rules of Practice of the United States District Court for the District of Hawai`i (“Local Rules”). federal law.’” Xxx x. Adalian, Civil No. 09-00226 JMS-BMK, 2015 WL 477268, at *7 n.7 (D. Hawai`i Feb. 5, 2015) (alteration in Jou) (quoting Am. Tel. & Tel. Co. v. United Computer Sys., Inc., 98 F.3d 1206, 1209 (9th Cir. 1996)). The Court, however, need not address these issues, or the specific amount of attorneys’ fees, until BOH files the appropriate motion, pursuant to Federal Rule of Civil Procedure 54(d) and Local Rule 54.3. Likewise, the Court need not address any taxable costs unless and until BOH files the appropriate motion pursuant to Federal Rule of Civil Procedure 54(d)(1) and Local Rule 54.2.
Emphasis added. [89] It is evident that at the time payment was made to LCaribbean GOSL was fully seized of the assignment of the receivables payable from the Project and such these receivables could only have been categorized as a payable to KCL. [90] In First Vancouver Finance v. M.N.R the question for the court was whether a factor was entitled to recover monies paid to the Minister of National Revenue from receivables which were purchased prior to the Minister issuing a request for statutory garnishment, in connection with these receivables. The court ruled that monies owing on accounts factored prior to the date of the request for garnishment were not subject to the garnishment, however accounts factored after that date were effectively intercepted by it. In other words once the receivables were factored before the Minister issued a request to garnish, the National Revenue was prevented from asserting an interest in these invoices. Consequently, a declaration was made confirming the factor’s entitlement to the funds already paid to the Minister. [91] On this point I conclude that the funds paid to LCaribbean were indeed the property of KCL, which ought not to have been utilized as if it were the property of AMSL. Therefore GOSL is liable to pay to KCL the remaining sums under the Notices.
Emphasis added. In conjunction with the language on page 1, language on page 4 reads: Statement of Guarantee. Some of the prices on Page 1 may be guaranteed, some may be non-guaranteed. For those items for which the price is guaranteed, Firm shall accept all funds in trust for those items and no additional payment for those items will be due if this Agreement was paid in full prior to Maturity. For those items for which the price is non-guaranteed, the current retail price for those items, at Maturity, will be charged and must be paid prior to the provision of the items identified on Page 1. The greater of the amount paid by Purchaser for items for which the prices are non-guaranteed or the current market value of the assets in trust related to such items, at Maturity, will be credited against the current retail price, at Maturity, for those items. If the current retail price of any items for which the prices are non-guaranteed, at Maturity, is less than the amount paid by the Purchaser for such items, the excess will be refunded to Purchaser or to the estate of the Beneficiary. If this Agreement is not paid in full prior to maturity, all prices will be treated as non-guaranteed. Why, you might ask, would I want to offer my customers nonguaranteed price contracts or items? There can be many reasons, here are two: • You want a hedge against funeral inflation. If funeral inflation rises faster than your investments, this will protect you in the long run. Remember, the industry often uses the guarantee as part of the “sales pitch.” It is ingrained so deeply that it is simply automatic to just mention it. But there has never been a legal requirement to do so. • You have little or no control over many of your future costs, and you cannot predict the economy of the future. Why guarantee something you have little control over? Do you think the consumer will walk away if you don’t guarantee the price? Here’s a better question: Do you think the consumer expects a guaranteed price? I suggest not, unless you tell him otherwise. From the consumer standpoint, prepaying funeral expenses is not a financial investment; rather, it is an emotional investment. So, a price guarantee, even if the consumer assumes there is one, is easily overcome during reasonable conversation. The consumer is acting so that his “children don’t have to.”
Emphasis added. 95 Ibid., 15. An additional philosophical conundrum arises from Xxxxxxxx’x distinction between truth and effectiveness. Even as Xxxxxxxx himself is considered one of the twelve “most effective” preachers in the English-speaking world, he insists that he has no concern for listener response. He writes, “Next Sunday, if once again my congregation appears to be unmoved and unimpressed by my homiletical efforts, I intend to ascribe their lack of response to God! Our job as preachers is to stand up and speak the truth as God gives it to us; congregational response is God’s business.”96 Such a statement, even if hyperbolic, proceeds upon the a priori decision to separate truth from effectiveness. Might not an ineffective sermon point just as clearly to truth as falsehood? Compare Xxxxxxxx Xxxxxx preaching during the 1st Great Awakening with the “Word of Faith” prosperity preaching; both are effective by their own standards. Rather than drawing proclamation closer to theology (the Word of God preached is the Word of God), binary commitments unintentionally enforce the very same anthropology that Xxxxxxxx wishes to overcome. He writes, “We preachers are to worry more about what is being said and how well we can replicate that word than we are to worry about whether or not what is being said in the Gospel is being heard in the world.”97 Whatever the cause of our worry, is not such an effort a human effort? Would it not be more theological to bear witness to God’s Word in the biblical text and in the world, to preach God’s Word and trust God to communicate the truth to be found therein as well as any human response? Neither truth nor effectiveness ought to guide preaching because neither is within the confines of human agency.
Emphasis added. 24 No contrary authority has expressly displaced the general rule respecting the tariff for heroin trafficking in Ontario in the twenty years since Xxxxxx and Farizeh were decided. Nonetheless, penological and judicial thinking about the predicament of addiction-driven criminals has evolved. This, in turn, impacts on the question of whether the umbrella of "exceptional circumstances" is sufficiently elastic to shelter addicts both motivated and equipped to overcome their dependencies. 25 Addicts are neurologically rewired by their dependence. As said in X. x. Xxxxxxx, infra, "heroin addicts must invariably support [their] addiction with some form of criminal activity". Their crimes - typically burglaries, soliciting, drug store robberies and, most frequently, street-level trafficking - are driven by the need to finance their pharmacologically induced cravings. They do not have the same degree of moral liberty as those who deal drugs for purely commercial motives and, as courts have long recognized, their moral blameworthiness is accordingly attenuated. Section 10(1) of the Controlled Drugs and Substances Act (the CDSA), which came into force after Xxxxxx and Xxxxxxx were decided, signals Parliament's recognition of addicts' distressing circumstances and the role of rehabilitation and, where warranted, treatment in the crafting of a fit sentence and, ultimately (if traction is secured), the protection of society. The provision reads: Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for [a drug] offence ... is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community. [Emphasis added.] 26 The rationale for an "exceptional" approach to the sentencing of addict offenders was xxxxxxxxx advanced in X. x. Xxxxxxx (1990), 79 C.R. (3d) 61. Xxxx X.X., on behalf of a five-member panel of the British Columbia Court of Appeal, wrote: Without making any real effort to draw a distinction between cases of possession on the one hand, and those of trafficking or possession for the purpose of trafficking on the other, this Court and other Courts of Appeal across the country have repeatedly stressed the need to impose deterrent sentences in drug cases.
Emphasis added. (See, also, at para. 100 in Xxxxxx, and the Court of Appeal's re-affirmation of this proposition in X. x. Xxxxxxxxx (2006), 213 C.C.C. (3d) 80, at para. 15.) 39 Applying this appellate guidance, I have no difficulty concluding that a conditional sentence is a fit disposition for the first of the offender's four offences. More difficult to operationalize is my parallel conclusion that, upon a balanced application of the controlling principles and in what I find to be the exceptional circumstances that prevail in this case, a sentence served under community supervision is the appropriate and just global disposition with respect to all four offences. The legal challenge, then, is to craft a sentence that secures this global result without torturing or evading the statutory or common law directives that govern the disposition of a case involving the repeated sale of what the Court of Appeal has characterized as "the most addictive, the most destructive and the most dangerous" drug. 40 In other circumstances - that is, those in which the offender could avail himself of a conditional sentence respecting all four offences - an appropriate disposition could be fashioned through orthodox resort to the principle of totality. "Totality" may be properly seen as an application of the more general principle of proportionality so as to ensure that the cumulative sentence imposed on persons convicted of multiple offences is "not unduly long or harsh" (as put in s. 718.2(c) of the Code) or disproportionate to the moral blameworthiness of the offender. (See, for example, R. v. C.A.M., [1996] 1 S.C.R. 500, at para. 42.) In practice, I would first decide the offender's appropriate global sentence and then determine the fit allocation for each of the four constituent offences, whether they should then run concurrently with or consecutive to an anchor disposition, and then tailor them to ensure that they aggregated to the sanctioned total penalty. This approach follows the Court of Appeal's instructions in X. x. Xxxxxx (1995), 100 C.C.C. (3d) 270, at 279. (Subsequent cases offer some refinements: X. x. Xxxxxxxxx (1998), 41 O.R. (3d) 103 (C.A.); X. x. Xxxxxxxxxxx (2002), 60 O.R. (3d) 465 (C.A.), at paras. 8, 32-33); X. x. Xxxxx, 2011 ONCA 748; and R. v. R.B. (2013), 114 O.R. (3d) 465 (C.A.), at para. 30.) 41 In the case at hand, however, a custodial sentence imposed for any of the last three offences, whether structured concurrently or consecutively, would necessarily entail a c...
Emphasis added. The consent judgment further ordered “that the division of the Pension and Retirement Accounts shall be provided in a separate Order and this [c]ourt shall retain jurisdiction to amend the Order for purposes of maintaining its qualification as a proper Order dividing said Pension interest. . . .” Thus, from the plain reading of the document, both parties agreed to name the other as an alternate payee of their respective pension/retirement plans. Not found in the agreement, however, is the requirement that the United States pay benefits to appellee pursuant to USFSPA or the requirement that appellant pay disability retirement benefits to appellee. The circuit court’s ruling on appeal does not require payment to appellee of any disability benefits, thus, the court, in essence, is not treating as property divisible, payment that has been waived to receive disability benefits. When appellant was discharged from the military, he received in entirety the benefits the United States owed to him for his service. These assets have become part of appellant’s general assets. Accordingly, appellant can satisfy the judgment against him with any assets, thereby not violating Xxxxxxx. We, therefore, affirm the circuit court’s determination of arrearages to be satisfied by appellant out of his general assets. Our holding is guided by Xxxxxx x. Xxxxxx, 105 Md. App. 678 (1995). In Dexter, the parties entered into an agreement that was incorporated in the Judgment of Divorce. In relevant part, the Judgment of Divorce ordered “that pursuant to the agreement of the parties, forty-seven and a half percent (47.5%) of the [husband] military retirement is awarded to the [wife] on a monthly basis ‘as, if, and when’ it is paid by the Department of the Army to the [husband].” Id. at 679. After the Judgment of Divorce, the husband voluntarily waived retirement benefits in order to receive VA disability benefits. Consequently, the Department of Defense ceased payment of retirement benefits to the wife because the husband had waived his right to such benefits. The wife sought relief in the trial court, which ultimately granted her a sum of money that would have been received but for the husband’s waiver, under principles of contract law. Elaborating, the judge concluded, “I do not feel that that steps on the toes of the Federal Government and their preemptive rights. I feel that this is a permissible if not indeed a required act on the part of the State to interpret and enforce agreement...
Emphasis added. 19.3. It saves costs to make one amendment to the pleadings than several if the findings of the JCPC requires it;
Emphasis added. 5. Two specific provisions concern the position of Member States. On the one hand, pursuant to point 15, "the register does not apply to Member States' government services, third countries' governments, international intergovernmental organisations and their diplomatic missions". On the other hand, pursuant to point 19, "the activities to be taken into account for assessing eligibility to register are those aimed (directly or indirectly) at all EU institutions, agencies and bodies, and their Members and their assistants, officials and other staff. Such activities do not include activities directed at Member States, in particular those directed at their permanent representations to the European Union."
Emphasis added. The SME notes that the three aforementioned BSS documents contain helpful information, consistent with the Agreement, to increase BSS workers’ awareness of the shift from residential, and how to access the HCBS to support that redirection. The SME notes one error in the Pathway to Children’s Mental Health document, specific to CMCR in the sub header 3.2 Children’s Crisis and Referral Line and Mobile Mental Health Crisis:
