                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT

                            No. 12-2364

LAURA TONEY,

                Plaintiff - Appellant,

          v.

LASALLE BANK NATIONAL ASSOCIATION, As trustee for the
registered   holders    of   Structured   Asset    Securities
Corporation,   Structured  Asset   Investment   Loan   Trust,
Mortgage Pass/Through Certificates, Series 2004-11; OCWEN
FEDERAL BANK, also known as AltiSource Homes,

                Defendants - Appellees.

Appeal from the United States District Court for the District of
South Carolina, at Columbia.       Margaret B. Seymour, Senior
District Judge. (3:11-cv-01686-MBS)

Submitted:   February 26, 2013            Decided:   February 28, 2013

Before MOTZ, WYNN, and DIAZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Laura Toney, Appellant Pro Se.     Robert Ashley Muckenfuss,
MCGUIREWOODS, LLP, Charlotte, North Carolina; Sean Alexander
O’Connor, FINKEL LAW FIRM, LLC, North Charleston, South
Carolina, for Appellees.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

             Laura    Toney     appeals       the     district    court’s      order

adopting   the    magistrate     judge’s      recommendation      and   dismissing

her civil action.         We have reviewed the record and find no

reversible error.       Accordingly, we affirm for the reasons stated

by the district court.          See Toney v. LaSalle Bank Nat’l Ass’n,

No. 3:11-cv-01686-MBS (D.S.C. Sept. 25, 2012).                   We deny Toney’s

“Motion to Request Federal Identification,” and we dispense with

oral   argument      because    the    facts    and    legal     contentions    are

adequately    presented    in    the    materials      before    this   court    and

argument would not aid the decisional process.

                                                                          AFFIRMED

                                          2


663 F.2d 1069
U. S.v.Wiese
81-1075
UNITED STATES COURT OF APPEALS Second Circuit
8/12/81

1
W.D.N.Y.

AFFIRMED


226 N.W.2d 792 (1975)
SWEETMAN CONSTRUCTION COMPANY, INC., Plaintiff and Appellant,
v.
DAKOTA PUMP, INC., Defendant and Respondent.
No. 11345.
Supreme Court of South Dakota.
March 19, 1975.
May, Johnson & Burke and John E. Burke and John C. Quaintance, Sioux Falls, for plaintiff and appellant.
Shandorf, Bleeker & Boldt and Douglas R. Bleeker, Mitchell, for defendant and respondent.
WOLLMAN, Justice.
Plaintiff has appealed from a judgment entered on a jury verdict rendered in favor of defendant, contending that the trial court erred in denying plaintiff's motions for a directed verdict and for a new trial. We affirm.
On August 13, 1971, plaintiff entered into a contract with the town of Oacoma, South Dakota, for the construction of a municipal sewage system, which included, among other things, the installation of a sewer line and a prefabricated sewer lift station. Thereafter, plaintiff entered a contract with defendant whereby defendant agreed to supply certain equipment in accordance with the specifications set forth in the contract between plaintiff and the town. Pursuant to its contract with plaintiff, defendant furnished two self-priming sewage pumps and a prefabricated lift station.
Sometime early in 1972, plaintiff's employees picked up the lift station, together with the enclosed pumps and motors, control board and related fixtures, at defendant's plant and transported it to the construction site at Oacoma where they installed it on a foundation next to the "wet well," a holding tank that had been constructed to hold the sewage collected by the system. The lift station was designed in such a manner that when the sewage rose to a certain level within the wet well one of the pumps within the lift station would automatically start and pump the sewage through a force main to a sewage lagoon. When the sewage had been pumped down to a certain level within the wet well, the pump then automatically stopped. When the sewage again rose to the predetermined level, the other pump would automatically start and operate until the sewage was pumped down. If the quantity of sewage flowing into the wet well was such that one pump could not handle it, the other pump would start.
On or about April 24, 1972, one of defendant's servicemen went out to the construction site for the purpose of starting up the pumps in the lift station. This start-up *793 consisted of setting the starting controls, checking to see that the motors were drawing the right amount of current, and checking the pressure on the discharge line from the pumps. Plaintiff's project supervisor, who was present at the start-up, testified that immediately after being started the pumps were noisy and vibrated considerably. He told the serviceman that he thought the pumps sounded extremely noisy to him. The serviceman testified, however, that in his opinion the pumps were not noisier nor did they vibrate more than other pumps that he had worked with and that there was nothing about the noise or vibration that caused him any concern.
On May 11, 1972, the residents of Oacoma began hooking into the sewage collection line constructed by plaintiff. Plaintiff did not make these individual hookups and had no control over the manner in which they were accomplished.
On May 25 and on June 1, 1972, representatives of the Farmers Home Administration (FHA), the governmental agency that was providing financing to the town for the sewer project, checked the project and the lift station area. Subsequent to the inspection, plaintiff's job supervisor notified defendant that the FHA was not accepting the pumps because of the noise and vibration.
On July 8, 1972, defendant's serviceman checked the pumps in response to a call from plaintiff and tightened the belts on one of the units. He testified that in his opinion the pumps appeared to be operating normally and that he observed nothing that caused him any concern about the operation of the pumps other than the fact that there appeared to be a lot of water coming into the wet well from the collection system, with the result that "the pumps were running a lot of hours at that time."
On July 21, 1972, the lift station flooded, causing the electrical controls on the pump motors to short circuit. Plaintiff was required to install some temporary pumps in the wet well in order to keep the sewage from backing up into the residences attached to the system.
After the lift station had been pumped dry, it was discovered that a lug bolt on the cover plate on one of the pumps had broken. This permitted the cover plate to open, which in turn resulted in sewage discharging from the pump into the lift station.
Plaintiff's job supervisor testified that after the lift station had been pumped out, he and his men took the inspection plates off the pumps and discovered no gravel in them. On the other hand, defendant's serviceman testified that when he opened the back of the pump on which the bolt had broken he found inside the pump "* * * about two or three hands full, big hands full of rocks and gravel."
Approximately one week later defendant's employees replaced the bearings in the pumps. On August 3, 1972, defendant informed plaintiff by letter that the lift station had been rebuilt. On August 7, 1972, plaintiff's job supervisor started the pumps and observed that they were still noisy and still had the same vibration problem. He testified that the pump on which the bolt had broken was the more noisy of the two and that it "* * * had extreme vibration, extremely bad." Because of this noise and vibration, the pumps were shut off and on the next day plaintiff's job supervisor discussed the matter with defendant's service technician. Subsequently, pressure tests were run on the discharge line and the quieter of the two pumps was put into operation. On or about September 6, 1972, defendant replaced the pumps with two new ones of slightly greater efficiency but with a slightly smaller solid passing capacity. Following inspections on September 13 and October 3, 1972, the pumps and lift station were approved and accepted by the FHA and the town.
Plaintiff sought to recover from defendant the expenses it had incurred in pumping out the wet well and lift station following the flooding on July 21, 1972, totaling some *794 $2,110.90. Plaintiff's complaint alleged that the pumps delivered by defendant were not in accordance with the specifications set forth in the contract and that as a result there was a component failure of the pumps which caused the lift station to be flooded. At the conclusion of its case, plaintiff amended its complaint to allege that the pumps were not in accordance with the specifications and were not properly designed or manufactured and that under ordinary use there was a component failure of the pumps that caused the lift station to be flooded.
Defendant filed a counterclaim in the amount of $3,923.68 against plaintiff, alleging that the pump units had been damaged as a result of plaintiff's negligence in installing the lines leading to the lift station. The trial court directed a verdict against defendant on its counterclaim. Defendant has not appealed from this ruling.
We assume without deciding that the doctrine of strict liability, adopted by this court in Engberg v. Ford Motor Co., S. D., 205 N.W.2d 104, was correctly applied in this case. But see Seely v. White Motor Co., 63 Cal.2d 9, 45 Cal.Rptr. 17, 403 P.2d 145; Rosenau v. City of New Brunswick, 51 N.J. 130, 238 A.2d 169; Titus, "Restatement (Second) of Torts, Section 402A and the Uniform Commercial Code," 22 Stanford Law Rev. 713 (1970).
Although plaintiff was entitled to establish through circumstantial evidence that a defect existed in the pump when it left the hands of defendant, see e. g., Reader v. General Motors Corp., 107 Ariz. 149, 483 P.2d 1388; Vandermark v. Ford Motor Co., 61 Cal.2d 256, 37 Cal.Rptr. 896, 391 P.2d 168; Kleve v. General Motors Corp., Iowa, 210 N.W.2d 568, this does not mean that plaintiff was entitled to a directed verdict on this issue. There was testimony from which reasonable persons could have concluded that the vibration and noise were not the result of an inherent defect in the pumps and that the breaking of the bolt holding the inspection plate on one of the pumps was caused by an unbalanced condition within the pump caused by a heavy density in the material passing through the pump. There was testimony to the effect that although the pumps were designed to pass three-inch solids normally found in sanitary sewer systems, they were not designed to handle gravel and rocks. From this evidence, and from the testimony that gravel and rocks were found in the damaged pump after the lift station was pumped dry, the jury could have concluded that the damage to the pump was the result of rocks and gravel entering the sewage system. The fact that the trial court directed a verdict on defendant's counterclaim and thus impliedly found that plaintiff had not been guilty of negligence in installing the sewer line to the lift station did not foreclose a finding by the jury that rocks and gravel had entered the line as a result of the hookups by the residents of Oacoma.
Because reasonable minds could have differed on the conclusions to be drawn from the evidence, the trial court correctly denied plaintiff's motion for a directed verdict. Myers v. Quenzer, 79 S.D. 248, 110 N.W.2d 840; Cowan v. Dean, 81 S.D. 486, 137 N.W.2d 337. Likewise, the evidence was sufficient to support the verdict and the trial court did not err in denying plaintiff's motion for a new trial. Meylink v. Minnehaha Cooperative Oil Co., 67 S.D. 187, 291 N.W. 572.
The judgment is affirmed.
All the Justices concur.


385 S.W.2d 917 (1964)
William BUNNS, James Coplen, William Johnson, Charles W. Jones, Robert M. Johnson, Mrs. D.J. Camp, Mrs. Ann Ethridge, Individually and On Behalf of All the Homeowners of Parkway Village Subdivision, Appellees,
v.
WALKEM DEVELOPMENT CO., Inc., and Wake Realty Co., Inc., Appellants.
Court of Appeals of Tennessee, Western Section.
May 28, 1964.
Certiorari Denied January 4, 1965.
*918 George Morrow and Lawson F. Apperson, Martin, Tate & Morrow, Memphis, of counsel, for appellants.
Hanover, Hanover, Hanover & Walsh, Memphis, for appellees.
Certiorari Denied by Supreme Court January 4, 1965.
BEJACH, Judge.
This cause involves an appeal by Walkem Development Company, Inc. and Wake Realty Company, Inc., an affiliated corporation, which holds title to Lot 866, Section E, Parkway Village Subdivision in Shelby County, Tennessee, from a decree of the Chancery Court of Shelby County which adversely affects their interest in and title to said Lot 866. In this opinion, the parties will be styled, as in the lower court, complainants and defendants, or called by their respective names, Walkem Development Company, Inc., being sometimes designated as "Walkem" and Wake Realty Company, Inc., being designated as "Wake".
On July 9, 1962, complainants for themselves and on behalf of all other homeowners in Parkway Village Subdivision, Shelby *919 County, Tennessee, filed a bill against the defendants in which they seek to obtain, by means of a mandatory injunction, specific performance of alleged contractual rights with reference of Lot 866, Section E, Parkway Village Subdivision, on which it is claimed defendants are obligated to operate and maintain a club house and recreation center. Their bill seeks, also, a prohibitory injunction restraining defendants from disposing of, by sale, lease or otherwise, said Lot 866 of Section E, or the facilities thereon, and for a declaration, under the declaratory judgment law of Tennessee, of the rights and interests of the parties in and to said Lot 866 and the facilities thereon. Said Lot 866 is a 3.1 acre tract of land on which has been erected and heretofore maintained a club house, a swimming pool, tennis courts, and other recreational features. Plats of various sections of Parkway Village Subdivision have been separately recorded in the Shelby County Register's Office, many of them prior to the recording of the plat of Section E. The recorded plat of Section E of said subdivision designates Lot 866 as "Recreation Center". Proof in the record establishes that during the latter part of 1960 or early part of 1961, after a large number of lots had already been sold, "Walkem" conceived the idea of promoting and enhancing the sale of lots in the subdivision by establishing on Lot 866, for the benefit of lot owners in the subdivision, a club house, swimming pool, and other recreational features. All lot owners in the subdivision were to be entitled to free memberships in the club for themselves and their families, subject only to payment of dues to the club of $6.00 per month. Some provision was made, however, for non lot owners to obtain membership in the club on payment of a membership fee of $10.00 and the monthly dues of $6.00. Advertisements were published announcing this program, and a club house, swimming pool and other recreational features were established by defendant "Walkem", at a cost to it of $107,000. Defendant "Wake" is merely the holder of title to said lot 866. Upon completion of the club house in July 1960, Lot 866 was leased to the Parkway Village Recreation Club, which operated a club thereon for the benefit of lot owners in Parkway Village Subdivision until April 1962, at which time it failed, on account of lack of dues paying members, and the lease was cancelled by consent. During this time, all lot owners in Parkway Village Subdivision who desired same were given free memberships in the club, subject only to payment of monthly dues of $6.00. The decrease in membership is reflected by the following tabulation taken from the deposition of Dr. Gordon Bennett, who conducted the operation of Parkway Village Recreation Club:

  "July, 1961                            301 members
   August                                289 members
   September                             211 members
   October                               154 members
   November                              113 members
   December                               55 members
   January, 1962                          28 members
   February                               38 members
   March                                  45 members
   April                                  41 members"

After the failure of Parkway Village Recreation Club, and up to the time of the hearing of this cause, defendants continued to operate the club. Efforts were made to lease or sell the club and its facilities to the Y.M.C.A.; but, because of objections and protests from lot owners, these efforts were cancelled and discontinued. At the time complainant's bill was filed, and at the time of the hearing, defendants had no program or plan for disposition of Lot 866 and the facilities thereon. Complainants contend, however, and the Chancellor sustained this contention, that the provision in the lease to Parkway Village Recreation Club, giving it a first refusal to buy the property, and a provision in the proposed lease to the Y.M.C.A., granting to it an option to purchase, violated the rights of complainants and other lot owners.
*920 The Chancellor sustained complainants' bill and decreed that all home owners in Parkway Village Subdivision had a right of use and enjoyment in and to Lot 866 of said subdivision and the improvements thereon, as a recreation center, subject to certain limitations, the principal one of which was the obligation to pay dues in the amount of $6.00 per month. A prohibitory injunction was issued, which restrained defendants from selling, conveying, transferring or leasing Lot 866 and the improvements thereon, except for the purpose of using same as a recreation club primarily for the benefit of the resident owners of lots in said Parkway Village Subdivision. Defendants also were enjoined from interfering with or infringing on the rights of the owners of lots in the subdivision to enjoy and use their rights in and to Lot 866. Defendants were permitted to continue operation of the club on Lot 866, but were ordered to notify the court at least 30 days before discontinuing such operation, and it was adjudged that no person other than the present home owners of Parkway Village Subdivision have any interest or easement in said Lot 866. The cause was retained in court for the enforcement of the decree and the injunction granted; but the Chancellor expressly declined to declare the rights of the parties in and to Lot 866 in the event that the present recreational club ceases to operate thereon. In his opinion, which is referred to in the decree, the Chancellor calls the promotion idea of the Walkem Development Company a "dedication for recreation purposes of a 3.1 acre tract of land which is designated on the plat of subdivision as Lot 866 of the Parkway Village Subdivision." Defendants excepted to the decree as entered, prayed, and have perfected their appeal to this court.
In this court, as appellants, defendants have filed seven assignments of error, which may be summarized, as follows:
I. That the trial court erred in finding that defendants had dedicated the recreation premises to the owners of lots in the Parkway Village Subdivision.
II. That the trial court erred in holding that the lot owners of Parkway Village Subdvision had a possessory right to use and enjoy the recreation facilities constructed by the defendants.
III. That the trial court erred in holding that no person other than the present home owners of Parkway Village Subdivision had any interest in the subject property.
IV. That the trial court erred in refusing to declare the ultimate rights and interests of the parties in the subject property.
V. That the court erred in granting an injunction against the defendants.
VI. That the court erred in sustaining the objections to defendants' proof that nothing had been added to the ultimate price of the subdivision lots because of the club membership's offer to lot owners.
VII. That the trial court erred in holding that the lease of the premises to Parkway Village Recreation Club, with first refusal to purchase same, and the subsequent oral lease to the Y.M.C.A., with option to purchase, constituted violations of the rights of complainants.
We will dispose of these assignments in the order named.
We think Assignment of Error No. I must be sustained. This assignment is:
"The trial court erred in finding that the defendants had `dedicated' the recreation premises to the owners of lots in the Parkway Village Subdivision."
There can be no dedication of property to private individuals. Any dedication must be for the benefit of the public at large. From 16 Am.Jur.  Dedication  sec. 15, page 359, we quote as follows:
"There is no such thing as a dedication between the owner and individuals. The public must be a party to every *921 dedication. In fact, the essence of a dedication to public uses is that it shall be for the use of the public at large. There may be a dedication of lands for special uses, but it must be for the benefit of the public, and not for any particular part of it; and if from the nature of the user it must be confined to a few individuals, such as the use of land for piling wood, the idea of dedication is negatived."
To the same effect, see 26 C.J.S. Dedication § 9, page 413 and 2 Thompson on Real Property, sec. 483.
In the case of McKinney v. Duncan. 121 Tenn. 265, 118 S.W. 683, the complainant claimed the right to the use of a road across defendant's property on two distinct grounds, one by prescription, arising from continuous user for more than twenty years; and two, dedication by the owners of the property to the public. The Supreme Court in an opinion written by Mr. Justice Shields, later Chief Justice, denied both claims. From this opinion, dealing with the subject of dedication, we quote as follows:
"We are also of the opinion that the complainant had not made out a case of dedication of the road to the public. Dedication is the appropriation or gift by the owner of land, or an easement therein, for the use of the public. It may be express, where the appropriation is formally declared, or by implication arising by operation of law from the conduct of the owner and the facts and circumstances of the case. To establish it by implication, there must be proof of facts from which it positively and unequivocally appears that the owner intended to permanently part with his property and vest it in the public, and that there can be no other reasonable explanation of his conduct. In other words, dedication is a question of intention, and the intent must be clearly and satisfactorily proven." McKinney v. Duncan, 121 Tenn. 265, 271, 118 S.W. 683, 684.
On the plat of Section E, Parkway Village Subdivision, Lot 866 is designated "Recreation Center". At the time this plat of Section E was placed of record, approximately half of the lots in all completed and proposed sections of Parkway Village Subdivision had been purchased, and the record shows that only one of the complainants purchased his lot after the plat of Section E was put of record. This one complainant had made no attempt to join the club until April 16, 1962, just one week before the Parkway Village Recreation Club was forced to discontinue operation and cancel its lease on April 23, 1962. The recorded plat of Section E, Parkway Village Subdivision provides, "All lots in the tract shall be known as residential lots, unless otherwise shown, except lots 900 through 908 which may be used for residential lots of recreation center." Defendants contend that the designation of lot 866 as "Recreation Center" was to prevent it, and possibly lots 900 through 908 from being restricted to residential use only, and that such reservation was made for the benefit of defendants, just as designation of certain other lots as Church and Commercial Lots in other sections of Parkway Village Subdivision had been made. We think this contention is sound, and that it is justified by the record before us. Assignment of Error No. I is, accordingly, sustained.
Assignment of Error No. II is "The trial court erred in holding that the lot owners of Parkway Village Subdivision had a possessory right to use and enjoy the recreation facilities constructed by the defendants."
The representations relied on by complainants were set out in Exhibits 8, 9, and 11 to the original bill. Exhibit 8 is a hand-bill reprint of a news story about the proposed club which appeared in the Memphis Commerical Appeal of May 8, 1960, with a letter on the back signed by Parkway *922 Village Recreation Club, Inc. inviting both Parkway Village residents and outsiders to join the club. Exhibit 9 is a handbill advertising "Free Club Membership in Parkway Village Recreation Club". Exhibit 11 consists of three photographs of sign boards that advertise "Parkway Village Recreation Club" and announce "Free Family Memberships Available only to Parkway Village Homeowners". The club facilities were furnished by defendant through its lease to Parkway Village Recreation Club, and free memberships in the club, subject only to payment of dues in the amount of $6.00 per month were offered to all lot owners of Parkway Village Subdivision. Defendants lived up to their obligation in this manner, but neither defendants nor the Parkway Village Recreation Club could insure the successful continuation of a club if the lot owners in Parkway Village Subdivision failed or refused to support the club financially by maintaining a sufficient number of lot owners as members to keep the club in operation. In our opinion, complainants do not, for themselves individually or on behalf of other lot owners in Parkway Village Subdivision, have authority to compel, by process or orders of the Chancery Court, operation of a club which they or those for whom they sue, are unwilling to support financially. Whatever rights complainants and other lot owners in Parkway Village Subdivision may have against defendants must be classified as contractual rights, as third party beneficiaries of contractual obligations assumed by defendants. Assignment of Error No. II is accordingly sustained.
Assignment of Error No. III is, "The trial court erred in holding that no person other than present homeowners of Parkway Village Subdivision have any interest in the subject property." This holding is erroneous because it is apparent that, from the very first, outsiders were permitted to become members of the club which was organized in an effort to comply with the offers made by defendants. Such holding by the lower court amounts also to an unlawful and improper restriction imposed against defendants in the use of and right to alienate their property. Assignment of Error No. III is sustained.
Assignment of Error No. IV is, "The trial court erred in refusing to declare the ultimate rights and interests of the parties in the subject property." This refusal by the trial court was erroneous, because complainants' bill was filed under the provisions of the Tennessee Declaratory Judgments Law, Sections 23-1101 to 23-1113, inclusive, T.C.A., and a declaration of rights was one of the primary objectives of complainants' bill. In our opinion, complainants are entitled to a declaration that they and other lot owners of Parkway Village Subdivision for whose benefit they sue, are entitled to membership, subject to payment of dues, in any club operated by defendants, or by a transferee or lessee of said lot 866, as long as such club continues in operation; but they are not entitled to a guaranty that the dues of such club shall continue to remain as low as $6.00 per month. It has been demonstrated that dues in that amount, with the reduced membership which occurred, are insufficient for continued operation of the club. Defendants will not, however, be prohibited from sale or lease of Lot 866 for purposes other than a recreation club, if continued operation of such club becomes impracticable. Assignment of Error No. IV is sustained.
Assignment of Error No. V is, "The court erred in granting an injunction against defendants." The injunction awarded to complainants in the lower court had the effect of granting to them, in part at least, specific performance, which is prayed for in their bill.
The operation of a recreation center, and especially so when a club such as that involved in the instant case is included, requires constant expert care and supervision by highly qualified personnel, and the operators of such recreational center must constantly exercise judgment in *923 making decisions about the operation involved. Specific performance, either in whole or in part, would, therefore, require personal services of considerable magnitude and much detail. The general rule is that specific performance may not be granted in cases of that character. Starnes v. Newsom, 1 Tenn.Chancy. 239; McCann v. South Nashville Street R. Co., 2 Tenn.Chancy. 773; Tennessee Electric Power Co. v. White County, 6 Cir., 52 F.2d 1065; Pearl v. City of Nashville, 19 Tenn. 597; Reams v. Town of McMinnville, 153 Tenn. 408, 284 S.W. 382. On this subject, from 49 Am. Jur.  Specific Performance  Sec. 134, pp. 156, 157, we quote as follows:
"The general rule in respect of contracts for personal services is that for breach thereof a party must avail himself of the remedy afforded at law. It is a familiar and well established doctrine that courts of equity will not exercise jurisdiction to grant a decree for specific performance of a contract for personal services except perhaps in very exceptional cases or under very exceptional circumstances. Neither, as a general rule, will equity indirectly enforce a contract for personal services by an injunction restraining the employee from leaving the services of the employer, except to prevent breach of contract by one who possesses some special, unique, or extraordinary qualifications, where it would be difficult, if not impossible, to replace his services, and damages obviously would be inadequate to remedy the loss. Thus, courts of equity will decline jurisdiction to decree specific performance of contracts for personal services involving the exercise of special skill, judgment, and discretion, especially where the contracts are continuous in their nature and run through a number of years or an indefinite period of time."
Our Supreme Court applied the principle of leaving the party aggrieved to its remedy at law in the case of Union Planters Bank & Trust Co. v. Memphis Hotel Co., 124 Tenn. 649, 139 S.W. 715, 39 L.R.A.,N.S., 580, where the lower court had issued a prohibitory injunction which the Supreme Court held amounted, in effect, to a mandatory injunction. We think complainants in the instant case should be limited to such remedy, if any remedy exists, in the event that discontinuance of the operation of a club on Lot 866 becomes necessary.
Independent of dedication, which must be for the benefit of the general public, lot owners may acquire an easement or property right in streets or parks by reason of reference thereto in their deeds, or by reason of a conveyance according to a plat which shows the existence of such facilities. It was expressly so held by the Supreme Court in Goetz v. Knoxville Power & Light Co., 154 Tenn. 545, 290 S.W. 409, and, quite recently, by this Court in Hudson v. Collier, 48 Tenn. App. 386, 348 S.W.2d 350, and in Baker v. Butler, 51 Tenn. App. 111, 364 S.W.2d 916, 922. Other cases to the same effect are: McKinney v. Davidson County, 194 Tenn. 689, 254 S.W. 975; Ridley v. Haiman, 164 Tenn. 239, 47 S.W.2d 750; State ex rel. Kincaid v. Hamilton, 109 Tenn. 276, 70 S.W. 619; Wilson v. Acree, 97 Tenn. 378, 37 S.W. 90; Henderson v. Donovan, 81 Tenn. 289; Byington v. Bass, 11 Tenn. App. 569; and McCord v. Hays, 202 Tenn. 46, 302 S.W.2d 331. So far as we have been able to ascertain, however, this principle has been applied only with reference to streets, parks, squares or other areas requiring no future care or continuing supervision by the grantors. This principle would not, in any event, be applicable in the instant case, because none of the lots in Parkway Village Subdivision were sold by defendants, or either of them, to their present owners. All lots in this subdivision were sold by "Walkem" to professional builders, who sold them to complainants and other lot owners in the subdivision. So far as the record shows, no deed to any of complainants or to other lot owners makes any reference to Lot 866 of *924 Section E, Parkway Village Subdivision, or to the recreation center to be installed thereon. Indeed, only one of complainants purchased his lot after the plat of Section E was recorded, and he did not join the Parkway Village Recreation Club until about a week before it ceased operations. Assignment of Error No. V will be sustained, and the injunction granted in the lower court will be dissolved.
Assignment of Error No. VI is, "The court erred in sustaining objections to defendants' proof that nothing had been added to the ultimate price of the subdivision lots because of the club memberships offered to lot owners." This assignment of error we consider immaterial, because, although the evidence offered was probably competent and admissible, its exclusion did not adversely affect the decision of the litigation. Under the provisions of our harmless error statute, § 27-117, T.C.A., no reversal could be granted on the ground that such evidence was improperly excluded.
Assignment of Error No. VII is, "The trial court erred in holding that the lease of the premises to Parkway Village Recreational Club, with first refusal to purchase same, and the subsequent oral lease to the Y.M.C.A., with option to purchase, constituted violations of the rights of complainants." This assignment of error must be sustained for two reasons: First, since both of said contracts had been cancelled prior to the filing of the bill in this cause, neither of them could present any justiciable issue in this litigation; and, second, because, as pointed out above in the disposition of assignment of error No. I, the designation of Lot 866 in Section E of Parkway Village Subdivision as "Recreation Center", was a reservation made for the benefit of defendants themselves, for the purpose of preventing the use of said lot being restricted to residential purposes. In our opinion, the right of defendants to lease, sell, or otherwise convey said Lot 866 was not impaired by such designation of Lot 866, nor by any obligations assumed by defendants with reference to complainants or other lot owners in Parkway Village Subdivision. As is stated above, if, as, or when it becomes necessary for the operation of a club on Lot 866 to be discontinued, complainants and other lot owners in Parkway Village Subdivision should be left to the remedy, if any, of a suit at law. Assignment of Error No. VIII is sustained.
For the reasons hereinabove stated, the decree of the Chancery Court of Shelby County, Tennessee, will be reversed. A decree will be entered in this Court in conformity with this opinion. The costs of the cause, including those of the lower court, as well as those of this Court, will be adjudged against the complainants and their surety on the cost bond filed in the lower court.
AVERY, P.J. (W.S.), and CARNEY, J., concur.


MISCELLANEOUS SUPREME COURT DISPOSITIONS
BALLOT TITLES CERTIFIED
September 25, 2006
Towers v. Myers (S53591)(341 Or 357). Having received no timely filed objections, the court
certifies to the Secretary of State the Attorney General's modified ballot title for Proposed
Initiative Petition No. 18 (2008), ORS 250.085(9).


414 F.Supp. 15 (1976)
Lillian M. GERTSCH et al., Plaintiffs,
v.
Carla HILL, Individually and in her capacity as Secretary of Housing and Urban Development, et al., Defendants.
No. C 75-513.
United States District Court, D. Utah, Central Division.
March 5, 1976.
James T. Massey, Gordon F. Esplin, Salt Lake City, Utah, for plaintiffs.
Ramon M. Child, U. S. Atty., Steven W. Snarr, Asst. U. S. Atty., Salt Lake City, Utah, for federal defendants.
Keith Sorensen, Salt Lake City, Utah, for Franklin Richards.

ORDER GRANTING PLAINTIFFS' AND DEFENDANT RICHARDS' MOTIONS AND DENYING FEDERAL DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
ALDON J. ANDERSON, District Judge.
The plaintiffs in the above-entitled case have filed a motion requesting a preliminary injunction and the federal defendants and the individual defendant Richards have each filed a motion requesting partial summary judgment on the operating subsidy issue. All of the parties have filed extensive materials supporting their respective positions. The matter came before the court for oral arguments on the summary judgment issues on February 9, 1976. The *16 court has carefully considered all of the arguments and filed materials and considers itself to be well advised.
In a stipulation approved by all of the parties on February 13, 1976, and signed by the court on February 17, 1976, it was agreed that the matter would be argued on summary judgment solely on the question of operating subsidies. It was further agreed that, upon making the determination of law, the court could issue appropriate relief under the plaintiffs' preliminary injunction request. The stipulation, at page 4, listed the contested questions of law which the court must now decide:
A. Whether defendants were required by 12 U.S.C. § 1715z-1(f) and (g) to establish by February 18, 1975, an "Initial operating expense level" for the Village Apartments North.
B. Whether defendant Hill is required by 12 U.S.C. § 1715z-1(f) and (g) to provide operating subsidies to defendant Richards in an amount equal to the increase in the operating expense level of the Village Apartments North attributable to increases in property taxes and utility costs as provided in the statute.
C. Whether defendant Richards is required to apply to HUD for the operating subsidy as set out in subparagraph B, supra.

The federal defendants have argued that the court does not have jurisdiction to hear this case. The court has considered those arguments and finds them to be without merit. It appears that the plaintiffs have properly plead jurisdiction and the federal defendants have not demonstrated that jurisdiction does not exist. See Ross v. Community Services, Inc., 396 F.Supp. 278 (D.Md.1975).
This controversy relates to the "operating subsidy" provisions of the 1974 amendments to the National Housing Act. Those amendments authorize the Secretary of Housing and Urban Development [HUD] to make additional assistance payments to owners of section 236 projects to cover project cost increases due to increases in utility costs and local property taxes. Village Apartments North, operated by the individual defendant Richards, is a section 236 project. HUD recently approved rent increases, to be paid by the tenants, to cover increased operating costs at the Village Apartments North. The 1974 amendments provide that the defendant Secretary is to "establish an initial operating expense level" for such projects. 12 U.S.C.A. § 1715z-1(f)(3) (Supp.1976). The amendments further require that the initial operating expense level "shall be established by the Secretary not later than 180 days after August 22, 1974." 12 U.S.C.A. § 1715z-1(g) (Supp.1976). The amendments also establish a reserve fund of excess rentals to be used by the defendant Secretary to make additional operating subsidy payments. 12 U.S.C.A. § 1715z-1(f) (Supp.1976). The act also provides, with limitations, for the appropriation of funds to carry out the provisions of the amendments. 12 U.S.C.A. § 1715z-1(i)(Supp.1976). Finally, the amendments state that the "Secretary is authorized to make, and contract to make, additional assistance payments to the project owner" under the operating subsidy program. 12 U.S.C.A. § 1715z-1(f)(3) (Supp.1976).
The plaintiffs and the individual defendant contend that the above provisions place mandatory duties on the Secretary. It appears from the arguments that Village Apartments North technically qualify for the operating subsidy but that the defendant Secretary has determined that interest reduction payments under the old low income housing program and the "deep subsidy" provisions of the 1974 amendments take priority. See 12 U.S.C.A. § 1715z-1(f)(2)(Supp.1976). The Secretary contends that Congress vested discretion in her to determine whether to implement the operating subsidy program and that she properly exercised that discretion by refusing to implement the program. In their arguments, all of the parties trace the legislative history of the 1974 amendments and reach differing conclusions concerning the intent of Congress. The plaintiffs contend that funds are available to implement the *17 program while the federal defendants argue that Congress has not appropriated any funds specifically for the operating subsidy program and that the reserve fund is inadequate to fund the program.
The court is convinced that the primary purpose of the 1974 amendments is to aid section 236 low income housing projects. The funds are to go directly to the project owner but the real purpose of the legislation is to aid the low income tenants. If the rental payments from tenants in existing projects are allowed to increase too much, many tenants may be forced to leave and the success of the individual project may be jeopardized. It is incumbent upon the Secretary to respond to the Congressional emphasis on fulfilling the purpose of existing projects as well as applying her limited funds to new low income housing. A reasonable construction of the statutes requires that when the government makes a commitment to a project, that project should receive its proper priority. In short, the Secretary would be expected to act in a manner which will enable each properly managed low income housing project to fulfill the purposes Congress had in mind.
The federal defendants place great reliance on the fact that the amendments state that the Secretary is "authorized" to make contracts for operating subsidy payments rather than stating the mandatory phrase "shall" make contracts. It is clear that the wording of the act gives some discretion to the Secretary. It seems certain to the court, however, that the Secretary cannot refuse to exercise her discretion at all by completely refusing to implement the operating subsidy program. Although this court is not bound by the decisions of other federal district courts, it is impressed by the fact that, when faced with this issue, all of the courts cited have rejected the federal defendants' arguments. E. g., Ross v. Community Services, Inc., supra.
The 1974 amendments direct that the Secretary "shall" establish an initial operating expense level for section 236 projects by February 18, 1975. No such initial operating expense level has been established for the Village Apartments North. The Secretary should be required to immediately establish such an expense level.
The National Housing Act does not seem to directly answer the question of whether the owner of a section 236 project must apply for an operating subsidy, and it does not appear that HUD has provided a vehicle for such applications. It would be logical, however, to require the project owner to apply for the benefits. As such, the individual defendant Richards should use a reasonable method and apply for those benefits.
It is the court's opinion that, after the defendant Richards applies for the operating subsidy, HUD has a legal duty to act upon the application. The amendments do give the defendant Secretary some discretion in her administration of the operating subsidy program. But the Secretary, nonetheless, has the duty to the extent of available funds to implement the program. The order of the court should simply be that the Secretary accept the defendant Richards' application for benefits, consider it in good faith, and act upon the request as quickly as possible, providing the relief to which plaintiffs and defendant Richards are entitled.
Relief will be awarded pursuant to the stipulation signed by counsel on February 13, 1976. Discovery concerning the remaining issues may continue and an initial pretrial conference, to establish a timetable for the remaining matters, will be scheduled at the request of the parties.
IT IS HEREBY ORDERED that the federal defendants' motion for summary judgment is denied. The defendant Richards' motion for partial summary judgment and plaintiffs' motion for injunctive relief are granted as herein specified.
IT IS FURTHER ORDERED that the federal defendants immediately establish an initial operating expense level for the Village Apartments North, using February 18, 1975, as the base date.
IT IS FURTHER ORDERED that the individual defendant Richards is required, in a reasonable manner, to apply to HUD *18 requesting benefits under the operating subsidy program.
IT IS FURTHER ORDERED that the federal defendants act upon the application filed by the defendant Richards in good faith and as quickly as possible. Upon determining that the statutory requirements for the operating subsidy program have been met, the Secretary is directed to make payments from available funds to the defendant Richards, as project owner, to offset the increases in local utility costs and taxes. Such payments are to be computed according to the formula contained in 12 U.S.C.A. § 1715z-1(f)(3) (Supp.1976).


                    T.C. Summary Opinion 2009-172

                       UNITED STATES TAX COURT

     WAYNE ROBERT RISLEY AND NANETTE RISLEY, Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent

     Docket No. 10857-05S.              Filed November 23, 2009.

     Robert L. Risley, for petitioners.

     Kevin W. Coy and Kelly R. Morrison-Lee, for respondent.

     LARO, Judge:   Petitioners petitioned the Court to

redetermine respondent’s determination of deficiencies in and

accuracy-related penalties related to their joint 2001, 2002, and

2003 Federal income tax returns (2001 return, 2002 return, and

2003 return, respectively; collectively, subject returns).
                                 - 2 -

Petitioners filed their petition pursuant to the provisions of

section 7463.1

       This case is now before the Court on respondent’s motion for

summary judgment.     We hold that respondent is entitled to summary

judgment and shall enter a decision accordingly.       Pursuant to

section 7463(b), the decision to be entered is not reviewable by

any other court, and this opinion shall not be treated as

precedent for any other case.

                              Background

I.    Preliminaries

       Petitioners are husband and wife.     They resided in

California when their petition was filed.       They filed the subject

returns jointly.

II.    Tax Shelter

       Petitioners participated in a fraudulent tax shelter (tax

shelter) promoted and sold by the National Audit Defense Network

(NADN).    The NADN advertised itself as a conglomerate of former

Internal Revenue Service agents, enrolled agents, certified

public accountants, and tax attorneys who could help U.S.

taxpayers pay no Federal income tax.       The NADN informed

petitioners that they could qualify for significant tax benefits

by forming a Web site and then paying the NADN to modify the Web

       1
      Section references are to the applicable versions of the
Internal Revenue Code. Rule references are to the Tax Court
Rules of Practice and Procedure.
                               - 3 -

site to comply with the Americans with Disabilities Act of 1990

(ADA), Pub. L. 101-336, sec. 302(a), 104 Stat. 355, codified at

42 U.S.C. sec. 12182(a) (2006).   The ADA generally provides that

any person who owns, leases, or operates a place of public

accommodation shall not discriminate against disabled individuals

in the full and equal enjoyment of goods, services, facilities,

privileges, advantages, and accommodations of the place of public

accommodation.

     The NADN informed petitioners that they had to pay the NADN

$2,495 and issue to the NADN a $7,980 promissory note as to each

year in which they wanted to participate in the tax shelter.

Payments on a note were to be made from the revenue generated by

the Web site or, if no revenue was generated, 8 years after the

note’s making.   The NADN informed petitioners that they could

claim a $5,000 tax credit pursuant to section 44 and deduct at

least $5,475 of business expenses pursuant to section 162 for

each year that they participated in the tax shelter.   The NADN

advised petitioners that it was not providing them (nor was it

engaged in the rendering of) any legal, accounting, or other

professional service and that they should retain a “competent

professional” if they wanted any legal advice or other expert

assistance with respect to the tax shelter.

     Petitioners paid the NADN $2,495 in each subject year to

participate in the tax shelter.   Petitioners also signed at least
                                   - 4 -

one $7,980 promissory note payable to the NADN or to an affiliate

thereof.

III.    Subject Returns

       A.     2001 Return

       Petitioners prepared their 2001 return themselves.

Petitioners attached a 2001 Schedule C, Profit or Loss From

Business (Sole Proprietorship), to their 2001 return reporting

that petitioner Wayne R. Risley (Mr. Risley) operated an

“Electronic Shipping and Information Service” business during

2001.       The only item of income or expense reported on the 2001

Schedule C was a $5,475 expense identified as “Excess

expenditures for modifications made for disabled access to

business”.       Petitioners also attached a 2001 Form 8826, Disabled

Access Credit, to their 2001 return.       The 2001 Form 8826 reported

that petitioners paid $10,475 in total eligible access

expenditures during 2001 and were claiming a $5,000 disabled

access credit for 2001.       Petitioners claimed the $5,000 credit on

their 2001 return.

       B.     2002 Return

       Petitioners prepared their 2002 return themselves.

Petitioners attached a 2002 Schedule C to their 2002 return

reporting that Mr. Risley operated an “Apple Electronic Shopping

& Information” business during 2002.       The only item of income or

expense reported on the 2002 Schedule C was a $5,475 expense
                                 - 5 -

identified as “Excess expenditures for modifications made for

[sic]”.    Petitioners also attached a 2002 Form 8826 to their 2002

return.    The 2002 Form 8826 reported that petitioners paid

$10,475 in total eligible access expenditures during 2002, that

petitioners had a current year disabled access credit of $5,000,

and that petitioners were claiming $611 of the $5,000 as an

allowable disabled access credit for 2002.     Petitioners claimed

the $611 credit on their 2002 return.

      C.   2003 Return

      Petitioners’ 2003 return was prepared by H&R Block.

Petitioners’ 2003 return did not report any income or deductions

as to the tax shelter.     Petitioners attached a 2003 Form 8826 to

their 2003 return.    The 2003 Form 8826 reported that petitioners

paid $5,000 in total eligible access expenditures during 2003 and

that petitioners were claiming a $2,375 disabled access credit

for 2003.    Petitioners claimed the $2,375 credit on their 2003

return.

IV.   Notice of Deficiency

      Respondent issued petitioners a notice of deficiency as to

the subject returns.     Respondent determined in the notice of

deficiency that petitioners were not entitled to any of the

deductions or credits claimed as to the tax shelter.     For the

respective years, respondent determined deficiencies of $6,513,
                                 - 6 -

$2,776, and $2,712.2   Respondent also determined accuracy-related

penalties under section 6662(a) and (b) of $1,303, $555, and

$542, respectively, for negligence or disregard of rules and

regulations.

                            Discussion

I.   Standard for Summary Judgment

      Summary judgment may be granted with respect to any part of

the legal issues in controversy if the record before the Court

shows no genuine issue as to any material fact and that a

decision may be rendered as a matter of law.    See Rule 121(a) and

(b); Craig v. Commissioner, 119 T.C. 252, 259-260 (2002).

Respondent bears the burden of proving the absence of any genuine

issue of material fact, and all facts are viewed in the light

most favorable to petitioners.    See Craig v. Commissioner, supra

at 260.   Petitioners, however, must do more than merely allege or

deny facts; they must set forth “specific facts showing that

there is a genuine issue for trial.”     See Rule 121(d); Celotex

Corp. v. Catrett, 477 U.S. 317, 324 (1986).    Petitioners have

failed to raise any genuine issue of material fact under that

standard, and this case is ripe for summary judgment.

      2
      These deficiencies total $11,664, and petitioners’ cash
expenditures as to the tax shelter total $7,485 ($2,495 x 3).
Petitioners reportedly realized an economic gain of $4,179 from
the tax shelter ($11,664 - $7,485 = $4,179).
                                 - 7 -

II.   Deficiencies

      Petitioners make no claim that sections 44 and 162 actually

allow them to deduct or credit the items that they reported as to

the tax shelter.     Cf. Good v. Commissioner, T.C. Memo. 2008-245

(holding on the merits that the taxpayers were not entitled to

the section 162 expenses and disabled business credits reported

as to the tax shelter).    Petitioners’ primary argument in

challenging respondent’s determination of the deficiencies is

that respondent is equitably estopped from assessing against them

any amount relating to the tax shelter.    We disagree.   Equitable

estoppel is a judicial doctrine that precludes a party from

denying his or her acts or representations which induced another

to act to his or her detriment.    See Hofstetter v. Commissioner,

98 T.C. 695, 700 (1992).    The following requirements must be

satisfied where, as here, equitable estoppel is asserted against

the Commissioner:    (1) A false representation by the Commissioner

or his wrongful, misleading silence; (2) an error in a statement

of fact and not in an opinion or statement of law; (3) ignorance

of the true facts; (4) a taxpayer’s reasonable reliance on the

Commissioner’s acts or statements; and (5) adverse effects of the

Commissioner’s acts or statement.    See Norfolk S. Corp. v.

Commissioner, 104 T.C. 13, 59-60 (1995), affd. 140 F.3d 240 (4th

Cir. 1998).   Petitioners’ failure to establish any one of these
                                - 8 -

five requirements means that their claim of equitable estopped

must fail as well.

     Petitioners have failed to establish on the part of

respondent either a false representation or a wrongful,

misleading silence as to the tax shelter.3    To that end, we are

unable to find as to the tax shelter that respondent made any

representation (let alone any misrepresentation) to petitioners

or otherwise wrongfully concealed from petitioners any material

fact.    Instead, the record establishes (and we so find) that

respondent had no contact with petitioners as to the tax shelter

before his audit of the subject returns and that petitioners

invested in the tax shelter separate and apart from any action

taken by respondent.

     Petitioners argue that the statements of the the NADN’s

workforce are imputed to respondent to the extent that those

workers were registered with the Internal Revenue Service as

enrolled agents or tax preparers.    Petitioners also argue that

the tax shelter is imputed to respondent because the NADN

advertised that it employed those workers as well as former

Internal Revenue Service employees.     We disagree on both counts.

The record does not establish, nor do petitioners claim, that any

of the NADN’s workers also were working for the Internal Revenue

     3
      Given this failure, we need not and do not address any of
the other four requirements of equitable estoppel.
                                 - 9 -

Service at the same time.   Moreover, the mere fact that a former

employee of the Internal Revenue Service, or an individual

registered with the Internal Revenue Service as an enrolled agent

or a tax preparer, may have been affiliated with the NADN (and/or

the tax shelter) does not estop respondent from challenging the

legitimacy of the tax shelter.    See Auto. Club of Mich. v.

Commissioner, 353 U.S. 180, 183-184 (1957) (holding that the

Commissioner is usually not estopped from correcting

retroactively a mistake of law); see also Martin’s Auto Trimming,

Inc. v. Riddell, 283 F.2d 503, 506 (9th Cir. 1960); Schwalbach v.

Commissioner, 111 T.C. 215, 228 n.4 (1998); Fortugno v.

Commissioner, 41 T.C. 316, 323-324 (1963), affd. 353 F.2d 429 (3d

Cir. 1965).   Nor do we believe, as petitioners argued, that

respondent was sufficiently aware of the impropriety of the tax

shelter through petitioners’ filing of their 2001 return so that

he is estopped from challenging any of the amounts that

petitioners later claimed as to the tax shelters for 2002 and

2003.

     Petitioners also argue that the Government should bear the

loss of any Federal income taxes owed by them as to the tax

shelter because respondent failed to inform petitioners that the

tax shelter was a “fraud” and is in a better position than they

to recover the $7,485 that they paid to the NADN.   We disagree.

While petitioners consider it inequitable that they have to pay
                               - 10 -

taxes as to the tax shelter when they have paid $7,485 to the

NADN for what they now consider to be a worthless investment, we

know of no reason the Government should act as an insurer of that

investment.    Nor do we agree with petitioners that they are

entitled for the subject years to deduct the $7,485 as a theft

loss under section 165.    While section 165 lets an individual

deduct a theft loss in the year during which the individual

discovers the loss, see sec. 165(a), (c)(3), (e), the record does

not establish that petitioners discovered any such theft loss

during the subject years.

       We hold that respondent is not estopped from disallowing the

claimed amounts.    Accordingly, we sustain respondent’s

determination of the deficiencies.

III.    Accuracy-Related Penalties

       Respondent determined that petitioners are liable for

accuracy-related penalties under section 6662(a) and (b)(1).

Section 6662(a) and (b)(1) imposes a penalty equal to 20 percent

of the portion of an underpayment of tax attributable to a

taxpayer’s negligence or disregard of rules or regulations.

Negligence connotes a lack of due care or failure to do what a

reasonable and prudent person would do under the circumstances.

See Allen v. Commissioner, 92 T.C. 1, 12 (1989), affd. 925 F.2d

348 (9th Cir. 1991).    An accuracy-related penalty is not

applicable to any portion of an underpayment to the extent that
                                   - 11 -

the taxpayer had reasonable cause for that portion and acted in

good faith with respect thereto.       See sec. 6664(c)(1).

     Respondent bears the burden of production with respect to

the applicability of the accuracy-related penalties.            See sec.

7491(c).    That burden requires that respondent produce sufficient

evidence that it is appropriate to impose the accuracy-related

penalties.    See Higbee v. Commissioner, 116 T.C. 438, 446 (2001).

Once respondent meets this burden, the burden of proof falls upon

petitioners.     See id. at 447.    Petitioners may carry their burden

by proving that they were not negligent; i.e., that they made a

reasonable attempt to comply with the provisions of the Internal

Revenue Code and were not careless, reckless, or in intentional

disregard of rules or regulations.          See sec. 6662(c).

Alternatively, petitioners may establish that their underpayment

was attributable to reasonable cause and their acting in good

faith.     See sec. 6664(c)(1).

     We conclude that respondent has met his burden of production

and that petitioners have failed to carry their burden of proof.

The record establishes that petitioners claimed significant

amounts of tax benefits to which they neither were entitled nor

had a reasonable claim.     The record does not establish that

petitioners made a reasonable attempt to comply with the

provisions of the Internal Revenue Code, that petitioners’

underpayment was attributable to reasonable cause, or that
                             - 12 -

petitioners acted in good faith as to the underpayment.

Petitioners claim that the subject returns were prepared and

reviewed by the NADN and that they reasonably relied on the NADN

to prepare those returns correctly.   We reject that claim as

factually and legally incorrect.   As a point of fact, petitioners

prepared their 2001 and 2002 returns themselves; H&R Block

prepared their 2003 return; and the NADN informed petitioners

that it was not providing them with any legal or other

professional service and that they should retain a competent

professional if they wanted any legal advice or other expert

assistance with respect to the tax shelter.   As a point of law,

any such claimed reliance upon the NADN (if it in fact had

occurred) would not be reasonable in the setting of this case

given that the NADN was the tax shelter’s promoter.   See

Neonatology Associates, P.A. v. Commissioner, 115 T.C. 43, 98-99

(2000), affd. 299 F.3d 221 (3d Cir. 2002).

     We hold that petitioners are liable for the accuracy-related

penalties respondent determined.   Accordingly, we sustain

respondent’s determination as to those penalties.
                              - 13 -

IV.   Conclusion

      We have considered all of petitioners’ contentions and have

concluded that those contentions not discussed herein are without

merit.   To reflect the foregoing,

                                          An appropriate order and

                                     decision will be entered for

                                     respondent.


                                                                                ACCEPTED
                                                                            06-14-00130-CR
                                                                  SIXTH COURT OF APPEALS
                                                                       TEXARKANA, TEXAS
                                                                       1/5/2015 11:24:06 AM
                                                                            DEBBIE AUTREY
                                                                                CLERK

                 ORAL ARGUMENT WAIVED

                  CAUSE NO. 06-14-00130-CR                 FILED IN
                                                    6th COURT OF APPEALS
                                                      TEXARKANA, TEXAS
                            IN THE                  1/5/2015 11:24:06 AM
                                                        DEBBIE AUTREY
                     COURT OF APPEALS                       Clerk

     SIXTH APPELLATE DISTRICT OF TEXAS AT TEXARKANA
____________________________________________________________

              ALVIN PETER HENRY, JR., Appellant

                               V.

                 THE STATE OF TEXAS, Appellee
____________________________________________________________

      ON APPEAL FROM THE 6TH JUDICIAL DISTRICT COURT
                   LAMAR COUNTY, TEXAS
   TRIAL COURT NO. 25589; HONORABLE BILL HARRIS, JUDGE
____________________________________________________________

 APPELLEE’S (STATE’S) MOTION TO
  EXTEND TIME FOR FILING BRIEF
____________________________________________________________

                    Gary D. Young, County and District Attorney
                    Lamar County and District Attorney’s Office
                    Lamar County Courthouse
                    119 North Main
                    Paris, Texas 75460
                    (903) 737-2470
                    (903) 737-2455 (fax)

                    ATTORNEYS FOR THE STATE OF TEXAS

                               1
                     ORAL ARGUMENT WAIVED

                      CAUSE NO. 06-14-00130-CR

                                 IN THE

                         COURT OF APPEALS

     SIXTH APPELLATE DISTRICT OF TEXAS AT TEXARKANA
____________________________________________________________

                 ALVIN PETER HENRY, JR., Appellant

                                   V.

                 THE STATE OF TEXAS, Appellee
____________________________________________________________

      ON APPEAL FROM THE 6TH JUDICIAL DISTRICT COURT
                   LAMAR COUNTY, TEXAS
   TRIAL COURT NO. 25589; HONORABLE BILL HARRIS, JUDGE
____________________________________________________________

 APPELLEE’S (STATE’S) MOTION TO
  EXTEND TIME FOR FILING BRIEF
____________________________________________________________

TO THE HONORABLE COURT OF APPEALS:

      COMES NOW, the State of Texas, by and through Gary D. Young, the

elected County and District Attorney of Lamar County, Texas and the Lamar

County and District Attorney’s Office, respectfully submits this Motion to

Extend Time to File Brief under Tex. R. App. P. 10 and 38. The State of

                                    2
Texas moves this Court pursuant to the Texas Rules of Appellate Procedure

for an extension of time in which to file the Appellee’s (State’s) Brief upon

good cause shown below.

                                        I.

      On or about December 5, 2014, the appellant filed his brief in the

above-styled and numbered appellate cause. The appellee’s (State’s) brief

was due on or before Monday, January 15, 2015. The State’s first motion

seeks an additional thirty (30) days in which to file its brief.

                                       II.

      This is an appeal from the 6th Judicial District Court of Lamar County,

Texas. The cause number in the 6th Judicial District Court was 25589.

                                       III.

      The appellant, Alvin Peter Henry, Jr., (Henry) filed a notice of appeal

on or about July 15, 2014 in this Court. The District Clerk of Lamar

County filed the Clerk’s Record on or about August 15, 2014. The official

court reporter filed the Reporter’s Record on or about October 2, 2014 along

with the exhibits on or about October 6, 2014.

      On or about October 30, 2014, the appellant, Henry, filed a motion for

extension of time to file his brief, which this Court granted. On or about

December 15th, the appellant filed his brief.

                                        3
                                     IV.

      The present deadline for filing the appellee’s (State’s) brief was

Monday, January 5, 2015. This Court has not granted a previous extension

to the appellee (State) in the above-styled and numbered appellate cause.

      Since the filing of appellant’s brief, counsel for the appellee (State)

was preparing for a jury trial in cause number 25603 styled The State of

Texas v. Curtis Anderson, but the defendant entered a plea on the day of trial.

On December 2nd, counsel for the appellee (State) was preparing for a jury

trial in cause numbers 25572 and 25618--both styled The State of Texas v.

Jacoby Hildreth, but the trial court continued these cause numbers. On

December 3rd, counsel for the appellee (State) was a speaker at the Elected

Prosecutors’ seminar in Austin, and was out of the office from December 3rd

through December 5th.

      The Christmas holidays fell on December 24-25, and the Lamar

County and District Attorney’s office was closed. The New Year’s Day

holiday fell on January 1, 2015, and the Lamar County and District

Attorney’s office was also closed.

      In addition to the criminal dockets above, counsel for the appellee

(State) was preparing a brief in cause number 06-13-00110-CR styled

Michael Earitt White v. The State of Texas; in the Sixth Judicial District

                                       4
Court of Appeals at Texarkana (which was also due on January 5, 2015).

Further, counsel for the appellee (State) was preparing the appellee’s

(State’s) brief in cause number 06-14-00053-CV styled In the Matter of D.B.

in the Sixth Judicial District Court of Appeals at Texarkana. The appellee’s

(State’s) brief was filed prior to the brief in White.

      Due to these circumstances, Appellee’s attorney is unable to complete

the intensive research necessary to prepare the brief in this appellate cause,

thus necessitating this request for an extension of time. Insufficient time

now remains to complete Appellee’s Brief, but, if the time is extended

another thirty (30) days to Friday, February 6, 2015, the State will have

sufficient time for completion with the time as extended.

                                        V.

      The purpose of this motion is not for delay, but so that justice may be

had by all parties. Appellee requests that an extension of time until Friday,

February 6, 2015 be granted for the filing of Appellee’s Brief, or until such

time as this Court deems appropriate.

      WHEREFORE PREMISES CONSIDERED, the State of Texas prays

that upon final submission of this motion to this Court’s motion docket, this

Court grant the State’s Motion to Extend Time to File Its Brief in its entirety

and grant the State of Texas an additional thirty (30) days in which to file its

                                         5
brief on or before Friday, February 6, 2015, or until such time as this Court

deems appropriate; and for such other and further relief, both at law and in

equity, to which it may be justly and legally entitled.

                                 Respectfully submitted,

                                 Gary D. Young
                                 Lamar County & District Attorney
                                 Lamar County Courthouse
                                 119 North Main
                                 Paris, Texas 75460
                                 (903) 737-2470
                                 (903) 737-2455 (fax)

                                 By:________________________________
                                      Gary D. Young, County Attorney
                                      SBN# 00785298

                                 ATTORNEYS FOR STATE OF TEXAS

                              VERIFICATION

STATE OF TEXAS  §
                §
COUNTY OF LAMAR §

      BEFORE ME, the undersigned authority, on this day personally
appeared Gary D. Young, who after being duly sworn stated:

      I am the attorney representing the Appellee in the above-styled
      and numbered appellate cause. I have read the foregoing First
      Motion to Extend Time to File Appellee’s Brief and the facts
      and allegations contained are known to me and they are true
      and correct to the best of my knowledge.

                                        _____________________________
                                        Gary D. Young

                                       6
      SUBSCRIBED AND SWORN TO BEFORE ME on the 5th day of
January, 2015, to certify which witness my hand and official seal.

                                      Notary Public, State of Texas

                     CERTIFICATE OF SERVICE

      This is to certify that in accordance with Tex. R. App. P. 9.5, a true

copy of the “Appellee’s (State’s) Motion to Extend Time for Filing Brief has

been served on the 5th day of January, 2015 upon the following:

      Gary L. Waite
      Attorney at Law
      104 Lamar Avenue
      Paris, TX 75460

                                      ______________________________
                                      GARY D. YOUNG

                                     7


15-2490-cv
Grezak v. Grezak

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.

      At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 4th day of November, two thousand sixteen.

PRESENT: PIERRE N. LEVAL,
                 ROBERT D. SACK,
                 REENA RAGGI,
                                 Circuit Judges.
----------------------------------------------------------------------
GRAZYNA GREZAK,
                                 Plaintiff-Appellant,

                        v.                                               No. 15-2490-cv

EVELINA GREZAK,
                                 Defendant-Appellee,

NANCY RUBENSTEIN,
                                 Defendant.
----------------------------------------------------------------------
APPEARING FOR APPELLANT:                          GRAZYNA SKLODOWSKA-GREZAK, pro
                                                  se, Cresco, Pennsylvania.

APPEARING FOR APPELLEE:                          MATTHEW R. SHAPIRO (Beth C. Finkelstein,
                                                 on the brief), Ropes & Gray LLP, New York,
                                                 New York.
       Appeal from a judgment of the United States District Court for the Eastern District

of New York (Raymond J. Dearie, Judge; Cheryl L. Pollak, Magistrate Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the July 10, 2015 judgment of the district court is AFFIRMED.

       Plaintiff Grazyna Grezak appeals from a judgment denying reconsideration of the

magistrate judge’s May 15, 2015 order imposing a leave-to-file sanction. That order bars

Grezak from (1) filing new claims in the Eastern District of New York against her

daughter, appellee Evelina Grezak, and (2) alleging breach of her settlement agreement

with appellee, without first obtaining leave from the magistrate judge. Grezak argues that

she was entitled to reconsideration because sanctions were imposed without affording her

the notice and opportunity to respond to Evelina’s motion for sanctions required by due

process. We assume the parties’ familiarity with the facts and record of prior proceedings,

which we reference only as necessary to explain our decision to affirm.

       We review both the imposition of a leave-to-file sanction and the denial of a motion

for reconsideration for abuse of discretion, see, e.g., Wilson v. Citigroup, N.A., 702 F.3d

720, 723 (2d Cir. 2012) (sanction); Cohen v. UBS Fin. Servs., Inc., 799 F.3d 174, 177 (2d

Cir. 2015) (reconsideration), which we will identify only when a court’s decision rests on

an error of law or clearly erroneous factual finding, or cannot otherwise “be located within

the range of permissible decisions,” Wolters Kluwer Fin. Servs., Inc. v. Scivantage, 564

F.3d 110, 113 (2d Cir. 2009) (internal quotation marks omitted). That is not this case.

                                             2
The challenged sanction order did not take effect here until the district court denied

Grezak’s motion for reconsideration. See, e.g., Moates v. Barkley, 147 F.3d 207, 208 (2d

Cir. 1998) (requiring notice and opportunity to be heard before imposition of leave-to-file

sanction).1 Thus, (1) the magistrate judge’s May 15, 2015 order, in addition to the March

24, 2015 order directing the plaintiff to “cease filing duplicative motions in this action,”

S.A. 93, put Grezak on notice of the sanction, and (2) she was afforded a meaningful

opportunity to be heard by the district court by virtue of her motion for reconsideration.

       In denying reconsideration, moreover, the district court provided an ample factual

basis for the leave-to-file sanction, noting the “stream of motions, requests, and diatribes”

received by the court over the course of the litigation and even after settlement. Pl’s

App’x 37; see Iwachiw v. N.Y. State Dep’t of Motor Vehicles, 396 F.3d at 528 (noting that

among relevant factors are whether suits are “vexatious, harassing or duplicative” and

whether litigant “has caused needless expense to other parties” (internal quotation marks

1
  Grezak does not here suggest that the magistrate judge exceeded her authority in
imposing the challenged sanction and, thus, we have no reason to consider whether the
district court was required to conduct de novo review (or, if so, whether it effectively did
so). Compare Iwachiw v. N.Y. State Dep’t of Motor Vehicles, 396 F.3d 525, 528–529 (2d
Cir. 2005) (suggesting that leave-to-file sanction is a form of injunctive relief); 28 U.S.C.
§ 636(b)(1)(A) (excluding injunctive relief from pretrial matters that can be decided by
magistrate judge subject to abuse-of-discretion review by district court), with International
Prods. Corp. v. Coons, 325 F.2d 403, 406 (2d Cir. 1963) (noting for purposes of 28 U.S.C.
§ 1292(a)(1), immediately appealable orders are orders which “give or aid in giving some
or all of the substantive relief sought by a complaint . . . and [do not include] restraints or
directions in orders concerning the conduct of the parties or their counsel, unrelated to the
substantive issues in the action, while awaiting trial”); Ronson Corp. v. Liquifin
Aktiengesellschaft, 508 F.2d 399, 401 (2d Cir. 1974) (same); 9 J. Moore, Federal Practice
P110.20(1), at 233 (2d ed. 1973) (same).
                                              3
omitted)). Its conclusion that the sanction crafted by the magistrate judge was sufficiently

narrowly tailored was not outside the “range of permissible decisions.” Wolters Kluwer

Fin. Servs., Inc. v. Scivantage, 564 F.3d at 113 (internal quotation marks omitted).

Accordingly, we identify no abuse of discretion.2

       We have reviewed Grezak’s remaining arguments and find them to be without

merit. Accordingly, we AFFIRM the judgment of the district court.

                                          FOR THE COURT:
                                          Catherine O=Hagan Wolfe, Clerk of Court

2
  Grezak’s brief might be read to suggest that she is also appealing the district court’s
denial of reconsideration with respect to a second order, which involved, inter alia, the
denial of sanctions sought by Grezak. Because that order is not mentioned in Grezak’s
statement of issues and no argument is ever developed, we deem any challenges to that
court decision waived. See Norton v. Sam’s Club, 145 F.3d 114, 117–18 (2d Cir. 1998).
                                             4