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text:
No. 90,762
JOAN WAGNON, as an Individual and as an Agent and
Employee of the City of Topeka, Kansas,
A plaintiff's state cause of action for wrongful termination based on constructive discharge and any companion 42 U.S.C. § 1983 (2000) federal claim accrues -- and the applicable 2-year statute of limitations begins to run -- at the time the plaintiff tenders his or her resignation or announces a plan to retire.
Review of the judgment of the Court of Appeals in Whye v. City Council for the City of Topeka, No. 90,762, an unpublished opinion filed March 5, 2004. Appeal from Shawnee district court; RONALD D. INNES, senior judge. Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed. Opinion filed December 3, 2004.
Keith E. Renner, of Barnett & Renner, of Auburn, argued the cause, and Lee R. Barnett, of the same firm, was with him on the briefs for appellant.
Anne L. Baker, of Wright, Henson, Clark & Baker, LLP, argued the cause, and Wilburn Dillon, Jr., of Topeka, was with her on the brief for the appellees.
The opinion of the court was delivered by
BEIER, J.: Plaintiff Roland Whye filed this lawsuit against the City of Topeka (the City) and former Topeka Mayor Joan Wagnon, claiming wrongful termination. The district court granted the defendants' motion to dismiss on statute of limitations grounds. The Kansas Court of Appeals affirmed, although it differed from the district judge on the cause of action's precise accrual date. We granted review.
The relevant facts are undisputed. Whye was a major with the Topeka Police Department. He had served for nearly 30 years and was third in command under Chief Dean Forster. Whye and Forster were close friends as well as fellow officers.
In July 2000, Whye was arrested and charged with battery and criminal restraint. He was suspended without pay for 10 days. According to Whye, his arrest displeased then Mayor Wagnon. She demanded Forster terminate Whye or jeopardize his own position.
Whye decided to pursue early retirement, and on August 24, 2000, Forster sent a memorandum to the City's chief administrative officer regarding Whye's plan to retire. The memo read in pertinent part:
"I have met with Major Roland Whye and his attorney Doug Wells concerning Major Whye retiring from the Police Dept. Major Whye is willing to take his retirement after the third quarter of 2000, which would put his last day of employment as 9/15/2000.
"Major Whye is willing to remain on vacation until 9/15/2000 if he is reimbursed for his vacation for the first three quarters of 2000."
The police department agreed with Whye's plan to retire early and paid Whye for his vacation time on August 25, 2000. Whye's retirement became effective September 15, 2000.
Whye was acquitted of the criminal charges against him on June 20, 2001, and he filed this suit on August 30, 2002. Whye claimed denial of due process under 42 U.S.C. §1983 (2000) and constructive discharge in violation of state public policy.
The district court ruled Whye's claims were time barred because the applicable 2-year statute of limitations began running August 24, 2000, i.e., the date the City responded to the news of Whye's retirement plan. See K.S.A. 2003 Supp. 60-513(a)(4).
On appeal Whye did not dispute that the 2-year statute set out in K.S.A. 2003 Supp. 60-513(a)(4) governed his federal and state claims. He argued, however, that neither claim accrued until the effective date of his retirement, September 15, 2000. Before that point, the defendants could have reversed their position and he could have continued working. Thus his lawsuit was timely filed.
The Court of Appeals panel, exercising the unlimited appellate review appropriate when a motion to dismiss or motion for summary judgment has been granted in the district court, rejected Whye's reasoning and relied on Johnston v. Farmers Alliance Mutual Ins. Co., 218 Kan. 543, 545 P.2d 312 (1976), stating: "[A] cause of action for wrongful discharge accrues when the plaintiff knows or is certain about the termination." In the panel's view, Whye became certain of his termination when the department responded to Forster's memorandum on August 25, 2000, and the August 30, 2002, lawsuit was therefore time barred. It affirmed the district court despite the 1-day difference in its analysis of the facts. Whye v. City Council for the City of Topeka, No. 90,762, unpublished opinion filed March 5, 2004.
We have not previously ruled on how to determine the date that triggers the statute of limitations for a constructive discharge claim or a §1983 claim based upon it. We also have not addressed this issue in a situation where the plaintiff elected to take early retirement. At least three possible accrual dates are worthy of consideration: (1) the date the employee notifies the employer of his or her intention to retire; (2) the date the employer accepts the employee's offer to retire; and (3) the effective date of the retirement. Resolution of this question requires interpretation of the statute of limitations, and interpretation of a statute raises a question of law. We therefore have unlimited review. See Waterview Resolution Corp. v. Allen, 274 Kan. 1016, 1027, 58 P.3d 1284 (2002).
Defendants argue and we agree that accrual of Whye's §1983 claim and accrual of his state law constructive discharge claim must be analyzed separately.
Whye's § 1983 claim accrued when he knew or should have known that his constitutional rights had been violated. See Beck v. City of Muskogee Police Dept., 195 F.3d 553, 557 (10th Cir. 1999) (citing Smith v. City of Enid, 149 F.3d 1151, 1154 [10th Cir. 1988]).
Whye alleged in his petition that Wagnon summoned Forster into her office and demanded that he fire Whye. When Forster reported this demand to Whye, Whye saw "that putting up a fight against Mayor Wagnon's decision would cause the resignation or termination of a dear and respected friend," and thus he "had no choice but to end his [own] employment and accept early retirement." On these facts, we agree with the district judge that any alleged deprivation of due process had been committed and was known to Whye no later than August 24, 2000, when Whye communicated through Forster that he intended to take what he viewed as a forced retirement.
With regard to accrual of Whye's constructive discharge claim under state law, K.S.A. 2003 Supp. 60-513(b) controls. It states:
"[T]he causes of action listed . . . shall not be deemed to have accrued until the act giving rise to the cause of action first causes substantial injury, or, if the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party."
This court has defined constructive discharge to mean "'[q]uitting as a reasonable response to illegal treatment.'" Garvey Elevators, Inc. v. Kansas Human Rights Comm'n, 265 Kan. 484, 494, 961 P.2d 696 (1998) (quoting Player, Employment Discrimination Law § 5.60 [1988]). Whye asserts that he suffered no injury or damages until his retirement became effective and criticizes the 30-year-old Johnston case relied on by the Court of Appeals as outdated and factually distinct.
In Johnston, plaintiff Stanton Johnston was a longtime employee of Farmers Alliance Mutual Insurance (Alliance). Johnston claimed he was terminated on March 3, 1972, in retaliation for reporting missing money to his superiors. Although Alliance paid him through May 31, 1972, he had found other employment on May 25, 1972. Johnston filed his lawsuit on May 31, 1974, and Alliance moved for summary judgment, claiming his claim for retaliatory discharge was barred by the 2-year statute of limitations. Johnston, 218 Kan. at 543-44.
This court determined that, in the words of 60-513(b), the act giving rise to Johnston's claim first caused substantial injury when he received notice of his termination on March 3, 1972. This was true, "[a]lthough some damages to the plaintiff may not have accrued under the accounting principles until installments of salary had ceased." Johnston, 218 Kan. at 548.
Whye's criticism of Johnston is unpersuasive. The notice of termination that marked accrual of Johnston's cause of action for retaliatory discharge is legally indistinguishable from Whye's communication of his plan to pursue retirement here. Although each act predated the ultimate cessation of pay, it signaled that the cessation had become inevitable. If we accept Whye's version of the facts as true, as we must on this review, he felt he had no choice and was forced to take early retirement; in other words, he had already been shown the door just as convincingly as Johnston had. The statute of limitations began to run on August 24, 2000, and Whye's lawsuit was time barred.
Our review of other jurisdictions' constructive discharge cases lends support to our decision.
The New York Supreme Court held in Clark v. State, 302 App. Div. 2d 942, 754 N.Y.S.2d 814 (2003), that Nancy Clark's claim for constructive discharge was filed too late: 3 years and 1 day after submitting her letter of resignation. The letter was submitted October 4, 1985, to be effective October 7, 1985. The court held Clark's claim accrued when she tendered her letter of resignation on October 4, 1985, "not when her resignation became effective." Clark, 302 App. Div. 2d at 944.
In Daniels v. Mutual Life Ins. Co., 340 N.J. Super. 11, 773 A.2d 718 (2001), the New Jersey court opted for a bright-line accrual test, holding that the period of limitations for constructive discharge cases "begins to run on the date that the resignation is tendered." 340 N.J. Super. at 13. The plaintiff, who had tendered her resignation on December 4, 1995, was persuaded to stay through the end of the week, making her last day of employment December 8. She filed suit 1 year from her last day, i.e., 1 year and 4 days after resigning. The court said:
"The harm has been done when the employee feels compelled to resign. In short, in an actual termination situation, the retaliatory action which starts the running of the period of limitations is the separation from work. In a constructive discharge situation, the retaliatory action is the creation of intolerable conditions which a reasonable employee cannot accept. The conditions become intolerable when the employee tenders his or her resignation. Thus, by definition, the act of discrimination cannot occur any later than the date of resignation." 340 N.J. Super. at 17-18.
In University of Texas Medical Branch v. Hohman, 6 S.W.3d 767, 773-74 (Tex. App. 1999), the Texas Court of Appeals rejected the employer's argument that nurses claiming constructive discharge had to file suit within 90 days of when retaliatory conduct began, rather than within 90 days of their eventual resignation. Hohman, 6 S.W.3d at 773-74. Moreover, the court stated, "[r]egardless of when the nurses actually left the employment of [the University], we hold that their constructive discharge claims accrued on the dates they submitted their resignations. By those dates, they were aware that conditions had become intolerable and that they felt compelled to resign." Hohman, 6 S.W.3d at 774.
In Hancock v. Bureau of National Affairs, Inc., 645 A.2d 588 (D.C. 1994), the District of Columbia Court of Appeals reviewed a fact situation very similar to the one presented here.
Plaintiff James Hancock had submitted his letter of resignation on June 20, 1991, which was also his last day of work. The letter stated Hancock was retiring early because of the defendant employer's discriminatory conduct toward him, and he would take 7 weeks of accrued vacation, starting the next day. Hancock and the employer then continued discussions on the amount of salary and commission owed to Hancock, and the employer eventually sent a letter to Hancock on August 16, 1991, stating that July 31, 1991, was his official retirement date. Hancock brought suit on July 20, 1992. Hancock, 645 A.2d at 589.
The employer argued Hancock's case was time barred by the applicable one-year statute of limitations; Hancock argued that the statute had not begun to run until his official retirement date. Like Whye, Hancock said that, until he was officially retired, he and the employer could have worked out their differences and he could have abandoned his plan to retire. Hancock, 645 A.2d at 590.
The court sided with the employer, relying on cases from Illinois, Washington, and the federal District of Kansas. Hancock, 645 A.2d at 590, citing Lowell v. Glidden-Durkee, Div. of SCM Corp., 529 F. Supp. 17, 19 (N.D. Ill. 1981); Lange v. Cigna Individual Financial Serv. Co., 766 F. Supp. 1001, 1004 (D. Kan. 1991); Douchette v. Bethel School Dist. No. 403, 117 Wash. 2d 805, 815, 818 P.2d 1362 (1991). It observed that some courts "focused their inquiry upon identifying the 'last possible date on which an unlawful employment practice could have occurred,'" while others rejected the argument that the effective date of resignation or retirement should serve as the statute of limitations trigger; those jurisdictions instead found that the accrual date was the date of the allegedly forced announcement of resignation. 645 A.2d at 590 (quoting Lowell, 529 F. Supp. at 19). Specifically with regard to Hancock, "No discriminatory act supporting a claim of constructive discharge could occur after the last day that an employee was physically at work." Hancock, 645 A.2d at 590 n.1.
In line with these authorities and the language of K.S.A. 2003 Supp. 60-513(b), and consistent with the nature of a claim for constructive discharge, i.e., that the plaintiff has been forced to leave an intolerable workplace, we hold that the cause of action accrues and the statute of limitations begins to run when the plaintiff tenders his or her resignation or announces a plan to retire. For Whye, this was August 24, 2000. See Flaherty v. Metromail Corporation, 235 F.3d 133, 136-39 (3d Cir. 2000); Hancock, 645 A.2d at 590 n.1; Johnston, 218 Kan. at 548. We agree with the Daniels court's practical bright-line approach. See Daniels, 340 N.J. Super. at 13, 19.
Finally, at oral argument Whye asserted that the tolling provision of K.S.A. 12-105b(d) somehow excused the late filing of his lawsuit. This issue was not pursued in the district court at the hearing on defendants' motion to dismiss. Nor did it appear in Whye's brief to the Court of Appeals or his petition for review to this court. We therefore deem this issue was not preserved and is abandoned. See Board of Lincoln County Comm'rs v. Nielander, 275 Kan. 257, 268, 62 P.3d 247 (2003).
The district court is affirmed. The Court of Appeals is affirmed as right for the wrong reason. See Drake v. Kansas Dept. of Revenue, 272 Kan. 231, 239, 32 P.3d 705 (2001) (decision will be upheld even though wrong ground relied upon if result was correct).

subset: commoncrawl


text:
South Africa's paradox for gays: progressive laws, persistent hate
KHAYELITSHA, South Africa — Late one night last June, Pumeza Runeyi was at home in bed with her girlfriend when she heard a pack of men outside her door. They rapped on her window and called her name in menacing voices that suggested only one thing.
Quit being a lesbian, Runeyi, 25, recalled them saying. Come on, you'll enjoy it. We're not going to hurt you. We just want to teach you to be a real woman.
The noise woke her neighbors and the men melted into the night, but the next day Runeyi, her girlfriend and their two roommates — both gay — moved out of the house and haven't returned. In Khayelitsha Township, a sea of tin-roof shacks outside Cape Town, being gay can get you beaten or raped, or worse.
There's a devastating paradox about homosexuality in South Africa: A country that boasts some of the most advanced gay-rights laws in the world has a population that's profoundly homophobic. In surveys, more than 80 percent of South Africans say same-sex relationships are "always wrong," according to the Human Sciences Research Council, an independent research organization.
Combined with South Africa's penchant for violent crime, particularly against women, that prejudice is breeding extreme brutality.
Activist groups are alarmed at a worsening trend of gang-rapes and murders of black lesbians in poor townships, often by men who reportedly wanted to "cure them" of a condition that's seen as un-African and an affront to the traditional, male-dominated culture.
At least five such murders have occurred in the past three years, according to the Joint Working Group, a national coalition of gay-rights groups that's recorded scores of other hate crimes, including rape, assault and harassment.
"We're picking up more and more serious cases," said Emily Craven, the coordinator of the coalition. "At the moment, the women tend to be the most vulnerable because of the nature of life in the townships. It's extremely violent."
Few of the hate crimes have been thoroughly investigated, according to activists and family members. To many, it's the sad result of an ill-equipped criminal justice system and an indication of how the lofty promises of South Africa's constitution — the first to prohibit discrimination based on sexual orientation — aren't being fulfilled 15 years after the transition to democratic rule.
"The government isn't making a commitment to make the promises of the constitution a reality for all South Africans," said Vanessa Ludwig, the head of the Triangle Project, a leading advocacy group. "That's why so many still don't have housing, water, the economic system we should have and all those other promises."
Gay activists who speak out against the crimes are often targeted. Runeyi started being harassed after she appeared on TV to condemn the 2006 murder of a 19-year-old woman in Khayelitsha who was mocked for being a tomboy and then swarmed by a mob that beat her with golf clubs, threw bricks at her and stabbed her repeatedly.
"You hear what people say about you. They say you're not a real person; they say you're a witch; they call us names," said Runeyi, who wears her hair in short, spiky braids. "It's not nice to be a lesbian in South Africa."
Nearly every African country regards homosexuality as a crime, forbidden in legal codes held over from colonial days and backed up by predominantly conservative societies. South Africa was no different until 1996, when the new black-led government, trying to erase the stain of four decades of white apartheid rule, passed the world's most progressive constitution.
Ten years later, South Africa became the fifth country in the world to legalize gay marriage. But debate over the bill turned acrimonious with public forums nationwide turning into platforms for homophobia. For activists, it was the first sign that they were out of step with the public.
"It does seem like our laws have rushed ahead of our society," Craven said.
Perhaps wary of upsetting their constituencies, politicians rarely speak out on the issue. Last month, ActionAid, a British-based advocacy group, said that 66 percent of women who endured anti-gay hate crimes in the Western Cape, which includes Cape Town and Khayelitsha, didn't report their attacks to the police because they thought they wouldn't be taken seriously.
One of only two lesbian murder cases to go to trial is that of Eudy Simelane, a celebrated former midfielder for South Africa's national women's soccer team and an outspoken women's activist. Last April, 31-year-old Simelane's body was discovered, half-naked and bloodied, in a creek bed in Kwa Thema, outside Johannesburg. She'd been gang-raped, beaten and stabbed 25 times.
Four men were arrested in the killing, and after months of pressure from civic groups, one of the accused who pleaded guilty went on trial in February. Prosecutors argued that the men killed Simelane because she was a lesbian who fought back "like a man." The judge disagreed, describing the incident as a robbery gone wrong, and said that Simelane's sexual orientation wasn't an issue.
The 24-year-old killer was sentenced to 31 years in prison, but it was cold comfort for Simelane's family.
"For us, it's an obvious case. They killed her because she slept with women," said Mpho Skosana, a 24-year-old cousin who grew up with Simelane. "If you saw her at night you wouldn't have attacked her unless you knew her. She was strong; she would have fought back. So to me, you don't rape a woman like that unless you want to mark that person, saying, 'That's a woman I want to teach something.'"
To view a narrated South Africa slideshow
Charges dropped against S. Africa's next likely leader
South African President Mbeki is leaving office on a sour note
In South Africa, activists fear trial will perpetuate AIDS myths


text:
I did a little photo test this weekend. Tried to add some different emotions into my images. I figured whiskey always helps with emotion, right?
Monday, February 11, 2008
What do you think?
Posted by jen gotch at 8:02 AM
Labels: booze, still life
6 comments:
- jen said...
i prefer scotch... ;)
this is beyond words - truly - it captivates me in so many ways...
- February 11, 2008 at 8:32 AM
- Saci Pererê said...
Sorry to let you know that Polaroid will stop producing their photo tapes, hope you have loads. I like to come here and check out some of your pics, don't want a small detail to ruin it.
By the way, I live in Portugal, so you see how far away your message is getting to.
- February 11, 2008 at 10:34 AM
- Sara Christine said...
It's amazing how much emotion can be captured in a simple Polaroid. Your work is beautiful!
- February 11, 2008 at 10:51 AM
- Willy the Prince said...
gorgeous. You are a wonderful photographer.
- February 11, 2008 at 4:03 PM
- Jo said...
I pop in regularly & really enjoy your snips of life :)
Great that you're experimenting...this one has a rough edge and still your lovely sense of space.
- February 11, 2008 at 11:25 PM
i think this is great!!
- February 14, 2008 at 2:12 AM


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Whom To Tip
Everyone's budget is tight this year, but tipping is still expected by those who count it as a considerable part of their income. We asked tipping experts to tell us whom you should consider tipping and amounts that are customary to give.
Posted Nov. 20, 2009
» Read the Story


text:
Price: $48
This item has been shown 80 times.
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Stephen A. Byrd and Cynthia B. Byrd,
MorEquity, Inc.
Stephen A. Byrd and Cynthia B. Byrd appeal from a summary judgment entered by the Mobile Circuit Court ("the trial court") in an ejectment action filed by MorEquity, Inc. We reverse.
Procedural History
On April 20, 2010, MorEquity filed an action seeking possession of certain real property that was in the possession of the Byrds, who were using it as their residence. MorEquity alleged that it had acquired title to the real property through a foreclosure sale and that the Byrds had unlawfully detained the real property following the termination of their possessory interest in the property and a written demand to vacate the premises. The Byrds filed a pro se answer generally denying the allegations in the complaint and asserting that "we can show that our property was foreclosed on without just cause."
On June 8, 2010, MorEquity filed a motion for a summary judgment with supporting materials. The Byrds thereafter retained attorneys, who filed an amended answer on the Byrds' behalf on August 25, 2010. In the amended answer, the Byrds denied that MorEquity had a right to possession of the property, asserting, among other affirmative defenses, that MorEquity had conducted a foreclosure sale without first acquiring any ownership interest in the mortgage covering the property. The Byrds' attorneys subsequently filed documents in opposition to MorEquity's summary-judgment motion, to which MorEquity replied, attaching supplemental materials.
On December 9, 2010, the Byrds moved to strike some of the evidence submitted by MorEquity in support of its motion for a summary judgment. The trial court conducted a hearing on the motions on December 10, 2010. Following the hearing, MorEquity filed a supplemental evidentiary submission. On December 17, 2010, the trial court denied the motion to strike and entered a summary judgment in favor of MorEquity. The trial court entered a writ of possession in favor of MorEquity on January 5, 2011. The Byrds filed a timely motion to alter, amend, or vacate the summary judgment, which the trial court denied on March 15, 2011. The trial court stayed enforcement of its judgment on April 6, 2011, and the Byrds appealed on April 22, 2011.
The threshold and dispositive issue on appeal is whether MorEquity had standing to prosecute the ejectment action. See Sturdivant v. BAC Home Loans Servicing, LP, [Ms. 2100245, Dec. 16, 2011] ___ So. 3d ___ (Ala. Civ. App. 2011); see also Cadle Co. v. Shabani, 950 So. 2d 277, 279 (Ala. 2006) (accord). MorEquity filed its action under the authority of § 6-6-280(b), Ala. Code 1975. See EB Invs., L.L.C. v. Atlantis Dev., Inc., 930 So. 2d 502 (Ala. 2005) (holding that § 6-6-280(b) applied when the complainant alleged that it was entitled to possession of land through foreclosure deed and that the defendant was unlawfully detaining the land); Muller v. Seeds, 919 So. 2d 1174 (Ala. 2005) (same), overruled on other grounds by Steele v. Federal Nat'l Mortg. Ass'n, 69 So. 3d 89 (Ala. 2010); and Earnest v. First Fed. Sav. & Loan Ass'n of Alabama, 494 So. 2d 80 (Ala. Civ. App. 1986) (same). Under § 6-6-280(b), a complaint in an ejectment action must be "commenced in the name of the real owner of the land or in the name of the person entitled to the possession thereof," and a complaint is sufficient if, among other things, it alleges "that the plaintiff was possessed of the premises or has the legal title thereto."
Like any other fact essential to recovery, the plaintiff has the burden of proving standing. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). At the summary-judgment stage, a plaintiff asserting standing cannot rest on mere allegations in the complaint, see Dover Historical Soc'y v. City of Dover Planning Comm'n, 838 A.2d 1103 (Del. 2003), but must prove standing through specific facts set forth by affidavit or other evidence. Grayson v. AT & T Corp., 15 A.3d 219 (D.C. 2011). To prevail on a motion for a summary judgment, the plaintiff must present a prima facie case that there is no genuine issue of material fact and that the plaintiff is entitled to a judgment as a matter of law. Armstrong v. McGee, 579 So. 2d 1310, 1312 (Ala. 1991). In making a determination whether the plaintiff has satisfied that burden, this court, de novo, reviews the evidence in a light most favorable to the nonmovant, Robinson v. Alabama Cent. Credit Union, 964 So. 2d 1225, 1228 (Ala. 2007), and "entertains such reasonable inferences as the jury would have been free to draw." Bell v. T.R. Miller Mill Co., 768 So. 2d 953, 956 (Ala. 2000). "`"The burden does not shift to the opposing party to establish a genuine issue of material fact until the moving party has made a prima facie showing that there is no such issue of material fact."'" McClendon v. Mountain Top Indoor Flea Market, Inc., 601 So. 2d 957, 958 (Ala. 1992) (quoting Berner v. Caldwell, 543 So. 2d 686, 688 (Ala. 1988), quoting in turn Schoen v. Gulledge, 481 So. 2d 1094, 1096 (Ala. 1985)).
In this case, MorEquity asserts that it had standing to maintain the ejectment action against the Byrds because, it says, it held a foreclosure deed to the property, which it submitted to the trial court. The Byrds maintain, however, that the foreclosure deed is void because it was procured through foreclosure proceedings that were conducted by MorEquity without authority. In Sturdivant, supra, this court held that a foreclosure deed was void, ___ So. 3d at ___ (quoting § 35-10-9, Ala. Code 1975, which provides that "[a]ll sales of real estate, made under powers contained in mortgages or deeds of trust contrary to the provisions of [statutory law governing the power of sale pursuant to the terms of a mortgage], shall be null and void…."), and would not sustain an ejectment action when the evidence showed that the foreclosure proceedings had been initiated by the plaintiff without a valid assignment of the power of sale. Under Sturdivant, the vendee to a void foreclosure deed would not be considered a "real owner of the land" with "legal title thereto" within the meaning of § 6-6-280(b). ___ So. 3d at ___.
MorEquity submitted evidence indicating that the Byrds executed a promissory note in favor of Wilmington Finance, Inc., in the principal amount of $85,000 on July 19, 2007. That same date, to secure the note, the Byrds entered into a mortgage covering the subject property. Section 22 of that mortgage provides that, in the event of a default and failure to cure, and after appropriate notices are provided to the Byrds,
"Lender at its option may require immediate payment in full of all sums secured by this Security Instrument without further demand and may invoke the power of sale and any other remedies permitted by Applicable Law."
"Lender" is defined in the mortgage solely as Wilmington Finance, Inc.; however, the mortgage provides that Mortgage Electronic Registration Systems, Inc. ("MERS"), is the nominee for Wilmington Finance, Inc., and that MERS is the designated mortgagee with all legal rights of a mortgagee, including "the right … to foreclose and sell the Property."
Pursuant to § 35-10-12, Ala. Code 1975,
"[w]here a power to sell lands is given in any mortgage, the power is part of the security and may be executed by any person, or the personal representative of any person who, by assignment or otherwise, becomes entitled to the money thus secured."
MorEquity submitted evidence indicating that MERS assigned the mortgage, complete with its power of sale,[1] to MorEquity so that it could execute that power under § 35-10-12. We agree with the Byrds, however, that MorEquity's evidence is conflicting as to the date of the assignment.
MorEquity attached to the affidavit of Kenneth Scheller, an assistant vice president of MorEquity, a document entitled "ASSIGNMENT OF MORTGAGE" (capitalization and italics in original), which states:
"FOR VALUE RECEIVED, Mortgage Electronic Registration Systems, Inc. (`MERS') as Nominee for WILMINGTON FINANCE, INC., its successors and assigns, hereby assign and transfer to MOREQUITY, INC., 7116 EAGLE CREST BLVD., EVANSVILLE, IN 47715, its successors and assigns, all its right, title and interest in and to a certain MORTGAGE executed by: STEPHEN A. BYRD AND CYNTHIA B. BYRD, in the original principal amount of $85,000.00 and bearing the date of … 07/19/2007 and recorded on 07/25/2007 in the office of the Recorder of MOBILE County, State of ALABAMA in Instrument Number XXXXXXXXXX in BOOK 6227 and PAGE 205."
(Capitalization and underlining in original.) A notary certified that that document was signed on April 20, 2009. On the other hand, MorEquity attached to the affidavit of Jeff Schutte, its associate director, a document entitled "NOTIFICATION OF SALE, TRANSFER OR ASSIGNMENT OF YOUR MORTGAGE LOAN," (capitalization and bold typeface in original), indicating that MorEquity had acquired the mortgage via a sale effective December 30, 2009.[2]
The conflict as to the date of assignment materially impacts the standing issue. In Sturdivant, this court held that, in order to conduct a foreclosure sale, a party must have the power to foreclose and sell the property as of the date of the initiation of the foreclosure proceedings, ___ So. 3d at ___, which is the date the party "accelerates the maturity date of the indebtedness and publishes notice of a foreclosure sale," Perry v. Federal Nat'l Mortg. Ass'n, [Ms. 2100235, Dec. 30, 2011] ___ So. 3d ___, ___ (Ala. Civ. App. 2011), impliedly overruled on other grounds by Ex parte Secretary of Veterans Affairs, [Ms. 1101171, Feb. 10, 2012] ___ So. 3d ___ (Ala. 2012). The undisputed evidence in this case shows that the debt had been accelerated as of December 11, 2009, and that the notice of the foreclosure sale was first published on December 15, 2009, which was long after the alleged April 20, 2009, assignment date but over two weeks before the alleged December 30, 2009, assignment date. If the latter date is accurate, MorEquity would not have had authority to initiate the foreclosure proceedings; only Wilmington Finance, Inc., or MERS could have started foreclosure proceedings at that time. Pointedly, two December 11, 2009, letters submitted by MorEquity, notifying the Byrds individually of the acceleration of the debt,[3] and the notices of foreclosure sale published beginning on December 15, 2009,[4] all indicate that Wilmington Finance, Inc., had invoked the foreclosure process, implying that the assignment had not yet occurred by mid-December, as the document attached to Schutte's affidavit reflects.
MorEquity did not present a prima facie case of standing because its own evidence creates a genuine issue of material fact as to whether it had the power to foreclose and sell the property when the foreclosure proceedings were initiated on December 15, 2009.
The Byrds seek reversal of the summary judgment on numerous other grounds, including the alleged failure of MorEquity to provide notice of default and acceleration of the debt, see Jackson v. Wells Fargo Bank, N.A., [Ms.1100594, Feb. 17, 2012] ___ So. 3d ___, ___ (Ala. 2012) (holding that failure of notice of default and acceleration of debt may invalidate foreclosure sale); the alleged failure of MorEquity to prove that it provided contractual notice of the foreclosure sale, see Thompson v. Wachovia Bank, Nat'l Ass'n, 39 So. 3d 1153 (Ala. Civ. App. 2009), overruled on other grounds by Steele v. Federal Nat'l Mortg. Ass'n, 69 So. 3d 89 (Ala. 2010) (genuine issue of material fact existed where borrowers denied receipt of notice of the foreclosure sale and mortgagee failed to submit admissible evidence indicating that it sent required notice), and Kennedy v. Wells Fargo Home Mtg., 853 So. 2d 1009 (Ala. Civ. App. 2003) (accord); the existence of alleged irregularities in the published notice of the foreclosure sale, see § 35-10-8, Ala. Code 1975 (establishing contents of notice of foreclosure sale); the alleged agreement of MorEquity to forego foreclosure while the Byrds participated in its loss-mitigation program, but see Coleman v. BAC Servicing, [Ms. 2100453, Feb. 3, 2012] ___ So. 3d ___, ___ (Ala. Civ. App. 2012) (holding that oral agreements to forebear foreclosure are not valid under the Statute of Frauds); the alleged failure of MorEquity to comply with the loss-mitigation regulations of the National Housing Act, 12 U.S.C. § 1701x(c)(5); and MorEquity's alleged breach of its fiduciary duty by underbidding on the property at the foreclosure sale. See Berry v. Deutsche Bank Nat'l Trust Co., 57 So. 3d 142, 147-48 (Ala. Civ. App. 2010). Without commenting on the merits of those grounds, we note that they all may be characterized as affirmative defenses to an ejectment action pertaining to the proper exercise of the power of sale or irregularities in the manner of the sale itself, which errors may render a foreclosure deed voidable. See Sturdivant, ___ So. 3d at ___ (Moore, J., concurring specially). Because we are reversing the trial court's judgment on a more fundamental issue — a genuine dispute as to the lack of MorEquity's authority to initiate the foreclosure proceedings, which would render the foreclosure deed void — we pretermit discussion of those issues.
For the foregoing reasons, the summary judgment entered by the trial court in favor of MorEquity is reversed, and the cause is remanded for further proceedings consistent with this opinion.
Thomas, J., concurs.
Pittman and Bryan, JJ., concur in the rationale in part and concur in the result, with writings.
Thompson, P.J., concurs in the result, without writing.
PITTMAN, Judge, concurring in the rationale in part and concurring in the result.
I agree that the summary judgment in favor of MorEquity, Inc., is due to be reversed and the cause remanded because MorEquity failed to establish that there was no factual dispute as to whether it was the assignee of the mortgage before it initiated the foreclosure proceedings against the Byrds. In my judgment, that failure simply means that MorEquity did not make a prima facie showing that it could satisfy one of the elements of its ejectment claim, not that MorEquity failed to demonstrate that it had standing to sue.
I believe that this case and others like it, see, e.g., Ex parte McKinney, [Ms. 1090904, May 27, 2011] ___ So. 3d ___ (Ala. 2011); Cadle Co. v. Shabani, 950 So. 2d 277 (Ala. 2006); and Sturdivant v. BAC Home Loans Servicing, LP, [Ms. 2100245, Dec. 16, 2011] ___ So. 3d ___ (Ala. Civ. App. 2011), present questions of an ejectment plaintiff's inability to prove the allegations of its complaint rather than questions of standing. See Ex parte McKinney, ___ So. 3d at ___ (Murdock, J., dissenting); and Sturdivant, ___ So. 3d at ___ (Pittman, J., dissenting).
"As [our supreme court] recently observed: `[O]ur courts too often have fallen into the trap of treating as an issue of "standing" that which is merely a failure to state a cognizable cause of action or legal theory, or a failure to satisfy [an] element of a cause of action.' Wyeth, Inc. v. Blue Cross & Blue Shield of Alabama, 42 So. 3d 1216, 1219 (Ala. 2010). Compare Steele v. Federal Nat'l Mortg. Ass'n, 69 So. 3d 89, 91 n.2 (Ala. 2010) (citing Wyeth as authority for rejecting the appellant's suggestion that a plaintiff's failure to have made a demand for possession before bringing an ejectment action presented an issue of standing)."
Ex parte McKinney, ___ So. 3d at ___ (Murdock, J., dissenting).
Our supreme court has determined that standing "implicates [a trial court's] subject-matter jurisdiction." Ex parte Howell Eng'g & Surveying, Inc., 981 So. 2d 413, 418 (Ala. 2006); see also Hamm v. Norfolk Southern Ry Co., 52 So. 3d 484, 499 (Ala. 2010) (Lyons, J., concurring specially) (citing Riley v. Pate, 3 So. 3d 835, 838 (Ala. 2008), and State v. Property at ` Rainbow Drive, 740 So. 2d 1025, 1028 (Ala. 1999)). That court has also explained that subject-matter jurisdiction "concerns a court's power to decide certain types of cases," Ex parte Seymour, 946 So. 2d 536, 538 (Ala. 2006), which power is derived from the constitution and statutes of Alabama. Id. Can it seriously be doubted that a circuit court derives its power to decide an ejectment case from § 6-6-280, Ala. Code 1975, rather than from the allegations of the plaintiff who seeks relief pursuant to that statute?
BRYAN, Judge, concurring in the rationale in part and concurring in the result.
I agree that the summary judgment in favor of MorEquity, Inc. ("MorEquity"), is due to be reversed and the cause remanded because there was evidence establishing a genuine issue of material fact regarding whether MorEquity had been assigned the mortgage before it initiated the foreclosure proceedings. However, I disagree with the main opinion's conclusion regarding the significance of that disputed factual issue. As indicated by my dissent in Sturdivant v. BAC Home Loans Servicing, LP, [Ms. 2100245, Dec. 16, 2011] ___ So. 3d ___ (Ala. Civ. App. 2011), I am of the opinion that, when an ejectment-action plaintiff bases his or her claim to legal title to the property on a foreclosure deed, evidence tending to prove that the foreclosing party had not been assigned the mortgage before he or she initiated the foreclosure proceedings does not implicate the ejectment-action plaintiff's standing to bring the ejectment action. Rather, such evidence tends to prove an affirmative defense to the ejectment-action plaintiff's claim. See Berry v. Deutsche Bank Nat'l Trust Co., 57 So. 3d 142, 149-50 (Ala. Civ. App. 2010) (holding that, when an ejectment-action plaintiff bases his or her claim to legal title on a foreclosure deed, evidence tending to prove that the foreclosure sale and resulting foreclosure deed were invalid tends to prove an affirmative defense to the ejectment claim rather than tending to prove that the ejectment-action plaintiff lacked standing to bring the ejectment action). Thus, in the present case, I am of the opinion that the evidence tending to prove that MorEquity had not been assigned the mortgage before it initiated the foreclosure proceedings established the existence of a genuine issue of material fact with respect to Stephen A. Byrd and Cynthia B. Byrd's affirmative defense asserting that MorEquity was not entitled to prevail on its ejectment claim because, they said, the foreclosure was invalid, but it did not establish a genuine issue of material fact with respect to MorEquity's standing to bring the ejectment action.
[1] The Byrds contend in their brief to this court that any assignment of the mortgage did not convey the underlying note, which serves as the basis for the power of sale. See Coleman v. BAC Servicing, [Ms. 2100453, Feb. 3, 2012] ___ So. 3d ___, ___ (Ala. Civ. App. 2012) (holding that, under § 35-10-12, Ala. Code 1975, power of sale resides in the party with the right to the money secured by the mortgage, which would be the note holder). However, the Byrds did not raise that issue at or before the summary-judgment hearing, instead asserting it for the first time in one sentence in their postjudgment motion. Because a trial court need not consider a legal argument raised for the first time in a postjudgment motion, Green Tree Acceptance, Inc. v. Blalock, 525 So. 2d 1366, 1369-70 (Ala. 1988), and considering further the sparse nature of the argument below, we decline to address the Byrds' now fully formed legal argument on appeal.
[2] The Byrds raise issues regarding the admissibility of both the alleged April 20, 2009, assignment and Schutte's affidavit testimony relating to the alleged December 30, 2009, assignment. The Byrds also argue that the trial court erred in considering new evidence regarding the notarization of the alleged April, 20, 2009, assignment submitted by MorEquity after the summary-judgment hearing. Because of our disposition of the standing issue, we find no need to address those issues.
[3] Those letters both state: "Re: Wilmington Finance, Inc. v. Stephen A. Byrd and Cynthia B. Byrd, Husband and Wife." The letters also state "cc: MorEquity Inc." MorEquity does not explain why the caption indicates Wilmington Finance, Inc., is pursuing the Byrds for the mortgage debt, but the letter is copied to MorEquity.
[4] The notice of foreclosure sale states:
"Default having been made in the payment of the indebtedness secured by that certain mortgage executed to [MERS], acting solely as Nominee for Wilmington Finance Inc. on July 19, 2007, by Stephen A. Byrd and Cynthia B. Byrd, Husband and Wife, and recorded in Book 6227 Page 205; said mortgage transferred and assigned to Wilmington Finance Inc. et seq., in the Office of the Judge of Probate of Mobile County, Alabama, the undersigned, as Mortgagee or Transferee, under and by virtue of the power of sale contained in the said mortgage will sell at public outcry to the highest bidder for cash in front of the main entrance of the Mobile County, Alabama, Courthouse in the City of Mobile, Mobile County, Alabama, on January 14, 2010 …."
The "undersigned" is designated as "Wilmington Finance, Inc., its successors and assigns, Mortgagee or Transferee." MorEquity is not mentioned.
[ipaper docId=86297249 access_key=key-c53f7tfvjcm5x9z78kh height=600 width=600 /]
© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.


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The California Highway Patrol is investigating a tour bus crash near the city of Pala in northern San Diego.
According to CHP, the bus was headed from Los Angeles to the Casino Pauma with 18 passengers on board, all from the L.A. area.
The driver told officials that the brakes failed going around a curve. The bus struck a guard rail and careened to the right, crashing into trees and boulders before coming to a stop.
The accident happened just before 11 p.m. Sunday on Pala Temecula Road near Arouba Road.
Ten people, including the driver, were taken to Palomar Hospital. Officials said the most serious injury was a laceration to the head. All of those passengers have been discharged from the hospital.
CHP said it does not appear alcohol played a role in the crash.
"We don't really know any of the history of the company right now," Officer Jim Bettencourt said. "Everything is still pretty fresh."
"Once we're able to get the bus out of here, we're going to do a full mechanical investigation on it to determine if there was anything else wrong with the bus, if it was mechanical or driver error," he said.
Casino Pauma confimed Polar Express operates the bus route, but NBC 7 has been unable to make contact with the company.
The driver was 58-year-old Danhill Wong of El Monte. The 1996 tour bus is registered to Wong's address, according to public records.
Part of Pala Temecula Road was closed for hours while officials were on-scene.
Check back for updates on this developing story.
View Pala-Temecula Rd & Arouba Rd in a larger map


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Depression Quotes, Sayings about being depressed
Behind my smile is a hurting heart, behind my laugh I'm falling apart. Look closely at me and you will see, the girl I am, it isn't me…
People think depression is sadness. People think depression is crying. People think depression is dressing in black. But people are wrong. Depression is the constant feeling of being numb. Being numb to emotions, being numb to lie. You wake up in the morning just to go back to bed again. Days aren't really days; they are just annoying obstacles that need to be faced. And how do you face them? Through medication, through drinking, through smoking, through drugs, through cutting. When you're depressed, you grasp on to anything that can get through the day. That's what depression is, not sadness or tears, it's the overwhelming sense of numbness and the desire for anything that can help you make it from one day to the next.
I'm tired of trying, sick of crying, I know I've been smiling, but inside I'm dying.
How did I go from that little 5 year old, always happy & always laughing, to…this?
When you are depressed, life is too long. :(
Often the people with the strongest hearts carry the heaviest ones.
I'm so broken that I can feel it. I mean, physically feel it. This is so much more than being sad now. This is affecting my whole body.
Depression is like drowning. Except you can see everyone else around you breathing.
Depression is darkness filling your heart, surrounding your soul.
Everything takes so much energy.
People around you don't understand, you're doing the best you can
Responsibilities overwhelm, expectations you can't meet weigh heavily,
Sorrow fills you until there is no room for anything else.
Strength to fight, to find joy and love, slowly seeps from your soul.
Endless days without hope loom before you, enveloping you in the darkness.
Im hurt, and I'm heartbroken, and I'm sad, and I'm depressed, and ive been crying, but I dont wanna let it ruin my life.
Depression is hard to explain. But I'll try anyway. You see. It's like a disease. It tears you a part. The activities you loved doing like video games, sports, watch youtubers, designing things, draw. It doesn't matter. You can't find any joy in it anymore. You don't smile much because there isn't a reason to you think. It doesn't matter how good you have it. Depression makes everything worthless and hopeless. It can make you do many things. Some people are cured from the disease, to others it can be lethal. It's sad isn't it?
Words unspoken. Let me tell you this: my life hasn't been easy, no life is. I was bullied when I was younger, told I wasn't going to succeed in life by teachers, became the thing I hated most, a bully.
I've been struggling with depression since I was six. Attempted suicide three times. Twice by cutting my wrist but my sister was there to stop me. The third time I laid on a busy street waiting to get ran over but when it almost happen when I thought my suffering was going to end, my two best friends came in and saved me. Made me promise to never do that again. I was an angry child and took it out on my friends.
I hated coming home because my parents were always arguing. Yelling nonsense, they finally got a divorce. But I felt betrayed, I felt abandoned, I felt lonely. Every relationship I ever had was a failure because I couldn't commit. I felt that people were just going to end up leaving me as my father did to me. It wasn't until later on when I had gone back to my faith in God that things got better. Not saying I am happy but I do have my moments. (Thank you for reading).
Depression on my left, Loneliness on my right. They don't need to show me thier badges. I know these guys very well.
– Elizabeth Gilbert
There's nothing more depressing than having it all and still feeling sad.
Depression :Tired of living and scared of dying.
Depression cannot be explained, it's impossible, even if two people with depression come together to talk about it. No one knows how to explain it properly but, if you get it you'll know what it is straight away, it changes your whole perspective on life & in a way in the long run depression can sometimes be a good thing.
The only thing more exhausting than being depressed is pretending that you're not.
Nothing is more depressing than despite the fact of having it all but still feeling empty.
Depressions may bring people closer to family but so do funerals.
It's recession when your neighbor loses his job; it's a depression when you lose yours.
– Harry S Truman
Depression is merely anger without enthusiasm.
Depression is a prison where you are both the suffering prisoner and the cruel jailer.
I'm just learning how to smile, and that's not easy to do.
Depression sneaks up when I think I'm flying high and clips my wing, not both though, because I refuse to let it take over every part of me. I am up again and enjoying the beauty and pleasure that surrounds me.
Pain is always emotional. Fear and depression keep constant company with chronic hurting.
– Siri Hustvedt
Depression is when you're waiting not to do things; happiness is when you can't wait to do things.
I thought of this saying when I realized that when I was depressed, I stopped myself from doing things – I put obstacles in my way. When you're melancholy it's like when you're in your garage and the engine won't start.
When you're contented, you're revving the engine, raring to go.
I have suffered from depression for most of my life. It is an illness.
To be depressed is to be lonely; to have a friend is to be happy.
Studies show… Intelligent girls are more depressed.
– Emilie Autumn
If I can't feel, if I can't move, if I can't think, and I can't care, then what conceivable point is there in living?
– Kay Redfield Jamison


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'Devious Maids' makes for delicious summer TV
With TV, the "where" and the "when" can count almost as much as the "what."
Had Marc Cherry's Desperate Housewives follow-up Devious Maids premiered on ABC in season, as he'd hoped, it might have been quickly dismissed as slight, derivative and repetitive. Here, however, on Lifetime on a summer Sunday -- well, all those things still apply, but it's also easier to appreciate the show's own virtues while enjoying its Desperate roots. Cherry hasn't moved far from his brightly colored, often comic soap opera comfort zone, but it's a zone he knows and mines extremely well. And in a summer where your choices are mainly limited to interchangeable shows from USA and TNT, or great but heavy dramas from cable's more ambitious outlets, watching Cherry once again lead a set of extremely beautiful, blissfully competent women through their soap paces is not such a bad way to spend an hour.
Produced by Cherry with his Desperate Housewives star Eva Longoria, and based on a hit telenovela, the show focuses on five Latina women who work as maids for the rich and powerful in Beverly Hills. As in Desperate, the women are friends, and their friendship is both strengthened and tested by an opening tragedy: Here, the murder of a fellow maid, Flora. Unlike the women on Desperate, though, who were shocked by their friend's suicide, these women knew Flora had a secret -- and they're not surprised someone killed her for it.
And of course, there's another obvious yet important difference. Cherry and Longoria have built this new show around Latina characters, and are using them to explore (sometimes comically, sometimes directly) the socioeconomic divide between rich homeowners and the women who, to paraphrase the nastiest and funniest of the employers, mop floors for people who don't bother to learn their last names.
With all those maids and employers and their various entanglements, Cherry has a lot of plates in the air in Sunday's premiere, but he keeps them spinning. In a series of fast, well-done scenes, we're introduced to the main characters: Zoila (Judy Reyes) and her daughter Valentina (Edy Ganem), who work for the man-hungry Genevieve (an amusing turn by soap legend Susan Lucci); Carmen (Roselyn Sanchez), an aspiring singer who hopes working for a recording star will advance her own career; and Rosie (Dania Ramirez), who cares for the child of two battling stars (Mariana Klaveno and Grant Show) while longing for the child she left behind in Mexico.
The wild card is the newcomer to the maids' lunch break gatherings, Marisol (Ugly Betty's Ana Ortiz). Though she works for one couple, for reasons that will become clear later, she's really interested in another: Flora's mysterious, string-pulling employers, Adrian and Evelyn Powell (Tom Irwin and Rebecca Wisocky).
As he showed on Desperate, Cherry has a knack for creating fun female characters that soar a bit over the top, but not so far over that their problems aren't relatable. These working women are broadly drawn (though less so than their employers), but they're not two-dimensional cartoons. Each has her flaws and virtues, each is smart in her own way, and each has a distinguishing characteristic. Zoila is world weary, Valentina is romantic, Carmen is ambitious, Rosie is naïve, and Marisol is determined. And while Ortiz drives the main plot in the early going, and does so with great aplomb, the stars are equally appealing.
Even so, for some that won't be enough to refute the accusation that the show trades in stereotypes by casting the women as maids. For them, Maids has its own answer, delivered by Lucci's character in a later episode: "That's just what you do. That's not who you are."
None of us should want a TV universe where Latina women are only presented as maids -- but these women do exist. Surely their stories should be allowed to be told, and Maids seems set to tell them fairly well, and in entertaining fashion.
Whatever the season, why complain about that?


text:
Good Morning and welcome to another bi-weekly edition of my interview series. Today, I'm interviewing the talented, inspiring, seventeen-year-old, poetess, and writer Nelly Mgendi who prefers to be called Nelly Cherry from the blog Nelly Cherry. Please take time to visit her site, she has many gems of poetry to be read.
"Today, I love writing and cannot live without it; writing has made me a better person. As the say goes: " Don't judge a book by its cover." This was extremely applicable for and how I judged writing before I fell in love with it." – Nelly Cherry
4. Where Do You Find Your Inspiration and Motivation to Write?
"Writing give me comfort and it helps me forget about my own problems. Also, it gives me some sense of hope and purpose in life. Writing aids me in dealing with any situation which comes my way." – Nelly Cherry
5. What Time of Day do You Most Like to Write and What Are Your Current Writing Projects? Do You Plan on Publishing Your Writing?
7. Do You Prefer Certain Areas of Writing and/or Reading styles and/or Genres?
"Opinion from a 'first reader' matters a great deal as their opinion helps me decide on what I will continue to write. The first reader may have her own ideas or thoughts on my writing. I often, combine her ideas and my when I'm writing." – Nelly Cherry
8. Do You Have Any Helpful Advice for Other Writers? Is There Anything Else You Would Like To Share With Us Which Is Pertinent to Writing or Yourself?
"Don't be afraid to show your work because you're afraid of other people's opinions. Write and show the world who you are. Write what you feel but while you are writing, consider other people's feelings." – Nelly Cherry
Would you like to share your writing and writing process with other writers and bloggers? Would you like to be interviewed such as Nelly? Drop me a note on my contact page and I will send you some interview questions. Thanks for reading 🙂
©Mandibelle16. (2016) All Rights Reserved.


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— Main Menu —
About Stephen
- Biography
- Tributes
- Brass
- Guitar
- Harp
- Harpsichord, Clavichord, Organ & Piano Accordion
- Orchestral
- Piano
- Strings
- Solo Vocal and Opera
- Choral
- Wind Orchestra
- Woodwind
About Stephen
Harpsichord, Clavichord, Organ & Piano Accordion
Solo Vocal and Opera
Wind Orchestra
A Gypsy Prayer (1950)
January 19, 2015
by slchai
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New videos – Cello Partita & Duo for Cello and Guitar
Sep 09, 2019
Margaret Catchpole
review – Church Times
Jul 24, 2019
MusicWeb International double review: Piano Trios; Music for Winds I
May 23, 2019
Reissue: Dodgson Piano Trios
May 02, 2019
Upcoming events
1:00 pm
Dormi Jesu – Marian Consort
@ Wigmore Hall
Dormi Jesu – Marian Consort
@ Wigmore Hall
Nov 25 @ 1:00 pm – 2:00 pm
The Marian Consort perform works from their recently recorded CD 'Music for the Queen of Heaven' including Stephen Dodgson's beautiful miniature Dormi Jesu. If you can't make it to Wigmore Hall in person, the concert is being broadcast live on BBC Radio 3. Hear director Rory McCleery discussing the music > Marian Consort blog on touring the programme > Programme Byrd – Salve Regina a4 Roxanna Panufnik – St Pancras Magnificat Stephen Dodgson – Dormi Jesu Tallis – Videte miraculum Cecilia McDowall – Alma Redemptoris Mater Ludford – Ave cuius conceptio Tallis – Euge caeli porta Britten – A[...]
7:00 pm
Christmas Collection (world prem...
@ Cambridge
Christmas Collection (world prem...
@ Cambridge
Dec 8 @ 7:00 pm – 9:00 pm
The New Cambridge Singers, under the direction of Graham Walker, perform Stephen Dodgson's Christmas Collection as part of their 2019 Christmas concert by the same name. The concert also includes Christmas music by Palestrina, Mathias, Rutti and Rutter as well as audience carols. One beautiful miniature from the Dodgson collection, Dormi Jesu, was recently recorded by the Marian Consort but this will be the world premiere performance of the complete collection. Hear the Marian Consort sing Dormi Jesu (excerpt or sign in to Spotify):
12:00 pm
Sonata for Wind Quintet – Magnar...
@ Aldeburgh Jubilee Hall
Sonata for Wind Quintet – Magnar...
@ Aldeburgh Jubilee Hall
Jan 24 @ 12:00 pm – 1:00 pm
As part of their Britten-Pears Residency at Aldeburgh, the acclaimed Magnard Ensemble return to Stephen Dodgson's work with his Sonata for Wind Quintet along with works by other 20th-century and contemporary composers for a lunchtime recital. Programme Martin Butler: Down-Hollow Winds Oliver Knussen: Three Little Fantasies Stephen Dodgson: Sonata for Wind Quintet Paul Patterson: Comedy for Five Winds Tickets are available at: https://snapemaltings.co.uk/whats-on/magnard-ensemble-i/
7:30 pm
String Trio No. 1 – Karolos
@ Bromsgrove Concerts
String Trio No. 1 – Karolos
@ Bromsgrove Concerts
Feb 7 @ 7:30 pm – 9:30 pm
Karolos in a co-operative of nine of the UK's leading chamber players, often playing, as here, in smaller sub-groups. They have recently been involved in recording a number of Stephen Dodgson's chamber works, including this lovely String Trio, which has rarely been played since its première nearly 70 years ago. Don't be fooled by the unassuming name of Mozart's K563 – it is one of his greatest, and most substantial, chamber works. Programme Beethoven – String Trio in G Op 9 No. 1 Stephen Dodgson – String Trio No. 1 (1951) Mozart – Divertimento in E flat K563 Harriet Mackenzie –[...]
7:30 pm
Tournament for twenty fingers – ...
@ Barnes Music Society
Tournament for twenty fingers – ...
@ Barnes Music Society
Feb 13 @ 7:30 pm – 9:30 pm
In a a Barnes Music Society concert entitled 'A Playful Tournament – Duality', pianists Emma Abbate and Julian Perkins jointly perform Stephen Dodgson's Tournament for twenty fingers alongside works by Mozart, Weber, Schubert and Grieg. Programme Sonata in D Major, K381 – Mozart Allegro Andante Allegro molto From Huit Pièces, op. 60 – Weber Moderato – Allegro – Adagio – Alla zingara – Alla siciliana – Rondo Rondo in A major for piano four hands, D951 – Schubert Tournament for twenty fingers – Dodgson Gavotte – Romance – Fantasia in C minor – Cradle Song – Hill-Billy Norwegian Dances, op. 35 – Grieg
9:00 pm
Piano Quintet – Emma Abbate & th...
@ I Concerti della Normale – Pisa
Piano Quintet – Emma Abbate & th...
@ I Concerti della Normale – Pisa
Mar 17 @ 9:00 pm – 10:30 pm
On what would have been Stephen Dodgson's 97th birthday, pianist Emma Abbate and the Tippett Quartet perform a concert of quartets and quintets in Pisa including Dodgson's Piano Quintet No. 1. Programme Haydn: String quartet op. 33 no. 1 Dodgson: Piano quintet no. 1 in C Schumann: Piano quintet op. 44 in E flat major I Concerti della Normale Teatro Verdi Via Palestro 40 56127 Pisa Italy
8:00 pm
Piano Quintet – Emma Abbate & th...
@ Kettle's Yard, Cambridge
Piano Quintet – Emma Abbate & th...
@ Kettle's Yard, Cambridge
May 14 @ 8:00 pm – 9:45 pm
Pianist Emma Abbate and the Tippett Quartet reunite to perform a concert of quartets and quintets in Cambridge including Stephen Dodgson's Piano Quintet No. 1, which they recorded together in 2017. Programme Mendelssohn (1809–1847): String quartet no. 1 in E flat major op. 12 Adagio non troppo – Allegro non tardante Canzonetta. Allegretto Andante espressivo Molto allegro e vivace Dodgson (1924–2013): Piano quintet in C Largo e sostenuto – Allegro con brio Andantino Allegro assai Maestoso Schumann (1810–1856): Piano quintet in E flat major, op. 44 Allegro brillante In modo d'una marcia. Un poco largamente Scherzo: Molto vivace Allegro ma non[...]
7:30 pm
Piano Quintet – Emma Abbate & th...
@ Sevenoaks Music Club
Piano Quintet – Emma Abbate & th...
@ Sevenoaks Music Club
Jan 23 @ 7:30 pm – 9:30 pm
Pianist Emma Abbate and the Tippett Quartet pair Stephen Dodgson's Piano Quintet No. 1 with Schumann's piano quintet in an evening concert for the Sevenoaks Music Club.
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Romania is officially closing the International Year of Astronomy 2009 through sets of activities
9 December 2009
Symposium, conferences, awards ceremonies, public lectures, gastronomy fair, science cafe are all part of the activities dedicated to mark the officially closing of the International Year of Astronomy 2009 in Romania.
Activities started at Targoviste on November 27 through the national symposium "Love the Cosmos" organized by the SARM. Representatives of the astronomical associations, astronomical observatories, planetarium, junior and high schools, universities and informal groups have presented the final results of the projects 100 Hours of Astronomy and Galilean Nights. Worth to mention that they organized also the astrophotography exposition and the National Astronomy Conference for the Youth ASTRO 2009-Discover the Universe!
Each student from the 2009 international Olympic astronomy and astrophysics teams (all of them awarded from gold to bronze medals) have been awarded during an event that was taken place at the "Henri Coanda" Aeronautical College, Bucharest. It was the same time when the winners of the international essay contest Cassini were mentioned and presented to the mass media representatives and public. The event attracted students, teachers, professors, educators, science managers, scientists, professional and amateur astronomers, journalists, and public. All of them shared a piece from a giant cake and a cup of champagne. (December 4, 2009).
Dr. Zadig Mouradian, astronomer at Paris Observatory, had a talk about the couple Sun – Earth at the French Institute from Bucharest. The audience was made of college students, teachers, scientists, professors, and general public. (December 8, 2009)
"The Sweet Planet – Astronomy and Gastronomy" or gastronomy fair dedicated to astronomy is part of the Minorities Gala that includes also music and dance. (December 10, 2009).
The science café is about to take place at the British Council and is organized by Ziarul Stiintelor (The Science Newspaper), the official mass media partner of the IYA2009. (December 18, 2009)
Search IYA2009 Updates
National Nodes: 148
Organisational Nodes: 40
Organisational Associates:33
National Websites: 111
Cornerstone Projects: 12
Special Task Groups: 11
Special Projects:16
Official Products:8
Media Partners:22


text:
When childbirth is not progressing in the pushing stage of labor, a
health professional sometimes uses forceps or a kind of suction cup (vacuum
extractor) to help deliver the baby. This is called an assisted delivery, or an
operative vaginal delivery.
Forceps are a device that looks like a long pair of spoons or
tongs. Forceps can be used to hurry delivery when the mother or baby is in
distress during labor and the baby's head is far down in the birth
Forceps are sometimes used when the baby is not turning to face the
right way or isn't moving down the birth canal (vagina). This can be because
the uterus is not contracting well enough to deliver the baby.
Epidural anesthesia makes this problem more likely
than does no medicine or an opioid medicine for pain.1
Before a forceps delivery, the vaginal area is usually numbed by
injecting an
anesthetic into the lower spine or vagina. Also, an
incision in the area between the vagina and anus (episiotomy) is commonly made before a forceps
delivery. Forceps are then gently pushed up on either side of the baby's head
and used to turn and/or pull the baby out.
See pictures of
forceps and vacuum extraction.
In some situations, doctors use a device called a
vacuum extractor instead of forceps. The cup-shaped extractor applies a gentle
suction to the top of the baby's head and holds the baby in place. The vacuum
extractor prevents the baby's head from moving back up the birth canal between
contractions and can be used to assist the mother while she is pushing during
After a vacuum extractor delivery, there may be some bruising or
swelling on the baby's scalp.
Both vacuum and forceps delivery can cause tears. Forceps delivery is
more likely than a vacuum delivery to damage your vagina,
perineum, or rectum.1 But
forceps are less likely to affect the baby—there may be some bruising or
swelling on the baby's scalp (cephalohematoma) or face where the forceps or
extraction cup was applied. But this usually goes away in the days after
delivery. In very rare cases, a baby delivered with forceps or vacuum
extraction has bleeding inside the skull (intracranial
Discuss the use of forceps and vacuum delivery with your doctor before your delivery. Some doctors have more
experience with assisted delivery than others. If your doctor does
not have a lot of assisted delivery experience or training, it is important
that he or she be assisted by someone who does.
CitationsCunningham FG, et al. (2010). Forceps delivery and
vacuum extraction. In Williams Obstetrics, 23rd ed., pp.
511–526. New York: McGraw-Hill.
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November 2, 2011
Healthwise Staff
Medical Review:
Sarah Marshall, MD - Family Medicine & Kirtly Jones, MD - Obstetrics and Gynecology
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text:
The international climate deal reached in Durban, South Africa last December marked an important milestone in designing a system for measurement, reporting, and verification (MRV) of countries' greenhouse gas (GHG) emissions-reductions efforts. In 2014, all countries will submit verifiable biennial reports with information on their GHG emissions, actions to reduce emissions, and support received or provided to other countries for emissions reductions. The Conference of the Parties (COP) also strengthened guidelines for developed countries' (Annex I) GHG inventories, an important milestone for building trust among all countries.
Despite this progress, however, a number of outstanding issues remain. These issues will need to be resolved at COP 18 in order to ensure that there is an effective MRV system in place that tracks countries' climate action commitments and holds them accountable.
5 Key MRV Issues that Countries Must Resolve at Doha
While COP 17 mandated revising guidelines by 2014 for developed countries' national communications (i.e., a document submitted in accordance with the Convention and the Protocol informing other Parties of activities undertaken to address climate change), it failed to begin a similar process for developing countries, whose guidelines are similarly outdated. The Durban text also failed to establish the accounting rules required to prevent the double counting of GHG emissions, where both buyers and sellers of carbon offsets count emissions reductions toward their mitigation targets. COP 18 must build on the momentum generated in Durban to ensure a cost-effective, credible MRV and accounting framework.


text:
USN-1568-1: Linux kernel vulnerabilities
14 September 2012
linux vulnerabilities
A security issue affects these releases of Ubuntu and its derivatives:
- Ubuntu 11.10
Several security issues were fixed in the kernel.
Software Description
- linux - Linux kernel
Ben Hutchings reported a flaw in the Linux kernel with some network drivers that support TSO (TCP segment offload). A local or peer user could exploit this flaw to to cause a denial of service. (CVE-2012-3412)
Jay Fenlason and Doug Ledford discovered a bug in the Linux kernel implementation of RDS sockets. A local unprivileged user could potentially use this flaw to read privileged information from the kernel. (CVE-2012-3430)
Update instructions
The problem can be corrected by updating your system to the following package versions:
- Ubuntu 11.10
- linux-image-3.0.0-26-generic - 3.0.0-26.42
- linux-image-3.0.0-26-generic-pae - 3.0.0-26.42
- linux-image-3.0.0-26-omap - 3.0.0-26.42
- linux-image-3.0.0-26-powerpc - 3.0.0-26.42
- linux-image-3.0.0-26-powerpc-smp - 3.0.0-26.42
- linux-image-3.0.0-26-powerpc64-smp - 3.0.0-26.42
- linux-image-3.0.0-26-server - 3.0.0-26.42
- linux-image-3.0.0-26-virtual - 3.0.0-26.42
To update your system, please follow these instructions: https://wiki.ubuntu.com/Security/Upgrades.
After a standard system update you need to reboot your computer to make all the necessary changes.
ATTENTION: Due to an unavoidable ABI change the kernel updates have been given a new version number, which requires you to recompile and reinstall all third party kernel modules you might have installed. If you use linux-restricted-modules, you have to update that package as well to get modules which work with the new kernel version. Unless you manually uninstalled the standard kernel metapackages (e.g. linux-generic, linux-server, linux-powerpc), a standard system upgrade will automatically perform this as well.


text:
Mermaid Wall Art with Hooks, Cabana Collection
Mermaid Wall Art with Hooks, Cabana Collection
Our Cabana Collection is full on color and loaded with energy while still giving you that much-desired laid back feel.
18" x 24"
Shown in Yellow with White & Gray stripes.
Please note: If you live in Brunswick & The Golden Isles area, use the code LOCAL to waive shipping costs. Once you receive an email confirming your order is complete, please contact us to arrange for pick up at our studio in Historic Downtown Brunswick.
Grace Graffiti™ is an American Made company. We design, make and ship all of our handcrafted products in our studio in Historic Downtown Brunswick, Georgia. All items are hand cut and given a distressed finish, accentuating the natural grain and charm of the wood. Each piece of wood is unique, items will vary slightly from the photographs. Through this listing you are buying directly from Grace Graffiti™, not a third party seller. Thank you for supporting small businesses in the USA.
©2010 Grace Graffiti All Rights Reserved.


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Students Design Sensory Toy for Children with Autism at Stevens Institute of Technology
Three Mechanical Engineering students at Stevens Institute of Technology are using their Senior Design project to create a toy for children with autism that will aid in children's development through play therapy.
Hoboken, NJ, April 28, 2011 --(
)-- Flashing lights, sounds, and a ricocheting ball. It's not a game on a New Jersey boardwalk, but a toy with a positive purpose. Kevin Heaney, Rowena Lee, and Stephanie Miller, three Mechanical Engineering students at Stevens Institute of Technology, are using their Senior Design project to create a toy for children with autism that will aid in children's development through play therapy.
The team collaborated with teachers at Academy Learning Center, a Monroe Township school that provides specialized, classroom based instruction, based on the principles of Applied Behavior Analysis for students with autism or autistic-like behavior. Their design won over both the instructors and the children attending the school.
"I was very impressed with the team's ability to observe the interaction of the kids with autism with toys," says Dr. Erik Solberg, Principal of Academy Learning Center. "What they made was quite popular, incorporating light, movement, and sound. It was attractive and interesting for children with autism, and it was unique."
"It really raised the level of interaction," Stephanie explains. "Children that normally didn't talk were talking and taking turns. Even though the toy did not promote talking directly, it did have a positive effect on the children."
"It was very rewarding to see the kids playing and responding to this toy," Kevin adds.
The umbrella term autism denotes a spectrum of developmental brain disorders affecting about 1 in 110 children in the United States, according to a 2006 report by the Department of Health and Human Services, Centers for Disease Control and Prevention. Symptoms include heightened sensitivity to sensory information, difficulty communicating or interacting socially, unusual attachment to objects, and repetitive body movement. The exact cause of autism is unknown, but treatment such as play therapy has been shown effective. Knowing this, the Stevens senior design team set out to create an interactive toy that would appeal to and benefit children with autism.
The toy takes the form of a "plinko" game, in which a child drops or shoots a ball into a box filled with protruding pegs. These pegs light up as the ball bounces off of them. When the ball exits out the bottom, the toy makes a sound. The design seeks to avoid "stimming," the term given to the repetitive movements of self-stimulation, or stereotypy, of people with autism. The game had to be cohesive, with interwoven sensations and movement. "Sometimes a child with autism will focus on a single sensation," Kevin says. "A child might only touch a button for the sensation of the button, not because of the toy's response."
"We didn't want children to stim off of individual components," adds Rowena. "The lights and sounds ensured that the entire toy would be interactive. This way the child will experience the entire toy, rather than just a part of it."
The team worked with Academy Learning Center teachers to create a feasible, effective design based on cause and effect. "The teachers recognized that some designs would pose a difficulty for some of the children and warned us," Rowena says. "Our toy could not require any fine motor skills." The final design offers two levels of difficulty in order to engage children with different abilities. In the first, a child picks up the ball and drops it in from the top. In the second, a child brings the ball to the top with a scoop.
"Throughout the entire design process, from the initial brainstorming and research stages through the prototype building and multiple rounds of user-testing, I was extremely impressed," says Professor Frank Fisher, the team's faculty advisor and Associate Professor of Mechanical Engineering. "I've learned quite a bit by following the group as they progress in their project, and seeing how each element of their design specifically addresses the needs of children with autism."
The design comes from intensive research into autism, its treatments, and toy design. Rowena gave the team an advantage with the design, having worked through Stevens co-op program at Fisher Price in toy research and development, meeting the needs and design specifications of both the offices in Hong Kong and New York City. The product adheres to ASTM standards and is designed so that it could be mass produced with an injection molding process.
In addition to graduating with a solid product with demonstrated effectiveness, all three team members will enter a job after graduation: Rowena at L'Oreal, Kevin at PSEG, and Stephanie at Exxon Mobil. All three team members will graduate with both a Bachelor's of Engineering Degree in Mechanical Engineering and a Master's of Engineering degree in Mechanical Engineering with a focus on Design and Production.
For this senior design project, the engineering was as important as the societal impact. Students identified a critical need, researched problems and potential solutions, and arrived at a design that was effective and changes the world for the better. "We are bridging the gap between technical and social," Stephanie says. "It's great to have the children respond to the toy."
Learn more about the project on the group's website: https://sites.google.com/site/stevenstoysforautism/
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This weekend I am volunteering at MSPP for interview day! Along with a professor, I'll be conducting interviews with M.A. Counseling applicants. If you're one of the lucky folks attending interview day this Saturday, February 26th, how prepared are you? Here's some information that will hopefully slow your heart rate and let you know what to expect:
1) Arrive at 8AM for breakfast (there's usually a combination of things like bagels, Danishes, fruit, juice, coffee, etc). For a half hour you can eat and mingle with other applicants and current student chatters, who are there to help answer any questions.
2) My first individual interview begins at 9:10AM! You should be prepared for at least a 30-minute interview. I suggest familiarizing yourself with your resume, being able to talk about previous work experience, and discussing why you want to enter the field. When I was an applicant, I was also asked about what kind of internship and population I would like to work with if I was accepted, so give that some thought too.
3) This is extremely cliché, but be yourself and let us get a sense of your personality. Even though you are interviewing with the school, MSPP should also be "auditioning" for you. You should feel comfortable and as though you could fit in to the school's small community. Is this an environment in which you can see yourself for the next two years?
4) Be prepared with some questions to ask the professor and current student that are interviewing you. Think about topics outside of the classroom experience, such as internship, community service, diversity, social activities, etc.
5) Take a deep breath and enjoy your lunch! This is another great opportunity to mingle with current and prospective students.
I hope that this has calmed some of your nerves and that you are excited to come see MSPP! This is a helping profession in which personal interactions are probably one of the most important aspects of your career. I would not be surprised if one of the things that the admissions team is looking for is your ability to relate to and communicate with others. GOOD LUCK!


text:
Obituary: Russ Kemmit
September 29, 1945 – April 17, 2013
It is with great sadness that we announce that Russ Kemmit, President and Founder of Golf Tournaments Inc. (GTI), passed away at Hospice of the Valley in Goodyear, AZ on April 17, 2013, after a long, hard-fought battle with cancer. He was born September 29, 1945, in Harvey, ND, to Albert and Lenora (Adam) Kemmit. Russ founded GTI in 1987 as a small golf car company doing sales and rentals in Colorado in the early years, and became an EZ-GO Distributor in 1996 which he has maintained since that time. Russ had many long-standing friendships and working relationship with prestigious annual events to include Barrett Jackson Auto Auctions and Scottsdale Arabian Horse Show, to mention a few. Russ (known as Griz by his friends) was an avid car enthusiast, starting with racing his #90 Sportsman stock car at Colorado National Speedway in the 1960s and 1970s with son Lee carrying on the tradition over the years in Sportsman #98. Along with his family Russ's true passion was his love for his collection of antique cars and restoring them to their original condition.
Russ is survived by his wife, Zuniga Rae Kemmit, mother Lenora Kemmit, children Laura (Larry) Lewark and Lee (Misty) Kemmit; step son Gary Hardy, 6 grandchildren Ashlee Kemmit, Alyssa Lewark, Casey Lewark, Dallas Hardy, Zuniga Hardy and Allona Novakovick, great grandchild Callee Rodriguez, and sisters Janice Noehre and Marcella Paulus.
Visitation was held on Saturday, April 20, 2013, from 6 to 8 p.m. at Heritage Funeral Chapel, 6830 W Thunderbird Rd., Peoria, AZ 85381. A celebration of Russ's life was held on Sunday at 1 p.m. at Heritage Funeral Chapel. In lieu of flowers remembrances in Russ's name can be made to the Melanoma Research Foundation, P.O. Box 759329, Baltimore, MD 21275-9329. Condolences can be sent to the family by visiting http://www.heritagefuneralchapels.com
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U.S. Rep. Charles Rangel, the face of Harlem politics for generations, held off a strong Democratic primary challenge and moved one step closer to what he says will be his 23rd and final term in the House.
With 100 percent of the vote counted in unofficial results, Rangel, 84, led State Sen. Adriano Espaillat 47.4 percent to 43.6 percent, a difference of fewer than 2,000 votes. About 47,000 votes were counted Tuesday. The Associated Press called Rangel the winner based on fresh information Wednesday afternoon from the city Board of Elections on the numbers of absentee and provisional ballots cast that were not included in the election night tally. The number of absentee and provisional ballots were not sufficient for Espaillat to catch Rangel.
Rangel and Espaillat had stayed out of sight Wednesday, and Rangel's campaign didn't immediate respond to inquiries after the AP called the race. Espaillat's campaign declined to comment. Rangel's campaign had announced earlier Wednesday that he planned to attend a "unity rally" Saturday at the Rev. Al Sharpton's National Action Network headquarters in Harlem.
"Now that the campaign is over and Congressman Rangel has won, we look forward to coming together and addressing the issues facing the 13th Congressional District," senior campaign adviser Charlie King said in a statement announcing the appearance.