Send this document to a colleague Close This Window
NUMBER 13-06-147-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
_________________________________________________________
IN THE INTEREST OF J.M.S., ET AL., CHILDREN
________________________________________________________
On appeal from the County Court at Law
of Kleberg County, Texas
________________________________________________________
MEMORANDUM OPINION
Before Justices Rodriguez, Garza, and Vela
Memorandum Opinion Per Curiam
Appellant, Vera Shoemaker, perfected an appeal from a judgment entered by the County Court at Law of Kleberg County, Texas, in cause number 04-044-C. On June 14, 2006, appellant filed a motion for new trial based on an incomplete record. On November 2, 2006, this Court abated the appeal and remanded the case to the trial court to make findings on these issues: 1) if, without the appellant's fault, a significant portion of the court reporter's notes and records have been lost or destroyed or - if the proceedings were electronically recorded - a significant portion of the recording has been lost or destroyed or is inaudible; 2) if the lost, destroyed, or inaudible portion of the reporter's record is necessary to the appeal's resolution; and 3) if the lost, destroyed, or inaudible portion of the reporter's record cannot be replaced by agreement of the parties.
The trial court's findings and recommendations were received and filed in this Court on December 18, 2006. The trial court found that approximately one-half of the record was audible, the latter half of the proceeding was not complete and audible, and that the incomplete and inaudible portion of the record constituted a significant portion of the record, which cannot be reconstructed. The trial court recommended that because of the unavailability of a significant portion of the record, the case should be remanded for a new hearing.
The Court, having examined and fully considered the documents on file and the trial court's findings and recommendations, is of the opinion that the matter should be remanded for a new trial. Appellant's motion for a new trial based on an incomplete record is granted. The judgment of the trial court is REVERSED, and the cause is REMANDED for a new trial.
PER CURIAM
Memorandum Opinion delivered and
filed this the 29th day of March, 2007.
1 comment:
Energy Billing Fraud Charges vs Multiut owned by Nachshon Draiman!
Multiut Admitted to holding money belonging to customers.
Chicago Metro Area Consumers are taken for a ride by Multiut – Nachshon Draiman – Energy Billing fraud.
In a Class Action proceeding initiated in November 2001 - The case after numerous delays by Multiut, is now proceeding.
Gore vs Multiut - IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS Case No. 01 CH 19688
Posted on September 21st, 2007:
IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS
COUNTY DEPARTMENT - CHANCERY DIVISION
FILED
JACK GORE on behalf of himself and all ) NOV 28, 2002
other persons or entitles similarly situated, |
•
vs. No. 01 CH 19688
DOROTHY 8ROWN CLERK OF CIRCUIT COURT
MULTIUT CORP, an Illinois corporation, } Judge Stephen A, Schiller
Defendant ) Courtroom 2402
RESPONSE TO §2-619.1 MOTION TO DISMISS J/
Plaintiff JACK GORE (“Gore”). by his attorneys LARRY D DRURY LTD., hereby responds to the Motion to Dismiss 2nd Amended Complaint, pursuant to 735 ILCS 5/2-615 and 619, brought as a combined 2-619.1 motion by defendant MULTIUT CORP. (“Multiut”).
Introduction
Multiut is trying to time-bar this case by transforming express a written agency-service contract drafted by Multiut into a contract for sale of goods, and by disputing Gore's allegations as to concealment and discovery of the wrong – but without submitting any Rule 191 affidavit or documentation. This is a class action arising out
of a written contract drafted by Multiut, attached here and to the 2nd Amended Complaint as Exhibit A and B collectively referred to herein as the "contract" or "agreement “ unless otherwise indicated by context): (1)
(A) A service contract to act as Gore's "purchasing representatives" in obtaining natural gas from “off system" suppliers. This contract, entered into on or about December 1990, was titled “Agreement," Exh. A 1, 3-6, 10. And,
{B} A series of supplemental agency contracts to act as Gore’s agent, in so doing with respect to various Properties. These were entered into contemporaneously with the service contract and thereafter, and titled "Natural Gas Purchasing and Agency Agreement.” Exh.-B. (2)
(1) Similarly Multiut refers to them collectively as “the agreement” in its brief (Mem. p. 2, fn. 1). Although the documents are on separately filed pages, they are mutually inclusive and one could not be entered into without the other; e.g. the service contract refers to and incorporates the agency contracts, wherein Multiut refers to itself as Gore's 'exclusive natural gas purchasing agent'. See Exh. A, third introductory paragraph and 16-17; Exh. B 1,
(2) Exh. 8 one of the series, is dated 1998, Exh. C is Gore’s §2-806 affidavit as to the others. Gore has stated he does not have a copy of each, they are inaccessible to him i.e. no longer in his possession, whether missplaced or otherwise, and cannot be located or returned. 2nd Amd.. Compl. {4; Exh, C, in the 1st Amd. Complaint, Count 4 for breach of oral contract was voluntarily dismissed without prejudice after Gore's deposition of May 8,- 2002, when the service contract and the 1998 agency contract were produced by Multiut and adequately established, Exhs, A-B are the same Exhs. 1-2 attached to the Gore transcript, excerpts of which are attached herein as Exh. D, Similarly the missing agency agreements are likely in Multiut’s possession and will be produced in discovery.
The contract was drafted by Multiut, it unequivocally defines Multiut's role in the transactions, and shows that this case is not governed by the UCC. What is at issue here is not the "good" that Multiut obtained for Gore, but the service Multiut provided as his purchasing agent. Gore is suing upon the service and agency contract – not the natural gas - and has alleged that Multiut breached its duties in two respects;
{1} By falsely and intentionally charging and retaining for its own use funds that were to be applied to a City of Chicago 8% gross receipts tax (“Tax”), which it had promised would be placed in escrow and forwarded to the City. Between December 1990 and January 1995 (after the City of Chicago changed the Tax), Multiut collected approximately $14,000 from Gore and at least $1 million to $1.5 million from the Class, for this Tax that was not actually imposed upon Multiut. 2nd Amd. Compl. 7-9, '3! Multiut not only failed to inform Plaintiff and
the Class that the money collected was not so applied or escrowed, but also failed to escrow, account for, and refund the funds with interest.
(2) By overcharging for the service of providing natural gas. Multiut was to charge for natural gas actually supplied to Gore and the Class on a set per therm cost basis, plus an amount equal to 1/2 of their respective per therm cost savings per month, instead, Multiut overcharged and billed Gore at least $100.000 and the class millions of dollars and refuses to provide an accounting and refund with interest. Id. 10-11.
Gore has further alleged that Multiut prevented him from discovering the wrongs by intentionally concealing them until at least December 2000, when he discovered the truth and could not reasonably have done so earlier. (Gore testified at his deposition on May 8, 2002 that he first discovered the discrepancies in his bills, the overcharges, the taxes, and failure to escrow the taxes, in December 2000. See Exh, D, pp. 25-28,) Thereafter he was unable to obtain any refund and based thereon, terminated Multiut’s services on or about June 2001, However, the wrongful acts are continuing to date, in that Multiut continues to 'refuse to provide an accounting and refund with interest to Gore and the Class, all to their detriment and damage. They seek imposition of constructive trust (id. 22), an accounting and damages in not less than the foregoing amounts plus interest (id, 9-13, 23).
Gore filed the original Class Action Complaint on Nov. 20, 2001, and in lieu of responding to a motion to dismiss, filed the 1st Amended Class Action Complaint Feb. 14, 2002, setting forth 4 counts for (1) breach of
3-: The City did not and will not collect the 8% Tax, presumably because of U.S. constitutional restrictions as to the interstate commerce clause and exceptions for interstate pipelines and out-of-state suppliers. As a result in 1994 the City changed the tax from an 8% gross receipts tax to a flat rate tax of 1.4 to 1.5 cents per therm. 2nd Amd. Comp. P 8. in Multiut’s response to First Request to Admit {attached hereto as Exh. F), it has admitted the following statements about this Tax; (8) that Multiut collected approximately $14,000 in Tax from Gore between 1991-1994; and (9) that Multiut spent its customers Tax payments on business expenses.. Yehuda Draiman testified to the same effect in his deposition 1-10-02 See transcript excerpts attached hereto as Exh. E, at pp, 36-37,40, 68, and Exh, 6 thereto.
Activity Date: 8/15/2007 Participant: GORE JACK
CASE SET ON STATUS CALL
Court Date: 8/29/2007
Court Time: 0930
Court Room: 2402
Judge: BRONSTEIN, PHILIP L.
August 30th, 2007 at 2:25 pm
RE: MULTIUT CORP. FORMER CUSTOMERS!
Multiut owner is Nachshon Draiman of Cook County, Illinois
PLEASE BE ADVISED THAT YOU ARE PROBABLY DUE A REFUND PLUS INTEREST FOR SALES TAX ON NATURAL GAS WHICH WAS COLLECTED FROM YOU AND WITHHELD BY MULTIUT CORP. TEL # 847-982-0030 at 7514 N. Skokie Bl. Skokie, Illinois.
MULTIUT IS HOLDING APPROXIMATELY OVER ONE MILLION DOLLARS THAT MAY BELONG TO CUSTOMERS.
MULTIUT HAS OVERBILLED CUSTOMERS ON SHARED SAVINGS FOR THE PAST 14 YEARS.
THERE IS CURRENTLY A CLASS ACTION SUIT AGAINST MULTIUT.
I STRONGLY SUGGEST THAT YOU HAVE ALL YOUR BILLS THAT WERE ISSUED BY MULTIUT CORP. AUDITED THOROUGHLY THERE MAY BE STORAGE CREDITS DUE YOU AND ERRORS IN BILLING WHICH CREDITS MAY BE DUE YOU.
Multiut has admitted in Court that they are holding the money.
Gore vs Multiut 01 CH 19688 Circuit Court of Cook County, Illinois
A concerned citizen
For honesty in billing
Fraud, Insolvency and numerous contempt of court orders
Dynegy Mkg & Trade v. Multiut Corp, Nachshon Draiman et al
On August 16th, 2007: Numerous Federal contempt of court orders against Nachshon Draiman and Multiut
Dynegy Mkg & Trade v. Multiut Corp, Nachshon Draiman et al 1:02-cv-07446.
Multiut Corp and Nachshon Draiman dba Future Associate of Skokie, IL. are withholding evidence of fraudulent activities in the Energy industry and inflated Medicaid billing to the government for Nursing Home patients. Also Bank fraud against their bank by presenting fraudulent and inflated receivable reports in order to get and keep a credit line, Nachshon Draiman was a large stock holder of the bank. Draiman Nachshon • SC 13G • Success Bancshares Inc • On 2/17/98
Filed On 2/17/98 • SEC File 5-53545 • Accession Number 950137-98-586
Court: United States District Court Northern District of Illinois -
Case Title: Dynegy Mkg & Trade v. Multiut Corp, Nachshon Draiman Future Associates et al
Case Number: 1:02-cv-07446
Judge: Hon. John A. Nordberg
Filed On: 10/16/2002
SUMMARY
Case Number: 1:02-cv-07446
Referred To: Honorable Michael T. Mason
Jury Demand: Defendant
Demand: $9999000
Nature of Suit: Contract: Other (190)
Jurisdiction: Diversity
Cause: 28:1332 Diversity-Breach of Contract
Case Updated: 01/20/2005
NAMES
Party Name: Multiut Corporation an Illinois Corporation,
Party Type: Defendant
Attorney(s): Paul Thaddeus Fox
(312) 456-8400
Firm Name: Greenberg Traurig, LLP.
Firm Address: 77 West Wacker Drive
Suite 2500
Chicago, IL 60601
Alan Jay Mandel
847-329-8450
Firm Name: Alan J Mandel Ltd
Firm Address: 7520 North Skokie Blvd
Skokie, IL 60077
03/30/2007 225
NOTICE of Motion by Ira P. Gould for presentment of motion to withdraw as attorney224 before Honorable John A. Nordberg on 4/19/2007 at 02:30 PM. (Gould, Ira) (Entered: 03/30/2007)
04/18/2007 226
MINUTE entry before Judge John A. Nordberg: Motion of Ira Gould to withdraw his appearance on behalf of Multiut Corporation 224 is granted. The motion will not be heard on 4/19/07 as noticed. Mailed (vmj, ) (Entered: 04/19/2007).
For More Information See: www.antidefamationusa.com or www.antidefamation.us
Post a Comment