Petition — Thompson v. Covington Housing Development Corp.

Supreme Court, U. a,

FILE D ”

NOV 17

IN THE _

SUPREME COURT OF THE UNIT

JR., CLERK

OCTOBER TERM, 1978

no.__2?8 7814

EDDIE THOMPSON, JR.,

Plaintiff-Petitioner,

Vv.

COVINGTON HOUSING DEVELOPMENT CORP.,

Defendants,

and

JOSEPH CONDIT,

JUNE HEDRICK,

Defendants-Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

EDDIE THOMPSON, JR., Pro Se

736 Highland Avenue

Covington, Kentucky 41011

1-606/491-6278

I hereby certify that 3 copies of the foregoing

petition have been served by the United States mail,

upon: Mr. Charles Wagner, City Solicitor’s Office,

City-County Building, Covington, Kentucky 41011 on

GD danvetas day of November, 1978.

eee eeereeeeeeeeeeeeeeeesneeeeeeeeeeeeeeeeeeeeeeee

Eddie Thompson, Jr., Pro Se

a caeeuiaeniear imeenanaaniebtedelianneinieatieaenemenediaeeaal

COURT INDEX PRESS, INC. — 215 E. Ninth Street, Cincinnati, Ohio 45202 — (513) 241-1450

INDEX

Page

be cee ee 2

I ay cis bees 2

QUESTIONS PRESENTED .................... 2

RS re eee lacus esc e cece 3

REASONS FOR GRANTING WRIT ............ 5

a 8

APPENDIX

Ce ee ke... la

RS I 2a

Order of District Court — Civil Minutes ........ 8a

Order of Sixth Circuit Court of Appeals.......... 9a

Order Denying Petition for Rehearing .......... lla

CITATIONS

Cases: Page

Cohen v. Beneficial Industrial Loan Corp.,

PP ME IES) 855550 oan ci ud whois nes 6

Conley v. Gibson,

SD 86565 645 View a a eee) ek 7

Covington Housing Development Corp., et al. v.

City of Covington, et al., 381 F Supp 427, Aff’d by

Unpublished Decision, 513 F 2d 630, Cert. Denied

SE Te ME Se eh cage ee Cee ote 8, 4

Cruz v. Betts,

PR Le... . Leh yiee ka eee cores 5

Diabella v. United States,

Y GES 20 5 cs swe ens a ed Sk ns 6

Eisen v. Carlisle and Jacquelin,

Oe SOM WR PU sin fais bas een wee eee 6

Gillespie v. United States,

ek Oe ah ee ele etry sre ee DmueT! 6, 7

Sears v. Mackey,

ek Se IR Py Pee CAPR cia EPR og 5, 6, 7

Statutes:

ee Wee 6 os pete ame hh va eaten 6, 7

Saves See BOG «a cola Geka oe ee ee 7

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1978

EDDIE THOMPSON, JR..,

Plaintiff-Petitioner,

v.

COVINGTON HOUSING DEVELOPMENT CORP.,

Defendants,

and

JOSEPH CONDIT,

JUNE HEDRICK,

Defendants-Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Petitioner, Eddie Thompson, Jr., respectfully prays that

a Writ of Certiorari issue to review the Judgment of the

United States Court of Appeals for the Sixth Circuit en-

tered in the above styled case on September 18, 1978 (App.

p. 9a); petition for rehearing denied on October 18,

1978. Mandate issued on October 31, 1978 (App. pp. 9a-

10a) .

2

OPINION BELOW

The opinion of the United States District Cour: for the

Eastern District of Kentucky — Covington was entered on

October 5, 1978.

JURISDICTION

The jurisdiction of this court is invoked pursuant to

28 U.S.C. 1254(1). The order appealed from being en-

tered on September 18, 1978; rehearing denied October

18, 1978. (App. pp. 9a-10a and 11a).

QUESTIONS PRESENTED

(1) Can a Court of Appeals issue a mandate without

having jurisdiction of an appeal.

(2) In a derivative suit, is the dismissal of all the de-

fendants except the corporate defendant a de facto dismissal

of the derivative suit.

(3) Is it an abuse of discretion for a Court of Ap-

peals to have jurisdiction on appeal, but refuse to take

the case and decide it.

(4) Where appellant is entitled to an appeal as mat-

ter of right, is it a denial of due process of law when the

Court of Appeals refuses to grant that right.

(5) Are employees of a Model Cities program entitled

to pay they have earned, but have not received.

8

STATEMENT

This is the second time this case is before this court.

Defendant Covington Housing Development Corporation

is and/or was an operating agency for the City of Coving-

ton in its Model Cities program by virtue of a contract

entered into on October 5, 1972. By virtue of that con-

tract, the Covington Housing Development Corporation’s

Board of Directors hired Eddie Thompson, Jr., a black, as

Executive Director. As a result of the Board of Directors’

hiring a black as Executive Director, Joseph Condit (City

Finance Director) , June Hedrick (Model Cities Director) ,

and Paul Royster (City Manager) successfully conspired

to illegally terminate the project. Covington Housing De-

velopment Corp., et al. v. City of Covington, et al., 381

F Supp 427, Aff'd by unpublished opinion 513 F 2d 630,

Cert. Den. 423 U.S. 869.

Subsequently, Thompson as Executive Director had en-

gaged counsel to bring suit on behalf of the Corporation

for reinstatement of the project and back pay of the staff.

(The City was illegally withholding salary for the Execu-

tive Director and his staff.) This salary had already been

earned.

Mr. Condit who was also acting as counsel for the de-

fendants was able ‘to prevail upon counsel employed by

Thompson not to pursue the matter. Mr. Condit also

prevented counsel employed by Thompson from attend-

ing the depositions of Mr. Broadus Blythe and Eddie

Thompson, Jr.

Later, defendant/attorney Condit misrepresented himself

in a fraudulent manner to the District Court. This re-

sulted in the case being dismissed on September 11, 1974.

4

Without knowing the facts, Eddie Thompson, Jr. attempt-

ed to engage other counsel for the Corporation, to no

avail. ‘hereafter, Eddie Thompson, Jr. attempted to rep-

resent the Corporation and himself. Thompson was a

nominal party in the original suit. Thompson perfected

an appeal to the Sixth Circuit Court of Appeals, which

affirmed the District Court in an unpublished opinion.

Covington Housing Development Corp., et al. v. City of

Covington, et al., 513 F 2d 630.

Thompson then petitioned the Supreme Court to no

avail.

Thompson then made additional demands of Ms. Hed-

rick and Mr. Condit (who had now become City Mana-

ger) for his wages and the wages of his staff, to no avail.

Hedrick and Condit claimed the corporation owed Thomp-

son and his staff. But Hedrick and Condit had caused

the Corporation to become defunct. Hedrick and Condit

also recommended to the Mayor and Commissioners that

Thompson and his staff not be paid.

Subsequently, as a director (Executive Director) and as

an employee of the Corporation, Eddie Thompson, Jr.

filed a derivative action in District Court on May 11, 1977.

Condit and Hedrick filed a Motion to Dismiss claiming

Res judicata based on the original suit.

On October 5, 1977, without a hearing, the District

Court sustained Condit and Hedrick’s Motion on bases

of Res judicata, but left case pending as to defendant Cov-

ington Housing Development Corporation. On October

12, 1977, plaintiff Thompson moved the Court to amend

its order and/or to certify question of law to permit appeal.

Attorney for Condit and Hedrick did not reply to said

Motion.

5

On October 25, 1977, the Court held a hearing, but sum-

marily overruled plaintiff's Motion — no reason given.

(App. p. 8a).

Subsequently, a Notice of Appeal was timely filed and

the case was filed in the Court of Appeals on November

21, 1977. On or about December 22, 1977, defendants-

respondents filed their Brief.

Petitioner's contentions are; (1) that the District Court

erred in dismissing Condit and Hedrick on bases of Res

judicata, (2) that dismissal without a hearing was a de-

nial of due process, (3) that the Court of Appeals’ re-

fusal to take appeal and decide it was an abuse of discre-

tion, and (4) that the Court of Appeals erred by issuing

a mandate.

The Gourt of Appeals’ Mandate is the equivalent of an

affirmance of the Trial Court’s decision, was erroneous, and

an abuse of discretion by the Court of Appeals.

REASONS FOR GRANTING THE WRIT

The Motion to Dismiss performs the same function as

the old general demurrer in that it admits the well pleaded

material allegations of the complaint. Cruz v. Betts, 31 LEd

2d 263. Due process has always implied a hearing.

The grounds for dismissal for lack of appellate jurisdic-

tion . . . “ordinarily may be (1) that the judgment of

the District Court was not a decision upon a ‘claim for

relief’, (2) that the decision was not a ‘final decision’ in

the sense of an ultimate disposition of an individual claim

entered in the course of a multiple claims action, or (3)

that the District Court abused its discretion in certifying

the order.” Sears v. Mackey, 100 LEd 1297. In the instant

6

case the Court of Appeals dismissed without following any

of the above criteria.

Appellees-respondents do not rely on any of the above cri-

teria. In fact, on its own initiative the Court of Appeals

claims it had no jurisdiction, yet the Court of Appeals is-

sued a Mandate dismissing Condit and Hedrick. This is

obviously an error by the Court of Appeals.

Arguendo the District Court was right in dismissing

Condit and Hedrick. Then the procedure in the Court

of Appeals would have been an affirmance cf the District

Court’s decision.

In Gillespie v. United States Steel Corp., the Supreme

Court held that the Court of Appeals for the Sixth Circuit

did not err in holding that the Trial Court’s order was

“final” and therefore appealable under 28 U.S.C. 129],

because the inconvenience and cost of the case would not

be greater by deciding the appeal, a delay would result

from refusing to decide the appeal, and the questions raised

were fundamental to further conduct of the case. Gillespie

v. U.S. Steel Corp., 13 LEd 2d 199. |

Traditionally, this court has held that “the requirement

of finality as a prerequisite of jurisdiction of a court of

appeals to entertain appeals from all final decisions of a

federal court is to be given a practical rather than a tech-

nical construction; the inquiry requires some evaluation

of the competing considerations underlying all question of

a finality, that is, the inconvenience and cost of piecemeal

on one hand and the danger of denying justice on the

other. Eisen v. Carlisle and Jacquelin, 40 LEd 2d 732;

Cohen v. Beneficial Industrial Loan Corp., 98 LEd 1528;

Dibella v. United States, 7 LEd 2d 614; Gillespie v. U.S.

Steel Corp., 18 LEd 2d 189; Sears v. Mackey, 100 LEd

1297.

7

Rule 54(b) of Federal Rules of Civil Procedure...

which permits the entry of a judgment upon one or more

but less than all of the claims in a multiple claims action

is valid . . . it does not supersede any statute controlling

appellate jurisdiction and recognizes the statutory require-

ment of a “final decision” under 28 U.S.C. 1291 as a basic

requirement for an appeal to the Court of Appeals...

is valid both as to its negative effect, where the court re-

fuses to make the requisite determination and direction,

and as to its affirmative effect, where the Court does make

such determination and direction. Sears v. Mackey, supra.

In Gillespie v. U.S. Steel Corp., supra, the Supreme

Court held the meaning of 28 U.S.C. 1291 is frequently so

close a question that decision of that issue either way

can be supported with equally forceful arguments, and

that it is impossible to devise a formula to resolve all

marginal cases coming within what may be called the “twi-

light zone” of finality. Because of this difficulty, the Su-

preme Court has held that the requirement of finality is

to be given a “practical” rather than a technical con-

struction.

However in the instant case, defendants-appellees of-

fered no brief or arguments that the present order is not

final, but insist that the District Court sustained their

Motion to Dismiss on the basis of Res judicata.

A claim by defendants-appellees and some citations that

a decision is not final may be a defense in a scheme or

game, but no such claims is made here.

“The federal rules reject the approach that pleading is

a game of skill in which one misstep by counsel may be

decisive of the outcome, and accept the principal that the

purpose of pleading is to facilitate a proper decision on

the merits.” Conley v. Gibson, 2 LEd 2d 80.

la

8

The arbitrary dismissal of the appeal pursuant to Court

of Appeals Rule 9(b)1 and the issuance of a Mandate

would be the equivalence of affirming the dismissal by

the District Court and would be contrary to Rule 11 of the

Sixth Circuit Court of Appeals. The action by the Court

of Appeals would further deny appellant-petitioner due

process of law.

CONCLUSION

This Court should grant the Petition for Writ of Certi-

orari and hear issue raised in this important case.

“A plea of estoppel admits the cause of action and, if the

estoppel fails, judgment follows; of course for the other

party. One must rely either on the estoppel as such or

upon the truth of the matter. Southern R.P. Co. v. United

States, 42 LEd 355.

EDDIE THOMPSON, JR.., Pro Se

APPENDIX

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

COVINGTON

CIVIL ACTION NO. 77-35

EDDIE THOMPSON, JR.,

PLAINTIFF,

vs.

COVINGTON HOUSING DEVELOPMENT

CORPORATION, ET AL.,

DEFENDANTS.

ORDER

(Filed October 5, 1977)

In accordance with the Memorandum Opinion of even

date, it is

ORDERED AS FOLLOWS:

1. The defendants’, Condit’s and Hedrick’s, motion to

dismiss this action as barred by the statute of limitations is

hereby sustained as to the plaintiff's causes of action under

42 U.S.C. §§ 1985 and 1986, and overruled as to the plain-

tiff’s claim under 42 U.S.C. §§ 1981 and 1983.

2. The defendants’, Condit’s and Hedrick’s, motion to

dismiss this action on the basis of res judicata is hereby

sustained.

2a

3. This case be and is dismissed as to the defendants,

Condit and Hedrick, but shall remain on the docket as of

the remaining defendant, Covington Housing Develop-

ment Corporation.

This 5 day of October, 1977.

/s/ EUGENE E. SILER, JR.

JUDGE

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

COVINGTON

CIVIL ACTION NO. 77-35

EDDIE THOMPSON, JR.

PLAINTIFF,

Vs.

COVINGTON HOUSING DEVELOPMENT

CORPORATION, ET AL.,

DEFENDANTS.

MEMORANDUM OPINION

(Filed October 5, 1977)

This civil rights action was instigated by the plain-

tiff, Eddie Thompson, Jr., pro se, alleging a conspiracy to

deprive him and others of wages due and to deprive him

3a

of his job as director of the defendant, Covington Housing

Development Board. The matter is before the Court now

on motions by defendants, Joseph Condit and June Hed-

rick, to dismiss this action. Defendants base their motions

on the grounds that the Court lacks jurisdiction to hear

the case and that the action is barred by the doctrine of

res judicata and the statute of limitations. Additionally, de-

fendants request that the Court dismiss the suit as a class

action and strike certain portions of the complaint which

refers to the class plaintiff purports to represent. These

issues will be considered separately.

CLASS ACTION

The plaintiff argues that the facts and questions in this

suit are common to all members of the class. However,

the “class” consists of but four people, the plaintiff and

three other former employees of the corporation, all of

whom are readily identifiable. The Court cannot find

that the proposed “‘class is so numerous that joinder of all

members is impracticable.” FED.R.CIV.P. 23 (a). There-

fore, the action will not be certified as a class action and

any recovery will be limited to injuries sustained by the

named plaintiff.

STATUTE OF LIMITATIONS

The complaint alleges that the illegal actions occurred

in late 1972 and in the spring of 1973. This action was

filed on May 11, 1977. The defendants argue that ihe

action is barred by the statute of limitations.

This argument is clearly well taken as to the plaintiff's

cause of action under 42 U.S.C. § 1986. The last sen-

tence of that section provides that “no action under the

4a

provisions of this section shall be sustained which is not

commenced within one year after the cause of action has

accrued.”

The plaintiff also brought the action under 42 U.S.C.

§§ 1983 and 1985. Because a statute of limitation for

these sections is not contained either in the Civil Rights

Act or elsewhere in the federal statutes, the applicable per-

iod of limitation is that which Kentucky would enforce had

an action seeking similar relief been brought in Kentucky

state court. Garner v. Stephens, 460 F.2d 1144 (6th Cir.

1972). The question before the Court is, therefore, which

Kentucky statute of limitations is appropriate for actions

under §§ 1983 and 1985.

The plaintiff cites Kentucky-Tenn. L.&P. Co. v. Moats,

290 Ky. 690, 162 S.W.2d 526 (1942), as authority that the

five year statute of limitations applies to actions earned

and unpaid. (§ 2515, Kentucky Statutes). However, KRS

413.120, which replaced § 2515, contains no provision for

an action on wages. In any event, such a suit would be

considered an action on a contract and, inasmuch as there

is not diversity of citizenship of the parties, this Court

would have no jurisdiction to hear the case.

Defendants assert that the one year statute of limitations

for conspiracy contained in KRS 413.140(1) (c) is con-

trolling. The Court finds that this statute does not bar

the plaintiff's claim under 42 U.S.C. § 1985.

However, there remains plaintiff's claim under 42 U.S.C.

§§ 1981 and 1983. The applicable Kentucky statute of

limitations for this cause of action appears to be KRS

413.120 (2) :

The following actions shall be commenced within

five years after the cause of action accrued:

5a

(2) An action upon a liability created by stat-

ute, when no other time is fixed by the statute cre-

ating the liability.

Therefore, the defendants’ motions to dismiss based on

the fact that this action is barred by the statute of limita-

tions will be sustained for the plaintiff's causes of action

under 42 U.S.C. §§ 1985 and 1986, but overruled as to

the plaintiff’s claim under 42 U.S.C. §§ 1981 and 1983.

RES JUDICATA

On October 4, 1973, a civil rights action styled Cov-

ington Housing Development Corp. and Eddie Thompson,

Jr. v. City of Covington, et al., was filed in the United

States District Court, Eastern District of Kentucky at Cov-

ington, as civil action number 1752. Among the named

defendants in that suit were June Hedrick and Joe Condit,

defendants in the present action. The suit was brought

pursuant to 42 U.S.C. §§ 1981 and 1983 and jurisdiction

was invoked under 28 U.S.C. § 1343 (3). The corporation

alternately sought damages or reinstatement of the devel-

opment, while plaintiff, Eddie Thompson, Jr., demanded

remuneration for the defendants’ racist hiring practices and

deflamatory allegations of fiscal irresponsibility.

On September 11, 1974, District Judge Mac Swinford,

entered Summary Judgment in favor of the defendants

based on the finding that (1) the corporation had no

authority to bring the action, and (2) the plaintiff, Thomp-

son, had no personal remedy for injuries suffered by the

corporation and that the deprivations inflicted on the

plaintiff individually were insufficient to justify retention

of jurisdiction. 381 F.Supp. 427 (E.D. Ky. 1974), aff'd by

unpublished opinion, 513 F.2d 630 (6th Cir. 1975).

6a:

The case was appealed to the Supreme Court, where the

plaintiff's Writ of Certiorari was denied on October 6,

1975. 423 U.S. 869.

Defendants now assert that this action is barred by res

judicata. Although the plaintiff argues that “whether the

Director [Thompson] has any personal claim to be re-

solved by the court was not before the court when it ruled

Summary Judgment for defendants against Covington

Housing Development Corporation” (plaintiff's reply p.

3), the record, as indicated above, shows otherwise. Both

Judge Swinford and the Appellate Court held that plain-

tiff Thompson, as an individual, suffered no deprivation

of his civil rights.

It is a well settled principle that ‘“‘res judicata may be

pleaded as a bar, not only as respects matters actually pre-

sented to sustain or defeat the right asserted in the earlier

proceeding, ‘but also as respects any other available mat-

ters which might have been presented to that end.’ [ci-

tations omitted].”” Chicot County Drainage Dist. v. Baxter

State Bank, 308 U.S. 371, 378 (1940). See also All States

Investors, Inc. v. Sedley, 399 F.2d 769 (6th Cir. 1968) .

This principle was applied to a federal civil rights claim

in Scoggin v. Schrunk, 522 F.2d 436 (9th Cir. 1975), cert.

denied, 423 U.S. 1066 (1976). In Scoggin, the plaintiff

first sued in state court in the theories of unjust enrich-

ment and no timely notice of a foreclosure sale. After

an unfavorable decision, Ms. Scoggin brought an action

under 42 U.S.C. § 1983, seeking the same relief, but for

the first time saying her civil rights had been violated

by the sale of her property without notice. The District

Court held that unless the civil rights claim had actually

been tendered to the state court, res judicata did not apply.

In reversing, the Ninth Circuit held:

7a:

It is now established that where the federal consti-

tutional claim is based on the same asserted wrong

as was the subject of a state action, and where the par-

ties are the same, res judicata will bar the federal con-

stitutional claim whether it was asserted in state court

or not, for the reason that the state judgment on the

merits serves not only to bar every claim that was

raised in state court, but also to preclude the assertion

of every legal theory or ground for recovery that might

have been raised in support of the granting of the de-

sired relief. 7

Id. at 437.

The present case arises out of the same set of facts and

involves the same parties as case number 1752. The Sum-

mary Judgment which was rendered by Judge Swinford in

favor of the defendants goes to the merits of the case and

operates as an effective bar to this action. See Brachett

v. Universal Life Ins. Co., 519 F.2d 1072 (5th Cir. 1975) ;

Sopp v. Gehrlein, 236 F.Supp. 823 (W.D. Pa. 1964).

An order in conformity with this Memorandum Opinion

will be entered this date.

This 5 day of October, 1977.

/s/ EUGENE E. SILER, JR.,

JUDGE

8a

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

COVINGTON

Case No. 77-35

EDDIE THOMPSON, JR..,

vs.

COVINGTON HOUSING DEVELOPMENT.

CIVIL MINUTES — GENERAL

Date October 25, 1977

PRESENT: Hon. Eugene E. Siler, Jr., Judge

DTM & LGB, Deputy Clerk

McGarvey, Court Reporter

ATTORNEYS PRESENT FOR PLAINTIFFS:

Eddie Thompson, Jr. pro se

ATTORNEYS PRESENT FOR DEFENDANTS:

Charles P. Wagner for Joseph Condit and Juen Hedrick

dismissed as defendants per Order 10-5-77

PROCEEDINGS: HEARING:

Plaintiff's Motion for Court to Amend its Order of 10-

5-77 and/or for Court to certify question of law to permit

appeal is overruled.

Initials of Deputy Clerk LGB

9a

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

77-1716

EDDIE THOMPSON, JR.,

Plaintiff-Appellant,

vs.

COVINGTON HOUSING DEVELOPMENT,

Defendant,

JOSEPH CONDIT and JUNE HEDRICK,

Defendants-Appellees.

ORDER

(Filed September 18, 1978)

BEFORE: WEICK, CELEBREZZE and KEITH, Circuit

Judges.

This appeal, perfected from an order of the district

court dismissing this civil rights action against only two

of the three named defendants, has been assigned to a panel

pursuant to Rule 9 (a), Rules of the Sixth Circuit.

It appearing that there is no final appealable order and

that this Court is without jurisdiction to consider the

present appeal, William B. Tanner Co., Inc. v. United

States, 575 F.2d 101 (6th Cir. 1978); Moody v. Kapica,

548 F.2d 133 (6th Cir. 1976),

10a

It is ORDERED that the appeal be and it is hereby

dismissed. Rule 9(b) (1), Rules of the Sixth Circuit.

ENTERED BY ORDER OF THE COURT

/s/ JOHN P. HEHMAN,

Clerk

Issued as Mandate: October 31, 1978

COSTS: NONE

[CERTIFICATION OMITTED]

lla

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 77-1716

EDDIE THOMPSON, JR.,

Plaintiff-Appellant,

Vv.

COVINGTON HOUSING DEVELOPMENT,

Defendant,

JOSEPH CONDIT and JUNE HEDRICK,

Defendants- Appellees.

ORDER

(Filed October 18, 1978)

Before: WEICK, CELEBREZZE and KEITH, Circuit

Judges.

Appellant having filed a petition for rehearing en banc

with this Court, and no active Judge having requested

that a vote be taken on the suggestion for rehearing en

banc, said petition has been referred to the panel for

disposition. The Court having considered said petition

and being duly advised in the premises,

It is ORDERED that the petition for rehearing be, and

it is hereby denied.

ENTERED BY ORDER OF THE COURT

/s/ JOHN P. HEHMAN,

Clerk