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HomeMy WebLinkAbout96-01215 ~ J I J:/ ~.~ \ 'i -* " J ~ ~ I ,1 '} ., I I I i l ~ , .J , , i , t I I \ \, '\ ) / I I I :~'~~ ~1~ -.~ 1 !~ - ~" ':." i , , JEAN L. BROOKES, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. q~- /':/I,:t q~ -r;~,,",,- CIVIL ACTION - EQUITY : V. . . RONALD L. HESS, Defendant COMPLAINT AND NOW, comes the Plaintiff, by and through her attorney, Charles Rector, Esquire, of Costopoulos, Foster and Fields, and respectfully represents as follows: 1. Plaintiff, Jean L. Brookes, is an adult individual who resides at 831 E. Winding Hill Road, Mechanicsburg, Pennsylvania. 2. Defendant, Ronald L. Hess, is an adult individual who resides at 435 W. Simpson Street, Mechanicsburg, Pennsylvania. 3. Both parties are unmarried adults and residents of the Commonwealth of Pennsylvania. 4. In the months preceding June of 1994, Defendant proposed marriage to Plaintiff and at that time, Plaintiff felt it was inappropriate and untimely because of Defendant's care and custody of his three children. Plaintiff and Defendant nonetheless agreed to cooperate and to work towards that goal so that they would have a future together. -I 5. On or about June of 1994, the parties began spending overnights at Defendant's home at his request and Plaintiff contributed financially to improvements to Defendant's home and the purchase of furnishings for his home. 6. Based upon Defendant's representations and promises to Plaintiff that a future marriage might occur and his further representations that irrespective of a future marriage, that they would financially work towards the goal of sharing their lives together, Plaintiff continued to regularly contribute to the maintenance and improvement to the Defendant's home and provided monies for the purchase of numerous furnishings, all of which are still contained in the home. 7. Throughout the time that the parties spent considerable time together at Defendant I s home, they were in a confidential relationship in which Plaintiff reasonably believed that Defendant would not act in a manner inconsistent with her welfare, and Pl&intiff trusted Defendant and believed that Defendant would not abuse such confidential relationship nor take advantage of Plaintiff's trust to obtain improvements to his home and items of . personal property for his own benefit. 8. Defendant deliberately misrepresented his intentions to Plaintiff for the purpose of acquiring from her financial contributions for improvement of his home and furnishings. relationship. Black's Law Dictionary (6th Edition). see confidential relationship. There was no dominance or influence by Defendant. Quite the contrary, in the instant case, the Defendant will testify that he repeatedly told Plaintiff that he could not afford the services and products that she was ~urchasing but that she nevertheless wanted to purchase them anyway. That the Plaintiff advanced money in the form of products and services to Defendant's house is clear. The issue is whether the purchase of products and services were gifts. In its simplest form, a gift is defined as a voluntary transfer of property made to another gratuitously and without consideration. Black's Law Dictionarv (6th Edition) ree gift. FUfther, our courts have recognized that a gift cannot be later revoked. Richette vs. Aiello, supra. Plaintiff's misplaced confidence is not sufficient to justify revocation of gifts to the Defendant. e.g. Baum\lartner vs. In Roberson vs. Davis, the issue before the court was whether the court should impose a constructive trust on ploperty in which a woman had lived in a meritritious relationship with a married',;nan. The court rejected the woman's claim to the interest in real estate finding that the property was purchased and financed solely by the man. Of significance to the instant case, in Roberson the woman made a gift of a swimming pool to the residence. The court found that the swimming pool was a gift: although the pool was initially financed by the woman, 3 Defendant's home. There was no agreement between the partiell that Plaintiff would contribute financially to improvements to Defendant's home or the purchase of furnishings for his home. It is specifically averred by Defendant that Defendant repeiltedly told Plaintiff that he was not in a financial position to get the it6ms that Plaintiff purchased for him or make the improvements that she did to the home, and that she did that without his agreement. 6. Denied as stated. Defendant is without knowledge sufficient to form a belief as to the truth of this averment particularly as it relates to what the Plaintiff's mental state was during the time that she decided to purchase various items for Defendant's residence and to make the improvements to Defendant's home. It is specifically denied that Defendant ever represented or promised to Plaintiff that in exchange for receipt of those items of personal property or repairs to the home that he would marry her. It is specifically averred that Defendant consistently told Plaintiff that he could not afford the items that she was purchasing for him and could not afford the improvements that she made to the home. 7. Denied. Defendant is without knowledge sufficient to form a belief as to the truth of this averment and therefore it is denied and strict proof thereof is demanded at the trial of this case. 3 8. Denied. It is specifically denied that Defendant misrepresented any of his intentions to Plaintiff concerning their relationship end that he ever made any misrepresentations for the sole purpose of acquiring from Plaintiff financial contributions for improvements to the home and for personal property. It is averred that Defendant repeatedly told Plaintiff that he was not in a financial position to pay for the items he purchased or the improvements to the home. 9. Denied. This averment is a legal conclusion and no answer is required. To the extent an answer is required, it is specifically denied in total. 10. Admitted in part and denied in part. It is admitted that Plaintiff has demanded payment from Defendant for the items she purchased and gave to Defendant and for the improvements that she made to his home. It is specifically denied that Plaintiff is entitled to receive any repayment of the financial contributions or furnishings or other assets that she purchased for Defendant that are at his home. 11. Denied. It is specifically denied that Defendant ever made an agreement with Plaintiff to pay her the amount of $10,000.00 as reimbursement for her financial contributions or return any items purchased by her located in the home. In the event that there were any discussions between Plaintiff and Defendant, the 4 discussions were solely related to settlement of these various claims and in no way are a binding agreHment between the parties. 12. Denied. Paragraph 12 is a legal conclusion to which no answer is required. To the extent that an answer is required, it is specifically denied. WHEREFORE, Defendant requests this Honorable Court to enter judgment in his favor and against Plaintiff, together with costs of suit. NEW MATTER 13. Paragraphs 1 through 12 are incorporated herein by reference as if more fully set forth. 14. Plaintiff and Defendant had an on again, off again relation'lhip that began some time in 1991. 15. Plaintiff was aware that Defendant had a history of mental problems and in fact during the course of their relationship, Defendant was treated on several occasions for depression and other related mental illnesses. 16. Plaintiff knew that she could control Defendant as a result of his mental problems and took advantage of Defendant's condition in her ralationship with him. 17. Plaintiff and Defendant, during the course of the relationship, had discussions about marriage but those discussions consistently ended because Plaintiff was unwilling to commit herself to Defendant as long as Defendant was 5 the primary care taker and responsible person for his minor children who were living at Defendant's residence. 18. Plaintiff always maintained a separate residence from Defendant throughout the course of the relationship. 19. Plaintiff and Defendant never cohabitated as that term is defined in the Divorce Code, in that they always maintained separate residences, separate checking accounts, and other indices of being separate and never held themselves out to the general public as cohabitating in any way. 20. During the cour!>e of their relationship, Plaintiff was intimately familiar with Defendant's financial condition during the course of her relationship with him and knew that Defendant was not in a financial position to purchase new items for his home or make improvements. 21. Plaintiff repeatedly bought items of personal property for Defendant and on each occasion told Defendant that those items were a gift to him. 22. Plaintiff repeatedly made improvements to Defendant's residence without Defendant's approval or agreement, and repeatedly told Defendant that all of the improvements were gifts to him, 6 to the residence, Plaintiff at no time indicated to Defendant that he would be required to repay her for the gifts and improvements. 29. There are no writings evidencing the alleged loan of the funds for the personal property or for the improvements to Defendant's residence. Plaintiff's claims are barred by the Statute of Fraud. WHEREFORE, Defendant requests this Honorable Court enter judgment against Plaintiff together with costs of suit. COUNTERCLAIM 30. Paragraphs 1 through 29 are incorporated herein by reference. 31. Plaintiff's Complaint against Defendant is unsubstantiated and a continued form of harassment by Plaintiff against Defendant. 32. Defendant has incurred substantial legal fees as a result of Plaintiff's actions in filing this unsubstantiated and unwarranted Complaint against Defendant. 33. Plaintiff's filing of an action in equity has placed a cloud on Defendant's title and has prevented him from refinancing various debts to reduce his interest payments for his various obligations. 34, Defendant would not have incurred these additional interest payments but for the action of Plaintiff filing this suit in equity against him since by filing the 8 >. '-I, c; c.: , '^ .. ~, 1 ~ ~'': _7 <\ :t; . ~:< "- l::J - (.'J @' -, ",' .." (1. I ; r"J rt~< (I: . I " ~ 1 Ll. j ~ l- r: '"" " ,... ) 0 0' '-.> IIJ ~ _ iO II: W 0 iii :I 1:"- !l - III l&. i:l ~~ ~ o . w,(_ IIJS~ U~ IIJ 0 ffi, It 811.0 ~~~g~ ~ ~11. ~ % 1J ~" u :u~ knowledge or information to form a belief as to the remaining averment alleging that Defendant suffered from "other related mental illnesses" and proof thereof is demanded. 16. Denied. It Is denied that Plaintiff knew that she could control Defendant as a result of his mental problems and further denied that she took advantage of Defendant's mental condition in her relationship with him and proof thereof is demanded. By way of further answer, Plaintiff and Defendant shared a serious committed relationship and Defendant's depression, for which he received medication and which resulted In his hospitalization on only one occasion during their relationship, did not affect the parties' relationship. To the extent that any further answer is required, Defendant's hospitalization resulted from his discontinuation of his medication without Plaintiffs knowledge. 17. Admitted In part and denied in part. It is admitted that Plaintiff and Defendant, during the course of their relationship had discussions about marriage which discussions consistently ended because of Plaintiffs unwillingness to marry Defendant as long as Defendant was primary caretaker of his minor children at his residence. Itls denied that Plaintiff at any time was unwilling to commit herself to Defendant which commitment had previously occurred in her relationship with him. By way of further answer, Plaintiff and Defendant committed to spend the rest of their lives together, married or unmarried. 18. Admitted in part and denied in part. It is admitted that Plaintiff maintained a separate residence from Defendant throughout the course of their relationship. It is denied however that Plaintiff did not spend much of her time at Plaintiff's home and proof thereof is demanded. By way of further answer, Defendant agreed that It was appropriate for Plaintiff to maintain her separate residence to care for her elderly father, even following their marriage. 19. Admitted. 20. Admitted. 21. Admitted in part and denied in part. It Is admitted that at times Plaintiff gifted various items to Defendant which Items Plaintiff Is not requesting return of or reimbursement for from Defendant. It Is denied that all financial contributions of Plaintiff to Defendant were gifts and proof thereof Is demanded. By way of further answer, Plaintiff provided loans to Defendant during their relationship on thrae occasions, one of which loans was repaid to Plaintiff. Plaintiff further paid for fumlshlngs and Improvements to Defendant's home In reliance upon his promise that they would spend their lives together. Defendant further told Plaintiff on numerous occasions to not purchase a home or townhouse of her own because she would be living at Defendant's home. 22. Denied. It is denied that Plaintiff, at any time, made improvements to Defendant's residence without Defendant's approval and agreement and proof thereof Is demanded. It Is further denied that Plaintiff at any time told Defendant that the various improvements were gifts to him, with the exception of the sidewalk and fence improvements which Plaintiff explicitly gifted to Defendant and for which Plaintiff in the Instant litigation is not seeking reimbursement. 23. Denied. Paragraph 23 constitutes legal conclusions which require no answer and are deemed denied. To the extent that any further answer Is required, it is denied that the financial contributions made to Defendant were gifts and proof thereof is demanded. 24. Denied. It Is denied that Plaintiff at any time made gifts of various costs and fumishings to Defendant which are the subject matter of this litigation and proof thereof Is demanded. To the extent that any further answer is required, Defendant abruptly broke off the parties' relationship after having received the financial benefit of Plaintiffs contributions both monetarily and with fumishings all of which are In the current possession and control of the Defendant. 25. Admitted. By way of further answer, Plaintiff was, through her financial contributions and otherwise, Investing In her future with Defendant consistent with the parties' agreement to spend the remainder of their lives together. Defendant on numerous occasions assured Plaintiff that they would be together forever and that she should not under any circumstances invest her money for instance, in another home or townhouse, which statements Plaintiff relied upon to her delriment. 26. Admitted. By way of further answer, Plaintiffs expactation consitltent with her discussions with Defendant was that they would spend their lives together. 27. Admitted. 26. Denied. The premise of Paragraph 26 which suggests that all Items were purchased for the benefll of Defendant including financial contributions and furnishings is denied. By way of further answer, PI..intiff made financial contributions to the parties' relationship, all of which financial contributions in the form of furnishings and home improvements are now in the exclulllve control and custody of Defendant. To the extent that any further answer is required, Plaintiff gifted sevpral items to Defendant during their relationship that she is not seeking reimbursement for and that are not the subject matter of this litigation. 29. Denied. Paragraph 29 constitutes a series of legal conclusions which require no answer and are deemed denied. To the extent that any further answer is required, the Statute of Frauds Is Inapplicable to the instant action. WHEREFORE, Plaintiff requests that your Honorable Court dismiss with prejudice Defendant's New Matter. Counterclaim 30. No answer required. 31. Denied. Paragraph 31 constitutes a series of legal conclusions which require no answer and are deemed denied. To the extent that any furthbr answer is required, it is denied that Plaintiff's complaint is unsubstantiated and further denied that it constitutes harassment by Plaintiff of Defendant. Memorandum of law at 1.> The plaintiff wishes to clarify once again that she is not seeking the legal remedy of damages for breach of contract or for tort. To the extent that she seeks a monetary award, the plaintiff seeks the equitable remedy of "restitution" or "reimbursement" to prevent the defendant's unjust enrichment. Unlike legal claims based on express or implied contract, a claim of unjust enrichment does not depend upon the existence of an agreement between the parties. Rather, the claim is grounded on the equitable principle that one who has received a benefit has a duty to make restitution where retaining the benefit without restitution would be unjust. See Dan B. Dobbs, Handbook on the Law of Remedies 3 4.1 (1973); Restatement of Restitution 3 I (1937). The Pennsylvania courts have long recognized that restitution and constructive trust are equitable remedies designed to prevent unjust enrichment. E.g., Robbins v. Kristofic, 434 Pa. Super. 392, 643 A.2d 1079, 1083 (1994) (citing Partrick & Wilkins Co. v. Reliance Insurance Co., 500 Pa. 399,456 A.2d 1348, 1351 (1983)). Claims based upon unjust enrichment are often asserted between cohabitants upon tennination of the relationship. See Annotation, Property RightsXCohabitation, 3 A.loR.4th 13 (1981 & Supp. 1997); Collins v. Davis, 68 N.C. App. 588, 315 S.E.2d 759 (1984) (upholding unjust enrichment claim by which male cohabitant sought $10,000 reimbursement for money and labor expended in improving female cohabitant's home). In Pennsylvania, Roberson v. Davis, 397 Pa. Super. 292, 580 A.2d 39 (1990), constitutes the 2 reimburse the woman for her contribution to the cost of the swimming pool. The initial cash involvement had been paid by the woman, but the remaining payments had been made by the man; the trial court had found that the initial cash payment by the woman had been a gift to the man. [d. at 41. In this case, the furniture and other household items purchased by the plaintiff and used by the parties in the defendant's residence should be ordered returned to her, just as the automobile fo~ which the woman paid in Roberson was ordered returned to her. The plaintiff in this case has presented satisfactory evidence that she purchased these items of personal property, and the defendant's evidence that each and every item was a gift to him is simply insufficient. Unlike the woman in Roberson, the plaintiff in this case does not seek a one-half interest in the real property titled in the defendant. Rather, she seeks only reimbursement of, or a constructive trust to secure, her contributions to the cost of various improvements to the property. Further, unlike the woman's contribution toward the swimming pool construction in Roberson, the plaintiffs cash outlays in this case were not gifts to the defendant. Although the defendant's Memorandum of Law contains repeated declarations that the plaintiffs contributions to the improvement of his property were gifts to him (Defendant's Memorandum of Law at 3), he fails to recognize that he bears the burden of proving an inter vivos gift by clear, precise, and convincing evidence. E.g., Wilhelm v. Wilhelm, 441 Pa, Super. 230, 657 A.2d 34, 37 (1995); Hera v. McCon/lick, 425 Pa. Super. 432, 625 A.2d 682, 4 686 (1993). Indeed, an alleged donee must prove all three elements of an inter vivos gift: (I) donative intent; (2) delivery (actual or constructive); and (3) acceptance. E.g., In re Sipe's Estate, 492 Pa. 125,422 A.2d 826, 828 (1980); Hera v. McCormick, 625 A.2d at 686; In re Estate of Sou pc off. 329 Pa. Super. 130,477 A.2d 1388, 1390 (1984). The defendant will be unable to meet this burden. The Defendant has acknowledged in deposition that Plaintiff paid for the personal property and improvements in question to his home. He also admits that these improvements increased the value of his property. The Plaintiff will testify that her rationale for financing such improvements was her commitment to Defendant at his request to spend the rest of her life with him. Rather than supporting the defendant's gift theory, the evidence in this case actually shows that the plaintiffs contributions to improving the defendant's property were not gifts. The evidence further shows that the defendant would be unjustly enriched if he were permitted to retain the benefit of the improvements without reimbursing the plaintiff. Therefore, this Court should order the defendant to make restitution to the plaintiff in the amount requested, or this Court should impose a trust or equitable lien on the property for the amount requested. In the alternative, the plaintiff requests this Court to order specific performance ofa settlement agreement entered into by the parties in satisfaction of all claims arising from their relationship. Following the Defendants abrupt termination of the parties' relationship, Plaintiff asked Defendant for the sum of $10,000.00 as reimbursement to her for 5 improvements made to Defendant's home and for the return of four (4) items of personal property. The Defendant agreed to this settlement but none of the requested money or personal property was rc;ceived by Plaintiff. Although no Pennsylvania case has been reported that involves the enforceability of a settlement agreement between cohabitants, courts in other states have enforced such agreements without hesitation. For example, in Kinnison v. Kinnison, 627 P.2d j94, 596 (Wyo. 1981), a woman sought specific performance of an oral settlement agreement that she and her former partner had made when their relationship ended. The trial court found that the parties had entered into an express oral contract to settle the woman's cohabitation claims for $15,000. The court then ordered the man to perform his pan of the bargain. In affirming, the Wyoming Supreme Court held that there was no public policy bar to enforcing such an agreement between cohabitants. The court observed that the fact of cohabitation does not render the parties incapable of contracting with one another. Accord Donnell v. Stogel, 1 (j 1 A.D.2d 93, 560 N.Y.S.2d 200 (1990) (enforcing written settlement agreement between former cohabitants). Because an express oral contract between cohabitants to share accumulated property was held valid and enforceable in Knauer v. Knauer, 323 Pa. Super. 206, 470 A.2d 553 (1983), it appears clear that enforcing a settlement agreement between cohabitants would not run afoul of the public policy of this Commonwealth. Therefore, this Court should order specific performance of the parties' settlement agreement. 6 . PRAECIPE FOR L1STI'lG CASE FOR AR(jll~llNT (Mu~1 be type"rillen and submilled in duplicalel TO THE PROTHONOT AR'1' IOF CUMBERLAND COUNTY: Please Ii.llhe within mailer for Ihe next: o Pre. Trial Argumenl Court [iJ Argument Courl ..~ ..-. - --_.----~.~---_._-- . ------.---.----.. ....---.-----.--------- CAPTION OF CASE (enllre capllon mu'l be .tated in full) c: "- ,"'7 d~ .f) <I -:l ",,,\ ,\ \ ..,'"'1 .~ )l:~' .-< ! . I -.\ ~, .... -;l nl. ,. - .? Jean L. Brookes (Plainllrt) :. if:_ .- C-.\ ~~l , . ~- -" r;-? ':::> I" vs. . Ronald L. Hess (Defendanl) vs. No. 1215 _' Civil ~ity Ic?L_ I. Stale matter 10 be argued (I. e., plaintifr. motion for new trial, defendant'. demurrer 10 complaint, etc.): Defendant's Preliminary Objection to Plaintiff's comglaint 2. Idenllfy counsel ';'ho wll\ argue case: (a) for plaintiff: Charles Rector, Esquire (b) fordefendant: Michael L. Bangs, Esquire 3. I will notify all parties in writing wilhin twu day. Ihallhi, case Ii.. been listed for argument._ ) Dated: 9/9/96 PRAECIPE FOR LISTING CASE FOR TRIAL (Mult be typewrltt.n Ind lubmllt.d In dupllclt.) {i)AUG 0 Ii 1997 TO THE PROTHONOTARY OF CUMBERLAND COUNTY CAPTION OF CASE (.nllr. clpllon mUlt b. IItated In full) (check one) '.' ) -.J ,I r , ~1 " . .1 ., I ,., ) , '" J. , ;' I , , , I " " .-J (Check one) Pl.... nit th. following ca..: , ( for JURY trial It the next term of civil court. ( X) for trial without a Jury. ) Assumpsit Jean L. Brookes ) Trespass Trespass (Motor Vehlcl.) ( (X) ~qlJfty I ~ong~rUC~iv9 Trust) (other) (Plaintiff) vs. The trial list will be called on 1 0/1 4 / 9 7 Ronald L. Hess and Trials commence on 1 1 /1 n / Q 7 (Defendant) ,Pretrials will be held on 10/22/97 (Briefs are due 5 days before pretrials.) (The party listing this case for trial shall provIde forthwith a copy of the praecipe to all counsel, pursuant to local Rule 214-1.) vs. No. 1 215 Civil 19 96 Indicate the altomey who will try case for the party who flies this praecipe: Charles Rector, ESQuire Indicate trial counsel for other parties If known: Michael Bangs, Esquire to Defendant This case Is ready for trial. SID'" ~ flJ/2- c.... Print Name: Charles Rector, Esquire Date: 7 / 30/97 Attorney for: Plaintiff 1 OctotJer 2, 1997. 9:10 [).m. 2 Carlisle. Pennsylvania 3 4 (Whereupon, the folloWing collOQUY 5 was held:) 6 THE COURT: Whot is the si tuatlon? 7 MR. RECTOR: May it please the Court. Your 8 Honor. we have reached agreement in th~ adjudication. the 9 equity action, of Brookes versus Hess. I can brieflY 10 outline that agreement for the Court, 11 Your Honor, the parties ore agreeing to 12 settle this matter far the sum of $8,000.00 ta be paid to 13 the plaintiff by defendant as follows: 14 Commencing on November 1st of 1997 and each 15 month thereafter, the defendant will pay interest at 8 16 percent to plaintiff, and that monthly payment will be an 17 interest only payment on the unpaid balance. 18 Thereafter, Your Honor, on or before April 19 1st of each and every year, the defendant will pay to 20 plaintiff the sum of $1,500.00 on or before April I. 21 THE COURT: On principal? 22 MR. RECTOR: Principal. thnt is correct, Your 23 Honor, until the balance of $8,000.00 is paid in full. 24 Wi th respect to personal property, the 25 defendant will make available this Saturday ot 1:00 p,m. the ? 1 following items for the plaintiff to pick UP They Include 2 on oak table and six choirs. n bross flnnr lump. 0 quilt 3 hanger with wall screws, a green lap throw and material 4 hanging in the moster bedroom 5 Your Honor, the parties further aQree that 6 untll such time os the prlnclpnl Is paid in full to 7 plaintiff that the current equity action docketed at q6-1215 8 w111 remaIn active untIl such time, as I sold, the bolance 9 is paid in full. 10 THE COURT: You sold until the principal is 11 paid in full, principal and all interest? 12 MR. RECTOR: Yes, Your Honor. 13 THE COURT: Principal and interest Is paid in 14 full . 15 MR. RECTOR: And lastly, the rlefendant agrees 16 to secure the payments due and owing through the execution 17 of a note and mortgage which I will prepare and present to 18 his counsel as soon as possible, 19 THE COURT: That will be placerj on record 20 then? 21 MR. RECTOR. Yes, Your Honor. 22 MR. BANGS: Yes. 23 MR. RECTOR: Ms. Brook.es. hove YOU heard the 24 QQreement that I' ve rec i ted to the COllr t" 25 MS, BROOKES: Yes. I hove , 1 MR. RECTOR: Do you understand iP 2 MS. BROOKES: Yes. 3 MR, RECTOR: Do you agree with It.) 4 MS. BROOKES: Yes. 5 MR. RECTOR: Do you ~Iove any ques tions? 6 MS, BROOKES: No, 7 MR. BANGS: Mr, Hes s. have you heard the 8 agreement that Mr. Rector has dictnted to the Court? 9 MR. HESS: Yes, 10 MR. BANGS: Do YOU hove any questions about 11 it? 12 MR. HESS: No. 13 MR. BANGS: Do YOU under stand it? 14 MR. HESS: Yes. 15 MR. BANGS: Are you in agreement with it? 16 MR. HESS: Yes. 17 THE COURT: And os discussed in chambers, if 18 this case comes UP for non-activity on the standard purge 19 list, there is on agreement that it will be removed from the 20 purge list and remain active until the settlement is 21 consummated in full, is that correct? 22 MR. RECTOR: Yes. Your Honor. 23 MR, BANGS: Correct. 24 THE COURT: Ami thot nf>ither party wJll 25 otherwise see~ the entry of 0 Judgment of non-pros until the 4 1 agreement 1s completed in its entirety. 2 MR. RECTOR: Yes, Your Honor. 3 MR. BANGS: Thut's correct. 4 (Whereupon, the colloQUY was concluded 5 at 9:15 a.m.) 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 5