|0.00|> Tell us what you're reading, Craig.<|20.68|><|20.68|> Some time ago I filed a lawsuit in pro per in the U.S. District Court in Fresno, which is the same court where the U.S. and Jew case was held, same judge. Since I filed the action, I'm the plaintiff. George and Desiree Green and America West publishers and distributors are the defendants. George's attorney filed a motion to dismiss my case as frivolous a few weeks ago. I went and appeared in Fresno with the attorney Frank Gilbert, Bruce Methvin's associate. Bruce Methvin is the attorney who seized Doris and EJ's bank account. Frank Gilbert filed a motion to dismiss. Oral arguments were presented about two weeks ago and several days ago I received a ten-page order from the court signed by Judge Coyle and that's what I'd like to read to you. On January 22, 1996, this court heard defendants motion to dismiss, that's George and Desiree, defendants motion to dismiss for lack of personal jurisdiction were in the alternative to transfer the case they had requested that it be transferred to Nevada if it was not dismissed. Upon consideration of the oral and written record, this Court denies defendants' motion for the reasons set forth herein.

Background On October 13, 1995, Plaintiff Rick Martin filed this complaint against defendants, America West publishers, America West distributors George Green and Desiree Stevens Green. The complaint alleges three causes of action. One, libel, defamation of character, and slander. Two, intentional interference with advantageous business relations. 3. Unjust enrichment and common law unfair competition. It alleges that diversity jurisdiction exists because plaintiff is a California resident, defendants George and Desiree Stevens are Montana residents and defendants America West publishers and distributors are Nevada corporations.

The complaint also alleges that venue is proper because much of the conduct occurred in this district. The complaint alleges that Plaintiff Martin came to Tehachapi, California in 1988 in order to work on business development plans concerning construction of a variety of manufacturing facilities. Eventually, Defendants George Green and his wife Desiree, along with their corporations, America West Publishers and America West Distributors, moved to Tehachapi to assist in the publication of journals. In late 1990, Martin went to work for defendants as an office manager. During this time period, the following business events occurred. He has a parenthetical comment here. Plaintiff leaves out the, quote, religious, spiritual, unquote, nature of the organization, dash dash the greens purport to communicate with dot dot dot.

First, a newsletter called the Phoenix Journal Express was developed, published, and distributed weekly to national and international paying subscribers. Later, this newsletter was replaced with the Phoenix Liberator, which was in newspaper format. Defendants maintained the names, addresses, and phone numbers of the subscribers, approximately 1,300. Second, defendants received copies of proprietary business plans written by Martin. One such project was a $5 million business plan for a manufacturing facility for low-cost domes. Third, Mr. Green conceived and created something called the Phoenix Institute for Research and Education Limited. Quote, the Institute. He advertised in the newsletter and newspaper for contributions to the Institute and loans to the Institute were forthcoming. Green instructed Martin to stay out of the business relating to the incident.

One day a small heavy package arrived from UPS and Martin signed for it. He helped Green carry it to Green's car. Quote, Martin may have signed for a second similar package some months later, which Mr. Green also placed in his vehicle. Unquote. In June and July of 1992, the Greens moved from Tehachapi to Nevada. Quote, clearing out the office and taking business plans, files, documents, mailing lists. However, the newspaper operation of the Phoenix Liberator and Martin remained in Tehachapi. Later, after the Greens relocated, the sender of the packages contacted the Institute and informed them the contents were approximately $350,000 in gold coins sent as a gift to the Institute. Upon finding out that the defendants had converted the gift intended for the Institute, the Institute filed a lawsuit.

The complaint alleges that from Nevada, defendants sued not only the corporation plaintiff was associated with, but sued plaintiff personally for over $80,000 in the state of Nevada. Defendants lost in two lower court rulings, appealed, and the case currently remains before the Supreme Court of Nevada. The Nevada Supreme Court recently issued an opinion which based on constructive trust principles called for the return of the gold coins to the person who originally sent them. According to the complaint, defendants began an aggressive campaign from Nevada to secure funding for a dome project which Martin claims he developed. In addition, defendants began an aggressive radio, telephone, associated press, and mail smear campaign to subscribers of the newspaper and contributors to the Institute, which continues to this very day. Due to legal and financial pressures, the Phoenix Liberator, published in California, was discontinued and replaced by Contact, the Phoenix Project.

Martin, a journalist, writes many articles for this newspaper. Mr. Green has sent numerous numerous packages and letters to subscribers from the list taken from California, which state emphatically, Rick knew all about the gold and he told E.J. Ecker. Defendants also declared the Institute to be a Ponzi scheme. Defendants aggressively contacted the major contributors to the Institute and former and current subscribers to the newspaper, soliciting funds for their projects and slandering and defaming the character of the plaintiff in verbal and written statements. Defendants now bring a motion to dismiss for lack of personal jurisdiction and in the alternative to transfer. Defendant's motion to dismiss for lack of personal jurisdiction or in the alternative to transfer is denied. Personal Jurisdiction Dependents argue that this Court lacks personal jurisdiction over them, claiming the individuals are not California residents and do not do business here, and the corporations are not California businesses.

They claim that the letters and publications were not meant for publication in California. To establish personal jurisdiction over the non-resident and 2. The exercise of jurisdiction accords with federal constitutional principles of due process. Flint Distributing Company, Inc. v. Harvey. California's long-arm statute permits the exercise of jurisdiction consistent with the United States Constitution. Thus, the state and federal limits are co-extensive. Data Disc, Inc. vs. Systems Technology Associates. The court may assert general jurisdiction where the defendant's activities in the forum state are substantial or continuous and systematic, even if the cause of action is unrelated to those activities.

Hastin vs. Grass Valley Medical Reimbursement The court may assert limited or specific jurisdiction for a cause of action arising out of the defendant's forum-related activities. The plaintiff must establish a prima facie case that satisfies the following three conditions. 1. The non-resident defendant must do some act or consummate some transaction with the forum or perform some act by which he purposefully avails himself to the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws. 2. The claim must be one which arises out of or results from the defendant's forum-related activities.

3. Exercise of jurisdiction must be reasonable. Haston, citing Pacific Atlantic Trading Company vs. MV Maine Express. Brand vs. Men Love Dodge. The purposeful availment prong is only satisfied, quote, when a defendant takes deliberate actions within the forum state or creates continuing obligations to Forum residents." Hersh v. Blue Cross Blue Shield of Kansas City. This latter may occur where the defendant's only contact with the Forum State is the "...purposeful direction of a foreign act having effect in the Foreign State." Hastin. Courts require affirmative conduct, evidencing intent to act within the forum state, or to create continuing obligations to residents therein, to ensure that a defendant will not be hailed into a jurisdiction solely as the result of random, fortuitous, or attenuated contacts, or of the unilateral activity of versus some guy, the contact must approximately result from actions by the defendant himself.

In this case, the claims in the complaint are related to defendant's conduct in California in various ways. For instance, the claims either A, initially arose from California related activities, i.e. circumstances surrounding the gold coins and the alleged taking of plaintiff's business plans for a dome project, or b. arise from conduct purposely directed at the plaintiff in California, i.e. defamatory statements. The allegations in the first hearing where Rick spoke and Mr. Gilbert spoke, the claim was that any defamatory or, you know, nasty language, libel, stuff, was not sent to California. It was, and it wasn't about Mr. Martin, it was sent to Florida. So somebody tell me what this is. Came this last week. This is California. So go on, they are making the case for you. All the while, from on set now. The allegations in the complaint assert that defendants A. took plaintiff's business plans from California and are now trying to use them in Nevada and B. took the gold coins while in California and later attributed fault to plaintiff through slanderous statements made in Nevada but purposefully aimed at discrediting plaintiff and the newspaper Contact in California. According to the complaint, defendants have undertaken purposeful direction of a foreign act having effect in the forum state. Interestingly, defendants are former residents of California who conducted business in California. Mr.

Green is president and sole shareholder of America West Publishers, which published newspapers in Tehachapi, California. The printing of the newspaper was done pursuant to contract in Bakersfield, California. C. 2895 TR U.S. Bankruptcy Court, District of Nevada As a result of business conducted in California, publishing certain works from Tehachapi, defendants George Green, Desiree Green, and America West publishers have been involved in litigation before this court, see University of Science and Philosophy v. George Green. The exercise of jurisdiction by this court comports with notions of fair play and substantial justice. Where defendants defame a California resident regarding an incident with gold coins that occurred in California with the intent of discrediting a newspaper published in California, those defendants fairly can expect to be hailed into court in California. For the foregoing reasons, defendants motion to dismiss for lack of personal jurisdiction is denied.

Transfer P28USC1404A A district court may transfer to another district court, quote, for the convenience of parties and witnesses in the interest of justice, unquote. Defendants seek transfer to the US District Court for the state of Nevada, arguing that this is the most convenient and fair forum because of the defendants, because all defendants reside in Nevada. They argue that dismissal rather than transfer is appropriate in this case, since there is no apparent statute of limitations problem and there would be no injustice to plaintiff by dismissal.

However, they do not discuss which statute of limitations apply. Defendants fail to present a persuasive case for transfer as even the residency of the individual defendants appears to be in dispute. He has a footnote here. At oral argument, defendants referred to dismissal for failure to state a claim. However, defendants have not noticed or briefed this issue, and thus it was not considered. The record fails to establish that Nevada is the most convenient forum, and that a transfer would serve the interests of justice. Accordingly, defendant's motion is denied. Bankruptcy stay pertaining to America West Publishers, Inc. Defendants argue that America West Publishers filed a petition in the U.S. Bankruptcy Court for the District of Nevada on January 12, 1995, case number 95-30055, seeking reorganization under Chapter 11. In accordance with 11 U.S.C. 362A, the filing of a bankruptcy petition operates as a stay of the commencement or continuation of a judicial action against a debtor.

No action may be taken against the debtor until the automatic stay is lifted with respect to that party. Defendants argue that since there has been no lifting of the automatic stay, sought or granted in the bankruptcy, this action is barred against this defendant. Plaintiff does not oppose the effect of the stay upon Defendant America West Publishers, Inc. and therefore the action against this defendant is stayed. Plaintiff argues that defendants are asserting that both corporations have filed Chapter 11 and should be dismissed. This court disagrees and finds that defendants instead twice repeat the name of America West publishers. For this reason, plaintiff's request for sanctions is denied. Congratulations. Now there's an outstanding thing.

I want Gene or you to express exactly what's happening with that bankruptcy because it is frosting on your cake. Jean, maybe you could talk about the bankruptcy and then is it appropriate for me to talk about my conversation with Frank Gilbert? Oh, absolutely. We wouldn't want to miss that. There's some very wonderful things happening. Keep that little brat quiet. I didn't know it was being picked up.

Yeah, there's some very wonderful things happening with the bankruptcy. I'm not a commander at liberty to talk about them yet. We've been sending them documents back and forth to the bankruptcy trustee. We've been given a lot of information, but I think it would be very, very detrimental if I give you the advance information on that. So I beg leave now to talk about that. We'll save something for next Sunday. Okey dokey. What bankruptcy are we talking about? We're talking about George Green's filing of the bankruptcy for America West Publishers in Nevada.

And that's the bankruptcy action that he took just days before there was going to be a jury trial upon his theft of a lot of collateral and upon his failure and refusal to pay the $150,000 that he wrongly borrowed. and I just can't wait for Judge Griffin in the District Court in Nevada to get George Green back in his jurisdiction. You said wrongly borrowed. Did he wrongly borrow it or he just wrongly hasn't paid it back? Probably both. Okey dokey, let's see what we got here. First of all, there's... Let's not interrupt this one yet. Rick is really truly not through and we may as well clean up his. Rick is still bloating. He should, he should, he should be. And we may have to move to improper and present over everything else we do. We have a real interesting situation with this bankruptcy.

It is already arranged that as soon as that bankruptcy ruling and it, I will honor Mr. Dixon enough not to tell you what it says, but it will go immediately to Judge Coyle's court to be attached to Rick's case. And then there will be a little bit separate and entertaining ruling on that. after this particular hearing and this particular ruling. And he's got to share it. It's the most fun we've had. A whole week, certainly. Well, Friday I received a call from Frank Gilbert. He is George's attorney. He said that George, really because of the costs involved, was not particularly interested in pursuing this case. I listened while he said that they had considered bringing the Nevada cases in to join with this case.

I had to stop him for a minute and ask him to explain that statement. I said, what cases are you referring to in Nevada? And he said, well, you have a case before the Supreme Court right now, don't you? And I said, yes, I do. And that's in pro per also. He said, well, now that's over those. He didn't say ban books, but that's that's over those books. But it's strictly a question of improper service. The case has never been heard on its merits for the $80,000 that you owe George Green. And I said, well, that's true. It is on improper service. He said, well, we have talked about cross-complaining you, meaning filing a lawsuit against me in California for $80,000. On banned books? On the banned books. And so what he proposed to me was that what George wanted to do was have me drop this case in Fresno in exchange for the claims that George has against me.

I had to express to Frank that based on what he had just told me, I was not motivated at all to settle the case and planned in fact to proceed all the way through. He said, what do you expect to get out of this? And I didn't even think about my answer. I just said truth. And he he didn't get it. He said he said truth. Is that all you're out for? I said no, no, Frank. I also expect to get a very large judgment against George Green. And then he understood. He said that, well, basically because of the driving distance involved, they were going to have to substitute out as attorneys on this case, which means they're dropping it. local attorney handle it from here on out. And that local attorney will probably be none other than Jason Brent. Oh yeah, it could be better. He said if Jason Brent does not take the case, he said there is another attorney he has in mind. He also said that since the motion to dismiss was denied, their response to my complaint is due next week. So that law firm will be filing an answer to the complaint and probably filing an $80,000 lawsuit against me personally prior to dropping stopping the case and having another attorney pick it up. So the fun is just beginning on this one.

Next. Thank you, Rick. That was spectacular. Before the meeting started, EJ handed me this batch of papers and told me that he would request that I would read these. I could not understand that because we have so many good readers here and I am not a good reader and I didn't know why I was picked. You need to practice. Doris said, I heard Doris refer to these as garbage papers and garbage pleadings, so I'm the garbage reader. Let's try it.

Okie dokie. Jason Brent. The older I get, the more I dislike that, gentlemen. Is it on the page? No. These are some notes I scribbled. There was a reference earlier to a statement that he had made that he had never been reversed on appeal. I would doubt that Jason Brent had ever had another appeal taken up and heard. He was the first time judge, I believe, I don't believe he was re-elected, that it would hardly have been time for him to have made a ruling and have another case upon appeal. This was in all probability his first appeal and it went to the Civil Appellate Division of the Kern County Superior Court. And there is, I read the brief that came down, and he was severely criticized for his ruling and the court condemned him in no harsh words and reminded him that in this country a citizen does have a right to appear proper, Judge Jason Brent. So he took a beating on that case there. Court, we're working with court. Court is now reporting to the sheriff will do with it, but we want that information in the records. There was a comment made about the possibility of Rod to join, Rod is to join with Green, Abbott, and Horton. That would be a terrible, terrible move on his part. He's getting right down into the basement if he does something like that. Never have I ever seen such slime bags practicing law, and they're all sticking together. On the John Schroepfer matter, in the two metal containers found in his backyard, I was one of the first persons who had that brought to my attention, and I immediately jumped on the back of the conservator, and we are taking actions to bring that person into court, and have him bring the containers into court, and have him deposit whatever was in those containers right back into the court. And then we'll make a search of the backyard for more containers.

And as far as doors can tip, John, you want to say something? I'd like to have you keep me informed or something. John, if you would just kind of meditate on this a little bit and as you think of places where you'd tucked a little here and a little there because you remember that you were into private hiding places and you had a bunch. You had everything from baseboards to attic rafters. So before this house changes, oh, don't forget to check the switch plates. I'm serious. John used everything. Old or new. So there's stuff tucked everywhere.

You just think about it and jot down things as you think about it. If there's nothing there, there's nothing there. I heard this before about two weeks ago. It came in my mind. Just write it down. Tell someone so that it can be checked out. I remember when Doris was being threatened with contempt. I could never understand her concern over that and now we have Mr. Bailey about to go to jail for contempt. And personally, I was placed in jail five different times for contempt. One time for telling a judge that he was so prejudiced that he should use his robe for a shoeshine rag. That got me two weekends in jail and a $300 fine.

On another occasion I told the judge, I'll apologize for the witness, your honor, she was expecting justice in this courtroom. That got me another weekend in jail. And the difficult in a small town, you turn yourself in on a Friday night. So you get extra day's credit. Say your wife drops you with your toothbrush, your toothpaste. And Monday morning, she's out there at eight o'clock and she picks you up. You got to have a change of clothes because you usually have a court appearance in the same courtroom. Needless to say, life goes on and despite the problems with the wife, I still have to give her credit for hanging in there with me. Okay, the first thing I'll read is the Order to Dismiss an Appeal. This was the order which was issued January 4, 1996 by the Supreme Court in the state of Nevada in reference to the gold coins. It's titled, George Green Appellate v. Phoenix Institute for Research and Education, a Nevada corporation, responded.

This is an appeal for the order of the district court dismissing respondents' complaint. During 1991, appellant George Green received four shipments of gold coins from David Overton, which were meant to be donated to respondent Phoenix Institute for Research and Education. Overton donated the gold coins to Phoenix in order to assist Phoenix in publishing some of its publications. Green, representing himself to Overton as an officer, trustee of Phoenix, did not deliver the gold coins to Phoenix. Instead, after moving to Gardnerville, Nevada, Green hid some of the gold coins in his home and buried the remainder of the gold coins in his backyard. You guys do not know what a terrible time we had forcing those attorneys to put that phrase of buried in the backyard into the complaint. They fought us, remember E.J., they fought us every inch of the way, E.J. and I persisted, persisted and persisted, and finally we got it in there and it became part of this written record which will go on forever, be a part of the public records forever.

Okay back to this. After verifying the nature of the gift from Overton, Phoenix filed its original complaint against Green which contained seven claims for relief. Green filed a counterclaim that was dismissed several months before trial. Trial began on October 3, 1994. On October 6, 1994, after Phoenix had rested its case, the District Court dismissed Phoenix's complaint, sua sponte, and awarded the gold coins to Overton. And there's a story about that, too, because that's a case where Mitch Jaffe and I argued for hours with the defense attorney, John Abbey, don't close your case yet. You've left your case in a very vulnerable position. Present more evidence to dispute George Green. The attorney, John Abbey, said no, I'm going to wait until after Mr. Green testifies, and then we'll clear up all the misconceptions and the lies and all that.

Mitch and I told him, you're making a terrible, terrible mistake. John Abbey did what he wanted to do, and the court closed the case, and we never had the opportunity to come back and clarify all the terrible lies that George Green had put on the record. And that's what really, really hurt us in court. Green appeals, arguing that one, the district court erred in ordering the gold coins returned to Overton without conducting a full hearing. Two, the District Court erred in awarding the gold coins to an indispensable party that was not joined in the action. Three, the District Court erred in awarding the gold coins to Overton in light of the doctrine of peri-delecto escondido defendants, and Overton's gift of the gold coins to Green divested Overton of title to the coins.

Phoenix requests that this court should award Phoenix cost and attorney fees associated with this appeal. Also, Phoenix contends that Green's appeal should be dismissed because Green lacks agreed party status as required by NRAP 3A8. As a preliminary matter, we conclude that Green did not lack agreed party status as alleged by Phoenix in this motion to dismiss. We conclude that Green, in his capacity as a constructive trustee of the gold coins, has standing to appeal the District Court's termination of his legal rights to the gold coins. We conclude that the District Court did not err by returning the gold coins to Overton without conducting a hearing. In dismissing Phoenix's causes of action, the District Court found that Green had been holding the gold coins in constructive trust for Overton. This Court has stated that a. a constructive trust is a remedial device by which the holder of legal title to property is held to be trustee of that property for the benefit of another, who in good conscience is entitled to it. In the interest of effectuating justice, we do not deem it necessary to conduct a hearing in order to return property to a constructive trustee.

Pursuant to the Vatter Rules of Civil Procedure, we conclude that Overton was not an indispensable party to this action. Also, we conclude that the district court may fashion a constructive trust for the benefit of a non-party. The creation of a constructive trust in the present case was necessary in order to avoid an inequitable result. We conclude that the doctrine of imperi de licto is not applicable in the present case because Green and Phoenix were not equally at fault. This is a case of... This is not a case of equal fault. The position of the defendant is stronger. We conclude that Overton did not divest title to the gold coins when he delivered them to Green. Overton testified that he intended to gift the gold coins to Phoenix, not to Green. This court has asserted that delivery of a gift is complete only when the intended donee has exclusive dominion and control over the gift. We conclude that the district court appropriately found that the gifted gold coins were never delivered to the Phoenix Institute. Also, the gift was never fully consummated because Phoenix was never in exclusive dominion and control of the coins.

Consequently, the district court fiddly returned the gold coins to the donor, Mr. Overton. Pursuant to Nevada Rules of Appellate Procedure 38, we conclude that Phoenix is not entitled to cost and attorney fees associated with this appeal. Green's contentions on appeal are not so lacking in merit as to constitute a frivolous appeal and a misuse of the appellate process. After thoroughly examining the substantive plausibility of all of Green's arguments on appeal, we conclude that Green's arguments lack merit. This appeal is dismissed. Okay, that was on January 4th. David Horton, representing George Green, had 18 days in which to file a request for a type of rehearing, which is normally always turned down, and will be turned down in this case here, and he waited until the very 18th day and filed that request for a rehearing. And, matter of fact, I think I have that right here next.

Gene, let me interrupt. We need to go back. Gene, please go back to the final paragraph and explain some of those terms for us, Now, the other way. It probably means it starts over here. There's just one sentence on that page, and that says, After thoroughly examining the substantive plausibility of all of Green's arguments on appeal, we conclude that Green's arguments lack merit. What that means is that after the court spent a whole lot of time with all their law clerks and the five judges themselves, thoroughly looking at Green's position, and substantive means the full merits of each of the causes of action, the basis, it's substantial, substantive. Plausibility, they examined it from every possible direction, is there anything plausible about Green's arguments, and they found there was nothing plausible about any of Green's arguments. So then they concluded that all of his arguments lacked merit. There was no validity to anything he said. And that, the court in this case did not order this case to be a not published case. Many times they do, and these decisions never become public record. You've all seen these law books and attorney's offices.

Those all contain cases of, history of cases that have become public record. Well by not ordering it, it automatically becomes public record. So from here on to eternity, this decision and the description of George Green as an officer, trustee and a fiduciary person and stealing those coins and putting them in his backyards is forever going to be out there for everybody to see. And anytime he ever comes into court as a witness, he's going to be faced with this ruling right here. It's a terrible thing to have over his head. Does that mean the court called him a liar? Oh, worse than that.

Much, much worse than that. He's a liar, a thief, he's a breacher of fiduciary duties. He's the lowest form of a human being, really. And he's going to be an interesting secret witness for Mr. Stephen Horn against the Echors. Right. Mr. Horn has based the last two years of litigation on Green. He's the type of a person that you'd only refer to your ex-wife. Right. I'll be fine. All right. Yeah, we don't want to read the next one, but it is 32 pages long.

And that's the notation that I wanted you to pick up. All right. All right. The importance of this next thing. You're trying to hold my hands here. Actually, if you hold it over here, then you don't get the mouth air in the mic. I'll tell you right now, some of the barmaids in this town are getting worried about he and I spending too much time together. On your petition for a rehearing, there are very, very strict rules. For example, you cannot submit more than 10 pages. You cannot re-argue anything that was heard. You cannot be redundant about anything, you can't bring up any new matter, it's almost nothing you can do. That's why none of these are ever granted. And you're not allowed to file exhibits with anything. So to meet the qualifications of a total travesty that should get him highly sanctioned by the Supreme Court. You don't fool around with the Supreme Court.

George Green and Dave Horton have just made a terrible, terrible mistake and they will be heavily sanctioned, hopefully, and hopefully we'll get the sanctions. Alright, so gene number two, Respondents answer to petition forward. This is our attorney with the help of Karen and myself. We file this short and sweet. The first paragraph. The petition should be stricken because it exceeds ten pages. Let me quote. This is quotes. Except by permission of the court, a petition for rehearing shall not exceed ten pages of standard typographic printing. The subject petition can't, this subject petition, this one here. of standard typographic printing. The subject petition, this subject petition, this one here, by David Horton, contains 31 pages from first to last, including a table of contents and a table of authorities. There are 17 pages of exhibits in addition to a list of exhibits page, which is listed on page 12 of the petition.

Papers filed with a motion for rehearing are not permissible, such that the entire exhibit package has exceeded the 10-page limitation. Any way you look at Green's petition, it has to be considered to be in violation of Rule 40B, 10-page limitation, and therefore it should be stricken. Paragraph 2, the second argument. The petition should be stricken as being nothing more than re-argument. Nevada Rules of Appellate Procedure, Rule 41, states, matters presented in the briefs and...