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#2121 signed 4-10-95

IN THE UNITED STATES BANKRUPTCY COURT

FOR THE DISTRICT OF KANSAS

In Re:

AMERICAN FREIGHT SYSTEM,

DEBTOR(S)

NO. 88-41050-11 INC.,

CHAPTER 11

AMERICAN FREIGHT SYSTEM, INC.,

PLAINTIFF(S),

v.

FIRST MOMENTS, INC.,

DEFENDANT(S)

ADV. NO. 89-7330

MEMORANDUM OF DECISION

This proceeding is before the Court for decision following trial. American Freight System, Inc. (AFS), the plaintiff-debtor, appeared by counsel Dennis Davis and Kurt Stohlgren of Hillix, Brewer, Hoffhaus, Whittaker & Wright. Defendant First Moments, Inc. (FMI), appeared by counsel Charles E. Fowler, III, of McDowell, Rice & Smith. The Court has heard the evidence and reviewed the relevant pleadings, and is now ready to rule.

In this proceeding, AFS seeks to recover freight charges incurred when it transported goods for FMI. The amounts of the charges were fixed by tariffs which AFS was supposed to have filed with the Interstate Commerce Commission. After the trial began, FMI objected to the admissibility of certain exhibits which AFS proferred. During the ensuing discussion, it became clear that AFS did not intend to offer into evidence any proof of the tariffs it claimed applied to the shipments on which its freight charges were based. The parties agreed that if the contents of the tariffs were a necessary part of AFS's proof, it could not prove its claims unless the Court granted a continuance so AFS could bring such evidence to court.

The Court reviewed the court file and found that both parties had filed pleadings sometime before trial in which they recognized that AFS would need to prove the contents of the tariffs in order to establish its right to recover from FMI. Nothing in the file indicated the need for such proof had been avoided through a stipulation, agreement, or otherwise. Pursuant to case law such as Security Servs., Inc., v. Dubois Chemical, Inc., 817 F.Supp. 677, 679 (S.D.Ohio 1993), the Court ruled that AFS had to prove that at the time of the shipments, the tariffs it relies on existed, were valid, and applied to the shipments at issue.

After this ruling, AFS asked for thirty days to supplement its evidence to provide proof of its tariffs. FMI objected. After considering the evidence and arguments presented at trial and reviewing the court file, the Court finds that AFS was, or should have been, aware of the proof it would be required to make in this proceeding, but simply failed to be adequately prepared for a trial that was set at its request. AFS's request for more time to submit its evidence will be denied. Consequently, AFS has failed to meet its burden of proof, and judgment will be entered in FMI's favor.

The foregoing constitutes Findings of Fact and Conclusions of Law under Rule 7052 of the Federal Rules of Bankruptcy Procedure and Rule 52(a) of the Federal Rules of Civil Procedure. A judgment based on this ruling will be entered on a separate document as required by FRBP 9021 and FRCP 58.

Dated at Topeka, Kansas, this ____ day of April, 1995.













_________________________________

JAMES A. PUSATERI

CHIEF BANKRUPTCY JUDGE

IN THE UNITED STATES BANKRUPTCY COURT

FOR THE DISTRICT OF KANSAS



In Re: )

AMERICAN FREIGHT SYSTEM, ) NO. 88-41050-11

INC., ) CHAPTER 11

DEBTOR(S). )

)

AMERICAN FREIGHT SYSTEM, )

INC., )

PLAINTIFF(S), )

v. ) ADV. NO. 89-7330

FIRST MOMENTS, INC., )

DEFENDANT(S), )

JUDGMENT ON DECISION

This proceeding was before the Court for decision following trial. American Freight System, Inc. (AFS), the plaintiff-debtor, appeared by counsel Dennis Davis and Kurt Stohlgren of Hillix, Brewer, Hoffhaus, Whittaker & Wright. Defendant First Moments, Inc., appeared by counsel Charles E. Fowler, III, of McDowell, Rice & Smith. The Court heard the evidence and reviewed the relevant pleadings, and issued its Memorandum of Decision. For the reasons stated therein, AFS's request for more time to present evidence is denied. Judgment is hereby entered in favor of First Moments, Inc., denying the relief sought in the complaint.

IT IS SO ORDERED.

Dated at Topeka, Kansas, this _____ day of April, 1995.











__________________________________

JAMES A. PUSATERI

CHIEF BANKRUPTCY JUDGE

 

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