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Edit Delete 10th Circuit

DEATH PENALTY, HABEAS, INEFFECTIVE ASSISTANCE

Jones v. Trammell, Dec-05-2014

J. Briscoe finds yhat the lower courts correctly sentenced a man convicted of killing someone while stealing a car to the death penalty. The man's counsel was not ineffective for failing to follow up with two prisoners who claimed the man had not committed the murder, because the witnesses were not credible, and the lawyer suspected they were just going along with a story appellant had changed. Since both witnesses were already serving prison sentences, they had little to lose by giving testimony that could not be corroborated. Affirmed.

Edit Delete 10th Circuit

JUVENILE LAW

Hawker v. Sandy City Corp., Dec-05-2014

J. Lucero, referencing an unpublished opinion, Hawker vs. Sandy City, expresses his discomfort with the way the criminal justice system handles juvenile cases. The underlying case involves police officers manhandling a nine-year-old boy who stole an iPad from school. Lucero insists that handling such cases through the criminal justice system sends the wrong message to children and teachers. Children in danger of going astray should receive intervention from teachers and other caring adults rather than criminal treatment.

Edit Delete 11th Circuit

DRUG OFFENDER, JUVENILE LAW, CRIMINAL PROCEDURE

U.S. v. Cruanes, Dec-05-2014

Per curiam, the circuit finds that the lower court improperly declined to declare petitioner's conspiracy to possess cocaine conviction null. At the time of conviction in 1982, he was sentenced under the Youth Corrections Act, which provides that convictions in most cases under it should be automatically set aside once the sentence has been completed. The issuance of the needed certificate is automatic, not discretionary, so an order for nunc pro tunc is the proper vehicle for enforcing it. Reversed.

Edit Delete 1st Circuit

DRUG OFFENDER, CONSPIRACY, SENTENCING

U.S. v. Cogswell, Dec-05-2014

[Consolidated.] J. Torruella finds that the lower court properly convicted defendants of conspiracy to distribute cocaine base and properly sentenced them. Admitted members of the conspiracy identified defendants and testified against them after agreeing to cooperate with the government. This only raised a credibility issue for the jury, not an admissibility issue for the court. The firearm enhancement is applicable even absent evidence that either defendant used a firearm against anyone. The sentence is reasonable as well and below the guidelines range. Affirmed.

Edit Delete 2nd Circuit

IMMIGRATION

Chen v. Holder, Dec-05-2014

J. Raggi finds that the Board of Immigration Appeals improperly found no likelihood of future persecution in evaluating petitioner's application for asylum and against deportation. Petitioner, a Chinese national who entered the U.S. illegally, was a sharecropper who violated government policies by having three children. Unable to pay the fine levied for his offense, petitioner fled his village and wound up in the U.S., where he has been fighting deportation for many years. Petitioner claimed past persecution due to the fine, but failed to show how it would have affected him economically. However, continuing demand for payment on his return -- and the Chinese government's seizure of his plot of land in the interim -- might pose an economic persecution by depriving him of basic living necessities. Vacated in part.

Edit Delete 3rd Circuit

ADMINISTRATIVE LAW, EMPLOYMENT

Comite de Apoyo a los Trabajad v. Perez, Dec-05-2014

J. Greenberg finds that the lower court erred in finding this case unripe for judicial review, and the Department of Labor's 2009 Wage Guidance for unskilled foreign workers admitted to the U.S. on a H-2B visa must be vacated as arbitrary and capricious. The Wage Guidance allows employers to use privately-funded wage surveys to set the prevailing market wage for certain occupations. The wage determinations based on these surveys are final agency actions subject to review, even if the rules are subject to change at any time. The department changed its policy in 2011, acknowledging that employer surveys are not reliable and tend to lower wages, but the new rule's implementation has been postponed due to a Congressional appropriations rider. The change of policy in 2009 was unexplained, and therefore fails to comply with the demands of the Administrative Procedure Act. "After years of litigation, DOL cannot offer any rational justification for this policy as it leads to similarly situated workers in the same market in the same season bringing home widely disparate paychecks," the panel said. Reversed.

Edit Delete 4th Circuit

PENSIONS, IMMUNITY, CLASS ACTIONS

Hutto v. South Carolina Retirement System, Dec-05-2014

J. Niemeyer finds that the district court properly dismissed a class action brought by public South Carolina public employees, which challenged the 2005 requirement that public employees who return to work after retiring have to make the same contributions to state pension plans as pre-retirement employees, but without receiving further benefits. According to plaintiffs, the 2005 act was a taking of private property. However, the pension plans, the state officials sued for the repayment of plan contributions, and the retirement systems group trust had sovereign immunity. The plans and the system were "arms of the state." If a judgment caused the retirement system to become insolvent, the state's credit rating would be harmed. Thus, South Carolina "remains functionally liable for any judgment against" the system and the trust. Meanwhile, the state officials' duties did not include collecting the employees' contributions. Affirmed.

Edit Delete 4th Circuit

ERISA

Harrison v. Wells Fargo Bank, Dec-05-2014

J. Wilkinson finds that the lower court improperly dismissed plaintiff's claim that her former employer, Wells Fargo Bank, terminated her short-term disability benefits while she was being treated for thyroid disease. Wells Fargo's review process did not follow ERISA or the plan's terms since Wells Fargo did not consider evidence that plaintiff was seeking psychiatric treatment, even though it had been repeatedly put on notice of this fact. Wells Fargo went as far as commissioning an independent reviewer to determine if plaintiff's mental condition prevented her from going back to work. This reviewer "made clear to the plan administrator that the record was not sufficient to render a decision." Reversed.

Edit Delete 6th Circuit

BANKING/LENDING, FRAUD

Thompson v. Bank of America, Dec-05-2014

J. Siler finds that the lower court properly dismissed plaintiff's action to quiet title, claiming that the bank falsely induced her into signing the mortgage by then securitizing and selling to another entity. Plaintiff's title was not clouded on account of the transfer, and the securitization of the mortgage did not alter her responsibility to the note-holder. While plaintiff may have expected a traditional borrower/lender relationship with the bank, her expectations were unreasonable given the terms of the note, which made no promises as to how long the bank would service the loan. Affirmed.

Edit Delete 6th Circuit

SENTENCING, FIREARMS

U.S. v. Welch, Dec-05-2014

J. Quist finds that the lower court properly sentenced defendant to a 15-year mandatory minimum sentence for being a felon in possession of a firearm pursuant to the Armed Career Criminal Act. Defendant's prior conviction for attempted failure to comply with the order of a police officer, a fourth-degree felony, qualifies as a violent felony because it constitutes a substantial step toward committing an offense that causes serious harm or risk of harm. Affirmed.

Edit Delete 7th Circuit

SEX OFFENDER, CHILD ABUSE, SENTENCING

U.S. v. Price, Dec-05-2014

[Consolidated.] J. Sykes finds that the lower court properly convicted defendant of possession of child pornography and properly sentenced him. He is more dangerous than the average offender in that he produced the images himself by taking sexually explicit photographs of his own daughter. These photos have been involved in dozens of child pornography investigations around the country. He also regularly molested the daughter while she was a child, as well as his own sister. The sentence is not unfair at all since it is less than half of the 40-year term recommended by the sentencing guidelines. By the same token, the government has no solid ground to object to the brevity of the sentence since the lower court judge fully explained her disagreement with the guidelines range as a policy matter. Affirmed.

Edit Delete 7th Circuit

ATTORNEYS, FIDUCIARY DUTY, DAMAGES

Nelson Brothers Professional Real Estate v. Freeborn & Peters, Dec-05-2014

J. Posner finds that the lower court properly found for plaintiff and calculated damages in a legal malpractice suit based on a real estate transaction dealing with a suburban Chicago shopping center. Defendant firm cannot reasonably claim that it is in no way at fault because plaintiff was never required to satisfy certain guarantees because plaintiff paid defendant to avoid harm resulting from those same guarantees. The division of damages between the company and its owners was reasonable as well. Affirmed.

Edit Delete 8th Circuit

THEFT, IDENTIFICATION, IMMIGRATION

U.S. v. Rodriguez-Ayala, Dec-05-2014

J. Wollman finds that the lower court properly convicted defendant of passport fraud and aggravated identity theft. He is a citizen of Mexico who applied for Iowa state card's under his brother's name. Defendant cannot claim ignorance of the identification card's true possessor. Affirmed.

Edit Delete 8th Circuit

EMPLOYMENT

Musolf v. J.C. Penney, Dec-05-2014

J. Bye finds that the lower court properly dismissed plaintiff's employment discrimination suit. She was a loss prevention specialist who made multiple sexual harassment claims against one of her co-workers. Although she has recently been commended on her effectiveness as an employee, she was also found to have downloaded confidential documents and to have refused to fully comply with the sexual harassment investigation. She has failed to prove retaliation in spite of the clearly adverse action of suspension. Affirmed.

Edit Delete 9th Circuit

BANKRUPTCY

In Re: Mortgage Store v. , Dec-05-2014

J. Tashima finds that appellant was the initial transferee, rather than a subsequent transferee, of $311,000 paid by a bankruptcy debtor in a case concerning the sale of a shopping center. Although appellant was not involved in the "impropriety" in the underlying trustee's action, it is considered the initial transferee under 11 U.S.C. section 550 and, therefore, "the best monitor" of the debtor. Affirmed.

Edit Delete Alabama Court of Civil Appeals

FAMILY LAW, CIVIL PROCEDURE

Ex parte Dozier v. , Dec-05-2014

J. Thomas finds that a former husband's petition for writ of mandamus must be issued to dismiss a contempt petition filed by his former wife. The contempt petition was for his failure to pay alimony, but it should have been filed as a compulsory counterclaim to the husband's pending claims in another court.

Edit Delete Alabama Court of Civil Appeals

FAMILY LAW

F.M. v. B.S., Dec-05-2014

J. Moore finds that the lower court improperly transferred physical and legal custody of a child from the maternal grandmother. The lower court based the custody transfer solely on an agreement of the parents, without the consent of the grandmother, who was the physical and legal custodian of the child. Reversed.

Edit Delete Alabama Court of Civil Appeals

EMPLOYMENT, CIVIL PROCEDURE

Matthews v. Mobile, Dec-05-2014

J. Thompson finds that a city employee's appeal must be dismissed. The lower court did not have subject matter jurisdiction to consider the employee's termination or her suspension. Therefore, the lower court's judgment is void.

Edit Delete Alabama Court of Civil Appeals

FAMILY LAW, CIVIL PROCEDURE

Ex parte Davis v. , Dec-05-2014

J. Thompson finds that a husband's petition for writ of mandamus must be granted in part and denied in part. The husband, who is in federal prison in Kentucky, sought to have his statement of facts added to the record in a divorce case. The husband had not received notice of a hearing, which relates to his due-process rights, so he is entitled to have that in the record.

Edit Delete Alabama Court of Civil Appeals

FAMILY LAW

C.L.W. v. Madison County Department of Human Resources, Dec-05-2014

J. Moore finds that the lower court improperly adjudicated the paternity of a child. There was no evidence presented to indicate the presumptive father had not persisted in his presumption of paternity. Reversed.

Edit Delete Alabama Supreme Court

NEGLIGENCE, VENUE

Richardson v. Manning, Dec-05-2014

J. Wise grants defendant a writ of mandamus, which she sought after the Macon circuit court denied her motion to transfer a car collision lawsuit. Plaintiff sued defendant for causing a car accident in Montgomery County, but the action was filed in Macon circuit court.

Edit Delete Alabama Supreme Court

PROPERTY

Corner Stone Funeral Chapel v. MVMG, Dec-05-2014

J. Bryan finds that the trial court correctly ordered a receiver to transfer the assets of a cemetery business to defendant, plaintiff's competitor. The receiver appointed to the cemetery business could not find a buyer so she recommended that the assets of the business be transferred to an entity that would honor the outstanding contracts. Plaintiff and defendant both entered proposals seeking the transfer of the business assets, and the trial court sided with defendant based on its experience in the community, the location of its own funeral home, and because it had provided maintenance and other services to the cemetery business during the receivership period. Affirmed.

Edit Delete Alabama Supreme Court

CONTRACT, FRAUD, DAMAGES

Deng v. Scroggins, Dec-05-2014

J. Bryan finds that the trial court properly granted a verdict for defendants in a breach of contract claim, but improperly granted a verdict for fraud against plaintiff. Defendant Scroggins was the inventor of LED lamp tubes and he requested plaintiffs' help in manufacturing the product, but plaintiff Deng did not name defendant Scroggins as the inventor in his patent application. Scroggins sued for breach of contract and fraud. The trial court awarded more than $4,000 under the contract claim for unpaid sales commissions and $1.5 million each in compensatory and punitive damages under the fraud claim. The fraud verdict is based on "speculative" evidence as to the potential future sales of the product. Affirmed in part.

Edit Delete Alabama Supreme Court

WILLS / PROBATE, CIVIL PROCEDURE

Saylor v. Saylor, Dec-05-2014

J. Murdock finds that the trial court properly denied plaintiff's claim for an elective share from the estate of her deceased husband because the petition was not filed within six months after the will was admitted to probate. Affirmed.

Edit Delete Alabama Supreme Court

NEGLIGENCE, VENUE

Robinson v. Clayton, Dec-05-2014

J. Bolin grants Progressive Direct Insurance a writ of mandamus regarding a motion to transfer venue that was denied by the Wilcox County circuit court. Plaintiff filed a car collision lawsuit against defendants in Wilcox County, but the accident happened in Tuscaloosa.

Edit Delete California Courts Of Appeal

CLASS ACTIONS, HEALTHCARE

Hale v. Sharp Healthcare, Dec-05-2014

J. McConnell finds that a trial court correctly decertified the class in plaintiffs' overbilling action against defendant. In order to determine if defendant did, in fact, overbill patients without insurance for emergency services, the court would have to sift through over 120,000 individual patient records. Given that volume, and the fact that individualized issues predominate rather than common ones, the class action is not the appropriate way to handle the issue. Affirmed.

Edit Delete California Courts Of Appeal

WRONGFUL DEATH, NEGLIGENCE

Annocki v. Peterson Enterprises, Dec-05-2014

J. Johnson finds that a trial court incorrectly dismissed plaintiffs' wrongful death action against defendant in connection to the car collision death of their son while leaving defendant's parking lot. While the court found that defendant had no duty to make its driveway and the junction with the highway safer, plaintiffs alleged enough to indicate that defendant may have had the duty to place signs indicating that only a right turn out of its parking lot would be safe. Reversed.

Edit Delete California Courts Of Appeal

ADMINISTRATIVE LAW, TAX

West Hollywood Community Health and Fitness Center v. California Unemployment Insurance Appeals Board, Dec-05-2014

J. Flier finds that a trial court incorrectly determined that it could not review defendant's claim that plaintiff's former worker was an employee and not an independent contractor for unemployment benefits purposes. While it is true that trial courts have no authority to review the unemployment tax structure, it does have jurisdiction over challenges of benefits where no payment or refund of tax is involved. Reversed.

Edit Delete California Courts Of Appeal

SENTENCING

People v. Oehmigen, Dec-05-2014

J. Butz finds that a trial court correctly denied defendant's request for resentencing under the Three Strikes Reform Act. Although defendant claimed that his conviction for assault with force likely to cause great bodily injury was not a serious or violent felony that would bar resentencing, it obviously was, given that his weapon was a stolen car that he turned against police during a pursuit and tried to run them down. Affirmed.

Edit Delete California Courts Of Appeal

ATTORNEY FEES, ANTI-SLAPP

Drell v. Cohen, Dec-05-2014

J. Grimes finds that a trial court refused to dismiss plaintiffs' declaratory relief action over an attorney fees lien filed by defendants. While defendants claimed the suit should be stricken as protected activity, not all litigation-related activity is protected activity. In this case, "none of the purposes of the anti-SLAPP statute would be served by elevating a fee dispute to the constitutional arena." Affirmed.

Edit Delete California Courts Of Appeal

FAMILY LAW

C.M. v. S.R., Dec-05-2014

J. Flier finds that a trial court correctly ordered that the adoption of a child could proceed without the presumed father's consent. Although the father, who is incarcerated, argued that the trial court had an obligation to find he had abandoned the child with intent before making its order, the court's only requirement in a step-parent adoption case is a finding of what is in the child's best interests. The father had no communication with the child and did not financially support her for more than a year, adding weight to the court's finding. Affirmed.

Edit Delete Court Of Federal Claims

CIVIL PROCEDURE, CONTRACT

Bannum v. U.S., Dec-05-2014

J. Horn finds that the Bureau of Prisons did not abuse its discretion when it awarded a competitor a contract to provide re-entry services to federal offenders in Fayetteville, N.C. The company argues the competitor did not provide adequate proof of zoning in its proposal. However, the record shows Fayetteville law does not necessarily require that the competitor have a building permit, nor does does the solicitation say lacking proof of zoning would result in elimination from bidding.

Edit Delete Court Of Federal Claims

CIVIL PROCEDURE, EMPLOYMENT

Banks v. U.S., Dec-05-2014

J. Wheeler finds that plaintiff has not proven he did not voluntarily separate from the Army and is thus not entitled to damages and back pay. The record shows plaintiff separated from the Army after a physical exam revealed plaintiff had pre-existing lower back problems. Though plaintiff argues pressure from drill instructors and an Army recruiter's suggestion that he hide his back problems forced him to separate, the record shows plaintiff had three different options open to him after his medical examination, and thus freely chose to separate.

Edit Delete DC Circuit

ENERGY, ADMINISTRATIVE LAW

Louisiana Public Service Commission v. Federal Energy Regulatory Commission, Dec-05-2014

J. Rogers finds that respondent improperly denied refunds to certain Louisiana utility companies for payments made under a recently overturned cost classification order.Respondent failed to fully explain its decision because it characterized its precedent as a policy to deny refunds, but the cases it used were distinct from the instant case. Past decisions should never be the only factor in a refund analysis because decisions by consumers and utilities respond to price changes. Consumption or production decisions could alter based on price, so this has to be a factor as well. Reversed.

Edit Delete Federal Circuit

COPYRIGHT, PATENT, CIVIL PROCEDURE

Memorylink v. Motorola Solutions, Dec-05-2014

J. Lourie finds that summary judgment on contract and copyright infringement claims were correctly granted in favor of Motorola, and that tort claims by Memorylink were correctly dismissed due to the statute of limitations. Memorylink appeals arguing that Motorola used boilerplate language for the patent it registered but the agreement between the two companies explicitly acknowledges consideration for the sale, assignment and transfer of rights relating to the wireless technology at question. Affirmed.

Edit Delete Federal Circuit

PATENT

Sandoz v. Amgen, Dec-05-2014

J. Taranto finds that Sandoz did not allege an injury of sufficient immediacy to create jurisdiction. Sandoz sued to get a ruling that two patents owned by Amgen are invalid and will not be infringed if Sandoz sells or imports drugs similar to Amgen's. Though, because Sandoz has not filed an application from the FDA there is no controversy yet between the parties. Affirmed.

Edit Delete Federal Circuit

AGENCY

Archuleta v. Hopper, Dec-05-2014

J. O'Malley finds that the Merit System Protection Board had the power to reduce Hopper's removal from his position of contract representative with the Social Security Administration to a letter of reprimand. Defendants argue that the board improperly expanded its jurisdiction when it reviewed plaintiff's actions and modified them, but the statutory languege does not limit the board's jurisdiction. Affirmed.

Edit Delete Florida Courts Of Appeal

NEGLIGENCE, CONSTITUTION, CIVIL PROCEDURE

Doolittle v. Shumer, Dec-05-2014

J. Lambert finds that the trial court improperly stopped a civil action regarding a dog attack because of criminal charges against one of the dog owners. Although that dog owner has claimed the Fifth Amendment until her criminal trial is over, petitioner should be able to pursue discovery requests against the other respondents so the lawsuit proceeds in a timely fashion.

Edit Delete Florida Courts Of Appeal

DUE PROCESS, SENTENCING

Little v. State, Dec-05-2014

J. Lambert finds that the trial court improperly denied a request for downward departure sentencing after convicting defendant of two counts of dealing in stolen property and two counts of receiving money from a pawn broker by false verification of ownership. This "arbitrary" policy of not allowing downward departure after a jury finds defendant guilty is a due process violation. Reversed in part.

Edit Delete Florida Courts Of Appeal

ADMINISTRATIVE LAW

Department of Highway Safety and Motor Vehicles v. Wiggen, Dec-05-2014

J. Wallis finds that the circuit court improperly reversed the suspension of appellee's driver's license. The hearing officer concluded appellee did not pass an alcohol breath test and the devices functioned properly. The circuit court did not have the authority to reach a different conclusion.

Edit Delete Florida Courts Of Appeal

PROPERTY, BANKING/LENDING

Romine v. State, Dec-05-2014

J. Lawson finds that the trial court improperly found appellant liable for past due assessments. Florida's safe harbor provision limits the liability of the first mortgage holder to assessments due before the granting of a title. Despite appellee's assertion, the first mortgagee refers to "first in priority, not first in time." Appellant deserves safe harbor. Reversed.

Edit Delete Florida Courts Of Appeal

CONTRACT, DAMAGES

Thyssenkrupp Elevator Corp. v. Hampton Manor at Deerwood, Dec-05-2014

Per curiam, the court of appeals finds that the trial court improperly calculated the amount of damages owed to appellant. The contract language clearly states if appellee fails to pay, appellant is owed the amount of unpaid invoices plus the accelerated balance of the unexpired term. Reversed.

Edit Delete Florida Courts Of Appeal

THEFT, EVIDENCE

State v. Roberson, Dec-05-2014

J. Cohen finds that the trial court improperly excluded evidence during defendant's grand theft case. Although the state did not provide a discovery exhibit showing the value of the stolen items, excluding evidence should be a last resort.

Edit Delete Florida Courts Of Appeal

JURY, WRONGFUL DEATH

Weissman v. Radiology Associates of Ocala, Dec-05-2014

J. Palmer finds that the trial court improperly granted a new trial in a wrongful death lawsuit. Although one of the jurors did not disclose that she had received treatment at appellee's offices in the past, appellee did not submit any evidence to the contrary. In addition, appellee did not specifically question two other jurors on their past bankruptcy filings. Reversed.

Edit Delete Florida Courts Of Appeal

FAMILY LAW

Clayton v. Clayton, Dec-05-2014

Per curiam, the court of appeals finds that the trial court made several mistakes in its dissolution of marriage. There are inconsistencies with the calculation of child support and the times each parent has custody of the children. Reversed in part.

Edit Delete Florida Courts Of Appeal

INSURANCE, PROPERTY

Florida Insurance Guaranty Association v. Martucci, Dec-05-2014

J. Cohen finds that the trial court properly ordered an appraisal of a sinkhole claim for the homeowners. Although the homeowners did not demand appraisal until two years after filing the complaint, the insurance company did not admit coverage for one and a half years, which is a pre-condition to demanding an appraisal. Affirmed.

Edit Delete Georgia Court Of Appeals

MURDER

Guyton v. State, Dec-05-2014

Per curiam, the court of appeals finds that defendant's appeal must be transferred to the Supreme Court for lack of appellate jurisdiction. Defendant was convicted of felony murder, which carries with it a possible death sentence.

Edit Delete Georgia Court Of Appeals

CIVIL PROCEDURE

Erdy v. Trustees of the North Georgia Conference of the Methodist Church, Dec-05-2014

Per curiam, the court of appeals finds that appellant's direct appeal must be dismissed. Appellants filed both a discretionary appeal and a direct appeal. The court already denied the application for discretionary review on the merits.

Edit Delete Georgia Court Of Appeals

CIVIL PROCEDURE

Hallaq v. Greenwood Trust, Dec-05-2014

Per curiam, the court of appeals finds that appellant's application for discretionary appeal in a debt collection case must be dismissed. This is appellant's fourth such application. In a prior proceeding, the court of appeals warned him against filing frivolous applications that have no basis in law. As such, the court also imposes a $500 penalty against appellant "based on his history of frivolous filings."

Edit Delete Georgia Court Of Appeals

FIREARMS, CRIMINAL PROCEDURE

Merilien v. State, Dec-05-2014

Per curiam, the court of appeals finds that defendant's appeal in a case for possession of a firearm by a felon must be dismissed for lack of jurisdiction. Defendant failed to adhere to the discretionary appeal procedure, which is appropriate for appealing a writ of error coram nobis petition.

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