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1997, required that each of the parties file a memorandum setting
forth:
(1) (a) The issues of fact (including any
issues subsidiary to ultimate issues) and (b) the
issues of law (including any issues subsidiary to
ultimate issues) to be resolved by the Court. * * *
(2) A clear, complete, and concise
exposition of each party’s position and the theory
underlying that position with respect to each of the
issues that are set forth pursuant to (1) above. * * *
The order further stated:
ORDERED that neither party will be allowed to
advance a position or theory underlying that position
with respect to any of the issues set forth pursuant to
(1) above that is different from the positions or
theories set forth pursuant to (2) above. [Emphasis
added.]
Petitioner’s memorandum in response to our order lists theft,
fraud, mistake, and bad business bargain as the issues to be
tried.11 Petitioner’s counsel do not offer any justification for
their apparent disregard of the pretrial order. Respondent would
be prejudiced if we were to allow petitioner, contrary to our
previous order, to disclaim full beneficial ownership of the
redeemed shares for the first time on posttrial brief.12 For
11The Court’s order is set out in full supra pp. 7-8, and
the relevant portions of petitioner’s amended memorandum of
issues are set out supra pp. 8-9.
12In addition to petitioner’s pleadings and the
representation to the Court that decedent owned full beneficial
interest in 567 shares of PCAB, both decedent and her son treated
the stock as if it were decedent’s by having the trust transfer
the shares to her prior to the redemption.
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