Estate of Mary D. Maggos - Page 17

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          1997, required that each of the parties file a memorandum setting           
                         (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                   
          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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