Gerald A. and Henrietta V. Rauenhorst - Page 31




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          satisfaction that the only available method for opposing the                
          statements in the affidavits is through cross-examination at                
          trial.  Further, it is insufficient for the opposing party to               
          argue in the abstract that the legal theory involved in the case            
          encompasses factual questions.  Hibernia Natl. Bank v. Carner,              
          997 F.2d 94, 98 (5th Cir. 1993); Daniels v. Commissioner, supra.            
          Since petitioners have offered affidavits directly supporting               
          their position on a material issue of fact, and since respondent            
          has failed to counter those affidavits with anything other than             
          unsupported allegations, respondent cannot avoid summary judgment           
          on this issue.  See Greene v. United States, 806 F. Supp. 1165,             
          1171 (S.D.N.Y. 1992), affd. 13 F.3d 577 (2d Cir. 1994).  Thus, we           
          find that there is no genuine issue of material fact regarding              
          whether the donees entered into a legally binding agreement to              
          sell their stock warrants before, or at the time of, the                    
          assignments by petitioners.14                                               




               14The record indicates that no agreement was entered into by           
          the donees before Nov. 19, 1993, the date they signed the warrant           
          purchase and sale agreement.  On Nov. 16, 1993, NMG’s legal                 
          counsel sent letters to each of the donees enclosing a warrant              
          purchase and sale agreement.  Those letters state that pursuant             
          to the warrant purchase and sale agreement, the donees would                
          agree to sell their reissued warrants to WCP and “to abstain from           
          either exercising its Warrant or selling or otherwise                       
          transferring it to any other party through Dec. 31, 1993.”                  
          Certainly, the formality of having the donees enter into the                
          warrant purchase and sale agreements suggests that they had not             
          entered into any binding agreements before Nov. 19, 1993.                   





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