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McMERTY v. HERZOG

Nos. 82-2224, 82-2225.

710 F.2d 429 (1983)

James McMERTY, as Successor Trustee in the Matter of Endeco, Inc., formerly a/k/a Environmental Development Corporation of North Dakota, a/k/a EDC, Inc., Lindcorp, Cavalier Estates, Inc., Environmental Development Corp., Inc., and E.D.C., Inc., Debtors, Appellee, v. James H. HERZOG, Predecessor Trustee, individually, Appellant. James McMERTY, as Successor Trustee in the Matter of Endeco, Inc., formerly a/k/a Environmental Development Corporation of North Dakota, a/k/a EDC, Inc., Lindcorp, Cavalier Estates, Inc., Environmental Development Corp., Inc., and E.D.C., Inc., Debtors, Appellee, v. James H. HERZOG, Predecessor Trustee, individually, Donna Herzog, Appellants.

United States Court of Appeals, Eighth Circuit.

June 15, 1983.

Attorney(s) appearing for the Case

Tom G. Parrott of Kornfeld McMillin Phillips & Upp, Oklahoma City, Okl., for appellants.

Steven I. Frahm, Washington, D.C. (M. Carr Ferguson, Asst. Atty. Gen., Michael L. Paup and Richard W. Perkins, Attys., Tax Div., Dept. of Justice, Washington, D.C., with him on the brief), for appellee.

Before LAY, Chief Judge, HENLEY, Senior Circuit Judge, and FAGG, Circuit Judge.

ON PETITION FOR REHEARING

The Herzogs have petitioned the court for rehearing of their appeal. All but one of their contentions were adequately discussed and dismissed in our earlier opinion, 702 F.2d 127.

We held in our earlier opinion that once McMerty showed that some of the funds used to purchase the Burritt land were from Endeco, the burden shifted to the Herzogs to show what proportion, if any, was not embezzled. In...

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