Seoul Central District Court-2014-Gohap-518049 ( October 29, 2015)

Attachment as a unique taxation claim shall not be deemed to have an effect on the judgment revoking a fraudulent act.

It is not a new legal relationship with a beneficiary, but it cannot be deemed that the beneficiary has an effect on the judgment of revocation of a fraudulent act against a person who seizes the national tax refund claims acquired by a beneficiary through a fraudulent act in order to secure the claims already held as the inherent creditor of the beneficiary. On the same day, it cannot be said that the public official in charge arbitrarily stated the receipt number on the same day.

Article 406 of the Civil Act

Seoul High Court 2015Na2014141 (Law No. 10, 2016)

Nonghyup Bank

Korea

Seoul Central District Court 2014Gahap518049 ( October 29, 2015)

2016.04.20

2016.06.10

1. The plaintiff's appeal is all dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the court of first instance shall be revoked. The amount of 690 won for the defendant's Republic of Korea and the amount of 506 won for the defendant's ○ Steel Co., Ltd shall be corrected to 0 won, and 463 won for the plaintiff shall be corrected to 659 won, among the dividend table prepared by the above court on March 14, 2014 with respect to the distribution procedure distribution procedure case of Seoul Central District Court 2013 Taho 20

1. Basic facts

A. ○○M Co., Ltd. (1) held the refund claim of ○○M’s national tax refund and its transfer and provisional attachment, etc. (1) in relation to value-added tax imposed at the second time in 201 on the Defendant Republic of Korea (Jurisdiction A: Tax affairs), a refund and refund additional amount of KRW 040,000 (hereinafter “instant refund claim”).

2) The ○○M transferred the instant refund claim to the Codefendant Busan Bank, etc. in the first instance trial and notified the Defendant of the assignment of the claim in the Republic of Korea.

3) The new bank, our bank, Gwangju bank, and the plaintiff received a provisional attachment order on the instant refund claims, respectively, and the decision was sent to the Republic of Korea respectively.

4) On the other hand, as seen earlier, Defendant Republic of Korea (Jurisdiction: Btax secretary, Ctax secretary) seized the instant refund claim that ○○s et al. acquired from ○○M as a tax claim of ○○, ○○, and ○○ Heavy Industries (hereinafter “○○, etc.”).

B. Deposit in Defendant Republic of Korea

On April 9, 2012, Defendant Republic of Korea (the Atax secretary) deposited KRW 040 as the Seoul Central District Court ○○○ in 2012 on the grounds of competition in assignment of claims, provisional seizure, etc. as seen in the above A (hereinafter “the deposit of this case”).

C. Lawsuits for revocation of fraudulent act with respect to the assignment of claims above

1) Lawsuit for revocation of fraudulent act between Busan Bank and the plaintiff et al.

A) On May 15, 2012, Busan Bank filed a lawsuit seeking confirmation of the fact that the claim for the withdrawal of the deposit of KRW 1 billion out of the deposit of this case is located in Busan Bank (Seoul Central District Court 2012Ga 2012Ga ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○, etc.) and the assignee of the claim for the refund of this case (the new bank, the Korean bank, the Gwangju Bank, the plaintiff), and the seizure authority (the defendant Republic of Korea).

B) Accordingly, on January 9, 2012, the Plaintiff filed a counterclaim (Seoul Central District Court 2012Ga 07, 2012Ga ○07, 2012Ga ○9, 2012 Ga 2012, 2012 Ga 208) with the Busan Bank on the ground of fraudulent act against the Busan Bank.

C) On November 29, 2012, the above court dismissed the part concerning the new bank, Gwangju bank, and the plaintiff from among the main lawsuit of the Busan Bank. The court dismissed the part concerning the new bank, Gwangju bank, and the plaintiff. The new bank, Gwangju bank, and the plaintiff cited all the above counterclaims of the plaintiff, and revoked the above assignment contract concluded on January 9, 2012 between the Busan Bank and the new bank, Gwangju Bank, and the plaintiff.

2) The lawsuit seeking revocation of fraudulent act between the Plaintiff and Defendant ○ Steel, etc.

A) On August 22, 2013, the Plaintiff filed a lawsuit seeking restitution (Seoul Central District Court 2013Ga ○070) against Defendant ○ Steel and ○○ Steel and ○○○s et al. on the ground of fraudulent act against the assignee of the claim, who is the transferee of the remaining claims, excluding ○○ Steel and ○○s et al., for which the legal relationship, such as cancellation of the speculative act, etc., became final and conclusive by the above judgment among the assignee of the claim.

B) On November 22, 2013, the said court rendered a ruling to recommend reconciliation that ① the Plaintiff and the Defendant ○○ Steel are revoked on January 9, 2012 between the Plaintiff and the Defendant ○○ Steel and that the said contract is null and void. ② Defendant ○○ Steel transferred the right to claim deposit payment with respect to the portion equivalent to the said assignment of claims out of the instant deposit money to ○○ Steel, and ③ Defendant ○○ Steel notified the Defendant Republic of Korea (a public official in charge of deposit with the Seoul Central District Court), and the said ruling to recommend reconciliation became final and conclusive on December 14, 2013.

C) In addition, the above court revoked each of the above assignment contracts concluded on January 8, 2014 between ○○ and ○○M, and sentenced ○○○○, etc. to the effect that ○○, etc. transferred the right to claim payment of deposit money corresponding to the amount of each of the above assignment of claims out of the instant deposit money to ○○, etc., and ③ ○○, etc. was notified to the Defendant Republic of Korea (a public official in the Seoul Central District Court’s jurisdiction), and the judgment became final and conclusive on February 18, 2014 (hereinafter the above judgment became final and conclusive on February 18, 2014) (hereinafter referred to as “the previous judgment of this case”).

3) Lawsuit seeking revocation of fraudulent act between the Industrial Bank of Korea and Busan Bank, etc.

A) On July 20, 2012, the Industrial Bank of Korea revoked each of the above assignment contract concluded between Busan Bank, Defendant ○○ Steel, ○○ Steel, and ○○ethyl et al., the assignee of the bonds, and filed a lawsuit seeking restitution therefrom (Seoul Central District Court 2012Ga203).

B) On January 11, 2013, the above court confirmed that each of the above assignment contracts entered into on January 9, 2012 between the Busan Bank and the defendant ○○ Steel and the defendant ○○ Steel was null and void. ② Busan Bank and the defendant ○○ Steel transferred the claims corresponding to each of the above assignment claims to ○○ Steel and notified the defendant 1 of the fact of the assignment of claims to ○○ Steel, ③ Busan Bank and the defendant ○ Steel notified the fact of the above assignment of claims to ○○ Steel, ③ the Busan Bank and the defendant ○ Steel of the fact of the above assignment of claims to ○○ Steel and the No.4400, Jan. 11, 2012 (hereinafter referred to as “verification of the above assignment of claims”) and ⑤ the transfer of claims corresponding to each of the above assignment of claims to ○○ Steel and the decision of recommending reconciliation between the defendant 1 and the plaintiff ○○ Steel became final and conclusive (hereinafter referred to as the “Recommendation of reconciliation”).

.

D. Provisional seizure, etc. against claims for payment of deposit money after the deposit of this case

1) The Industrial Bank of Korea, the New Bank of Korea, the National Bank of Korea, the Busan Bank, the defendant ○ Steel, the Daegu Steel, the Jung-gu Seoul Metropolitan Government, the plaintiff (hereinafter referred to as the "six persons holding the attachment rights of this case") is recorded in the list of claims provisional attachment, etc. as shown in the separate sheet. As seen above, as from April 9, 2012 when the deposit of this case was made until July 25, 2013 when the report of the reason for the deposit of this case was made on the deposit of this case or before July 25, 2013, "○○ M was issued a provisional attachment decision, a seizure order, a collection order, or a seizure order against the defendant's Republic of Korea, and the above order was served on the third party debtor's deposit of this case (hereinafter referred to as the "person holding the attachment rights of this case"). The provisional attachment order was served on the date stated in the separate list.

2) On the other hand, on October 14, 2013, the new bank sent the original copy of the previous judgment of this case to Defendant Republic of Korea (a public official in charge of deposit in Seoul Central District Court), and received on October 15, 2013 the attachment and assignment order of the attached table No. 2 with respect to the claim amount of ○○M’s right to claim payment of deposit against Defendant Republic of Korea on October 15, 2013, separately from the attachment and assignment order of the attached table No. 2, the new bank received the attachment and assignment order

On October 18, 2013, the defendant, who is the garnishee, was served on the Republic of Korea and finally confirmed.

(e) Commencement of distribution procedures, preparation of distribution schedule, objection to distribution, etc.;

1) On July 25, 2013, the deposit officer of the Seoul Central District Court reported the reason for deposit of the instant deposit to the executing court, and accordingly, the Seoul Central District Court 2013 Ma○○○○○ on the instant deposit (hereinafter referred to as the “instant dividend procedure”).

2) On March 14, 2014, the said executing court: (a) determined the amount of actual dividends of KRW 785,00 calculated by subtracting the execution cost from the total sum of KRW 040 and interest thereon, 795; and (b) formulated a distribution schedule with the content of the dividends distributed as follows (hereinafter “instant distribution schedule”).

2. The party's assertion and judgment

A. Summary of the plaintiff's assertion

1) As to Defendant Republic of Korea

Defendant Republic of Korea does not have the right to receive dividends in the instant dividend proceeding for the following reasons, or part of the amount of dividends against Defendant Republic of Korea is unlawful.

A) The Defendant Republic of Korea acquired the instant refund claim by transfer of ○○ ethyl et al. from ○M

Attachment. Each of the above assignment contracts between ○M and ○○, etc. shall be anti-social legal acts.

The seizure of the defendant Republic of Korea is null and void because it constitutes a false conspiracy.

It is invalid as an object of non-performing bonds (hereinafter referred to as "a note").

B) In addition, each of the above assignment contracts between ○M and ○○ ethyl et al. was retroactively null and void as the previous judgment of this case and the previous decision of recommending reconciliation of this case was revoked as fraudulent act, and thus the seizure of Defendant Republic of Korea is null and void as it covers a non-existent claim (hereinafter referred to as “second chapter”).

C) Defendant Republic of Korea seized the instant refund claims that ○○s et al. acquired with the knowledge that each of the instant transfer contracts between ○○M and ○○s et al. would prejudice creditors.

Since the above contract is revoked by fraudulent act, as long as the above contract is revoked by fraudulent act, the defendant's Republic of Korea cannot claim the effect of the seizure against the plaintiff who is the cancelled creditor (hereinafter referred to as "third argument").

D) Although the public official in charge of the Defendant’s Atax secretary under the Republic of Korea was fully aware of the fact that each of the above claims assignment contracts between ○M and ○○ ethyl et al. were detrimental to creditors, the said claims assignment is notified to the public official in charge of Btax secretary and Ctax secretary under the Republic of Korea, thereby allowing the seizure of the above claims. Considering such circumstances, the above seizure disposition is not different from that of infringing on the property rights between individuals through the exercise of governmental authority not based on the law, and thus, is null and void (hereinafter “fourth assertion”).

E) The assignment of claims to ○○ Heavy Industries is valid within the scope of KRW 472 (the amount excluding the amount of claims transferred to Busan Bank, ○○○, and ○○N from KRW 040,00,000, excluding the amount of claims transferred to ○○ Heavy Industries) excluding the amount of claims transferred earlier. Therefore, the part in excess of the amount of claims transferred to ○○ Heavy Industries by the Defendant Republic of Korea (the competent jurisdiction: Ctax secretary) is unlawful (hereinafter referred to as “five allegation”).

2) As to Defendant ○ Steel

○○ Steel does not have the right to receive dividends in the instant distribution procedure for the following reasons.

A) The claim against Defendant ○○ Steel Co., Ltd. against Defendant ○○ Steel Co., Ltd is the most important claim (hereinafter “one claim”).

B) Since Defendant ○ Steel was recognized as the beneficiary of bad faith in the instant previous judgment, etc., Defendant ○○ Steel cannot participate in the instant distribution procedure based on the claim against ○○M (hereinafter “2 allegation”).

C) Since the order of seizure and collection of the attached list No. 8 of Defendant ○○ Steel’s attached list No. 8, which was the seized claim, had already been transferred to Busan Bank, ○○ ethyl et al., the claim for payment of the instant deposit, which was the seized claim, was effective as a seizure and collection order for the responsible property not reverted to ○○M, the debtor (hereinafter “third claim”).

B. Determination

1) Prior to determining the legitimacy of the Plaintiff’s assertion regarding the grounds, etc. for the distribution of the instant distribution schedule, the court of execution is deemed to have prepared the instant distribution schedule in accordance with the following grounds, standards and calculation, in full view of the facts and evidence acknowledged earlier, prior to examining the grounds, etc. for the distribution of the instant distribution schedule.

A) First, on January 2012, 2012, ○M transferred part of the instant refund claim to the Busan Bank and ○○Sethyl, etc., and the notice of transfer was served to the Defendant, the garnishee, who was the garnishee, until January 19, 2012, and the total amount of credit transferred exceeds 040 won of the instant refund claim. As such, ○○M transferred KRW 898 to Defendant ○○ Steel, it is null and void as it is the subject of the non-existent claim. Accordingly, Defendant ○ Steel cannot be distributed in the above status of the assignee.

B) As referred to in subparagraph 1-A, paragraph 1-3, each provisional attachment decision received by the Plaintiff, new bank, Korean bank, and Gwangju bank was delivered to the Defendant Republic of Korea as a third obligor after January 19, 2012 (the date of final notification as to the assignment of claims between ○○M and Busan Bank and ○○○ et al.). As such, each provisional attachment decision is null and void as to any claim already transferred and nonexistent. Accordingly, the Plaintiff, new bank, Korean bank, and Gwangju Bank cannot be distributed upon the provisional attachment.

C) However, the seizure right holder of the instant six persons and the provisional seizure in the separate list of the Jung-gu Seoul Metropolitan Government and the National Bank were revoked as a fraudulent act between the Busan Bank, etc. sought in the previous judgment, etc., and the above assignment contract between the Busan Bank, etc. was restored to ○○M due to its restoration to its original state, and ○○M's right to claim payment of deposit money against the Defendant Republic of Korea is valid as it is the seized claim. In addition, the new bank, Gwangju Bank, and the Plaintiff won in the lawsuit of revocation of fraudulent act filed against the Busan Bank (Seoul Central District Court 2012 Ma07, 2012 Ma○09, 2012 Ma○88). As seen earlier, the above judgment was delivered to the Republic of Korea on December 20, 2012 (the date the previous judgment became final and conclusive) and delivered KRW 100 billion to the Busan Bank, which became final and conclusive as the previous claim was restored to 1300 billion won.

Therefore, the seizure authority of the six persons of this case and the Jung-gu Seoul Metropolitan Government and the National Bank are listed in the attached list.

The dividends may be paid upon the provisional seizure, etc.

except that an assignment order for a new bank listed in No. 2 of the Schedule No. 2 shall be issued earlier than

Since a seizure is null and void in relation to the provisional seizure Nos. 1 in the list, only the seizure order issued along with the above assignment order is valid. Moreover, the seizure and assignment order issued by the new bank on October 15, 2013, which was separate from the above assignment order, cannot be the title or basis to be distributed in the instant distribution procedure due to the effect that the deposit official’s participation blocking in the distribution following the report on the reason of deposit on July 25, 2013 (see Articles 247(1)1 and 248(4) of the Civil Execution Act).

D) Meanwhile, the assignment contract between ○M and ○○ ethyl et al. was revoked by being recognized as a fraudulent act by the previous judgment in this case or by the previous ruling of recommending reconciliation in this case, but the Defendant’s Republic of Korea attached the transferred claim as above did not have become the Defendant (the Republic of Korea was not the Defendant in a lawsuit seeking revocation of fraudulent act but only the Defendant in a lawsuit seeking confirmation of the claim for payment of deposit and delivery) in a lawsuit seeking revocation of fraudulent act. Thus, the part of the claim amounting to 040 won (i.e., the refund claim in this case - KRW 040 billion transferred to ○○ ethyl et al. according to the assignment of claims between ○○M and ○○ ethyl et al. (i.e., the claim amount in this case - KRW 1 billion transferred to Busan Bank) cannot be recovered from ○○ M. Accordingly, notwithstanding the previous ruling in this case, the Defendant Republic of Korea still has the right to receive dividends based on the premise that the assignment contract between ○M

E) Accordingly, as the instant six attachment authority and the Seoul Special Metropolitan City Jung-gu and the National Bank are cancelled the assignment contract between Busan Bank and ○○M, they are in the position to be distributed as a right holder, such as seizure of claims of KRW 1 billion recovered to ○○M. Since the Defendant Republic of Korea is in the position to be apportioned as a right holder who seized claims of KRW 040,000,000,000, which are recovered to ○○○○○○, etc., the amount to be actually distributed in the instant distribution procedure should be divided into “the portion of claims of ○○○○ (Distribution Foundation 1) and “○○○○, etc. (Distribution Foundation 2).” However, it is reasonable to divide the dividend foundation into “the amount of KRW 785,00,000,000,000,0000,000,0000,000,000,000,000 won.

F) Since there is no other interested party, 690 won of the divided distribution foundation2 should be distributed to the Republic of Korea (However, considering the convenience of business affairs of each tax office, it seems that each tax office prepared a distribution schedule in proportion to the ratio of each tax office’s amount of transferred credit, such as 0 ethyl, etc. attached by each tax office).

G) Meanwhile, out of the amount of 095 won of the Distribution Foundation 1’s 095 won, 020 won shall be distributed in one order to the Jung-gu Seoul Special Metropolitan City (tax creditors) having preferential right to payment, and the remaining 075 won shall be proportional to the amount of claims, such as each seizure to which six persons have the right to seize.

2) As to the Plaintiff’s assertion on Defendant Republic of Korea

A) As to "one argument"

In full view of all the circumstances alleged by the Plaintiff and all the evidence submitted, it is difficult to recognize that each of the above assignment contracts between ○M and ○○ethyl et al. constitute anti-social legal acts or false declaration of conspiracy. Therefore, this part of the Plaintiff’s assertion is unacceptable.

B) As to '2, 3' argument

(1) Where a creditor is given a judgment on revocation of a fraudulent act that orders the beneficiary or subsequent purchaser to recover a responsible property, along with the revocation of a fraudulent act, the effect of revocation is limited to between the creditor, beneficiary, or subsequent purchaser, and thus, the beneficiary or subsequent purchaser is merely liable to reinstate the creditor due to the revocation of the fraudulent act, and the legal relationship between the creditor and the debtor is formed or the revocation becomes retroactively effective, not to be restored to the debtor’s responsible property (see, e.g., Supreme Court Decision 2012Da47548, Jun. 12, 2014).

Meanwhile, the revocation of a fraudulent act is effective relatively between the parties to a lawsuit for revocation, and a third party, other than the parties, is not affected by the revocation, unless there are other special circumstances. Since the proviso of Article 406(1) of the Civil Act is protected to the subsequent purchaser, etc. who has acquired real estate, etc. subject to a fraudulent act through a new legal relationship, the mere recognition of the relative effect of revocation of a fraudulent act is to coordinate the interests of the creditor and beneficiary of the fraudulent act, and the third party who does not have the effect of revocation, and it is not limited to the subsequent purchaser, etc. of the real estate subject to a new legal act on the basis of the fraudulent act, which newly performs a legal act on the basis of the underlying property (see, e.g., Supreme Court Decision 2004Da49532, Nov. 10, 2005). It is not a new legal relationship with the beneficiary, but a beneficiary has already acquired a claim as an inherent creditor

It is deemed that a judgment on revocation of a fraudulent act is effective against a person who provisionally attached the dividend distributed to a mortgage.

Nor may (see, e.g., Supreme Court Decision 2008Da7109, Jun. 11, 2009).

(2) In light of the above legal principles, the defendant Republic of Korea did not become the defendant for the revocation of the fraudulent act in the previous judgment, etc. of this case. Thus, this part of the plaintiff's assertion is against the above legal principles as to the "non-presidential effect" and "non-presidential effect" of the revocation of the fraudulent act, and it cannot be accepted.

C) As to '4' argument

The circumstance and the evidence presented by the Plaintiff alone cannot be deemed as an exercise of public authority, which is not based on the law, or a violation of Article 37(2) of the Constitution, by the Republic of Korea to impose attachment disposition on the transferee claims, such as ○○ ethyl, etc.

D) As to '5 argument'

(1) First, in light of the fact that ○○○○, etc. received the national tax refund on the same day and at the same time during the deposit process of this case, it is reasonable to view that ○○, etc.’s notification of the transfer of claims to ○○, etc. was received at the same time in the Republic of Korea (the Plaintiff is written at ○○, 4753, 4755, and 4756, respectively in a notification of the transfer of claims to ○○, etc. of ○○, etc.) and thus, the receipt number of the Atax secretary was clearly written at “4753, 4755, and 4756.” However, since the above receipt number was received on the same day and it appears that the public official in charge of the receipt of documents was voluntarily written in the process of handling it, it cannot be said that the receipt number became clear on the basis of the above receipt number alone).

Therefore, it is reasonable to view that the amount of claims transferred effective to ○○ ethyl et al. is transferred according to the ratio of KRW 370, KRW 198, and KRW 330, each of the face value of the claims transferred to ○○ ethyl, etc. Accordingly, when calculating the amount of claims transferred to ○○ ethyl et al., the amount of claims transferred to ○○ ethyl et al. is deemed to have been transferred to 569, KRW 306, and KRW 165, respectively.

(2) On the other hand, on the premise that the amount of the claim transferred to ○○ ethyl et al. is as above, calculated the amount to be distributed at each tax office of the Defendant Republic of Korea in proportion to the amount of the claim transferred to ○○ ethyl et al., the amount to be distributed at each of the competent tax offices of the Defendant Republic of Korea should be distributed at KRW 492, KRW 293, KRW 293, and KRW 905 should be distributed to the Ctax secretary attached to the claim transferred to ○○ Heavy Industries, attached to the claim transferred to ○○ ethyl et al.

(3) However, as seen earlier, it is clear that the amount of attachment of the BP on the claim transferred to ○○ ethyl is KRW 070, KRW 670, and the amount of attachment of the CPP on the claim transferred to Macena Industries is KRW 760, and the amount of attachment of the CPP on the claim transferred to Macena Industries exceeds the amount to be distributed to each of the competent tax offices under the above paragraph (2). Although each of the tax offices under its jurisdiction specified the dividend amount in the instant distribution schedule, the entity to whom the dividend amount belongs is identical to the Republic of Korea. Thus, the conclusion that the two of the dividend foundation’s 690 won ought to be distributed to the Defendant Republic of Korea is likewise the same. Accordingly, the Plaintiff’s assertion

3) As to the Plaintiff’s assertion on Defendant ○○ Steel

A) As to "one argument"

There is no evidence to acknowledge that the claim against Defendant ○○ Steel’s ○○ was the most important claim. Rather, considering the overall purport of the pleadings in each of the statements in the evidence Nos. 1 through 6, 8, and 12 as a whole, it is recognized that Defendant ○ Steel has the claim amounting to the claim amount of the seizure and collection order as stated in the separate sheet No. 8 against ○○ Steel. Accordingly, the Plaintiff’s this part is recognized.

Sectoral argument cannot be accepted.

B) As to "2 argument"

(1) Although a debtor transferred a claim to a third party obligor to a specific creditor, and the assignment of the claim became final and conclusive on the ground that it was a fraudulent act, in case where the creditor receives a seizure and collection order against the pertinent claim, the creditor cannot receive dividends in the distribution procedure following the mixed deposit of the third debtor with respect to the relevant claim, as the transferee of the relevant claim, but it is possible to receive dividends in the position of the creditor who received the seizure and collection order (see, e.g., Supreme Court Decision 2011Da107818, Mar. 27, 2014).

(2) In light of the above legal principles, as seen earlier, Defendant ○ Steel received the attached list 8 claims attachment and collection order from ○○ Steel’s claims against ○○M, and based on this, received dividends from the dividends file in the instant case. Therefore, it is difficult to accept the Plaintiff’s assertion on this part.

C) As to '3' argument

According to the above facts and evidence, the claim attachment and collection order No. 8 of the attached list of Defendant ○○ Steel was cancelled by fraudulent act on January 9, 2012 between “○○M and Busan Bank,” and the claim for deposit withdrawal, which ○○M had already been restored or restored to ○○M, is valid as it is the claim for attachment.

4) Sub-committee

Therefore, it is difficult to accept all the Plaintiff’s assertion, and further, there is no other unlawful ground to increase the Plaintiff’s dividend amount among the instant dividend table. Thus, the instant dividend table is justifiable.

3. Conclusion

Therefore, the plaintiff's claim shall be dismissed as it is without merit. The judgment of the court of first instance is just in conclusion with the trial, and the plaintiff's appeal shall be dismissed as it is without merit.