Howard v. Howard

Howard v. Howard

336 S.W.3d 433 (Ky. 2011)

Roy Shane Howard and Sondra Howard. Trial Court divided parties marital property and debts assigning Shane liability for a National City loan on the parties’ Dodge Durango. Shane successfully filed in fed court a bankruptcy petition for Chapter 7 discharge.

Sought to reduced child support obligation, claiming health problems, inability to find work and the bankruptcy he received. Sondra found he was in contempt of court for failure to pay the debt on the repossessed Durango. Appeal as with bankruptcy. Appeals court found that under the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA), which does not discharge the debtor from any debt “to a spouse, former spouse or child” for something other than a domestic support obligation.” Shane appealed.

As the Court of Appeals states, Shane had the obligation under the divorce decree but the issue whether this debt would not be subject to discharge under the requirements of 11 U.S.C. section 523(a)(15) as a debt to Sondra under the divorce decree. They found that the obligation did indeed meet the rquirements and that Sondra was not required to file anything in bankruptcy court regarding the Chapter 7 filing in order to preserve her right to enforce in state court of Shane’s obligation to her under the divorce decree.

The Court ended up finding that while the debtor’s obligation on an underlying debt to a third-party creditor may be discharged because that underlying debt was not to a spouse or former spouse or child, the weight of authority holds that a separate, otherwise enforceable, obligation under a divorce decree to make payments on a third-party debt is not dischargeable in Chapter 7 bankruptcy following the BAPCPA amendments.

Community Counselling Service, Inc. v. Reilly

United States Court of Appeals, Fourth CIrcuit, 1963

317 F.2d 239

Facts. Reilly is employed by CCS, and he ends up getting sued because he was looking for work before he quit. The Court entered in judgement in Reilly’s favor, and this is the appeal. D’s job, essentially, was to be an agent of CCS and go out to sell the services of CCS. Reilly was the regional sales representative of CCS for the area between the northern boundary of Maryland and Georgia and submit daily reports. For a period of three weeks in November 1959, he was temporarily assigned to operational work in Florida, and upon his return he failed to submit daily reports of his activities.

On Janurary 4, 1960, Reilly informed the Vice President in charge of sales that he intended to resign. The contract employment required thirdy days’ notice of termination, but it was agreed on January 4, 1960 that Reilly’s resignation would be effective as of January 29, a Firday.

Before the end of January 1960, a letter from the Archbishop of the Roman Catholic Archdiocese of Washington was received by CCS in its New York office. The letter basically said that the Archbishop would be in touch with Reilly for the next campaign, and asked Reilly to come to New York on January 25.

CCS’s VP testified that he inquired of Reilly about St. Ambrose and he said that the Monsignor did not want the services of CCS. Reilly conducted a campaign for St. John the Evangelist beginning in May 1960. For these three campaigns, respectively, he received fees of $6,720, $3,840, $6,720. 

Basically, Reilly was drumming up business for himself while on his business trips to the different Parishes. He said that the Parishes did not want CCS and would rather employ himself only. 

Issue. Did Reilly breach his duty as an agent of CCS by seeking and entering into firm agreements on behalf of himself?

Holding and Analysis. Yes. Reversed and Remanded. Reilly not only formed the intention of engaging in fund raising activities on his own account, but he actively sought employment for himself and entered into firm agreements on his own account, with the result that there was no substantial hiatus between the termination of his employment by CCS and the commencement of the first of the three campaigns that he had lined up for himself.

The usual rule is that a former employee, after termination of his employment, may compete with his former employer, the only restraint being that he may not use confidential information or trade secrets obtained from the former employer, appropriating, in effect, to his competitive advantage what rightfully belongs to his employer. Thought it is plain that Reilly after January 1960 could have solicited for himself the business of the parishes, he had absolutely no right to do that before January 29,1960.

Until the employment relationship is finally severed however, the employee must prefer the interest of his employer to his own. During such a period, he cannot solicit for himself future business which his employment requires him to solicit for his employer. 

It is found that his conduct was disloyal because during his employment , he soliciting the valuable contracts for himself when he owed an unequivocal duty to solicit those contracts for his employer. The trial court’s decision was reversed and the cause remanded.

 

Rules to check: It would be wise to look at the Restatement 3rd of Agency §§ 1.01, 1.02, 1.03.

Meinhard v. Salmon

 

Meinhard v. Salmon

249 N.Y. 458, 164 N.E. 545 (1928)

 

Facts. Walter J. Salmon entered into a lease for a hotel, the premises was known as the Hotel Bristol, which was located at the northwest corner of Forty-Second street and Fifth avenue in the city of New York. PRIME LOCATION.

Salmon, while in course of treaty with the lessor as to the execution of the lease, was in course of treaty with Meinhard, for the necessary funds.

Meinhard was to pay to Salmon half of the moneys requisiste to construct, alter, manage, and operate the property.

Salmon was to pay to Meinhard 40 percent of the net profits for the first five years of the lease and 50 percent of the years thereafter. If there were losses, each party was to bear them equally. Salmon, however, was to have sole power to “manage, lease, underlet and operate” the building.

They were involved in a joint venture in regards to the property, for better or worse.

Near the end of the lease, Elbridge Gerry became owner of the reversion, and he approached Salmon. The two entered into a new lease, which is owned and controlled by Defendant. Defendant did not tell Plaintiff about it. When Meinhard found out, he demanded that the lease be held in trust as an asset of the venture between D and P, which D refused.

 

Rule: 403 (c): Each partner, and the partnership furnish to the partnership, without demand any information about proper exercise of partner rights. Members of a partnership owed duty of loyalty to each other and so must disclose opportunities that arise in order for both to have an equal chance to take advantage of it.

 

Issue. When a partner appropriates the benefit of the partnership without making any disclosure to the other partner, will that act a breach of loyalty?

 

Holding and Analysis. Cardozo, speaking: Yes. Joint adventurers owe to one another the duty of the finest loyalty. While the enterprise continues.

Literally he quotes and it is used often, even now: Joint adventurers, like copartners, owe to one another, while the enterprise continues, the duty of the finest loyalty… Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior.

As to this there has developed a tradition that is unbending and inveterate.

Defendant held the lease as fiduciary, for himself and another, sharers in a common venture. If he had revealed this fact to Gerry, Gerry would have laid before both of them his plans of a new lease. The preemptive opportunity that was an incident of the enterprise, Meinhard appropriated to himself in furtive secrecy.

The fact that D was in control as the manager charges him with the duty of disclosure, since only through disclosure could opportunity be equalized.For him, the rule of undivided loyalty is relentless. The subject matter of the new lease was an extension of the subject matter of the old one. A managing  co-adventurer appropriating the benefit of such a lease without warning to his partner might expect to be reproached with conduct that was underhand, or lacking in reasonable candor, if the partner were to surprise him in the act of signing the new instrument.

 

Partners in venture have a fiduciary duty to each other. So, when an opportunity arises that can benefit both partners, and only one takes advantage of it without informing the other, the fiduciary duty is breached. The opportunity belonged to the partnership, not to the individual partners, so one partner is considered to have stolen the opportunity from the partnership.

 

Dissent. The issue is whether the transaction was unfair. There is no general partnership, just a joint venture for a limited object that would end at a fixed time. The design was to exploit a particular lease. The interest terminated when the joint adventure terminated.

 

Cox v. State

 

Cox v. State

 

Facts. Victim was asleep in his home with his wife around 3:00am one morning when he was shot in the eye by a person outside Victim’s house; Victim was taken to the hospital following the shooting, and died three days later. Bullet holes were found in the bedroom window and the screen to the bedroom window, and a firearms expert testified at trial that the evidence at the scene showed that the shot was fired from outside the home, through the screen, from a distance of less than 6 inches from the screen. Appellant was questioned and denied any involvement, but others testified that Appellant had admitted to them that he had shot Victim. Two police officers went to Appellant’s home, believing they had probable cause to arrest Appellant, but without a search warrant; when Appellant answered the door, the officers asked Appellant to come with them, at which time Appellant attempted to shut the door. The officers were nevertheless able to pull Appellant out and placed him under arrest. At the police station, Appellant signed a waiver of rights, told police that he had in fact shot into Victim’s window, and thrown the gun away nearby. A search warrant was executed at Appellant’s home and gun was found, which Appellant later admitted was the same gun eh claimed to have thrown away at the scene. Appellant was convicted by a jury after a trial, during which various parties testified against Appellant.

 

Issues. In the present case, does the exclusionary rule bar the prosecution’s use of a statement made by Appellant outside his home following an arrest of Appellant done in violation of the Fourth Amendment to the United States Constitution? Is it improper for a prosecutor to discuss witness credibility during the opening statements of a trial?

In the present case under Indania Evidence rule 104(b), is the testimony of the deputy prosecutor concerning the events that took place at a bond reduction hearing of a close friend of Appellant admissible, when the testimony would only be relevant if Appellant knew of the events prior to the crime?

Did the trial court abuse its discretion in denying Appellant’s motion for a continuance to hire neurological experts and/or Appellant’s request for mitigation funds?

 

Held. No; the officers had probable cause to make the arrest, and the United States SC stated that in NY v. Harris, that “where the police have probable cause to arrest a suspect, the exclusionary rule does not bar the State’s use of a statement made by the defendant outside of his home, even though the statement is taken after an arrest made in the home in violation of [the Fourth Amendment].”

No; the prosecutor’s comments did not express a view as to Appellant’s credibility as a witness (which would have been improper under the Indiana Rules of Professional Conduct), since Appellant did not testify at trial.

Yes; the testimony of the deputy prosecutor is admissible under Indiana Evidence 104(b), which provides that, “when the relevancy of evidence depends upon the fulfillment of a condition of fact, the Court shall admit upon… the introduction of evidence sufficient to support a finding of fulfillment of the condition.” Since here the relevance of the prosecutor’s testimony depends on a condition of fact (whether Appellant knew of the events at the bond reduction hearing, and because other evidence was present would support a finding that the condition was fulfilled, the testimony is relevant and admissible.

No; last minute continuances are not favored and, here. Appellant had ample time prior to making his motion for a continuance to accomplish what he purported to do with the time that would have been provided had the motion been granted.

 

Discussion. The court relies on federal case law, including Supreme Court precedent, in reaching its decision, as discussed above.

 

COX

Leonard and shot and killed the deceased

• Leonard’s daughter. Hammer molested this girl.

Cox is the is accused of shooting Leonard.

Hammer is charged with molesting Leonard’s daughter.

 

It was at a bail hearing, Cox was at Hammer’s mother before the shooting. Cox knew about the charges and that’s why the shooting occurred. Hammer’s mom would have told Cox about it.

Cox would care because he was Hammer’s friend. Bail hearing was denied.

Theory is retaliation: conditioned on knowing that Cox could not get out on bail. Him visiting Hammer’s mom à fair to assume that Cox would share that information about his friend.