text:
    UNITED STATES of America v. Joe RYAN, Individually and d/b/a Rich Mountain Coal Company.
    No. Civ. 3-83-130.
    United States District Court, E.D. Tennessee, N.D.
    Sept. 28, 1984.

      P.A. Broyles, Sp. Asst. U.S. Atty., U.S. Dept, of the Interior, Knoxville, Tenn., for United States.
    Joe Ryan, pro se.
   MEMORANDUM

HULL, District Judge.

Pursuant to the Surface Mining Control and Reclamation Act of 1977 [the Act], 30 U.S.C. §§ 1201-1328 (Supp.1984), plaintiff brought a civil action for collection of civil penalties assessed against Rich Mountain Coal Company [Rich Mountain] for violations of the Act. A judgment by default was entered against Diamond Capitol Mining, Inc. [Diamond Capitol], the parent company of Rich Mountain, in the amount of $319,500 [Judgment, No. 29]. Plaintiff now seeks to hold defendant Joe Ryan individually liable for the civil penalties assessed against Rich Mountain and the judgment rendered against Diamond Capitol. The case is before the Court on plaintiffs motion for summary judgment. Defendant Ryan has not responded to the motion.

Plaintiff says defendant Ryan is individually liable for the civil penalties assessed and judgment rendered against Rich Mountain and Diamond Capitol because Ryan is the sole shareholder and only active director of Diamond Capitol, which through its subsidiary, Rich Mountain, transacted business in Tennessee without a certificate of authority. Plaintiff says that under Tennessee case law, as a matter of public policy, shareholders, officers and directors of a nonqualifying foreign corporation (an out-of-state corporation without the required certificate of authority) are individually liable for the debts of the corporation.

It is undisputed that Diamond Capitol, a foreign corporation, through its subsidiary Rich Mountain, conducted coal mining activity in Tennessee without obtaining the required certificate of authority. Thus, the legal issue for the Court is whether the failure of a foreign corporation to obtain a certificate of authority pri- or to commencing business in the state subjects the sole shareholder and director to individual liability for a corporate debt, arising out of the transaction of business.

The Tennessee General Corporation Act [Corporation Act], Tenn. Code Ann. §§ 48-101 to 48-1407, provides that a foreign corporation “shall procure a certificate of authority from the secretary of state before it shall transact business or conduct affairs in this state.” Tenn.Code Ann. § 48-1101 (1978). The Corporation Act provides further that “[a] foreign corporation transacting business or conducting affairs in this state without a certificate of authority shall not be permitted to maintain any action, suit or proceeding in any court of this state, until such corporation shall have obtained a certificate of authority.” Tenn.Code Ann. § 48-1106(1) (1979). However, the Corporation Act provides that “[t]he failure of a foreign corporation to obtain a certificate of authority shall not impair the validity of any contract or act of such corporation and shall not prevent such corporation from defending any action, suit or proceeding in any court of this state.” Tenn.Code Ann. § 48-1106(2). Finally, provision is made for a penalty, payable to the state, to be assessed against any foreign corporation which transacts business without a certificate of authority. Tenn.Code Ann. § 48-1106(3).

Since enactment of the Corporation Act in 1968, there have been few cases construing the above cited sections and no cases addressing the issue of director/shareholder liability for the debts of a nonqualifying foreign corporation. Pre-Corporation Act case law holds that a shareholder/director of a nonqualifying corporation is individually liable for the corporate debt because a corporation which has not complied with Tennessee law is without existence and has no power to contract; thus those proceeding with the business become individually liable for the debts created. See e.g., Cunnyngham v. Shelby, 136 Tenn. 176, 188 S.W. 1147 (1916). However, this case law appears to have been overruled by the Corporation Act, which recognizes the existence of the nonqualifying corporation and its power to contract. Tenn.Code Ann. § 48-1106(l)-(2) (1979); see also Comment, Effect of the New Corporation Act on Existing Corporations, 36 Tenn.L.Rev. 330, 338 (1969). Precorporation Act case law also holds that when the business of a corporation is commenced in violation of the law, individual liability attaches only where (1) the corporation is nonexistent, (2) the conduct of the parties constitutes fraud on the creditors, or (3) an express statutory provision imposes liability. Crouch v. Gray, 154 Tenn. 523, 290 S.W. 391 (Tenn.1926).

In the case sub judice, the corporation was in existence, there is no allegation of fraud, and there is no express statutory provision imposing liability for the corporate debt on the shareholder/director. Furthermore, courts of states which have adopted corporation acts similar to the Tennessee act have held that shareholders/directors are not personally liable for the debts of a nonqualifying foreign corporation. National Ass’n of Credit Management v. Burke, 645 P.2d 1323, 1325-1326 (Colo. App.1982); Mysels v. Barry, 332 So.2d 38 (Fla.App.1976); McAteer v. Menzel Building Co. Inc., 300 N.E.2d 583, 13 Ill.App.3d 394 (1973). Thus, the Court holds that defendant Ryan is not personally liable for the civil penalties assessed and the judgment rendered against Rich Mountain and Diamond Capitol.

For the foregoing reasons, plaintiffs motion for summary judgment is DENIED and the case is DISMISSED.

Order Accordingly.

      . Diamond Capitol was added as a party defendant by amendment to the complaint. [Motion for Leave to Amend Complaint; Amendment to Complaint, Nos. 17, 18.)

      . The Court indicates that in Cunnyngham v. Shelby, 136 Tenn. 176, 188 S.W. 1147 (1916) the stockholders of the nonqualifying corporation were held individually liable for the corporate debt because the corporation was nonexistent in Tennessee. Crouch v. Gray, 154 Tenn. 523, 530, 536, 290 S.W. 391, 393, 395, (Tenn.1926). As previously noted, the Corporation Act has changed the law to recognize the existence of the nonqualifying corporation.

      . Plaintiff argues that liability should be imposed on the individual as a matter of public policy. By statute, a penalty is imposed on the nonqualifying corporation for transaction of business without a certificate. Tenn.Code Ann. § 48-1106(3) (1979). This provision would appear to vindicate the public policy against proceeding unlawfully with business and to be in lieu of recovery against individual shareholders/directors.


source: Caselaw Access Project

author: NEAHER, District Judge.

license: Public Domain

text:
    Bertha M. ROGERS, Plaintiff, v. 66-36 YELLOWSTONE BLVD. COOPERATIVE OWNERS, INC., Defendant.
    No. 82 CV 1341 (ERN).
    United States District Court, E.D. New York.
    Oct. 9, 1984.

      Jose A. Rivera, Brooklyn, N.Y., for plaintiff.
    Deegan, Scibilia & Reardon by Joseph C. Scibilia, Alan J. Reardon, Hempstead, for defendant.
   MEMORANDUM ORDER

NEAHER, District Judge.

Plaintiff Bertha Rogers, a black teacher, sued defendant 66-36 Yellowstone Blvd. Cooperative Owners, Inc. (“Yellowstone”), an apartment cooperative, under the Civil Rights Act of 1866, 42 U.S.C. §§ 1981-82 (one claim), and the Fair Housing Act of 1968, 42 U.S.C. § 3612. Specifically, Mrs. Rogers charged Yellowstone with racial discrimination in disapproving her attempted apartment purchase. On January 26, 1984, a jury returned a verdict for Mrs. Rogers on both statutory claims, awarding $25,000 in compensatory damages and $1,000 in punitive damages.

That verdict had solid record support. Though circumstantial, the evidence of discrimination was compelling. While having greater than a $500,000 net worth, Mrs. Rogers’ proposed purchase of a $49,-250 apartment was rejected purportedly because she did not meet Yellowstone’s financial criteria. Defendant, in particular, was allegedly concerned with the “source” of plaintiff’s wealth, i.e., how could she — on a teacher’s pay — accumulate such assets.

Although Yellowstone’s supposed skepticism was unallayed by Mrs. Rogers’ explanations (e.g., she bought real estate when prices and interest rates were low), the jury was satisfied as demonstrated by its answers to the Special Verdict Form. In the same way, the jury manifested its disbelief in Yellowstone’s account. For instance, despite Yellowstone’s given reason for disapproving the application and concomitant assertion that Mrs. Rogers’ race played no part in that decision, the jury determined that “a motivating reason for defendant’s refusal was the race of plaintiff.” Special Verdict Form, §§ 1981-82, Interrogatory # 3.

Having itself heard the witnesses’ testimony and assessed their credibility, the Court views that finding along with the verdict as a whole to be consistent with the evidence. From those prefatory remarks, the Court turns to the remaining issues.

Attorney’s Fees

While not having yet moved, plaintiff’s counsel stated at the trial’s close and in a later conference that he would request attorney’s fees. Given the absence of a formal motion, the Court will not now rule on that matter. However, having surveyed the law, the Court has discerned a threshold question that must be resolved.

Plaintiff, as noted, prevailed on both her §§ 1981-82 and 3612 claims, each of which has related statutory provisions concerning attorney’s fees. For §§ 1981-82, § 1988 also of Title 42 allows:

“In any action ... to enforce a provision of sections 1981, 1982 ..., the court ... may allow the prevailing party ... a reasonable attorney’s fee____”

For § 3612, its subsect, (c) states:

“The court ... may award ... reasonable attorney’s fees in the case of a prevailing plaintiff: Provided, That the ... plaintiff in the opinion of the court is not financially able to assume ... attorney’s fees.”

(Emphasis in original.)

As is obvious from its emphasized proviso, § 3612(c) presents a narrow avenue to attorney’s fees recovery. And, due to her net worth, Mrs. Rogers could likely bear prosecuting expenses, thereby barring § 3612(c) compensation.

Just as obviously, however, § 1988 does not contain § 3612(c)’s restrictive language. Moreover, at least two circuits marking the difference between those statutes have expressly held that, even though precluded in § 3612(c), recovery may be had via § 1988 —when, as here, a plaintiff wins under both §§ 1981-82 and 3612.

The Fifth Circuit in Woods-Drake v. Lundy, 667 F.2d 1198, 1204 (5th Cir.1982), said:

“Plaintiffs have prevailed ... under both 42 U.S.C. § 1982 and ... the Fair Housing Act. They are therefore entitled to benefit from the more liberal provisions of 42 U.S.C. § 1988, which allow recovery of attorneys’ fees without consideration of plaintiffs’ financial circumstances, as is required by 42 U.S.C. § 3612(c).” Similarly, the Sixth Circuit in Price v.

Pelka, 690 F.2d 98, 100 (6th Cir.1982), concluded:

“The provisions of 42 U.S.C. § 1988 are more liberal than those of 42 U.S.C. § 3612(c)....
“[Plaintiff] prevailed on ... her claims arising under the Fair Housing Act and 42 U.S.C. §§ 1981-82. We hold that she is entitled to benefit from the more liberal provisions of 42 U.S.C. § 1988.”

Cf. Wharton v. Knefel, 562 F.2d 550, 556 & n. 30 (8th Cir.1977) (Although succeeding under both statutes, plaintiff only sought appellate attorney’s fees under § 1988. The Eighth Circuit granted that request remarking that, “A fee award under § 3612(c) would require us to decide whether ... plaintiff is ‘financially able’ to assume his attorney’s fees, a task more appropriate for the district court.”).

So, based on the caselaw from other circuits, attorney’s fees would appear to be available in this action. See generally Dugan, Civil Rights and Freedom of Contract: Employment, Housing and Credit Transactions, 27 S.D.L.Rev. 181, 192 n. 110 (1982) (“[The Fair Housing Act’s] limitation on ... attorney fee awards do[es] not apply where housing discrimination conduct also violates 42 U.S.C. § 1982.”) (“Dugan”).

Yet, the Second Circuit has not addressed the facial disparity between the two statutory recovery schemes. Cf. Fort v. White, 530 F.2d 1113, 1117-19 (2d Cir. 1976) (Since § 1988 had not yet been enacted, plaintiffs could not receive attorney’s fees for their § 1982 claim. Still, an award was available under their Fair Housing Act claim and, thus, the district court on remand was to determine whether plaintiffs were able to assume those costs.).

Necessarily, the parties here should have the opportunity to present their positions on that issue, which remains at least arguably open in this jurisdiction. Therefore, they are directed to discuss in memoranda whether attorney’s fees are available in this case and, if so, whether reimbursement should be granted. Plaintiff also is to submit the amount sought supported by accompanying itemization. Defendant, of course, may challenge that figure and its underlying cost breakdown.

Plaintiff’s papers are due on October 19, 1984. Defendant will respond by October 29, 1984.

Equitable Remedy

Plaintiff has formally sought an injunction. Both sides have submitted briefs on the fittingness of that equitable remedy. Also, plaintiff has tendered a proposed order delineating the specific relief desired, to which defendant has responded by objecting to some terms and agreeing to others (should the Court deem an injunction merited).

The statutes upon which Mrs. Rogers has prevailed permit injunctive relief. Though not literally, the Civil Rights Act of 1866 has been so construed. In Jones v. Alfred H. Mayer Co., 392 U.S. 409, 414 n. 13, 88 S.Ct. 2186, 2189 n. 13, 20 L.Ed.2d 1189 (1968), the Supreme Court commented:

“The fact that 42 U.S.C. § 1982 is couched in declaratory terms and provides no explicit method of enforcement does not ... prevent a federal court from fashioning an effective equitable remedy.”

See, e.g., Gore v. Turner, 563 F.2d 159, 162-63 (5th Cir.1977) (“The district court held that defendant ... racially discriminated against [plaintiff] in violation of 42 U.S.C. § 1981 and § 1982 by denying her the same right to lease rental property as ... white citizens____ The [district] court granted an injunction____”).

Under the Fair Housing Act, a court is plainly empowered to enter an injunction by 42 U.S.C. § 3612(c):

“The court may grant ... any permanent or temporary injunction____”

Without disputing that an injunction can be mandated, Yellowstone’s primary position is that it should not be, since liability was incurred for but a single incident. See J. Kushner, Fair Housing, at 548 (1982) (“Injunctions are most appropriate in pattern and practice litigation and in class action private litigation based on a pattern of activity on the part of the defendant.”) (footnotes omitted) (“Kushner”).

Even so, extensive discrimination as evinced by a pattern and practice or class certification is not an essential foundation to support an injunction. On that point, the Fourth Circuit in United States v. Hunter, 459 F.2d 205, 218 n. 17 (4th Cir. 1972), cert. denied, 409 U.S. 934, 93 S.Ct. 235, 34 L.Ed.2d 189 (1972), observed:

“[A] pattern or practice ... is not an indispensable prerequisite ____ Relief may be based on a single (unintentional) violation ... when ... a group of persons are denied their statutory rights and the case raises an issue of general public importance.”

Later, that same tribunal in Sandford v. Coleman Realty, 573 F.2d 173, 178-79 (4th Cir.1978), stated:

“[Plaintiff] centers his challenge ... on [the District Court’s] failure to certify ... a class action and to grant injunctive relief____ [I]t was not necessary ... to secure class certification in order to secure ... enlarged injunctive relief, provided ... the facts warranted either individual or class injunctive relief. [T]he ... rule is that ‘[wjhether plaintiff proceeds as an individual or on a class suit basis, the requested [injunctive] relief generally will benefit not only the claimant but all other persons subject to the practice ... under attack. ’ 7 Wright & Miller, Federal Practice and procedure, § 1771, pp. 663-664 (1972). Since [this and another plaintiff] could receive the same injunctive relief in their individual action as ... by ... their proposed class action, class certification was unnecessary ... to give the plaintiffs the injunctive relief they requested through class certification, assuming the facts ... were sufficiently flagrant to support that relief.... [T]he facts [here] present a sufficiently clear and flagrant case of discrimination [and] the District Court committed clear error in failing to grant to [plaintiff] injunctive relief against the further maintenance by the defendant of ‘a policy of discrimination against black people seeking ... housing accommodations.’ ” (Quoting the complaint.)

(Footnotes omitted; emphasis added.) See also R. Schwemm, Housing Discrimination Law, at 251 (1983) (“The better view ... is that class certification is not a prerequisite to full injunctive relief in a § 3612 case.”) (citing Sandford) (“Schwemm”); Kushner, at 555 (“Injunctions may even be issued in the face of only one violation where the court deems it necessary to eliminate any vestige of discrimination.”) (footnote omitted).

In brief, since — as Sandford explained — an injunction will benefit others besides the suing plaintiff, the propriety of imposing that equitable remedy depends on each suit’s facts — not on the number of violations or movants involved. The question, rather, is whether “the facts ... were sufficiently flagrant to support that remedy.” Sandford v. Coleman Realty Co., 573 F.2d at 178.

As found by the jury, the facts in this case did point to flagrant racial discrimination. The jury, as mentioned, rejected Yellowstone’s asserted concern about the origin of Mrs. Rogers’ resources. Along that line, the jury rebuffed Yellowstone’s protestation that race was not a factor in the application’s denial. Other facts — likewise indisputably ascertained by the jury — impel the conclusion that the violation was serious.

To specify, as instructed by the Court on the §§ 1981-82 claim, the jury had to decide whether defendant intentionally discriminated against plaintiff. See Jury Instructions, at 8. Having returned a verdict for Mrs. Rogers on that cause of action, the jury unmistakably identified discriminatory intent. That finding of purposefulness then weighs against Yellowstone now. See generally Schwemm, at 251 (“Factors to be considered [when deciding whether to enter an injunction] are how intentional or flagrant the defendant’s violation was, ... ”) (footnote omitted).

To be sure, carrying even more weight is the jury’s conferral of punitive damages, thereby exhibiting its belief that defendant’s misconduct was glaring. See id., at 251 n. 135 (“Most ... cases ... by individual minority homeseekers that have resulted in a permanent injunction have been based on conduct that was flagrant enough to also justify an award of punitive damages.”).

More particularly, before granting such damages, the jury was instructed to gauge whether Yellowstone’s act was “maliciously or wantonly or oppressively done.” Jury Instructions, at 14. In making that award, the jury’s appraisal of Yellowstone’s misdeed was manifest. See Dugan, 27 S.D.L. Rev. at 190 (“An award of.punitive damages [in a housing discrimination case] presupposes that the defendant acted with ‘conscious and deliberate disregard of the consequences of his actions.’ ”) (citation and footnote omitted).

In sum, based on these and similar evidentiary findings, the jury assuredly perceived Yellowstone’s violation as flagrant. The Court accepts that assessment. Therefore, despite presenting one proven discriminatory act, an injunction is warranted.

That established, the nature of the injunction must next be resolved. Here, the Court’s equitable powers are broad:

“[E]quity gives the trial judge a large degree of discretion in choosing between various possible remedies and in molding the decree to fit particular situations.”

Schwemm, at 246 (footnote omitted).

Still, the remedy imposed must be concordant with certain principles to be served in housing litigation. To particularize, the injunction should be fashioned to effectuate

“[t]he twin goals in housing discrimination cases [which] are to insure that no future violations occur and to remove any lingering effects of past discrimination.”

Gore v. Turner, 563 F.2d at 165. See also Marable v. Walker, 704 F.2d 1219, 1221 (11th Cir.1983) (same); United States v. Warwick Mobile Homes Estates, Inc., 558 F.2d 194, 197 (4th Cir.1977) (same).

Further, the remedy should correspond in degree to the wrong:

“As in any equity proceeding, the scope of the remedy is determined by the nature and the scope of the legal violation.”

United States v. City of Parma, 504 F.Supp. 913, 916 (N.D.Ohio 1980), aff'd in part, rev’d in part, 661 F.2d 562 (6th Cir. 1981), cert. denied, 456 U.S. 926, 102 S.Ct. 1972, 72 L.Ed.2d 441 (1982) (citing Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 16, 91 S.Ct. 1267, 1276, 28 L.Ed.2d 554 (1971)). See also Schwemm, at 246 (“[A] federal court is required to tailor the scope of its remedy to fit the nature and extent of the violation

Succinctly stated, then, the equitable relief should be

“ ‘a special blend of what is necessary, what is fair, and what is workable.’ ”

Park View Heights Corp. v. City of Black Jack, 605 F.2d 1033, 1036 (8th Cir.1979), cert. denied, 445 U.S. 905, 100 S.Ct. 1081, 63 L.Ed.2d 321 (1980) (quoting Lemon v. Kurtzman, 411 U.S. 192, 200, 93 S.Ct. 1463, 1469, 36 L.Ed.2d 151 (1973)). See also United States v. Bob Lawrence Realty, Inc., 474 F.2d 115, 127 (5th Cir.1973), cert. denied, 414 U.S. 826, 94 S.Ct. 131, 38 L.Ed.2d 59 (1973) (“The District Court correctly exercised its discretion to issue an injunction properly tailored so as to keep interference with [defendant real estate broker’s] business at a minimum compatible with full compliance with the law.”).

Guided by those special principles, the Court has reviewed plaintiff’s proposed order and defendant’s response. The Court, additionally, has examined judicial orders in other housing discrimination cases to identify common characteristics for possible use here, if appropriate. See, e.g., United States v. West Peachtree Tenth Corp., 437 F.2d 221, 229-31 (5th Cir.1971); United States v. Mitchell, 335 F.Supp. 1004, 1007-OS (N.D.Ga.1971), aff'd sub nom. United States v. Bob Lawrence Realty, Inc., 474 F.2d at 118-19 n. 6; United States v. Youritan Construction Co., 370 F.Supp. 643, 651-54 (N.D.Cal.1973); Zuch v. Hussey, 394 F.Supp. 1028, 1055-57 (E.D.Mich. 1975); United States v. Real Estate One, Inc., 433 F.Supp. 1140, 1141-43 (E.D.Mich. 1977); United States v. Housing Authority, 504 F.Supp. 716, 733-36 (S.D.Ala.1980); United States v. City of Parma, 504 F.Supp. 913, 918-23 (N.D.Ohio 1980), aff'd in relevant part, 661 F.2d 562, 576-78.

From that caselaw inspection, the Court has discerned certain recurring directives. To expand, the injunctions rendered by those courts regularly contain two types of overall relief: prohibitive and affirmative. See, e.g., United States v. City of Parma, 661 F.2d 562, 568 (“The ‘comprehensive remedial plan’ formulated by the court ... contains a general injunction against discrimination in housing ... and a number of affirmative requirements.”) (citation omitted). See generally Marable v. Walker, 704 F.2d at 1221 (“Once a court finds that a landlord has discriminated against prospective tenants, it may enjoin the landlord from engaging in such practices____ The [Fair Housing] Act also authorizes ‘such affirmative action as may be appropriate.’ ”) (citation omitted).

The prohibitive provisions simply forbid a defendant from disobeying the law. Such admonitions are both broad and specific, i.e., a defendant is not to engage in discriminatory acts generally nor in those acts for which liability has just been ascribed. See, e.g., United States v. West Peachtree Tenth, Corp., 437 F.2d at 229 (For misrepresenting to inquiring blacks that there were no vacancies as well as for other discriminatory misdeeds, the landlord was broadly enjoined from “[flailing ... to rent ... to any person because of race ... that any [available] dwelling is not available.”).

Prohibitions alone, though, may be ineffective. While contempt proceedings, of course, can be invoked since an injunction is a judicial order, a defendant is only being enjoined from doing that which — by law — it could not have done before the suit.

Hence, often along with prohibitive provisions, courts have included affirmative terms to arrest the past misconduct and to prevent its non-repetition. See, e.g., Zuch v. Hussey, 394 F.Supp. at 1056 (“[Defendants] shall ... implement an affirmative program of compliance ... to insure that ... all housing sold ... will be made available to ... nonwhites on the same basis ... [as] ... to whites ____”); United States v. West Peachtree Tenth Corp., 437 F.2d at 229 (“[Defendants shall ... implement the following affirmative program to correct the effects of their past discriminatory practices: ____”).

Notably, with some consistency in the affirmative sections of the injunctive orders examined, other tribunals have required defendants to take definite steps via education and advertising towards sustained lawful conduct. Record keeping, too, has often been mandated, thereby facilitating judicial monitoring of compliance. See, e.g., United States v. Youritan Construction Co., 370 F.Supp. at 652-54 (“[Defendants shall ... implement an affirmative program of compliance ... to insure that ... all apartments will be available ... to white[s] ____ [Defendants shall ... conduct an educational program ____ [Defendants shall inform the public ... and their customer and clients ... of ... defendants’ nondiscriminatory policy ____ [Defendants shall ... make, keep and preserve the following records ____”) (footnote omitted).

In this case, plaintiff’s proposed order, for the most part, accords with the just-sketched profile of other judicial injunctions. Notwithstanding, the Court regards several of defendant’s objections to be well-taken.

For example, Mrs. Rogers requests that Yellowstone notify in writing six named real estate brokers that it is an equal housing opportunity cooperative — while providing them with a copy of the injunction. Yellowstone is willing to inform those brokers of its commitment to open housing but balks at enclosing the injunction, maintaining that there is no good reason for doing so. The Court agrees.

Yellowstone’s support of racial equality in housing opportunity is the positive message that should be announced. Conversely, drawing public attention to Yellowstone’s past negative act could well dis-serve this nation’s objective of “open, integrated residential housing patterns.” Otero v. New York City Housing Authority, 484 F.2d 1122, 1134 (2d Cir.1973). More to the point, extended unnecessary dissemination about defendant’s prior discriminatory conduct might discourage prospective minority purchasers from applying out of reluctance to live alongside attitudes perceived to be prejudiced and entrenched.

Also, publicly pillorying Yellowstone goes beyond the facts of this case. Though flagrant, Yellowstone’s shown discrimination was limited to one violation. And, as has been stressed, “[t]he remedy must ... be proportionate to the wrong ____” Kushner, at 548. In short, Yellowstone’s advertising its allegiance to open housing without circulating the injunctive order appropriately serves a progressive purpose without overstepping this suit’s factual confines.

In contrast, defendant’s position as to other terms is too unyielding, given the regrettable realities of this and other housing discrimination cases. For instance, Yellowstone is unwilling to keep an Applicant Flow Log that denotes an apartment-seeker’s race, color or national origin, allegedly because public policy prevents maintenance of such classification-conscious records.

Unfortunately, invidious racial (etc.) classification is the disease at the heart of this type of suit. That is the illness to be attended. And, the only effective means of monitoring progress towards health nondiscriminatory conduct is by compiling that classification-conscious data for judicial review.

Yellowstone’s point, however, is not without merit. Thus, despite directing that such information be gathered, this Court, as have been other courts when imposing similar record keeping requirements, will be sensitive to what, perhaps, is Yellowstone’s real concern. See, e.g., United States v. Youritan Construction Co., 370 F.Supp. at 654 (“The defendant’s keeping of racial records for the purpose of complying with this Order shall not be considered discriminatory.”).

Lastly, neither side’s position as to some provisions is acceptable — the most important being the injunction’s duration. Mrs. Rogers proposes three years, which is too long for a suit — again—grounded in one wrongdoing.

Unsurprisingly, Yellowstone asks for a lesser span — one year. That time period, though, is too short for a newly implanted open housing program to take root. Instead, a two-year duration is best suited for advancement towards the “twin goals” of eradicating the past discrimination and securing future adherence to our nation’s equal housing commitment. Gore v. Turner, 563 F.2d at 165.

Rather than exhaustive, the foregoing remarks on the caselaw guidance and the parties’ positions are only illustrative of the Court’s approach in shaping the injunction. The Court, in sum, has intended to fashion tempered relief that is a “ ‘special blend of what is necessary, what is fair, and what is workable.’ ” Park View Heights Corp. v. City of Black Jack, 605 F.2d at 1036 (quoting Lemon v. Kurtzman, 411 U.S. at 200, 93 S.Ct. at 1469).

Injunctive Order

Accordingly, the Court issues the following Injunctive Order:

A. Prohibitive Relief

1. Defendant shall not withhold its consent to the sale or transfer of stock certificates or other evidence of ownership interest in the corporation (hereinafter, an apartment’s purchase of sale) because of an applicant’s race, color or national origin.

2. Defendant shall not deny a minority applicant the opportunity to purchase an apartment because of unsubstantiated views on that person’s finances. For example, unless it can point to a sound basis for believing that a minority applicant’s income source will negatively affect his/her ability to buy and maintain an apartment, Yellowstone’s views on that prospective purchaser’s income origin shall not be a reason for disapproving the sale.

B. Affirmative Relief

1. Defendant shall provide each shareholder with a copy of this Injunctive Order and shall indicate in the corporate minutes the date of distribution.

2. Defendant shall hold a fair housing seminar at a shareholders’ meeting within forty-five days. That seminar may be conducted by plaintiff’s counsel or by a qualified representative from the NAACP, the National Urban League or similar organization. If preferring someone other than plaintiff’s counsel, Yellowstone shall submit that person’s name and background to the Court for approval. Any honorarium for the seminar leader shall be borne by Yellowstone.

3. After all existing supplies are exhausted, defendant’s letterhead and other correspondence paper shall be changed to include the statement “An Equal Housing Opportunity Cooperative.”

4. On the initial Sunday of each month for this decree’s first three months and on the initial Sunday for each four-month period thereafter, defendant shall place an advertisement no smaller than two column inches in the New York Times and the Amsterdam News stating that:

The Board of Directors of 66-36 Yellowstone Blvd. welcomes applications for the purchase of cooperative apartments from qualified minorities. The Board maintains a list of all vacant apartments as well as those that it knows will soon become available. The Board will provide interested persons with the names and telephone numbers of the sellers of those apartments.

5. In a letter signed by its president, defendant shall notify these real estate brokers that it is an equal housing opportunity cooperative willing to consider all applications without regard to race, color or national origin: Austin Sheppard, Nu-Place, Kraham, Rachmani Real Estate, Lana Realty and Mildred Mann Realty.

6. In the same manner conveying the same message, defendant also shall notify these community organizations: the NAACP, the New York City Chapters of the NAACP, the New York Urban Coalition, the National Urban League, and the New York City Chapters of the National Urban League.

7(a). Defendant shall promulgate a resolution directing its shareholders that, to receive consent for a transfer, the selling shareholder must notify the Board of his/her desire to sell the apartment.

(b) . After being notified, defendant shall then advertise the apartment’s availability for four successive Sundays in the New York Times and Amsterdam News. That advertisement shall invite applications from qualified minorities and shall include the statement “An Equal Housing Opportunity Cooperative.”

(c) . During that advertising period, the selling shareholder may negotiate with all applicants but shall not enter into a sales contract until the last advertisement has run.

8. Since it largely solicits objective financial information, defendant shall continue to use its current application form, modified as necessary to gather the additional information required for the Applicant Flow Log, e.g., “applicant’s race, color or national origin.” (See below.) Notwithstanding the general objectivity of that modified application form, however, if a subjective nonfinancial factor enters at all into Yellowstone’s decision to reject a minority applicant, that factor must not only have a sound basis but must be plainly stated in the Applicant Flow Log under the heading “reason for rejection.”

9. Defendant shall maintain an Applicant Flow Log that — depending on the stage through which each application progresses — shall contain this information: applicant’s name, apartment sought, applicant’s race, color or national origin, application receipt date, screening committee interview date, results, Board review date, results, purchase date, price and reason for rejection.

Note: Defendant’s recording an applicant’s race, color or national origin shall be solely for complying with this Injunctive Order and shall not be considered discriminatory.

10. Within seven days of the denial date, defendant shall notify each rejected minority applicant that his/her application was disapproved and the “reason for rejection” as stated under that heading in the Applicant Flow Log.

11. Defendant shall maintain all records required to be kept by this Injunctive Order.

12. In no less than fifty but no more than sixty days, defendant shall submit a report to the Court addressing this Injunctive Order’s implementation. That report is to be accompanied with the appropriate documentation including a copy of the Applicant Flow Log. After review, if the Court considers compliance satisfactory, defendant shall be permitted to tender future reports at 120-day intervals thereafter.

13. Defendant shall provide plaintiff with a copy of any report submitted to the Court.

C. Other Relief

1. Disputes or motions regarding this Injunctive Order are to be brought before the Court, which may in its discretion refer the matter to a United States Magistrate.

2. This Injunctive Order shall be effective for two years from this date. During that period, the Court shall retain jurisdiction.

3. This Injunctive Order’s terms shall be liberally construed to accord with the equal opportunity housing mandates of 42 U.S.C. §§ 1981-82 and 42 U.S.C. § 3612.

SO ORDERED.

      . In her complaint, plaintiff also alleged sex discrimination but dropped that contention at trial.

      . In addition to the federal statutes, Mrs. Rogers sued under New York State’s Human Rights Law, Executive Law § 296. Without objection, however, the Court in its Jury Instructions and Special Verdict Form incorporated that pendent cause of action into the § 3612 claim. Given that substantive combining of those statutes, the Court will only refer to §§ 1981-82 and 3612 as the statutory causes of action litigated, although Mrs. Rogers did, indeed, recover under State law as well.

      . In contrast, § 3612 requires only a showing that the effect of defendant’s conduct was discriminatory. See Robinson v. 12 Lofts Realty, Inc., 610 F.2d 1032, 1036 (2d Cir.1979) (‘‘[T]o prove a prima facie case of race discrimination [under the Fair Housing Act] plaintiffs needed to show only that the action ... had a racially discriminatory effect; they were not required to show that the defendants acted with racially discriminatory motivation.’’).


author: SESSIONS, Chief Judge.

text:
    In re Clarence W. STEINBRECHER, on Behalf of George MEEKS.
    Cause No. SA-84-CA-2026.
    United States District Court, W.D. Texas, San Antonio Division.
    Oct. 9, 1984.

      Clarence W. Steinbrecher, pro se.
   AMENDED MEMORANDUM ORDER SUMMARILY DISMISSING PETITION

SESSIONS, Chief Judge.

Clarence W. Steinbrecher has filed this habeas corpus petition under 28 U.S.C. § 2241 on behalf of George Meeks. The petition alleges that Meeks is unable to act for himself and is being incarcerated by the United States Marshal in violation of his constitutional rights. For the following reasons, the Court will summarily dismiss the petition for lack of jurisdiction.

Title 28, United States Code, Section 2242 provides that an “[application for a writ of habeas corpus shall be in writing signed and verified by the person for whose relief it is intended or by someone acting in his behalf.” A “next friend”, however, may not file a petition in every case in which the person actually detained might file a petition.

First, the authority of one person to apply for a writ of habeas corpus for the-release of another will be recognized only when the application for the writ establishes some reason or explanation, satisfactory to the court, showing: (1) why the detained person did not sign and verify the petition and (2) the relationship and interest of the would be “next-friend.” Second, individuals not licensed to practice law by the state may not use the “next friend” device as an artifice for the unauthorized practice of law. The “next friend” expedient, which on occasion may be essential to the efficacy of the “Great Writ,” may not be so abused as to unleash on the courts a quasi-professional group of lay writ writers who ■would seek to right all wrongs, both real and imagined. Third, when the application for habeas corpus filed by a would be “next friend” does not set forth an adequate reason or explanation of the necessity for resort to the “next friend” device, the court is without jurisdiction to consider the petition.

Weber v. Garza, 570 F.2d 511, 513-14 (5th Cir.1978).

In this regard, the instant petition merely alleges that George Meeks is “unable to act for himself” and that he is “presently in the custody of the United States Marshal and is confined somewhere in the United States Prison System and believed to be at a place called Reno [sic] Oklahoma.” The petition alleges nothing with respect to the relationship between Clarence W. Steinbrecher and George Meeks. On this basis alone, then, the Court would be constrained under Weber v. Garza to dismiss the petition for lack of jurisdiction. In addition, dismissal is supported by further examination into the merits of the petition.

George Meeks is presently incarcerated under an adjudication of civil contempt by Judge D.W. Suttle of this Court in United States of America v. George W. Meeks, As President of St. George Company, SA-79-CA-287 (W.D.Tex. November 25, 1980). The facts surrounding this adjudication can be found in United States v. Meeks, 719 F.2d 809 (5th Cir.1983). This Court now takes judicial notice of the file in SA-79-CA-287.

On March 9,1984, Judge Suttle held an evidentiary hearing to allow George Meeks to present evidence of his claimed inability to comply with the order holding him in contempt. After the hearing, on April 5, 1984, Judge Suttle found that “as of the date of this order, the respondent’s commitment has not lost its coercive power and that there is substantial likelihood that his continued confinement will accomplish the purpose set forth in the Order Holding Respondent in Contempt.” United States of America v. George W. Meeks, As President of St. George Company, SA-79CA-287 (W.D.Tex. April 5, 1984) (Order denying Respondent’s request for release from confinement). Meeks filed a notice of appeal from Judge Suttle’s order and that appeal is currently pending before the United States Court of Appeals for the Fifth Circuit under Cause Number 84-1407. The usual rule is that a habeas corpus action will not be entertained during the pendency of a direct appeal, inasmuch as the disposition of the appeal may render the habeas action moot. Welsh v. United States, 404 F.2d 333 (5th Cir.1968).

Furthermore, the petition filed by Steinbrecher alleges that Meeks’ incarceration violates two Fifth Amendment prohibitions. First, Steinbrecher alleges that Meeks’ incarceration violates his right against self-incrimination. Second, he alleges that Meeks’ incarceration amounts to a deprivation of his liberty without due process of law. The first contention has already been answered by the Fifth Circuit in the first appeal in SA-79-CA-287. Relying on- the reasoning of United States v. Rylander, 460 U.S. 752, 103 S.Ct. 1548, 75 L.Ed.2d 521 reh’g denied, 462 U.S. 1112, 103 S.Ct. 2466, 77 L.Ed.2d 1342 (1983), the Fifth Circuit affirmed Judge Suttle’s order holding Meeks in civil contempt. The Court held that:

Under the reasoning in Rylander, the only issue Meeks could litigate in the final hearing in which he was found guilty of contempt was the issue of his inability to produce the corporate records at the time of that contempt hearing. He introduced no evidence because he claimed the privilege against self-incrimination. The privilege against self-incrimination cannot substitute for evidence. The obligation of proof was wholly on Meeks.

United States v. Meeks, 719 F.2d 809, 812 (5th Cir.1983). This Court need not reconsider a claim that has been raised and disposed of on a previous appeal. United States v. Rowan, 663 F.2d 1034 (11th Cir. 1981).

[5J Steinbrecher’s second contention is that Meeks’ incarceration amounts to a deprivation of liberty without due process of law. In effect, Steinbrecher contends that a federal district court does not have the power to incarcerate for civil contempt; he contends that incarceration can only take place after a grand jury indictment and a petit jury trial. It is well established, however, that federal courts have inherent power to enforce compliance with their lawful orders through civil contempt. See, e.g., Shillitani v. United States, 384 U.S. 364, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966).

Accordingly, the Court dismisses this action summarily without prejudice for lack of jurisdiction. The Clerk is directed to furnish copies of this order and the judgment entered thereon to the United States Attorney, Clarence W. Steinbrecher, George Meeks, and the United States Court of Appeals for the Fifth Circuit.


author: MacMAHON, District Judge.

text:
    KOUS-TV, INC., Plaintiff, v. SPOT TIME, LTD., Carmine Patti, Bankers Trust Co., Bank of New York and Dancer Fitzgerald Sample, Inc., Defendants.
    No. 84 Civ. 3213 (LFM).
    United States District Court, S.D. New York.
    Oct. 10, 1984.

      Ganz, Hollinger & Towe by David L. Ganz, New York City, for plaintiff.
    Reback & Reback by Eileen J. Potash, New York City, for defendant Carmine Patti.
    Alan R. Katz, New York City, for defendant Bankers Trust Co.
    Richard C. Thompson, White Plains, N.Y., for defendant Bank of New York.
   MEMORANDUM and ORDER

MacMAHON, District Judge.

Plaintiff moves for summary judgment against all defendants, pursuant to Fed.R. Civ.P. 56(a). Defendant Carmine Patti (“Patti”) cross-moves for summary judgment against plaintiff. Defendant Bankers Trust Co. moves for summary judgment on its cross-claim against the Bank of New York.

Background

This is an action based on the alleged conversion of two checks, issued by Dancer Fitzgerald Sample, Inc. (“Dancer Fitzgerald”) and payable to plaintiff. The following facts are not in dispute:

Plaintiff KOUS-TV, a television station operating in Montana, and defendant Spot Time, Ltd. (“Spot Time”), a New York corporation, entered into a contract whereby Spot Time agreed to place advertising on KOUS-TV in return for a commission. Defendant Patti, president of Spot Time, received two checks, payable to KOUS-TV, in the amounts of $3,145.00 and $9,877.00, and drawn on Dancer Fitzgerald’s account at Bankers Trust Co. Patti endorsed the checks to “Spot Time, Ltd.” and cashed them at the Bank of New York. To date, KOUS-TV has not received the money owed to it by Dancer Fitzgerald.

Plaintiff alleges that defendants are indebted to it in the amount of $13,022.00. The essence of its claim is that Patti erroneously endorsed the two checks, that defendant banks unlawfully accepted and paid the checks, and that Patti and Spot Time have subsequently converted plaintiff’s funds to their own use.

Plaintiffs Motion for Summary Judgment against Spot Time.

In support of its motion for summary judgment, KOUS-TV has submitted copies of the two checks, payable to KOUS-TV and endorsed by Spot Time, and the contract between KOUS-TV and Spot Time. The relevant provision of the contract states:

The billing of all advertisers will be handled by Station KOUS-TV and upon collection, Station KOUS-TV will pay Spot Time, Ltd. a 15% commission on the net proceeds to the station.

The contract says nothing about Patti’s or Spot Time’s authority to bill and collect for KOUS-TV, much less to endorse and cash checks payable to KOUS-TV.

Patti, nevertheless, contends that, pursuant to “the agreement” between the two companies, Spot Time had authority to bill and collect for the station. He also asserts that he personally had authority to endorse and negotiate checks payable to KOUS-TV. Patti, however, has presented no evidence in support of these contentions. For example, he refers to an agreement which granted Spot Time certain authority, but he submits no such agreement.

These bare assertions are insufficient to raise a genuine issue of fact. A litigant opposing summary judgment may not rest upon mere conclusory allegations or denials. Rather, pursuant to Fed.R. Civ.P. 56(a), he is obliged to set forth “concrete particulars” which establish that his version of the facts is not fanciful. Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 445 (2d Cir.1980). Here, no specific facts have been submitted by Spot Time to raise an issue as to its authority to endorse or cash checks payable to KOUSTV. To the contrary, the contract clearly states that KOUS-TV would itself handle all billing and after collection pay any commission owed to Spot Time.

Given these considerations, we conclude that Spot Time acted without authority in endorsing and cashing these checks, and, since it failed to remit the proceeds to KOUS-TV, is liable for converting plaintiffs funds to its own use.

Plaintiffs Motion for Summary Judgment against Patti.

We grant plaintiff’s motion for summary judgment against Patti. An agent who converts the property of a third party is liable for such conversion, and it is no defense if his acts were committed in pursuance of his employment or for the benefit of his principal. R.L. Rothstein Corp. v. Kerr S.S. Co., 21 A.D.2d 463, 251 N.Y.S.2d 81 (1st Dep’t 1964). Here, Patti is liable for his tort whether or not he was acting in his capacity as president of Spot Time. Moreover, he is not relieved of his liability merely because his principal is vicariously liable.

Plaintiffs Motion for Summary Judgment against Bankers Trust Co. and Bank of New York.

We deny plaintiff’s motion for summary judgment against both banks. This motion is premature as there are currently issues of fact which need to be resolved. Without further discovery, it cannot be determined whether the banks were negligent in relying on the fact that Spot Time or Patti was authorized to cash checks payable to KOUS-TV. In the face of conflicting evidence, the question of whether the banks acted in a “commercially reasonable manner” in accepting and cashing the checks is best left to the trier of fact. N.Y. UCC § 3-419(3). See, e.g., Calhoun v. Northeast Airlines, 180 F.Supp. 532 (S.D. N.Y.1959) (issue of whether bank was negligent in its duty of inquiry as to the endorsement of check could not be resolved by summary judgment).

Defendant Bankers Trust Co.’s Motion for Summary Judgment against Bank of New York.

Defendant Bankers Trust Co. moves for summary judgment on its cross-claim against Bank of New York. The essence of this claim is that by endorsing plaintiff’s checks, Bank of New York warranted that it had good title to the checks or was authorized to obtain payment or acceptance on behalf of one who has good title. N.Y. UCC § 4-207(l)(a). Bankers Trust asserts that Bank of New York has breached this warranty and is therefore fully liable to Bankers Trust.

Commercial reasonableness is not considered a proper defense to this type of warranty claim. See Menthor, S.A. v. Swiss Bank Corp., 549 F.Supp. 1125 (S.D. N.Y.1982). Therefore, there is no need to make a factual inquiry into the nature or reasonableness of Bank of New York’s actions. Bank of New York has presented no evidence to dispute that it endorsed plaintiff’s checks. Therefore, to the extent that Bankers Trust is ultimately liable to plaintiff, it is entitled to recover from Bank of New York as a matter of law for Bank of New York’s breach of warranty of good title. Cf. Hartford Accident & Indemnity Co. v. First Nat'l Bank & Trust Co. of Hudson, 281 N.Y. 162, 22 N.E.2d 324 (1939).

Accordingly, the Clerk of the court is directed to enter summary judgment for plaintiff against defendants Spot Time, Ltd. and Carmine Patti, and to enter summary judgment for defendant Bankers Trust Co. against defendant Bank of New York. All other motions are denied.

So ordered.


author: HUYETT, District Judge.

text:
    Delma R. LAYTON and Roy E. Layton v. BLUE GIANT EQUIPMENT COMPANY OF CANADA, LTD., et al.
    Civ. A. No. 83-3363.
    United States District Court, E.D. Pennsylvania.
    Oct. 18, 1984.
    Soren P. West, Lancaster, Pa., for plaintiffs.
    Austin Hogan, Philadelphia, Pa., for Blue Giant.
    Christopher S. Underhill, Lancaster, Pa., for Equip. Co.
   MEMORANDUM AND ORDER

HUYETT, District Judge.

Plaintiff in this products liability case alleges that she was injured at work. She claims that she was involved in using a lift-jack manufactured by defendant Blue Giant Equipment Company of Canada (“Blue Giant”) and was stopped at the intersection of two aisles in her employer’s warehouse when her lift-jack was struck from the rear by another lift-jack operated by a fellow employee. As a result of this accident, plaintiff’s foot was trapped beneath the wheels of her lift-jack and she suffered serious injury.

Plaintiff alleges that her injury was caused by the lack of brakes (both stopping and parking) on the lift-jacks involved in the accident. She has sued the manufacturer of the lift-jack she was using as well as the manufacturers of all other lift-jacks in use at her employer’s warehouse. Apparently, the identity of the manufacturer of the second lift-jack cannot be determined. Plaintiff is relying on an expanded theory of alternative liability and argues that the manufacturers should have the burden of proving that their product was not responsible for her injuries.

The theory of alternative liability was first developed in Summers v. Tice, 33 Cal.2d 80, 199 P.2d 1 (1948). That case involved an injury caused by a gunshot wound. The wound could have been caused by either of two hunters, but not both. The plaintiff was unable to identify which of the two had fired the shot which injured him. The court recognized the hardship imposed by the traditional doctrine of tort law that requires the plaintiff to prove the identity of the tortfeasor, and shifted to the defendants a burden of exculpating themselves. This decision was premised on a number of grounds. First, the desire to ensure that the mere nature of the tortious conduct would not bar plaintiff’s recovery. 199 P.2d at 3-4. Second, the fact that both of the defendants were negligent. Id. Third, the fact that all of the potential tortfeasors were present in the court. Finally, the court recognized that the defendants were in a much better position than the plaintiff to offer evidence regarding which of them fired the injurious shot. Id. Pennsylvania adopted this theory in Snoparsky v. Baer, 439 Pa. 140, 266 A.2d 707 (1970) in a case factually similar to Summers.

Defendants argue that Pennsylvania courts have never applied a Summers-like approach outside of a case involving an intentional tort. Such is not the case. In Ehrlich v. Abbot Laboratories, 5 Phila. 249 (C.P.Phila.1981), the court did, in fact, apply a Summers-type of analysis to a products liability case.

In Ehrlich, plaintiff alleged that she had been injured as a result of her mother’s ingestion of the drug Diethylstilbestrol (“DES”) during the time she was pregnant with plaintiff. Due to a number of factors, plaintiff was unable to identify the manufacturer of the pills her mother had actually taken and instead sued ninety-four drug companies (allegedly all those that manufactured and distributed DES). In denying defendant’s motion for summary judgment, the court held that the burden of proof on identification of the manufacturer of the pills involved should shift to the defendants.

The court’s decision was based on the presence of four factors. First, the plaintiff could not identify the manufacturer of the pills involved and this failure was through no fault of her own. Id. at 265. Second, manufacturers of substantially all of the pills which could have caused the injury were joined as defendants. Id. at 266. Third, plaintiff alleged that all the defendants were tortfeasors in that all of them had placed the defective drug into the stream of commerce at one time or another. Id. at 267. Finally the court relied on the fact that ail of the defendants’ products were essentially similar or identical in that all of them were defective in the same way. Id.

Ehrlich represents the furthest extension of Summers in Pennsylvania law. Plaintiff argues that the instant case should be controlled by it. For the reasons set forth below I decline to follow Ehrlich given the facts and allegations of the present case.

As the Ehrlich court recognized, the application of Summers in a products liability case was a large step. Id. at 268. The facts of that case, however, presented a far more compelling set of circumstances for the extension of the doctrine of alternative liability than do the facts of the instant case. The Ehrlich court found four facts present in that lawsuit to be persuasive arguments in favor of extending Summers. An analysis of the same factors in this case reveals that they are not present in this lawsuit to the same degree as they were in Ehrlich.

Most importantly, it is not apparent that plaintiff could not identify the manufacturer of the lift-jack that rammed hers through the exercise of reasonable diligence. Plaintiff was at the scene of the accident. She worked there on a daily basis. The plaintiff in Ehrlich, by contrast, had been harmed by drugs taken by her mother decades ago. Id. at 265. Moreover, the marketing techniques employed by the defendants in that case made identification of the manufacturer of the pills difficult, if not impossible, even for the woman who originally took them. Id. The lift-jacks by contrast could have easily been identified by direct examination or through investigation with plaintiffs employer.

In the instant case, plaintiff could have identified the lift-jack that had struck hers by simply looking over or asking someone which one it was. To accept plaintiffs argument that she should not be held to such a minimal level of diligence goes too far. To follow this line of reasoning, plaintiffs should be allowed to proceed on a Summers theory against all the drivers in a jurisdiction for a hit and run car accident, or even for a car accident where they simply neglected to identify the driver of the car at the time of the accident. Obviously, such an extension of Summers would make it an exception swallowing the general rule that plaintiffs must prove the identity of an alleged tortfeasor.

Further, it is not clear that all of the defendants’ lift-jacks in the present case are so similar as to bring this case within Ehrlich. Presumably, not all of these machines are identical. There may also be issues arising from subsequent modifications made to the lift-jacks after plaintiff’s employer bought them.

For these reasons, under the facts of this case as they have been pleaded, I decline to follow Ehrlich. Motions for summary judgment filed by defendants Stokvis Multiton Corporation, Equipment Corporation of America, Lift Parts Equipment Manufacturing Company and third-party defendant Anderson-Clayton and Company will therefore be granted. An appropriate order follows.

      . Plaintiff has sued Blue Giant Equipment Com- ' pany of Canada, Ltd. Apparently, the lift-jack she was operating was manufactured by Blue Giant Equipment New York, a wholly owned subsidiary of the Canadian firm. Plaintiff has filed a motion to amend her complaint to substitute the New York firm as defendant. On July 11, 1984, I denied plaintiff’s motion without prejudice because she had not filed a memorandum of law along with her motion as required by Local Rule of Civil Procedure 20(c). As of this date plaintiff has not filed a renewed motion and memorandum. I do not consider the potentially pending motion to be a relevant factor in my decision regarding the summary judgment motions of the other defendants.

      . Defendants have placed considerable reliance on the fact that California courts have not applied Summers in a products liability context. Assuming, arguendo, that the case cited by defendant Garcia v. Joseph Vince Co., 84 Cal. App.3d 868, 148 Cal.Rptr. 843 (1978), does in fact decline to extend the doctrine to a products liability case indistinguishable from the present case, I find no need to follow the law of California in this suit.

      . I recognize that there is an argument to be made regarding the precedential value to be accorded a decision of a state trial court. I have examined Ehrlich and found the opinion to be well reasoned and persuasive. I find no reason to not consider it as a correct statement of the law in this area in Pennsylvania.

      . Third-party defendant Anderson-Clayton and Company also argue that plaintiffs theory is fatally flawed because she has not sued all of the manufacturers of lift-jacks represented at the plaintiffs job site. I do not assume that this statement of law is correct. See Ehrlich at 260-63. I find that other aspects of this case require that summary judgment be granted.

      . Defendants have placed considerable reliance on Judge Shapiro’s decision in Klein v. Council of Chemical Associations, et al., 587 F.Supp. 213 (1984). That case involved facts that are very different from the present case. I therefore do not consider it to be controlling here.


author: STEGER, District Judge.

text:
    Ex parte, Stephen F. HEFNER, Petitioner.
    No. TY-84-454-CA.
    United States District Court, E.D. Texas, Tyler Division.
    Oct. 22, 1984.

      Phil Burleson, Dallas, Tex., Kelly Ireland, Ireland, Carroll & Kelley, Tyler, Tex., for petitioner.
    David K. Wilson, Asst. County' Atty., Sherman, Tex., for Grayson County.
    Scott Pelley, Sherman, Tex., amicus curiae for the Estate of Mary Ellen Bader.
   ORDER

STEGER, District Judge.

This proceeding involves a collateral attack upon a contempt judgment entered by a state court. Before the Court is the Petition for Writ of Habeas Corpus filed by Stephen F. Hefner, petitioner in the above entitled and numbered action. The Court has duly considered said petition, the briefs in support thereof, and the evidence submitted by petitioner at the evidentiary hearing on his application and is of the opinion that the petition should be denied and that the writ should, not issue for the following reasons.

This case was instituted by petitioner on October 5, 1984, pursuant to 28 U.S.C. § 2254. It arises out of a guardianship matter currently pending in the County Court at Law No. 2 of Grayson County, Texas, hereinafter referred to as the “county court.” On January 6, 1984, Walter H. Bader, Jr., petitioned the county court to appoint him as temporary guardian of the person and of the estate of his mother, Mary Ellen Bader. Authority for this appointment was founded upon Tex.Prob. Code Ann. § 131 and § 133 (Vernon 1980). This application was granted January 6, 1984 and the guardian’s oath and bond were filed that same day. See Petitioner’s Hearing Exhibit No. 1 pg. 7. On February 10, 1984, petitioner entered an appearance in this matter on behalf of Mary Ellen Bader and contested the appointment of the temporary guardian. See Petitioner’s Hearing Exhibit No. 1, pgs. 88-91. The guardian filed an application to make the temporary guardianship permanent and a complaint against petitioner and Mary Ellen Bader requesting them to deliver certain property to the estate. Petitioner’s Hearing Exhibit No. 1 pgs. 24-31, 94-5. Both of these filings were opposed by petitioner on behalf of Mary Ellen Bader on April 5, 1984. Petitioner’s Hearing Exhibit No. 1 pgs. 21-23, 98-102. In the above mentioned motions and responses filed on béhalf of Mary Ellen Bader, petitioner has unwaveringly asserted that the county court has no jurisdiction to entertain this guardianship because probate code sections 131 and 133 are unconstitutional insofar as they dispense with the requirements of pri- or notice and an opportunity to be heard before the guardianship may be established.

A second complaint requesting petitioner to deliver property to the estate was filed by the guardian on August 22, 1984. Petitioner’s Hearing Exhibit No. 1, pgs. 379-381. On August 24, 1984, the county court ordered that the complaint would be heard in open court on October 1, 1984.

At this hearing petitioner was called as a witness. He was asked by guardian’s counsel if he had received approximately $67,000.00 worth of cash and travelers checks belonging to the estate of Mary. Ellen Bader subsequent to the time she was placed under a guardianship by,the county court. The specific question, as set forth in the county court’s Judgment of Contempt, was: “Mr. Hefner, would you tell us whether or not you received from Mary Ellen Bader subsequent to the time that she was placed under a guardianship by this court the sum of $67,000.00 in cash and in travelers checks?” To which question petitioner responded, according to the Judgment of Contempt, as follows: “I refuse to answer the question on the ground that it would violate the attorney-client privilege.” The county court judge then ordered the petitioner to answer the question. Petitioner refused to comply with the county court’s order. The county court thereupon declared petitioner to be in contempt of court and ordered him confined to the Grayson County Jail until such time as petitioner purged himself of contempt by answering the question he had previously been ordered to answer by the county court.

The Judgment of Contempt and commitment order were entered by the county court on October 2, 1984. Petitioner was thereafter incarcerated in the Grayson County Jail. That same day Mr. Hefner petitioned the county court for a writ of habeas corpus and a request for setting of bond and a hearing, and same was denied. On October 3, 1984 an application for writ of habeas and a request for bond and a hearing was presented to the judge of the 15th Judicial District Court in Grayson County, Texas, and same was thereafter denied. Subsequently, still on October 3, an application for writ of habeas corpus and request for a bond and a hearing were presented to and denied by the Supreme Court of Texas. As stated previously, petitioner then filed the instant petition for habeas corpus with this Court on October 5, 1984.

In his petition, Mr. Hefner contends that he is being illegally confined and restrained of his liberty by respondent because the judgment of contempt and commitment issued by the county court is void, illegal and/or a violation of due process under both the Texas and United States Constitutions because of the following reasons:

1. Petitioner would show that the order entered by the county court on October 2, 1984, violates the United States and Texas Constitutions as an impermissible imprisonment for a debt, and is further violative of V.A.T.C.S. Art. 1911a, as amended, in that the order of incarceration is for an indefinite period of time, and, therefore, exceeds the jurisdiction of the rendering court, and as such, is void under said constitutional provisions.
2. The county court issued said order on October 2, 1984, pursuant to jurisdiction which it does not have since the order of January 6, 1984, appointing a guardian, is void for the reason that no service of process was had or attempted on the alleged ward, Mary Ellen Bader, and/or the Texas Probate Code is unconstitutional if it provides for no service of process on an alleged incompetent who is at the time of such hearing not a resident of the State of Texas. Since the county court did not have jurisdiction of the person of Mary Ellen Bader, the alleged ward, the court did not have jurisdiction to conduct the hearing where the alleged contempt occurred and did not have the power to order petitioner to answer questions concerning property over which it had no jurisdiction.
3. The manner in which the commitment was issued violates due process in that no hearing thereon was granted to petitioner for issuance thereof and the issuance thereof is void since it cannot be determined whether the punishment for contempt is civil, criminal and/or a combination of both.

The first and third grounds raised above may be disposed of briefly.

The first ground contains two separate arguments. The first alleges that Petitioner has been incarcerated for non-payment of a debt. This allegation is never explained. Petitioner was held in contempt for refusing to answer questions directly related to a proceeding then before the trial court. The commitment was only indirectly related to a debt.

The second argument in the first ground is that petitioner’s incarceration is in violation of a state statute. See Tex. Rev.Civ.Stat.Ann. art. 1911a (Vernon Supp. 1984). It is unclear how this argument, even if true, raises a constitutional issue. Upon examination of the statute, it is apparent that the trial court did not violate its provisions. Since petitioner was held in contempt while testifying as a witness, he may not claim the benefits of § 2(c) of the statute. A trial court may hold a person in contempt and confine him indefinitely until that person obeys a court order. Tex.Rev. Civ.Stat.Ann. art. 1911a, § 3. There is a maximum time limit of six months for incarceration. Tex.Rev.Civ.Stat.Ann. art. 1911a, § 2(a). The only other restriction is that the order must clearly specify the actions necessary for the contemnor to purge himself of the contempt. See Ex parte Choate, 582 S.W.2d 625, 627 (Tex. Civ.App. — Beaumont 1979, no writ). The order was sufficiently precise in this case: Petitioner was required to answer the questions asked of him.

The third ground for voiding the contempt order also contains two arguments. The first argument is that petitioner should have been granted a hearing prior to the judgment of contempt. A hearing is required only when the contempt was committed outside the presence of the court. See, e.g. Ex parte Norton, 610 S.W.2d 512, 513 (Tex.Crim.App.1981). In this case, the contempt occurred in open court, and no hearing was required.

The second argument of the third ground seeks to void the contempt order because it is unclear whether the order is for civil or criminal contempt or both. No reason is given suggesting why such an omission is fatal, and the Court finds none.

The second ground raised by petitioner is of a more problematic nature. This portion of his collateral attack is premised upon the suggestion that the contempt judgment entered against him by the county court is void. Petitioner claims the judgment is void because the hearing at which he was adjudged to be in contempt of court was convened in aid of a statutory proceeding (the § 131 temporary guardianship) which is in violation of the United States Constitution. The specific claim of unconstitutionality is that Mary Ellen Bader’s right to the procedural and substantive due process of law, as guaranteed by the Fourteenth Amendment to the United States Constitution, has been denied in that her estate and her person have been subjected to a guardianship without prior notice of such application and a corresponding opportunity to be heard in opposition to the application; and that her person and estate have been subjected to plenary third party control without a showing of a compelling state interest justifying this degree of control and without a showing that a less restrictive method of control would achieve the desired results. Because of these alleged constitutional infirmities in the § 131 temporary guardianship procedure, petitioner contends that any directive or order issued in connection therewith, or any proceeding or hearing had in aid thereof, is absolutely void. If the October 2 hearing was void as a matter of law, any judgment of contempt stemming from a refusal to obey a court order issued at this hearing is, a fortiori, void as a matter of law. This ground for relief presents an ingenious argument and one that, at first reading, appears to demonstrate that petitioner may be entitled to this Court’s writ. Upon closer examination, however, the Court has noted a flaw in petitioner’s reasoning which the Court believes operates to defeat this final theory of relief.

At the outset, the Court would note that petitioner is entirely correct in his assertion that a successful collateral attack may be waged against a contempt judgment that is void. A habeas corpus proceeding is a collateral attack on a judgment of contempt, and one may be relieved of its impositions only if the judgment is void. Ex parte Thetford, 369 S.W.2d 924, 925 (Tex.1963); Ex parte Rhodes, 163 Tex. 31, 32, 352 S.W.2d 249 (1962); Ex parte Kidd, 156 Tex. 282, 294 S.W.2d 705 (1956); Ex parte Sentell, 153 Tex. 252, 266 S.W.2d 365 (1954); Ex parte Helms, 152 Tex. 480, 259 S.W.2d 184 (1953). “For this court to order the release of [petitioner], the trial court’s contempt order must be void; i.e., beyond the power of the court to enter.” Ex parte Gorena, 595 S.W.2d 841, 843 (Tex. 1979) (emphasis supplied). In other words, a court must have had jurisdiction to enter the order that led to the contempt. See e.g. Ex parte Henry, 147 Tex. 315, 215 S.W.2d 588, 597 (1948) (granting writ of habeas corpus to release contemnors held in violation of. a void injunction prohibiting picketing within 100 feet of railway tracks); Ex parte Wagley, 530 S.W.2d 609, 611 (Tex. Civ.App. — Houston (14th) 1975, no writ) (granting writ of habeas corpus to release contemnors committed because they ignored an amended judgment which the court had no jurisdiction to amend); McCullough v. McCullough, 483 S.W.2d 869, 871 (Tex.Civ.App.—Tyler 1972, no writ) (reversing judgment of contempt for refusal to pay support for children over age eighteen since court had no jurisdiction to enter such an order).

In attacking the contempt adjudication made against him, petitioner contends the county court did not have the necessary power or authority to enter any order, much less a judgment of contempt, in connection with the guardianship proceeding in question because said guardianship was established in direct contravention of rights secured to Mary Ellen Bader by the United States Constitution. The Court agrees with petitioner that a person is entitled to a discharge from custody via a writ of habeas corpus when that person’s due process rights are being denied. See Ex parte Peterson, 444 S.W.2d 286, 289 (Tex.1969); Ex parte Hosken, 480 S.W.2d 18, 20 (Tex. Civ.App.—Beaumont 1972, no writ). Yet in this case, it is not petitioner’s due process rights that are perhaps being denied,, but Mrs. Bader’s.

Petitioner’s conclusion that he may freely assert the denial of another person’s constitutional rights as justification for a refusal to discharge an obligation that devolves solely upon himself is ill-conceived. Stated differently, the Court does not believe that petitioner can lawfully refuse to answer a question put to him in a court proceeding because he believed that the court proceeding could possibly be in violation of some other individual’s constitutional rights. Although some person’s constitutional rights may, in fact, be adversely affected by the court proceedings, a third person, such as petitioner Hefner, would hot have “standing” to assert these violations as grounds for obtaining personal habeas relief. The reason for this conclusion is explained below.

Standing to sue is an element of the federal constitutional concept of the “case or controversy” requirement of Article III. A precise definition of its theoretical contours has been attempted by the Supreme Court but not, as of yet, completely achieved. “We need not mince words when we say that the concept of ‘Art. Ill standing’ has not been defined with complete consistency in all of the various cases decided by this Court which have discussed it, nor when we say that this very fact is probable proof that the concept cannot be reduced to a one-sentence or one-paragraph definition.” Valley Forge Christian College v. American’s United for Separation of Church and State, Inc., 454 U.S. 464, 475, 102 S.Ct. 752, 760, 70 L.Ed.2d 700 (1982). However, it has been stated that “at an irreducible minimum, Art. Ill requires the party who invokes the court’s authority to ‘show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant,' and that the injury ‘fairly can be traced to the challenged action’ and ‘is likely to be redressed by a favorable decision.’ ” Id. at 472, 102 S.Ct. at 758 (citations omitted).

A fair argument may be made that petitioner possesses the requisite standing under this liberal definition. However, even when the Article III requirements are met, “a plaintiff may still lack standing under the prudential principles by which the judiciary seeks to avoid deciding questions of broad social import where no individual rights would be vindicated and to limit access to the federal courts to those litigants best suited to assert a particular claim.” Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99-100, 99 S.Ct. 1601, 1607-1608, 60 L.Ed.2d 66 (1979). Three such prudential rules that have been identified are that plaintiff’s interest must come within the “zone of interests” arguably protected or regulated by the law in question, that the courts will not hear “generalized grievances” shared in substantially equal measure by all or a large class of citizens, and that plaintiff must assert his own legal interests rather than those of third parties. It is this third prudential consideration that is fatal to the attainment of the relief petitioner seeks from this Court.

Standing has been loosely stated to be whether “a party has a sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy.” Sierra Club v. Morton, 405 U.S. 727, 731, 92 S.Ct. 1361, 1364, 31 L.Ed.2d 636 (1972). The justicable controversy petitioner has sought to raise in this cause is whether or not Mary Ellen Bader’s fourteenth amendment rights have been violated by the establishment of a guardianship over her person and her estate pursuant to section 131 and 133 of the Texas Probate Code. Petitioner has raised this issue in this cause in his own behalf. However, petitioner has consistently raised this exact same issue on behalf of Mary Ellen Bader in the county court, months before the instant action was ever instituted. The Court does not believe that petitioner has a sufficient stake in the question of whether or not sections 131 and 133 are constitutional to force a judicial resolution of that controversy at this time and in this Court. As just mentioned, this identical question has been raised in the courts of the State of Texas by Mary Ellen Bader in a proceeding wherein the resolution of the question will have a direct and important impact on her life. The Court can conceive of no better example of the Supreme Court’s “injury in fact” requirement than Mary Ellen Bader’s pending challenge of section 131 and 133 in the county court. Any injury that petitioner may have sustained as a result of the application of sections 131 and 133 is purely derivative of the primary injury suffered by Mary Ellen Bader. Therefore, the Court believes that prudential considerations prohibit petitioner from possessing the requisite standing to litigate the constitutionality of sections 131 and 133.

This is not to say that third parties will never be allowed to assert the constitutional rights of others. See Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976) (upholding standing of beer vendor to invoke the rights of male beer buyers in challenging a state -law forbidding sale of 3.2% beer to males under 21 but permitting such sale to all females over 18); Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972) (distributor of contraceptives challenging the constitutionality of a state law banning the distribution of such devices to unmarried person was allowed standing to assert the right of the unmarried users). However, in this cause petitioner is not attempting to assert the constitutional rights of others for their benefit, as is the case in the above cited authority. Instead, petitioner is attempting to assert the constitutional rights of a third person (Mary Ellen Bader) chiefly for his benefit, i.e. asserting her fourteenth amendment rights in order to free himself from the county jail.

The Court would be less than candid if it were to fail to mention that the Supreme Court has made exceptions to its prudential rules regarding third party standing. In Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) a doctor under prosecution for selling contraceptives in violation of state law was allowed to assert the constitutional rights of his patients in order to avoid conviction. In Buchanan v. Warley, 245 U.S. 60, 38 S.Ct. 16, 62 L.Ed. 149 (1917) a white person was suing for specific performance of his contract to sell real estate to a black person. The black man’s defense to the suit was that a city ordinance barred blacks from the area in question. Such an ordinance violated the fourteenth amendment but here the black defendant, whose constitutional rights were violated by the ordinance, was relying on it as a defense, while the white person, whose constitutional rights were not violated by the ordinance, was claiming it to be unconstitutional. The Supreme Court allowed the challenge to be made in spite of this. See also Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925) (a parochial school was allowed to attack a statute that would have required public education for all children, though the constitutional rights involved were those of children and their parents).

The Court believes that these cases are all explainable on the ground that the rule against relying on the rights of others is a rule of judicial self-restraint, not part of the constitutional requirement of standing (i.e., a prudential consideration) and should not be applied where, as in the cases cited above, it would be difficult if not impossible for the persons whose rights were asserted to present their grievance before any court. See Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953). In this case the Court is persuaded that it is not difficult or impossible for the person whose rights are being asserted (Mrs. Bader) to present her grievance before any court. In fact, as previously noted, she is challenging the alleged denial of her fourteenth amendment rights in a pending lawsuit. The Court believes the facts existing in this case are appropriate for the self-restraining limitations of the Supreme Court’s prudential rule regarding the assertion of a third party’s constitutional rights. Specifically, the constitutional issue has been raised and preserved by Mary Ellen Bader in a competent court of the State of Texas. This Court believes the appellate courts of Texas are fully capable of considering the constitutionality vel non of one of its laws. It would be judicially unwise for this court to circumvent that appellate process by allowing a third party not affected by the law to manufacture a situation whereby the exact same constitutional issue would be raised in a different forum at an earlier time. The Court does not believe this is proper and it will not entertain an issue of this nature raised in that manner.

The reason for disallowance of claims akin to those raised by petitioner under the facts of this case are clear. For example, suppose an unwilling prosecution witness refuses to answer questions because his testimony might incriminate the defendant. The witness cannot avoid contempt by claiming a fifth amendment privilege on behalf of the defendant. By the same token, Hefner cannot avoid contempt by relying on Mrs. Bader’s due process rights.

Failure to follow these rules would open the lid to a pandora’s box that could totally undermine restrictions against interlocutory appeals. For example, suppose a federal trial court erroneously overrules a motion to dismiss filed in a diversity action by a defendant with no contacts with the forum. During the ensuing trial, a witness for the plaintiff refuses to answer questions while on the stand. The witness is held in contempt and incarcerated. On review under 28 U.S.C. § 2255, the plaintiff’s witness argues that the contempt order is void because the court had no jurisdiction over the defendant and, therefore, the proceedings were void because they deprived the defendant of due process of law. Using the formula proposed by petitioner in this case, the court reviewing the § 2255 petition would have to decide the due process and jurisdictional questions involving the defendant in order to set the plaintiff’s witness free.

The adverse implications of this concept are clear. There are many times when a court must make a ruling on jurisdiction, venue, joinder of third parties, or similar matters that may be erroneous. Under petitioner’s formula, an attorney could procure an early review of the court’s decision by committing some contempt and then arguing on a petition for a writ of habeas corpus that the court’s ruling deprived his client of due process and the proceedings were therefore void from that point on. The proper time to review due process and jurisdictional questions is on appeal after a final judgment. In the example above, the only way the plaintiff’s witness should be allowed to avoid contempt for refusing to answer questions is to assert a valid privilege; he cannot refuse to answer because the rights of a party to the action may have been violated by an earlier ruling of the court.

Petitioner would not be in contempt if there was some privilege that would justify his refusal to answer. He asserted an attorney-client privilege in the county court, but did not mention that in his petition before this Court. He did not claim a fifth amendment privilege, and has thereby waived that issue. He cannot rely on Mrs. Bader’s due process rights, yet this is his only other justification for refusing to answer. Absent some privilege afforded by the Constitution, by statute, or by the Texas Rules of Evidence, petitioner must answer the question asked him or suffer the consequences. See Tex.R.Ev. 501.

If proceedings under § 181 of the probate code are unconstitutional, it is only Mrs. Bader that has standing to challenge them since it is only Mrs. Bader that suffered any possible injury. Petitioner’s “injury” stems from his unwarranted refusal to answer a proper question. If Mrs. Bad-er had been held in contempt for refusing to obey an order entered under § 131, the result would be very different. In an attempt to find some federal constitutional question that would set him free, petitioner in this case has tried to benefit from the alleged denial of Mrs. Bader’s due process rights. The Court is of the opinion that petitioner has no standing to assert Mrs. Bader’s rights. Since petitioner has presented no justification for refusing to answer questions in the county court, the petition for writ of habeas corpus must be in all respects DENIED.

It is so ORDERED.

      . TEMPORARY ADMINISTRATION IN THE INTEREST OF (A) ESTATES OF DECEDENTS, AND (B) PERSONS OR ESTATES OF MINORS AND INCOMPETENTS
      § 131. Procedure
      (a) Necessity of Appointment. Whenever it appears to the county judge that the interest of a decedents estate, or the interest of any minor, person of unsound mind, or common or habitual drunkard, and his or her estate, or either of them, requires immediate appointment of a personal representative, he shall, by written order, appoint a suitable temporary representative, with such limited powers as the circumstances of the case require, and such appointment may be made permanent, as herein provided.
      (b) Manner of Appointment. Such appointment may be made with or without written application and without notice or citation. The order shall designate the appointee appropriately as "temporary administrator” of the decedent’s estate, or a “temporary guardian" of the person or of the estate, or both, of such minor, person of unsound mind, or common or habitual drunkard, fix the bond to be given and define the powers conferred on the appointee. When any such appointed has taken and filed his oath and filed with the county clerk a bond approved by the court, the clerk shall issue to the appointee letters which shall set forth the powers to be exercised by the appointee.
      (c) Perpetuation of Appointment. The order making the appointment shall state that, unless the same is contested after service of citation, it shall be continued in force for such period of time as the court shall deem in the interest of the estate or person involved, or it shall be made permanent, if found by the court to be necessary.
      (d) Citation Relative to Perpetuation. Immediately after such appointment the clerk shall issue and cause to be posted a notice, and if ■ necessary issue citations, to all interested persons to appear at the time stated in such writ and contest said appointment if they so desire; and such notice or citation shall state that, if no contest is made, the appointment will be continued for such time as appears to the interest of the estate or person involved, or that, if found necessary by the court, it shall be made permanent.
      (e) Contest. If the appointment is contested, the court shall hear and determine the same, and, during the pendency of such contest, the temporary appointee shall continue to act as such. If the appointment is set aside, the court shall require the appointee to prepare and file, under oath, a complete exhibit of the condition of the estate which has come into his possession and show what disposition he has made of the same or any portion thereof.
      § 133. Powers of Temporary Appointees
      (a) Temporary Administrators. Temporary administrators shall have and exercise only such rights and powers as are specifically expressed in the order of the court appointing them, and as may be expressed in subsequent orders of the court. Where a court, by a subsequent order, extends the rights and powers of a temporary administrator, it may require additional bond commensurate with such extension. Any acts performed by temporary administrators that are not so expressly authorized shall be void.
      (b) Temporary Guardianships. All the provisions of this Code relating to the guardianship of persons and estates of minors, persons of unsound mind, and habitual drunkards shall apply to temporary guardianship of the persons and estates of such persons, in so far as the same are applicable.

      . Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970).

      . United States v. Richardson, 418 U.S. 166, 94 S.Ct. 2940, 41 L.Ed.2d 678 (1974); Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 94 S.Ct. 2925, 41 L.Ed.2d 706 (1974).

      . Tileston v. Ullman, 318 U.S. 44, 63 S.Ct. 493, 87 L.Ed.2d 603 (1943).

      . To meet the requirement of an injury in fact a party must allege "such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the Court so largely depends for illumination of difficult ... questions." Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962).