# Petition — Ellis v. Ellis > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1652%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1981 - **Citation:** 452 U.S. 940 ## Text 8 0 i 1 a v4 9 Office-Supreme Court, U.S. Pits PRP a APR 24 1981 SSS STEVAS, CLERK IN THE Supreme Court of the United States Howarp ELLIs, Petitioner, VS. LomeR ELLIs, Sr.; and IRENE ELLIS, his wife; and Lomer ELLIs, Jr., Respondents. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF APPEALS OF KENTUCKY JOHN D. MILLER MILLER, TAYLOR, BURLEW AND MEYER 218 Masonic Building 227 St. Ann Street Owensboro, KY 42301 Telephone (502) 926-2621 Attorney for Petitioner St. Louis Law Printing Co., Inc., 411 No. Tenth Street 63101 314-231-4477 i) 7% *? QUESTION PRESENTED I. WHETHER A STATE MAY CONSTITUTIONALLY DENY A DEFENDANT THE RIGHT TO PROVE HIS OWN CHARACTER, IN DEFENSE OF A CIVIL SUIT ALLEGING WILLFUL AND MALICIOUS CONDUCT AND SEEING PUNITIVE DAMAGES. f INDEX Page I iia he 5 6 se wd seo Ne ea eRek Sues i Table Of Cases And Authorities .................... iv SL DIONNE cs c's ob O'eik on eh Beed «00 ov eaaenns ae | PINNED Sched «ck ua o's ons Vedwelestancdetny Une 2 Ons PIII sos iiss v b'd's wb b0 v0 0'p 0 bw Se hee eee 2 ea Ol TR COS ik ios cng dies ee aa, Oe 2 Reasons For Granting The Writ..................06: 4 CONN Hr a. ethane o vig ebancehecehienes cae weeee 5 Appendix One, Complaint of February 13, 1979, filed in McLean Circuit Court, Action 79-CI-O12 ........ A-l Appendix Two, Answer of March 16, 1979, filed in Mc- Lean Circuit Court, Action 79-CI-O12 ........... A-4 Appendix Three, Trial Order and Judgment, entered November 16, 1979, in Action 79-CI-012 in the pci con Circ Ome 6 8 ob ieee ee a A-6 Appendix Four, Opinion of the Court of Appeals of Kentucky, Reversing and Remanding, rendered PO RRE Fi SOU os 0 0d hos. dane vid deantues cies A-9 Appendix Five, Order Denying Petition for Rehearing, entered February 13, 1981, in Court of Appeals of Kentucky, No. 80-CA-792-MR .............005- A-13 Appendix Six, Order Denying Motion for Discretionary Review, entered March 24, 1981, in Supreme Court of Kentucky, File 81-SC-133-D ................. A-14 | PRECEDING PAGE WAS BLANK | iv TABLE OF CASES AND AUTHORITIES Colker v. Connecticut Fire Insurance Company, 224 Ky. 837, 7 SW2d 502 (1928) Hess v. Marinari, 81 W. Va. 500, 84 SE 968 (1918) Fourteenth Amendment to the United States Constiix- tion No. IN THE Supreme Court of the United States Howarp ELLIs, Petitioner, VS. LomMER ELLIs, Sr.; and IRENE ELLIs, his wife; and Lomer ELLIs, Jr., Respondents. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF APPEALS OF KENTUCKY Petitioner, Howard Ellis, respectfully prays that a Writ of Certiorari issue, to review the Opinion Reversing And Remand- ing, of the Kentucky Court of Appeals, rendered in this pro- ceeding on November 7, 1980; and that said Opinion be reversed. OPINIONS BELOW The Opinion of the Kentucky Court of Appeals, sought to be reviewed, was rendered November 7, 1980, and is reported in —___._SW 2d ___.. The Opinion is contained in Appendix Four of this Petition For Writ Of Certiorari. The Order of the Kentucky Court of Appeals, denying rehearing, was entered on February 13, 1981, and appears in Appendix Five. 7. -% conn tag The Order of the Kentucky Supreme Court, denying discre- tionary review, was entered March 24, 1981, and appears in Ap- JURISDICTION The jurisdiction of this Court is invoked, under 28 U.S.C. 1257 (3). The Opinion of the Kentucky Court of Appeals, reversing and remanding, was rendered November 7, 1980. It is reported in ___ SW2d ___., and is attached, as Appendix Four. A timely motion for extension (rehearing) was made by ap- pellee (petitioner), which motion was denied, by Order dated February 13, 1981 (Appendix Five). A timely motion for discretionary review by the Supreme Court of Kentucky, was made by the appellee (petitioner), which motion was denied, by Order dated March 24, 1981 (Ap- pendix Six). This Petition For Writ Of Certiorari is timely, under 28 U.S.C. 2101 (c). STATUTES INVOLVED The Fourteenth Amendment to the United States Constitu- tion. STATEMENT OF THE CASE The brothers, Lomer Ellis and Howard Ellis, are grain farmers, in McLean County, Kentucky. There is enmity be- tween them. The Ellis lands adjoin. Their lands are large, flat, fertile, and productive. A singular curse of grain farmers, is that of the nox- ious grasses, ‘Wild Cane’”’ and ‘‘Johnsongrass’’. ' ayy On February 13, 1979, the appellants (Lomer Ellis, Sr.; and Irene Ellis, his wife; and Lomer Ellis, Jr. — the three hereinafter collectively referred to as ‘‘Lomer’’), filed suit in the McLean County Circuit Court, at Calhoun, Kentucky, alleging that Howard Ellis, the defendant, trespassed upon the plain- tiffs’ lands and cast or threw Johnsongrass and Wild Cane seed. The complaint alleged that the act was done intentionally, willfully, and maliciously. Lomer sought damages, compen- satory and punitive (Complaint, Appendix One). Lomer’s case was circumstantial. Howard denied the allega- tions, and the inferences of circumstance (Answer, Appendix Two). Upon trial, the Circuit Court of McLean County, Kentucky, permitted Howard Ellis to produce character witnesses, who of- fered testimony before the jury, as to Howard’s own character traits, based upon a good community reputation. The jury returned a verdict for the defendant, Howard Ellis (Appendix Three, Trial Order and Judgment of November 16, 1979). Lomer Ellis appealed to the Kentucky Court of Appeals; and that Court reversed (Appendix Four, Opinion Reversing and Remanding, dated November 7, 1980), holding that the in- troduction of character evidence on behalf of Howard was er- roneous. Howard Ellis then petitioned for a rehearing of the case, in order to consider the Constitutional implications. The Court of Appeals of Kentucky denied said petition (Appendix Five, Order of February 13, 1981). Howard Ellis then moved the Supreme Court of Kentucky for discretionary review. The Kentucky Supreme Court denied review (Appendix Six, Order of March 24, 1981). Howard Ellis now brings this Petition For Writ Of Certiorari To The Court Of Appeals Of Kentucky. -% oe i REASONS FOR GRANTING THE WRIT Kentucky law does not permit a defendant to prove his own character, in defense of a civil suit alleging willful and malicious acts and seeking punitive damages. Colker v. Connecticut Fire Insurance Company, 224 Ky. 837, 7 SW2d 502 (1928). The foregoing rule was applied to the petitioner, Howard Ellis, by the Kentucky Court of Appeals, in the decision sought to be reviewed (Appendix Four). Petitioner insists that the rule denying the right to prove his own character, in defense of a civil allegation of wrongdoing wherein punitive damages are prayed, abridges his rights under the Fourteenth Amendment to the United States Constitution, which provides as follows: . nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any per- son within its jurisdiction the equal protection of the laws. Under our system, the last ditch in protecting one’s property in resort to the courts of law. It is fundamental, that due process requires the proceedings be fair and adequate. Where one citizen seeks to punish another in a civil pro- ceeding, the latter ought to be able to have the triers of fact con- sider and evaluate his own character. This much of compurga- tion should remain if a defendant is to have a fair and adequate opportunity to resist punishment in a civil proceeding. See, for example, Hess v. Marinari, 81 W. Va. 500, 84 SE 968 (1918), where the West Virginia court reasoned that there is no distinc- tion between a criminal proceeding and a civil proceeding that seeks to punish. In the case sub judice, the proof on behalf of the plaintiffs was circumstantial. The defendant, Howard Ellis, entered a general denial. If the defendant cannot have the jury consider Zee * ‘eis Whit and evaluate his own character, he has no defense at all! Cer- tainly, in these days of reckless accusations, there is merit in per- mitting a defendant to have his character evaluated by the triers of fact, as a defense to an allegation of wrongdoing and as a prelude to punishment. If the Fourteenth Amendment does not mandate such, then no man’s property is safe from seizure. CONCLUSION The American people are increasingly using civil proceedings to punish their fellow man. It is urged, that the Fourteenth Amendment mandates that a civil defendant in a claim for punitive damages may defend by proof of his own relevant character traits. There should be no difference in punishment by one’s fellow man, and that emanating from the State. Either way, it encom- passes the judicial process of the State. Petitioner prays that this writ be granted, and that the deci- sion of the Court of Appeals of Kentucky be reversed. This, the 16th day of April, 1981. Respectfully submitted, MILLER, TAYLOR, BURLEW AND MEYER By John D. Miller 218 Masonic Building 227 St. Ann Street Owensboro, KY 42301 Telephone (502) 926-2621 Attorneys for Petitioner APPENDIX is sie ask APPENDIX ONE COMMONWEALTH OF KENTUCKY McLEAN CIRCUIT COURT No. 79-CI-012 Lomer Ellis, Sr., Irene Ellis, his wife, and Lomer Ellis, Jr., Plaintiffs, vs. Howard Ellis Route 1 Sacramento, Kentucky 42372, Defendant. COMPLAINT Come the plaintiffs for their complaint against the defendant and state as follows: 1. The ‘plaintiffs and- the defendant are all residents of McLean County, Kentucky. 2. Plaintiffs own and at all time mentioned herein have been in possession of two (2) tracts of land located near Sacramenio in McLean County, Kentucky, known as a 21.33 acre tract which was acquired by Lomer Ellis, Sr., and Irene Ellis, his wife, from John Heltsley, et ux, by deed dated February 19, 1949, and recorded in Deed Book 40, page 593, in the McLean County Court Clerk’s Office and hereinafter referred to as the 21 acre tract, and a tract known as a 33.97 acre tract acquired by Lomer Ellis, Sr., and Irene Ellis, his wife, from Frank Garst, et ux, by deed dated February 28, 1952, and recorded in Deed Book 44, page 50, in the McLean County Court Clerk’s Office which is hereinafter referred to as the 34 acre tract. a yi 3. Lomer Ellis, Jr., joins in this action as a plaintiff because during all times pertinent hereto, he has been a business partner with Lomer Ellis, Sr., in agricultural operations conducted on the above referred to tracts, and with the permission of the owners he has shared possession of the land in question. 4. On or about October 6, 1977, the defendant without per- mission of the plaintiffs and knowingly and willfully trespassed on and entered upon the 21 acre tract and the 34 acre tract of land in a pick-up truck motor vehicle and willfully, intentionally, maliciously, and wantonly spread, threw, cast, placed or seeded the two tracts of land with Johnsongrass seed and Wild Cane seed with malicious intent to damage the plaintiffs and the said land. 5. At all times pertinent hereto, the plaintiffs were using the said 21 acre tract and 34 acre tract for agricultural purposes. Said tracts were under cultivation and have been for many years. 6. As a direct and proximate result of the intentional and malicious trespass of the defendant, the plaintiffs were damaged in that they were required to take expensive measures to attempt to prevent the germination or growth of the Johnsongrass and Wild Cane seed placed upon the land by the defendant. They were required to purchase and spread a chemical called Treflan on the land and expend much time and labor in attempting to prevent the growth of the Johnsongrass and Wild Cane seed. They were required to purchase and assemble a Chem-farm spray, tanks, pumps, nozzels and attachments, and they were required to use tractors, discs and other equipment in the pro- cesses which were necessary and reasonable to attempt to pre- vent the germination and growth of the Johnsongrass and Wild Cane seed. 7. The plaintiffs special damages directly and proximately resulting from the trespass of the defendant include, but are not limited to the following: ‘\ ny ee Reduced production of soybeans on the af- fected tracts in 1978 $ 4,000.00 Chem-farm spray, tanks, pumps, nozzels and attachments 3,000.00 Treflan used in 1978 680.00 Time spent in preparing land for and apply- ing chemicals to land in 1978 720.00 Use of two tractors, discs and labor to operate equipment during 1978 1,500.00 Total Special Damages $ 9,900.00 8. As a direct and proximate result of the trespass of the defendant the plaintiffs will suffer future damages to the land in question and its productivity in the amount of $12,000.00 as a result of reduced productivity of the land, and expenses which will be incurred in continuing to treat the land to avoid the growth and spread of Johnsongrass seed and Wild Cane seed. WHEREFORE the plaintiffs pray judgment against the defendant in the amount of $21,900.00 for general and special damages and is. the amount of $50,000.00 addition for ex- emplary and punitive damages. Further the plaintiffs pray that they recover their costs herein expended and have such other and further relief to which they may appear entitled. Plaintiffs demand trial by jury. This 13 day of February, 1979. SANDIDGE, HOLBROOK & CRAIG, P.S.C. By: /s/ Ronald M. Sullivan 100 St. Ann Building Owensboro, Kentucky 42301 (502) 926-4000 Attorneys for Plaintiffs *% Se an APPENDIX TWO COMMONWEALTH OF KENTUCKY McLEAN CIRCUIT COURT No. 79-CI-012 Lomer Ellis, Sr., and Irene Ellis, his wife, and Lomer Ellis, Jr., Plaintiffs, vs. Howard Ellis, Defendant. ANSWER Comes the defendant, by and through counsel, and for his answer to the plaintiffs’ Complaint, states as follows: 1. The plaintiffs’ complaint fails to state a cause of action against the defendant for which relief can be granted. 2. The defendant admits the allegations contained in Paragraphs 1 and 2 of the plaintiffs’ complaint. 3. The defendant is without knowledge or information suffi- cient to form a belief as to the truth of the allegations contained in Paragraph 3 of the plaintiffs’ complaint. Therefore, the allegations contained in said Paragraph 3 should be taken as denied, pursuant to Civil Rule 8.02. si fi 4. The defendant specifically denies the allegations contained in Paragraphs 4 and 5 of the plaintiffs’ complaint; and also specifically denies the allegations contained in paragraph six (er- roneously numbered Paragraph 5); and the allegations contained in Paragraphs 7 and 8 of the plaintiffs’ complaint. WHEREFORE, the defendan: prays that the plaintiffs’ com- plaint be dismissed and that they take nothing thereby; for the defendant’s costs herein expended; and for any other just and proper relief to which this honorable Court deems the defen- dant entitled. This, the 16th day of March, 1979. John D. Mille.., Attorney for Defendant MILLER, TAYLOR, BURLEW AND MEYER 218 Masonic Building 227 St. Ann Street Owensboro, Kentucky 42301 Telephone: (502) 926-2621 prey eS APPENDIX THREE COMMONWEALTH OF KENTUCKY McLEAN CIRCUIT COURT No. 79-CI-012 Lomer Ellis, Sr., Irene Ellis, his wife, and Lomer Ellis, Jr., Plaintiffs, vs Howard Ellis, Defendant. TRIAL ORDER AND JUDGMENT This matter came on for trial before jury on October 23, 1979; and the respective parties appeared with counsel. Eighteen jurors were empaneled to answer truthfully upon voir dire; the respective parties conducted voir dire examination and exercised their respective challenges, whereupon twelve jurors were seated to truthfully try the matters in issue: Billy Murphy Harry Gatton, Jr. Gary W. Capps J. Bodo Loyd Bobby G. Girvin Hugh T. Miller Kenneth Luck Judy Stratton Paul E. Graham Wendell Ray Smith Bruce Floyd Ollie Jeffries sins hilt ak Evidence was offered by the parties, first by the plaintiffs and then by the defendant. A transcript of the entire proceeding was had. The trial was continued from day to day until completed. At the close of the plaintiffs’ case, each party moved for a directed verdict, which motions were overruled. Said motions were renewed at the close of the entire case and were against overruled. Whereupon, the case was submitted to the jury for deliberation. After deliberation, the jury returned to the Courtroom with a verdict in the following form, to-wit: 2. We, the jury, find for the defendant. 9-3 For Plaintiffs We the undersigned hold for the defendant For Defendant /s/ Billy Murphy /s/ J. Bodo Loyd /s/ Harry Gatton, Jr. /s/ Bobby G. Girvin . /s/ Gary W. Capps /s/ Hugh T. Miller /s/ Kenneth Luck /s/ Judy Stratton /s/ Paul E. Graham /s/ Wendell Ray Smith /s/ Bruce Floyd /s/ Ollie Jeffries