Opposition Brief — Azalea Drive-In Theatre, Inc. v. Sargoy

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In The L.--

Supreme Court of the United States

October Term, 1975

No. 75-387

AZALEA DRIVE-IN THEATRE, INCORPORATED

ANbD TWIN DRIVE-IN THEATRE, INC.,

Petitioners,

Vv.

EDWARD A. SARGOY, JOSEPH L. STEIN

AND BURTON H. HANFT, v/B/A

SARGOY, STEIN & HANFT, A PARTNERSHIP,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF VIRGINIA

BRIEF FOR RESPONDENTS IN OPPOSITION

TO GRANTING THE PETITION

Lewis T. BooKER

BENJAMIN C. ACKERLY

Hunton, WILLIAMS,

Gay & GIBSON

Post Office Box 1535

Richmond, Virginia 23212

October 9, 1975

TABLE OF CONTENTS

Page

Be Auer SIN IN ANNNCIN nsinsSiettn chncrsdvn conden aion ieremonenpios l

SR ES gp pS 2 aR eer Nn NR sane 2

Fs en NO aa EZ Sian ah diet ach cighanninnt 2

B. The Conflicting Evidence In The Trial Court .................... 5

Es “PRT a: sis cpcoitasentsputuacloeoapnhapioteniigsalbtalbeselletigpadiuactndbiciabinbiae 7

A. This Court Should Not Grant A Writ Of Certiorari To

Review A Finding Of Fact By A Trial Court Duly Af-

firmed By The Highest Court Of Record Of That State... 7

B. The Courts Below Properly Applied This Court’s Decision

SO FOU Ee PRN isco scekcnsorexcsmnehcercani pied bbatacat acide 9

C. Azalea Was Not Improperly Denied Trial By Jury. —........ 12

vs: MaPIR RMI, Spi) occertpnionsinesndiieeciahennenibiostanst tuiglacan dialing: Liiaheiogee 15

TABLE OF CITATIONS

Cases

Alexander v. Virginia, 413 U.S. 836 (1973) reh. den. 414 USS.

leh Loci, PEA aan ae ROL ER SN EO ee WSN OEM OP Re CORES we 15

Berenyi v. Immigration Director, 385 U.S. 630 (1967) _.............. 8, 9

Big Top Stores, Inc. v. Ardsley Toy Shoppe, Inc., 64 Misc.2d

OGG, 315 2 .oe Ger (Sep. Oe, 1970) on 10

Bruce’s Juices, Inc. v. American Can Co., 330 U.S. 743 (1947) _.. 11

Copperweld Steel Company v. Industrial Commission of Ohio,

Fe A IE hah tac pncpc estat areola wissen 14

David v. Manufacturers Hanover Trust Co., 59 Misc.2d 248, 298

PU IN Ih, UN icc acini sncnsh cman eabdabahieasiveaacucoes 13

El Salto, S.A. v. PSG Co., 444 F.2d 477 (9th Cir. 1971) 000... a

SEU ATE AR re PRN, LRG TILE LIE LL ORIN a EEL EE ELLIO ONL LEAL EEO ANTI

Page

Garner v. Louisiana, 368 U.S. 157 (1961) ....c ene 13

General Aniline and Film Corp. v. Bayer Go,, 305 N.Y. 479, 115

N.E.2d 844 (Ct. App, 1953) is Teor ord |

Hawkins v. Bleakly, 243 U.S, 210 (1917) M4

Herb v. Piteairn, $24 US, 117 (1945) aN

Kelly v. Kosuga, $58 U.S, 516 (1959) 2, 3, 4, 9, 10, 11, 12, 16

King v. West Virginia, 216 US, 92 (1910) 1s

Medusa Gorporation v, Gordon, 496 F.2d 249 6th Cir, 1974) 12

Minneapolis & St, Louis R.R, vy, Bombolis, 241 U.S. 211 (1916) 1)

United States v. Texas, 314 U.S, 480 (1941) » I

Walker v. Sauvinet, 92 U.S, 90 (1875)... 14

Statute

§ 8.2-302(1), Code of Virginia, 1950 |. <e PERT 12

eeanaiitiaiaaatines ' STEAMY NIN Tarn 18

v CAEN ? FPR De OE CTA Hn Fy

In The

Supreme Court of the United States

October Term, 1975

No. 75-387

AZALEA DRIVE-IN ‘THEATRE, INCORPORATED

AND TWIN DRIVE-IN THEATER, INC.,

Petitioners,

Vv,

EDWARD A, SARGOY, JOSEPH L, STEIN

AND BURTON H. HANFT, v/3 A

SARGOY, STEIN & HANFT, A pagtNnersuip,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF VIRGINIA

BRIEF FOR RESPONDENTS IN OPPOSITION

TO GRANTING THE PETITION

Respondents, hereafter referred to as Sargoy, oppose the

petition for a writ of certiorari sought by Petitioners, here-

after referred to as Azalea, to review the judgment of the

Supreme Court of Virginia in this case.

I.

QUESTIONS PRESENTED

Sargoy disagrees with the statement of the questions

presented in Azalea’s petition and accordingly restates them.

2

1. Should this Court review a determination of fact made

upon contested evidence by the Circuit Court of the City

of Norfolk, Virginia, and affirmed by the Supreme Court

of Virginia?

2. Should this Court overturn its decision in Aelly v.

Kosuga, 358 U.S. 516 (1959) and order a state court to

take cognizance of a federal antitrust defense and counter-

claim to a state contract action?

3. Should this court review a determination of Virginia

law—waiver of trial by jury——made by the Supreme Court

of Virginia?

Il,

STATEMENT OF THE CASE

A.

The Proceedings Below

This action was originally instituted by Sargoy against

Azalea in the Circuit Court of the City of Norfolk, Virginia,

on November 12, 1971, to recover upon a defaulted promis-

sory note in the amount of $70,000.00 plus interest and at-

torneys’ fees. The note was taken in compromise of a claim

for film rentals due Sargoy’s clients, a number of motion

picture distributors, for Azalea’s deliberate failure fully to

report gross receipts.

Azalea pled that the note was unenforceable as a matter

of state common law because it had been obtained by duress

and coercion, and because it lacked consideration. Azalea

also pled that the note was unenforceable because it was

obtained by duress and coercion in violation of the federal

antitrust laws, specifically Sections | and 2 of the Sherman

Antitrust Act. In addition Azalea filed an antitrust counter-

claim in the state court pursuant to Section 4 of the Clayton

Antitrust Act,

dal its a chet 19 TINE MUIR Ep) CNET» - on ———

3

The trial court, relying upon this Court's decision in Kelly

v. Kosuga, 358 U.S. 516 (1959), struck the antitrust allega-

tions as an affirmative defense and sustained a plea in abate-

ment to the antitrust counterclaim, The trial court then

heard the case without a jury on the defenses, among others,

of duress and coercion and lack of consideration, Azalea

fully availed itself of the ample opportunity given it by the

trial court to put on all the evidence it could muster in

support of its defense that it had executed the note under

duress and coercion.

After a two day trial and extensive postrial briefs, the

trial court in a letter opinion dated January 4, 1974, found

in favor of Sargoy. The trial court said:

Gentlemen:

There is no need for the Court to state the facts, as

these have been adequately stated in the comprehensive

briefs filed by counsel for the parties. However, the fol-

lowing interesting points of law are raised by the plead-

ings and the evidence:

1. Was there sufficient consideration to support the

contractual agreement?

2. Was there sufficient and convincing evidence of

duress on the part of the plaintiffs to the detriment of

the defendants?

3. Was there a binding contract between the parties?

4. Was there a counteroffer made by plaintiffs to

defendants which has never been accepted by the de-

fendant? Or was the agreement amended only to con-

form to the prior agreement of the parties?

Counsel have cited to the Court an abundance of case

law and other authorities. The Court concludes that

the authorities cited by the plaintiff are more persua-

sive, considering the peculiar facts and circumstances of

the case. In addition, it seems that to a broad degree

the issues of law outlined above turn on issues of fact.

4

As the trier of the facts, the Court decides same in

favor of the plaintiffs.

Azalea then appealed that decision to the Supreme Court

of Virginia. Among Azalea’s assignments of error for review

by that court were:

7. ‘The Court erred in refusing to permit and allow

defendants to interpose and utilize as a legal defense to

the Motion for Judgment the various anti-trust laws of

the United States of America, generally and specifically

the Sherman Anti-Trust Act and the Robinson-Patman

Act, and denying the defendants the right to interpose

as a defense the illegality of the acts and transactions

of plaintiffs that were relied upon as a basis for their

Motion for Judgement.

eee

12. The Court erred in finding that the note and

offer of settlement by defendants, made on February 12,

1971, and thereafter were not made under and as a

direct result of coercion and duress.

The opinion of the Supreme Court of Virginia set forth

in Azalea’s petition held that the trial court had correctly

followed this Court’s decision in Kelly v. Kosuga, above, in

refusing to consider the antitrust defenses and antitrust

counterclaim in a state court action to enforce a promis-

sory note. The Supreme Court of Virginia also considered

Azalea’s contention that the trial court had erred in its

finding of fact that the promissory note at issue had not been

obtained as a result of coercion and duress. That court said,

at p. 11 of Azalea’s petition:

“Defendants assigned other errors which were not

urged in oral argument before us. However, we have

considered the alleged errors and find no merit in any

of them. Most of those alleged errors were based on

5

factual issues and, since there is evidence to support

the findings of the trial court, a discussion of them

would serve no useful purpose | citations omitted ].”

The Conflicting Evidence In The Trial Court

Perhaps the one most crucial issue tried in the state court

was whether Azalea had given the promissory note in issue

as the result of a statement by Philip Kornfeld, an employce

of Sargoy, that if the note were not given Azalea would

not be furnished motion picture films by the distributor

clients represented by the Sargoy law firm. The Sargoy firm

did indeed represent nine motion picture distributors in their

attempt to collect film rentals due them from Azalea. It

is also true that Sargoy, as noteholder and attorney for its

clients took the promissory note in compromise settlement of

the claims for film rentals.

One reads Azalea’s petition in vain to find any real sug-

gestion that there was a contest as to whether the so-called

threat was made. Azalea simply asserts that the overwhelm-

ing evidence is that the threat was made (Petition, p. 12).

Mr. Kornfeld did in fact testify, upon cross-examination,

unequivocally and repeatedly that he made no such threat

at all:

“Q. All right. Now, Mr. Kornfeld, isn’t it true that

you told Mr. Price, in Mr, Katz’s presence, that if he

didn’t pay an amount of money that was satisfactory to

your principals or to Mr. Fallick back up in New York

whom you were reporting to, he wasn’t going to get any

more pictures?

A. That is not so.

Q. You deny that?

A. Ido.

6

All right, sir. That never came up?

No sir.

You are sure?

I am positive.

* * *

. Well, before we get to that—incidentally, hadn't

you threatened to accuse Mr. Price of fraud in this dur-

ing this last session with them? Before he agreed to

sign a note for you, didn’t you bring up fraud?

A. No, sir.

Q. Didn't you tell him that the companies will con-

tend fraud?

A. Mr. Sacks on January 15th—Mr. Sacks, you

asked me a question.

Q. Right.

A. On January 15th, during the meeting then Mr.

Katz said to me that the statute in this case would

apply. This will be limited—limit the claim to a three

years’ period. And I said no, the companies will not be

balked by the statute of limitations in a case like this

because they will contend that there is a fraud.

This was no charge. This was saying it merely as a

defense to instituting the statute of limitations.

PO Pio

* * *

Q. Wasn’t that part and parcel of what you had told

them? ‘Listen. If I don’t take something back to New

York, you are not going to get any more film’?

A. No, sir, that is not so.

* * *

Q. Now, you tell us today that you didn’t say to

them, ‘I have to have something to go back to New

York with tonight’? You didn’t say that?

A. No, sir.

Q. You remember that you didn’t say that?

7

A. I have never said that to any exhibitor at any

time.

* * *

Q. Didn’t you tell him that in addition to his getting

films from everybody by signing a note, you all would

see that everything went back to normal with the other

distributors?

A. No, sir, I never did say that.

Q. You deny that?

A. Ido.

Azalea’s petition is full of other errors and inaccuracies

in conflict with the record. For example, Sargoy never con-

tended, as Azalea asserts at page 5 of the petition, that

Azalea owed $240,000.00 for underreported admission re-

ceipts. Sargoy originally claimed $88,000.00, ultimately

compromised at $70,000.00. However, those numerous dis-

tortions and inaccuracies have been put to rest by the deci-

sion of the Supreme Court of Virginia, so they will not be

answered in detail here.

Il.

ARGUMENT

A.

This Court Should Not Grant A Writ Of Certiorari To Review A

Finding Of Fact By A Trial Court Duly Affirmed By The Highest

Court Of Record Of That State.

Azalea’s petition argues that there was sufficient evidence

of coercion, if the testimony of Mr. Price, Azalea’s presi-

dent, be believed, so that the trial court and the Supreme

Court of Virginia both erred in finding that Azalea had

not been coerced into executing the promissory note at issue

here. As the trial court’s opinion indicates, the trial court

chose to believe Mr. Kornfeld’s denial that he ever made

any threat rather than Mr. Price’s conflicting testimony, In-

8

deed, Mr. Price’s testimony is effectively conceded to be

contradictory by Azalea itself in its petition at page 13. The

Supreme Court of Virginia considered that conflicting testi-

mony and it concluded that there was sufficient evidence to

support the trial court’s findings.

Now Aaalea invites this Court to review the evidence once

again and, contrary to the trial court and the Supreme Court

of Virginia, conclude that Azalea was indeed coerced into

signing the note. That is an invitation this Court has con-

sistently declined to accept, and Azalea shows no reason

why it should be accepted this time.

In Berenyi v. Immigration Director, 385 U.S. 630 (1967)

this court discussed its role in reviewing disputed issues of

fact. It said, pp. 635, 636:

“The petitioner asks us to reject as ‘clearly erro-

neous’ the factual conclusion about his party member-

ship reached by the District Judge and accepted by

the Court of Appeals. In order to do so, we would be

forced to disregard the Court’s repeated pronounce-

ments that it ‘cannot undertake to review concurrent

findings of fact by two courts below in the absence of

a very obvious and exceptional showing of error. [Cita-

tion omitted }.

* * *

“The policy underlying the ‘two-court’ rule is ob-

vious. This Court possesses no empirical expertise to

set against the careful and reasonable conclusions of

lower courts on purely factual issues. When, as here,

resolution of the disputed factual issues turns largely on

an assessment of the relative credibility of witnesses

whose testimonial demeanor was observed only by the

trial court, the rule has particular force. . . .”

That language is tailored to this case. Here two courts,

the Circuit Court of the City of Norfolk and the Supreme

Court of Virginia, have reviewed factual issues and have

9

resolved them in favor of Sargoy. Here, Judge Edward L.

Ryan, Jr., of the Circuit Court of the City of Norfolk heard

and observed Messrs. Price and Kornfeld on the stand and

chose to believe Mr. Kornfeld that there had been no co-

ercion. As the two-court rule had particular force in the

Berenyi case, it has here. The writ should not be granted to

review a contested issue of fact already twice resolved against

Azalea.

B.

The Courts Below Properly Applied This Court’s Decision

In Kelly v. Kosuga.

With the fact that no coercion was applied to it estab-

lished, Azalea’s contention that the trial court and the Su-

preme Court of Virginia erred in failing to permit it to raise

an antitrust counterclaim under the laws of the United

States is singularly without merit.

The trial court and the Supreme Court of Virginia, re-

lying upon the decision of this Court in Kelly v. Kosuga,

358 U.S. 516 (1959), held the defenses and counterclaim

inapplicable upon the ground that only where the note it-

self was an antitrust violation could the antitrust defenses

be made.

Kelly v. Kosuga involved a suit for payment of the pur-

chase price of 50 cars of onions. The defendant there sought

to defend upon the ground that the sale was made pursuant

to and was an indivisible part of an agreement which vio-

lated Section | of the Sherman Act. This Court, in affirming

the action of the trial court in striking that defense, said, at

page 521:

“cc

... where, as here, a lawful sale for a fair considera-

tion constitutes an intelligible economic transaction in

itself, we do not think it inappropriate or violative of

the intent of the parties to give it effect even though

10

it furnished the occasion for a restrictive agreement

of the sort here in question.”

Just as in Kelly v. Kosuga a lawful sale of onions for a

fair consideration constituted an intelligible economic trans-

action in itself, so here the promissory note given for what

both the trial court and the Virginia Supreme Court have

found to be as good and valuable is the same kind of intel-

ligible economic transaction. As such it should be accorded

the same dignity and freedom from antitrust attack as was

the sale in Kelly v. Kosuga.

The New York decisions cited by Azalea in its petition

are not in point. The contracts there sought to be enforced

contained within their very provisions a violation of the

antitrust laws. By enforcing the contract the court would be

aiding a violation of the laws.

Typical of those cases is Big Top Stores, Inc. v. Ardsley

Toy Shoppe, Ltd., 315 N.Y.S.2d 897 (N.Y.Sup.Ct. 1970).

There the plaintiff sought to enforce a contract which con-

tained in its terms an illegal tying arrangement. Far from

being in conflict with Kelly v. Kosuga, 358 U.S. 516 (1959),

upon which both the trial court and the Supreme Court of

Virginia relied, the court there distinguished the Kelly

case by pointing out that in the Big Top case the court’s

enforcement of the contract would itself perpetrate an il-

legality. As the court said, at page 908:

“Kelly v. Kosuga, 358 U.S. 516, 79 S.Ct. 429, 3

L.Ed. 2d 475 and sirnilar cases relied on by plaintiff are

readily distinguishable. They stand for the rule that a

party to a contract may not avoid payment for goods

sold and delivered to him on the ground that the con-

tract of sale violates the federal antitrust statutes by

provisions thereof separable from the promise to pay.

In such cases the plaintiff is not required, in order to

prove his case to disclose the illegality of the contract

11

pursuant to which the sale was made. Here the plain-

tiff is asking the court to enforce the very provision of

the franchise agreement which operates as an illegal

restraint of trade.”

None of the other cases cited by Azalea at pages 20-22

of the petition are even remotely relevant to this action.

Without distinguishing them all, a typical opinion is Gen-

eral Aniline and Film Corp. v. Bayer Co. 305 N.Y. 479, 113

N.E.2d 844 (N.Y. 1953). All that opinion holds is that an

antitrust consent decree in another action is not a bar to

an action for breach of contract. The other cases cited by

Azalea are even less relevant.

Kelly v. Kosuga, above, is not an aberration out of the

mainstream of American jurisprudence. To the contrary, it

logically follows this Court’s holding in Bruce’s Juices, Inc.

v. American Can Co., 330 U.S. 743 (1947). There this

Court first held that a defense that a commercial transac-

tion violated the antitrust laws would not be permitted in a

state court action based upon that transaction.

Kelly v. Kosuga has been consistently followed by the

several Courts of Appeal since it was decided. Thus, in F/

Salto, S.A. v. PSG Co., 444 F.2d 477 (9th Cir. 1971) the

court ruled that a defendant could not assert a violation of

the Robinson-Patman Act as a defense to a common law

contract action, saying, at p. 482:

“The Supreme Court has ruled that a Sherman Act

violation is not an affirmative defense to a contract suit,

even when the violation is inherent in the contract sued

upon, so long as judicial enforcement of the contract

would not be enforcing the precise conduct made unlaw-

ful by the Act [citations omitted ].”

12

Certainly the mere enforcement of the promissory note

here did not enforce conduct violative of the federal anti-

trust laws.

And the language of the court in \fedusa Corporation v.

Gordon, 496 F.2d 249 (6th Cir. 1974), following Kelly,

is peculiarly applicable in this case, at p. 252:

“If the purported oral agreement is violative of anti-

trust laws, an issue we do not here decide, the remedy

lies in antitrust litigation under appropriate statutes,

not in avoidance of a just debt.”

Kelly v. hosuga is, as the Virginia Supreme Court and

the trial court have already determined, dispositive of

Azalea’s antitrust claim unless this Court is ready to re-

examine the rationale which guided it in deciding Kelly v.

RKosuga. We submit there is no reason for re-examining

a rule well understood and consistently applied by lower

courts.

Cc.

Azalea Was Not Improperly Denied Trial By Jury

Azalea contends it was improperly denied trial by jury

even though Azalea’s waiver of trial by jury was contained

in the promissory note it executed. In its opinion, though,

the Supreme Court of Virginia held that such waiver clauses

have been upheld in a large number of cases.

Azalea also asserts that § 8.2-302(1) of the Code of

Virginia (Virginia’s version of the Uniform Commercial

Code) authorizes a court not to enforce an unconscionable

clause in a contract although otherwise enforcing the con-

tract. Azalea insists that the jury waiver clause was such

an unconscionable clause. As the Assignments of Error set

out earlier show, Azalea never made that contention in the

state courts and is therefore precluded from raising it now.

13

Even if the issue were properly before this court, though,

it is without merit. The courts have consistently held that a

contract clause waiving trial by jury is not unconscionable,

see David v. Manufacturers Hanover Trust Co., 298 N.Y.S.

2d 847 (N.Y.Ap. 1969), and the cases cited in that opinion.

Azalea has cited the court to only one case where a clause

in a contract waiving trial by jury was found to be un-

conscionable as defined by the Uniform Commercial Code,

David v. Manufacturers Hanover Trust Co., 287 N.Y.S.2d

503 (N.Y. Sp. Term 1968). It was precisely that holding

which was reversed on appeal in David v. Manufacturers

Hanover Trust Co., 298 N.Y.S.2d 847 (N.Y.Ap. 1969),

discussed above.

What Azalea really contends is that the Supreme Court

of Virginia improperly construed the Virginia constitution

and common law and the Virginia version of the Uniform

Commercial Code when it upheld Azalea’s waiver of trial

by jury. This court has pointed out from the earliest days,

though, that it does not sit to review decisions of the highest

state courts on matters of state law. A few cases illustrate

that principle.

In King v. West Virginia, 216 U.S. 92 (1910), Mr.

Justice Holmes, said, at p. 101:

“It is argued that the state court misconstrued the

statute, but we have nothing to do with that.”

And in Garner yv. Louistana, 368 U.S. 157 (1961), at

p. 166:

“We of course are bound by a state’s interpretation

of its own statute and will not substitute our judgment

for that of the state’s when it becomes necessary to

analyze the evidence... .”

14

To the same effect are, for example, United States v.

Texas, 314 U.S. 480 (1941), Copperweld Steel Company v.

Industrial Commission of Ohio, 324 U.S. 780 (1945), Herb

v. Pitcairn, 324 U.S. 117 (1945), and many others. In short,

there is no reason for granting certiorari to review the deci-

sion by the Virginia Supreme Court that Azalea’s jury

waiver was valid under state constitutional, statutory and

common law.

Azalea, attempting to find a constitutional issue to pique

the curiosity of this Court, asserts that it was deprived by its

waiver of a Seventh Amendment right to trial by jury in

the Circuit Court of the City of Norfolk. It cites no au-

thority for that proposition, and for good reason; all the

authority is to the contrary.

This Court disposed of that contention beginning with

Walker v. Sauvinet, 92 U.S. 90 (1875) at p. 92:

“The States so far as this amendment is concerned,

are left to regulate trials in their own courts in their

own way. A trial by jury in suits at common law pend-

ing in the State courts is not, therefore, a privilege or

immunity of national citizenship, which the States are

forbidden by the Fourteenth Amendment to abridge.”

In Hawkins v. Bleakly, 243 U.S. 210 (1917), an Iowa

Act which dispensed with trial by jury in certain actions

under the Iowa workmen’s compensation laws was chal-

lenged. In upholding the constitutionality of the Act, this

court reiterated that trial by jury “is not embraced in the

rights secured by the Fourteenh Amendment,” 243 U.S, at

216, and said, at p. 217:

“The State of Iowa, therefore, is as much at liberty

as any other State to abolish or limit the right of trial

by jury; or to provide for a waiver of that right, as it

has done by the act under consideration.”

PESP Re ae

15

This Court similarly noted in Afinneapolis and St. Louts

R.R. v. Bombolis, 241 U.S. 211 (1916), at p. 217:

“that the Seventh Amendment applies only to

proceedings in courts of the United States and does

not in any manner whatever govern or regulate trials

by jury in state courts or the standards which must be

applied concerning the same.”

This Court continued at p. 220:

“ . the limitations of the [Seventh] Amendment

are applicable only to the mode in which power or

jurisdiction shall be exercised in tribunals of the United

States, and therefore . . . its terms have no relation

whatever to the enforcement of rights in other forums

merely because the right enforced is one conferred by

the law of the United States.”

See also Alexander v. Virginia, 413 U.S. 836 (1973),

reh. den. 414 U.S. 881 (1973).

There is no Seventh Amendment right to trial by jury in

a state court on a state cause of action. Tl re is no basis

for granting a writ of certiorari to re-examine that principle.

IV.

CONCLUSION

Both the Circuit Court of the City of Norfolk, Virginia,

and the Supreme Court of Virginia have given Azalea’s

claims now asserted in support of a petition for writ of

certiorari careful and mature consideration and have re-

jected them. This Court does not review contested issues of

fact by writ of certiorari especially, as here, where two courts

have already considered them and the trial court had the

opportunity to observe the testimonial demeanor. Nor will

this Court grant certiorari to review a state court’s determi-

nation of state law.

16

Azalea’s waiver of trial by jury was effective and involves

no abridgment of constitutional or statutory rights. Kelly v.

Rosuga is well understood and applied and should not be

re-examined. Finally, it has been established for more than

one hundred years that there is no Seventh Amendment

right to trial by jury in a common law action in a state court.

Consequently, there is nothing left for this Court to re-

view. The petition for writ of certiorari should be denied.

Respectfully submitted,

Epwarp A. SAarGoy, ET AL.

By: Lewis TV. Booker

BenyAmMIn C. ACKERLY

Of Counsel

October 9, 1975

Hunton, Witutams, Gay & Gipson

P. O. Box 1535

Richmond, Virginia 23212

Counsel

ST