Petition for Writ of Certiorari — Holt v. J. L. Prescott Co.

7 Supreme Court, u.s.

| FILED

96 6783 OCT 28 19%

opriee OF THE CLERK

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1996

PATRICIA HURST HOLT,

Petitioner,

-v-

J. L. PRESCOTT CO.,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

David E. Kenney

Counsel of Record

Karns & Karabian

900 Wilshire Boulevard, Suite 530

Los Angeles, California 90017

(213) 680-9522

Attorneys for Petitioner,

Patricia Hurst Holt

QUESTION PRESENTED FOR REVIEW

Whether the use of the word "wife" creates a

class designation in a contract for a definite term?

TABLE OF CONTENTS

QUESTIONS PRESENTED) 2 is ccs vee cees i

CPG MAI i ae cece ewer ene 1

FURIE SERS UN ME KR RVR Ree aN fs

PERTINENT STATUTORY PROVISIONS .. 2

STATEMENT OF 'Tiit CASE 4s. fee 3

REASONS FOR GRANTING THE

oe ESET Sr ye mary rence 2

oe St are rae Cpe ee ee 7

APPENDIX

Appendix 1: Findings of Fact and Conclusions of

Law and Order of the United States

District Court for the Central

District of California .......... la

Appendix 2: Opinion of the United States

Court of Appeals for the Ninth

COND Ki vend Ke Sae aes Meee 26a

Appendix 3: Order rejecting petition for

rehearing and suggestion for

rehearing en banc............ 38a

PRCT Th cI og NU. Pg ER

TABLE OF AUTHORITIES

Cases Page

Hagan v. Scottish Union & National

Insurance Company

(1902) 186 U.S. 423, 22 S.Ct. 862, 46 L.Ed.429 . §

Modern Woodmen of America y. Allin

(ien) 2eeeIy.. O77, SOl 1. 119 2... 5

Other Authorities

EE ee ee oe 1

California Civil Code §1636................ 2

Canroraia Cavill Code $1636 ................. 2

California Civil Code §1639................. 2

California Civil Code §1646................ 2

cman Cove Cee 81656... ww... 2

IN THE

SUPREME COURT

OF THE UNITED STATES

October Term, 1996

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES

COURT OF APPEALS

FOR THE NINTH CIRCUIT

Patricia Hurst Holt respectfully petitions for a writ

of certiorari to review the judgment of the United States

Court of Appeals for the Ninth Circuit in this case.

OPINIONS BELOW

The findings of fact and conclusions of law of the

district court are unreported. (Appendix ieee. Be

opinion of the Court of Appeals is also unreported.

(Appendix "2"). The order denying a timely petition for

rehearing and rejecting a suggestion for rehearing en banc

is also unreported. (Appendix "3").

JURISDICTION

The basis for jurisdiction in this court arises as a

result of the entry of judgment by the United States

District Court for the Central District of California on

October 11, 1994; and the Memorandum affirming the

judgment, on different reasoning, filed by the United

States Court of Appeals for the Ninth Circuit on June 26,

1996 and entered by the district court on August 30, 1996.

The Court of Appeals denied a timely petition for

rehearing and rejected a suggestion for rehearing en banc

on August 13, 1996. The jurisdiction of this court is

invoked under 28 U.S.C. 1254(1).

PERTINENT Si. TUTORY PROVISIONS

The California statutes involved in this case are:

California Civil Code §1636: "A contract must be so

interpreted as to give effect to the mutual intention of the

parties as it existed at the time of contracting, so far as

the same is ascertainable and lawful."

California Civil Code $1638: "The language of a

contract is to govern its interpretation, if the language is

clear and explicit, and does not involve an absurdity."

gine niteted ai Sis Grd nin 2

3

California Civil Code §1639: "When a contract is

reduced to writing, the intention of the parties is to be

ascertained from the writing alone, if possible; subject,

however, to the other provisions of this title."

California Civil Code §1646: "A contract is to be

interpreted according to the law and usage of the place

where it is to be performed; or, if it does not indicate a

place of performance, according to the law and usage of

the place where it is made."

California Civil Code §1654: "In cases of uncertainty

not removed by the preceding rules, the language of a

contract should be interpreted most Strongly against the

party who caused the uncertainty to exist."

STATEMENT OF THE CASE

In February of 1984, J. A. Keilly entered into a ten-

year agreement with the J. L. Prescott Company. The

contract included the following provision:

"If you should die during the term of this

agreement, we will continue to pay the

above defined commission to your wife,

Shirley G. Keilly, until December 31, 1988

and subsequent to that date she will receive

4

from us if living, a flat 2% on total sales

until December 31, 1993."

In January of 1987, Shirley Keilly predeceased

J. A. Keilly. In February of 1988, on Valentine’s Day,

J. A. Keilly married Patricia Holt-Keilly. In 1992, J. A.

Keilly passed away prior to the expiration of the term of

the contract, leaving his "wife," Patricia Holt-Keilly, a

widow.

Since the agreement contained the provision

reflecting and using the word "wife," Patricia Holt-Keilly

filed, based on diversity jurisdiction, a claim for relief.

The district court reasoned that the contract was

ambiguous because it concluded that in denoting "your

wife, Shirley G. Keilly [,]" the contract identified both

Keilly’s wife and Shirley Keilly. Noting that J. A. Keilly

created the provision, the trial court reasoned that the

ambiguity should be resolved against the drafter and

entered judgment for Prescott. The circuit court

disagreed, not finding any ambiguity, and reasoned that

the contract identified Shirley Keilly as the exclusive and

sole beneficiary. The circuit court then focused upon

extrinsic evidence to support the conclusion and affirmed

the judgment, thereafter denying a rehearing and

suggestion for rehearing en banc.

5

REASONS FOR GRANTING THE PETITION

Scripture is replete with passages encouraging the

protection of widows, orphans and _ sojourners.

Providence protects human hearts precariously positioned

on the abyss.

The courts are not in harmony. Patricia Holt-Keilly

respectfully moves this Honorable Court to exercise

supervisory powers to correct the district court’s departure

from reason as well as the circuit court’s misapplication of

logic and reason constituting a departure from the

accepted and usual course of judicial proceedings.

While the district and appellate courts correctly

noted that J. A. Keilly, at the inception of the contract,

was married to Shirley G. Keilly through January of 1987,

the date of her death, both courts skirt the fact that the

word "wife" sets forth a specific legal relationship. The

courts also fail to address the fact that the name of

Shirley Keilly is set forth solely for the purpose of

identification. The legal relationship, although

paramount, is subordinated to identity. The fallacy of

accent occurs because a shift in meaning persists under

both judicial interpretations. The status of the legal

relationship compels a finding with respect to the identity

of the person, not the other way around.

J. A. Keilly’s subsequent marriage to Patricia in

1988, during the term of the contract, provides fertile

ground to illustrate the point. For example, if J. A. Keilly

6

had divorced and then predeceased Shirley during the

term of the agreement, the meaning of the word, and the

legal relationship of, "wife" would have been controlling.

Shirley Keilly would have had to have maintained the

status of the legal relationship to enjoy the benefit of the

contract. The proposition is absolute, fathomable and

irrefutable and demonstrates the fallacy of accent. The

error is, despite the presence of the word "wife", caused

by shifting focus from the legal relationship to identity,

but not back.

Strict and liberal construction must recognize that

the word "wife" establishes the status of the legal

relationship as the qualifying condition. The district court

identified the problem, but clearly erred. The appellate

court also erred and created another problem entirely, by

riding roughshod over, and essentially striking, the word

"wife" from the contract.

The particular affirmative categorical proposition,

created by the use of the word "wife", establishes both a

quality (the status of the legal relationship) and a quantity

(Shirley and Patricia). Pure reason compels a minimal

interpretation that, during J. A. Keilly’s life, the use of

the word "wife" created a class, which included Patricia,

during the term of the contract. Reasoning otherwise is

invalid and unfathomable.

In the case of Hagan v. Scottish Union & National

Insurance Company (1902) 186 U.S. 423, 22 S.Ct. 862, 46

L.Ed. 429, this court noticed the distinction between

| Pe eT ae

7

capacity and identity. An insurance policy issued "for

whom it may concern," and this court held that the

contract may be enforced by a person who later fills the

description. In ern Woodmen of

(1921) 133 N.E. 677, 301 Ill. 119, the state court

addressed the similar issue in the context of the use of the

word "wife" and concluded: "It was the person who at his

death answered the description of the class designated

that he desired to protect."

The most important aspect of this case is the

eternal truth of the fact that J. A. Keilly intended, in the

event of his death, to protect and to provide for his wife,

the person standing in the legal relationship, during the

term of the contract. Don Prescott, the President of the

J. L. Prescott Company, with respect to this fact,

appreciated and enjoyed both knowledge and

understanding. Mr. Keilly and Mr. Prescott mutually

recognized that a period of mourning is comforted by a

measure of providence, and the gentlemen manifested

jointly the intent to care for another.

CONCLUSION

The California statutes provide guidance, but logic

produces the result. Focusing on status eliminates the

error and produces a just result.

The reason the Petition for Certiorari must be

granted is because the rules of reason support the

8

proposition that the use of the word "wife," under the

circumstances and facts of this case, applies legally with

equal dignity and force to J. A. Keilly’s "wife", Patricia

Holt-Keilly.

Mr. Keilly and Mr. Prescott intended to be

beneficent, compassionate and kind. Such acts have a

certain beauty and must resonate forever.

Dated: C26 ptr £21996

Respectfully submitted,

KARNS & KARABIAN

900 Wilshire Boulevard, Suite 530

Los Angeles, California 90017

(213) 680-9522

Attorneys for Petitioner,

Patricia Hurst Holt