Mаrtin KATZ and Louana Katz, Plaintiffs-Appellants, v. The GOODYEAR TIRE AND RUBBER COMPANY, Defendant-Appellee.
No. 984, Docket 83-7738
United States Court of Appeals, Second Circuit
June 14, 1984
737 F.2d 238
Second, evidence of industry practice may not be used to vary the terms of a contract that clearly sets forth the rights and obligations of the parties. In re Western Union Telegraph Co., 299 N.Y. 177, 184-85, 86 N.E.2d 162, 166 (1949); Cable-Wiedemer, Inc. v. Friederich & Sons Co., 71 Misc.2d 443, 445, 336 N.Y.S.2d 139, 141 (Monroe County Ct.1972). Here, the Songwriting Agreement plainly stated in paragraph 3.A. that sheet music sales by Blendingwell were to result in a three-cent royalty and in paragraph 3.G. that sums received from other sources not specifically provided for in the contract were to result in a 50% royalty. The industry custom as described to us by Blendingwell would have been used not to illuminate an unclear term but instead to modify the provision of paragraph 3.A. to have it read, in effect, “sheet music sales by Blendingwell or any other person who is its licensee.” This is not a permissible use of industry custom evidence. Further, we do not see that the evidence of industry custom supported even that reinterpretation. The expert on whose testimony Blendingwell relies testified that when an agreement contained a provision for royalties on sheet music sold by the publishing company, the industry practice was to include a provision that sheet music sold by persons other than the company would result in a royalty of 50%.
Finally, there is no merit in Blendingwell‘s contention that the trial court interpreted “COMPANY” for purposes of the sheet music claim inconsistently with its interpretation of that term for the purposes of the ABC Royalty claim. The term “COMPANY” was not at issue in connection with the ABC Royalty claim. What was at issue was whether actual receipt by Blendingwell meant merely physical possession by Blendingwell or instead meant realization by Blendingwell. The conclusion that a company has constructively received income it has directed its debtor to pay to its creditor does not mean that the court considered either the company and its debtor or the company and its creditor to be one in the same person.
At trial there was no dispute that the sheet music in question was sold by Robbins, an independent music publisher, and not by Blendingwell. Further, the court‘s view as to the clear meaning of the contract terms governing royalties for sheet music sold by Robbins is confirmed by the fact that for the better part of a decade Blеndingwell actually paid Croce a royalty of 50% of the net sums it received from Robbins. We conclude that the trial court did not err in directing a verdict for Croce on the sheet music claim.
CONCLUSION
The judgment of the district court is affirmed.
Herbert Rubin, New York City (Howard L. Wexler, David B. Hamm, Herzfeld & Rubin, P.C., New York City, of counsel), for plaintiffs-appellants.
James A. Gallagher, Jr., Garden City, N.Y. (Robert A. Faller, Moore, Berson, Lifflander & Mewhinney, Garden City, N.Y., of counsel), for defendant-appellee.
Before KAUFMAN, KEARSE, and PIERCE, Circuit Judges.
PIERCE, Circuit Judge.
Plaintiffs Martin and Louana Katz appeal from an order and judgment of the United States District Court for the Southern District of New York, Irving Ben Cooper, Judge, entered August 15, 1983, granting the motion of defendant The Goodyear Tire and Rubber Company (“Goodyear“) for summary judgment and dismissing the complaint on the ground that plaintiffs had failed to prove that they were New York domiciliaries at the time their claim accrued and consequently had not shown that pursuant to New York‘s borrowing statute,
Upon review, we conclude that therе is a material factual dispute about plaintiffs’ domicile at the time their action accrued. Therefore, we reverse the order and judgment of the district court and we remand for determination of this disputed factual issue by the trier of facts, in this case a jury.
Plaintiffs initiated this diversity action on June 25, 1981, to recover damages for personal injuries and loss of consortium allegedly caused by an accident which occurred in Virginia on October 23, 1978, when one of the tirеs on the truck Martin Katz was driving allegedly exploded and caused the vehicle to overturn. In their complaint, plaintiffs alleged that they were New York domiciliaries and demanded a jury trial. Goodyear‘s answer denied liability and asserted various affirmative defenses, including the statute of limitations.
By motion dated August 23, 1982, Goodyear moved before Judge Pollack, to whom the case initially had been assigned, for summary judgment dismissing the complaint on the ground that the action was barred by the applicable statute of limitatiоns. On September 23, 1982, Judge Pollack held a hearing on the motion, at which time Goodyear argued that plaintiffs’ action was barred by Virginia‘s two-year statute of limitations. Goodyear also argued that plaintiffs were not New York domiciliaries at the time the cause of action accrued and, consequently, plaintiffs could not take advantage, pursuant to New York‘s borrowing statute,
On April 26, 1983, Goodyear renewed its motion for summary judgment, this time before Judge Cooper, to whom the case had been reassigned. Judge Cooper held a hearing on the motion on May 9, 1983. At the hearing, Goodyear relied on the papers it previously had submitted. At Judge Cooper‘s request, plaintiffs testified and presented two witnesses on their behalf. The substance of this testimony was that Martin Katz had expressed his intention during the relevant period to remain domiciled in New York. By Memorandum and Order filed July 13, 1983, Judge Cooper granted Goodyear‘s motion for summary judgment, finding that “plaintiff failed to convince us of his claim of domiciliary intent.”
As is often the case where the question of intent vis-a-vis domicile is involved, the parties herein agree on many of the facts but disagree on the inferences the fact-finder should draw therefrom. See Hawes v. Club Ecuestre El Comandante, 598 F.2d 698, 699 (1st Cir.1979); Restatement (Second) of Conflict of Laws § 18 comment d (1971). Plaintiffs and Goodyear agree that Martin Katz was a New York domiciliary until September, 1974, when his parents sold their home in Plainview, New York, where Katz was living, and moved to Sunrise, Florida. Katz helped his parents move by driving the family car, which carried his parents’ belongings, to Florida. He remained in Sunrise for one or two months, purportedly only to assist his parents in the move. In an affidavit submitted in opposition to the summary judgment motion, Katz’ sister, Barbara Sosne, stated that “[o]ther than the change of clothes and toiletries he took [to Florida], he left most of his own personal belongings at my home at 53 Roundtree Drive, Melville, New York.” Katz’ friend John Dalton testified at the May 9, 1983 hearing that Katz was “emphatic in saying that he ... could not conceive of living anywhere but New York on his farm.” Both Katz and his sister Barbara stated via affidavit thаt Katz’ intention was to return to New York and then to attend a commercial diving training center in California in the early part of 1975.
In late September, 1974, Katz obtained a Florida driver‘s license that bore the address of his parents’ new home in Sunrise. He also worked for a short period parking cars in Fort Lauderdale, Florida. In October of that year, he met Louana Christine Mobley, who eventually became his wife. Shortly after he met Louana, Katz moved in with her in Lake Wales, Florida. In an affidavit to the court, Katz statеd that meeting his future wife “caused me to delay my trip to California and to adjourn commencement of commercial diving classes for one semester.” Louana testified at the May 9th hearing that “from the very beginning” Katz told her of his aspiration to return to New York and buy a farm there.
In June, 1975, Katz and Louana left Florida, toured the southwest in a van and eventually went to California, where, in August, 1975, Katz applied to diving school. In his application, Katz listed Louana‘s Lake Wales residence as his “[p]revious [a]ddress.” In the employment history section of the application, Katz stated that he had left a previous job because he “moved to [Florida].”
After Katz completed the diving training course in March, 1976, the couple left California and went to New York, where they stayed for several weeks with Katz’ friend Nancy Prince. In April, 1976, plaintiffs left New York for Scotland. In October, 1976, while in Scotland, Katz completed an employment application in which he listed his parents’ residence in Sunrise, Florida as his address. While in Scotland, he аlso
The Katz’ were married in January, 1977, in Scotland, where they remained until September of that year. In October, 1977, the couple returned to New York, where they stayed with Nancy Prince. In January, 1978, plaintiffs moved their belongings into Katz’ sister‘s home in Melville, New York. The next month, they again left for Scotland in search of employment. While in Scotland, Louana gave birth to a child and, in August, 1978, they returned to Melville, New York, where they stayed with Katz’ sister. In Sеptember, 1978, plaintiffs set out from New York with their child to visit their parents for several weeks in Florida and South Carolina, respectively. The accident occurred in Virginia on October 23, 1978, while Martin Katz was driving his father-in-law‘s truck from South Carolina to New York.
As stated, the district judge granted Goodyear‘s motion for summary judgment, finding that “plaintiff failed to convince us of his claim of [New York] domiciliary intent” and that, therefore, the Virginia two-year statute of limitations, not the New York three-year period, was applicable. Plaintiffs appealed. Upon review, we hold that it was improper to grant Goodyear‘s motion for summary judgment pursuant to
II. DISCUSSION
A.
Goodyear urges us to review the district court‘s finding as to plaintiffs’ domicile under the “clearly erroneous” standard set out in
Before addressing the appropriateness of the district judge‘s grant of summary judgment for Goodyear, we review the applicable New York law regarding the burden of proof where the borrowing statute is involved. Where the statute of limitations is an affirmative defense, the party asserting the defense must prove the elements of that defense. See Romano v. Romano, 19 N.Y.2d 444, 447, 280 N.Y.S.2d 570, 573, 227 N.E.2d 389 (1967); Brush v. Olivo, 81 A.D.2d 852, 853, 438 N.Y.S.2d 857, 859 (1981).4 With respect to the borrowing statute, however, New York law appears tо place “[t]he burden of proving residency upon the party seeking to take advantage of the New York statute.” Public Administrator v. Curtiss-Wright Corp., 224 F.Supp. 236, 240 (S.D.N.Y.1963); Bache Halsey Stuart Inc. v. Namm, 446 F.Supp. 692, 694 (S.D.N.Y.1978); see Oglesby v. Cranwell, 250 A.D. 720, 293 N.Y.S. 67, 68 (1937) (per curiam) (“[t]o make section 13 [section 202‘s predecessor], Civil Practice Act, applicable, it will be necessary for plaintiff to show that he was a resident of this state at the time” the claim accrued); Whiting v. Miller, 188 A.D. 825, 829, 176 N.Y.S. 639, 641 (1919) (burden on plaintiffs to prove they were residents at the time the claim accrued if they “wished to bring themselvеs within the exception contained in ... section 390-a,” a predecessor of section 202). Thus, it would appear that initially Katz had the burden of proving that he was domiciled5 in New York in 1978 at the time of the accident.6 This seems to have been Judge Cooper‘s understanding of the burden of proof; he noted in his Memorandum and Order that “plaintiff failed to convince us of his claim of domiciliary intent.”
The nature of domicile, however, is such that a person has one at all times; his domicile might be a domicile of origin, a domicile of choice, or a domiсile assigned by operation of law. In re Newcomb, 192 N.Y. 238, 250, 84 N.E. 950, 954 (1908); see Bodfish v. Gallman, 50 A.D.2d 457, 459, 378 N.Y.S.2d 138, 141 (1976) (“‘[t]he existing domicile, whether of origin or selection, continues until a new one is acquired....‘“) (citation omitted); accord Hawes, 598 F.2d at 701 (“[a] person may have only one domicile at a time and, until a new one is acquired, the established one continues“). Under New York law, the party asserting a change in domicile has the burden of proving such a change by clear and convincing evidence. In re Newcomb, 192 N.Y. at 250, 84 N.E. at 954 (“burden of proof rests upon the party who alleges a change” in domicile); Bodfish v. Gallman, 50 A.D.2d at 459, 378 N.Y.S.2d at 141; see Restatement (Second) of Conflict of Laws § 19 comment c (1971). Herein, the parties agreed that Katz was domiciled in New York until 1974. It was incumbent upon Goodyear to prove that thereafter Katz changed his domicile to a state other than New York. Importantly, Goodyear had to show by clear and convincing evidence that Katz had the “require[d] ... intent to give up
C.
To grant summary judgment under Rule 56, a court must determine that there is “no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
A dispute over a material fact may exist even if the parties are in accord as to the actuality of circumstances. As previously has been noted:
“The impact of particular circumstances upon an inference arising from an admittedly existing factual situation сalls for a factual determination which is the function of the trier of the facts and not that of the court in disposing of a motion for summary judgment.”
Empire Electronics Co., 311 F.2d at 180 (quoting Bragen v. Hudson County News Co., 278 F.2d 615, 618 (3d Cir.1960)). The district court should resist drawing fact inferences in summary judgment situations, particularly where, as here, intent is at issue. See Empire Electronics Co., 311 F.2d at 180-81.
The district court did not give due regard to these well-established principles in granting summary judgment on Goodyear‘s behalf. It was error for the court to have decided on the merits the disputed issue of intent, which should have been left for the jury.
In its motion fоr summary judgment, Goodyear asserted that Katz had abandoned his New York domicile when he left for Florida in September, 1974. As proof that Katz had intended to become domiciled in Florida, Goodyear offered evidence that Katz obtained a Florida driver‘s license shortly after his arrival there; moved in with his future wife Louana in Lake Wales, Florida; listed the Lake Wales address in a 1975 application to diving school (in which he also stated that he left a previous job because he “moved to [Florida]“); and listed his mother‘s address in a 1976 employment form, a 1976 tax form, and a 1977 insurance application. Goodyear contended that an inference could be drawn from this evidence that Katz had abandoned his New York domicile in favor of a Florida domicile.
Katz disputed this factual inference of intent. By affidavit and in his testimony in the May 9th hearing, Katz stated that he went to Florida, where he only remained
Thus, it is clear that there was a dispute about a material fact—plaintiffs’ domicile at the time of the accident.7 The way to resolve that dispute was to draw fact inferences and to make credibility findings, something the judge was precluded from doing on the summary judgment motion. See Heyman, 524 F.2d at 1319-20 (“the ‘fundamental maxim’ remains that on a motion for summary judgment the court cannot try issues of fact; it can only determine whether there are issues to be tried“); see 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2725, at 104-05 (1983) (“a рarty moving for summary judgment is not entitled to a judgment merely because the facts he offers appear more plausible than those tendered in opposition, or because it appears that the adversary is unlikely to prevail at trial“). The question of whether Goodyear had met its burden of showing that at the time of the accident Katz had changed his domicile from New York to Florida involved a dispute about a material fact, which dispute should have been left for the trier of facts, herein a jury, to resolve.
D.
Contrary to plaintiffs’ contention, the district court did not abuse its discretion when it denied plaintiffs’ motion for leave to amend the complaint on the ground that “granting the application would necessitate further proceedings by [Goodyear] (taking of depositions) and consequent trial delay.” See, e.g., Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330, 91 S.Ct. 795, 802, 28 L.Ed.2d 77 (1971); Oreck Corp. v. Whirlpool Corp., 639 F.2d 75, 81 (2d Cir.1980), cert. denied, 454 U.S. 1083, 102 S.Ct. 639, 70 L.Ed.2d 618 (1981); Middle Atlantic Utilities Co. v. S.M.W. Development Corp., 392 F.2d 380, 384 (2d Cir.1968). However, in light of our determination herein, we leave to the district сourt the decision of whether to adhere to this ruling upon remand.
III. CONCLUSION
For the foregoing reasons, we reverse the order and judgment of the district court and we remand for further proceedings consistent herewith.
KAUFMAN, Circuit Judge (concurring).
I join in the result but disagree with Part II B of my brother Pierce‘s opinion. I write separately to take issue with certain conclusions regarding the burden of proving intent to change domicile and to make clear that there may be permissible alterna-
I agree with my colleagues that Katz, as the party seeking to avail himself of the benefits of New York‘s borrowing statute, would bear the initial burden of proof at trial on the issue of domicile. I am not nearly so certain, however, that New York law would shift the burden to Goodyear merely because the parties agree that Katz was a New York domiciliary at some point in the past. Conceivably, Katz might have acquired and given up any number of domiciles between 1974 and 1978, when the instant cause of actiоn accrued. In any event, I do not believe that we have to decide that issue today. For the purpose of determining whether a grant of summary judgment was proper in this case, burdens of proof at trial are important only insofar as they indicate what is or is not a material fact within the meaning of
Further, although I agree there exists a genuine dispute as to a material issue of fact in this case, I am troubled by the implication that it is not possible to dispose of such discrete issues as this one without resort tо a full trial on the merits. While recognizing that summary judgment is a “drastic remedy“, Heyman v. Commerce and Industry Co., 524 F.2d 1317, 1320 (2d Cir.1975), this Court has long urged that expeditious methods (such as mini-trials) be employed to resolve preliminary factual issues whenever appropriate. See Jenkins v. Chemical Bank, 721 F.2d 876, 880 (2d Cir.1983). Principles of sound judicial administration require that this effort go forward, and that full-blown trials be avoided where what is essentially a procedural dispute could preclude consideration of the underlying claim. Without commenting upon the precise procеdure to be utilized on remand in this case, it would seem paradoxical to require a full trial on the merits to determine whether a trial is appropriate.
Augustin J. SAN FILIPPO, Plaintiff-Appellee, v. U.S. TRUST COMPANY OF NEW YORK, INC., J. Gregory Van Schaack and Bruce P. Dennen, Defendants-Appellants, Hon. Robert M. Morgenthau, District Attorney for the County of New York, Appellee.
Nos. 487, 488, Dockets 82-7355, 82-3033.
United States Court of Appeals, Second Circuit.
Argued Feb. 6, 1984.
Decided June 14, 1984.
Notes
An action based upon a cause of action accruing without the state cannot be commenced after the еxpiration of the time limited by the laws of either the state or the place without the state where the cause of action accrued, except that where the cause of action accrued in favor of a resident of the state the time limited by the state shall apply.