Appolonio v. Baxter, No. 12220-12225.
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
| Writing for the Court | SIMONS, , and ALLEN and STEWART, Circuit |
| Citation | 217 F.2d 267 |
| Parties | E. J. APPOLONIO, Harold Danziger, Marshall L. Harper, J. M. Wood and O. F. Littlefield, v. Louise Rhea BAXTER, Administratrix C.T.A. of the Estate of Isaac T. Rhea. E. J. APPOLONIO v. Louise Rhea BAXTER, Admx. etc. Harold DANZIGER v. Louise Rhea BAXTER, Admx. etc. Marshall L. HARPER v. Louise Rhea BAXTER, Admx. etc. J. M. WOOD v. Louise Rhea BAXTER, Admx. etc. O. F. LITTLEFIELD v. Louise Rhea BAXTER, Admx. etc. |
| Docket Number | No. 12220-12225. |
| Decision Date | 06 December 1954 |
217 F.2d 267 (1954)
E. J. APPOLONIO, Harold Danziger, Marshall L. Harper, J. M. Wood and O. F. Littlefield,
v.
Louise Rhea BAXTER, Administratrix C.T.A. of the Estate of Isaac T. Rhea.
E. J. APPOLONIO
v.
Louise Rhea BAXTER, Admx. etc.
Harold DANZIGER
v.
Louise Rhea BAXTER, Admx. etc.
Marshall L. HARPER
v.
Louise Rhea BAXTER, Admx. etc.
J. M. WOOD
v.
Louise Rhea BAXTER, Admx. etc.
O. F. LITTLEFIELD
v.
Louise Rhea BAXTER, Admx. etc.
Nos. 12220-12225.
United States Court of Appeals Sixth Circuit.
December 6, 1954.
Walter P. Armstrong, Jr., Memphis, Tenn. (Benjamin Goodman, of counsel, and Armstrong, McCadden, Allen Braden & Goodman, Memphis, Tenn., on the brief), for appellants.
A. Longstreet Heiskell, Memphis, Tenn., Lewis Rhea Baxter, Jacksonville, Fla., Chandler, Shepherd, Heiskell & Williams, Memphis, Tenn., Rogers, Towers & Bailey, Jacksonville, Fla., for appellee.
Before SIMONS, Chief Judge, and ALLEN and STEWART, Circuit Judges.
SIMONS, Chief Judge.
The five appellants are claimants against the estate of appellee's decedent who died in Shelby County, Tennessee, on October 2, 1952. They filed a joint claim against his estate in administration proceedings pending in the Probate Court of Shelby County. At the same time, each also filed an individual claim against the estate. The causes were all removed to the United States District Court, where the administratrix, after obtaining answers from the claimants to interrogatories and filing depositions of persons listed in such answers as witnesses, moved for summary judgment on the ground that there was no provable fact issue to be determined by a jury. The motion was sustained, a judgment for the defendant entered, and the appeals followed.
The decedent, Isaac T. Rhea, during his lifetime, was president and principal stockholder of Mente & Company, Inc., a corporation with industrial plants in Louisiana. The joint claim recites that, on numerous occasions, Rhea contracted with the claimants, by repeated promises, that in consideration of their agreement to serve the corporation at salaries substantially lower than what each would otherwise have been entitled to receive, and substantially lower than salaries paid by other comparable companies to similar key executives, to leave to the claimants, upon his death, all of his interest and ownership in Mente & Company, Inc., in the proportion that each claimant's individual salary bore to the aggregate salary of all five claimants. It also recited that the claimants performed the contract with the decedent through continued service to the company for inadequate compensation but that the decedent breached the contract and left no stock of the corporation to them by will, or otherwise, that the stock owned by the decedent was sold by his administratrix for an aggregate price of $2,239,368.73, and that by reason of Rhea's failure to fulfill his contractual undertakings, the claimants were damaged in that amount, that it was a valid obligation of the estate upon which no payment in whole, or in part, had been made and that they are entitled to the money in the proportion set up in the claim for each. These proportions are: Danziger 35%, Appolonio 25%, Littlefield 15.50%, J. M. Wood 15.50% and M. L. Harper 9%. Simultaneously, with the filing of the collective claim, each claimant filed his individual claim, counting upon the identical contract recited in the joint claim and seeking his prorata share of the proceeds derived from the sale of the Rhea stock, Danziger claiming $783,779.06, Appolonio $559,842.18, Harper $201,543.19, Wood $347,102.15 and Littlefield $347,102.15.
The decedent left a will which bequeathed all of his property to his wife, Posey Blanker Rhea. The will could not be probated, since Mrs. Rhea's death preceded that of her husband by four weeks. The administratrix, Louise Rhea Baxter, sister of the decedent and his only living heir, consequently, took the entire estate under state laws of intestacy. She qualified as administratrix and the business of Mente & Company, Inc., having been conducted with the aid of the claimants for approximately ten months at substantial loss, she succeeded, after much negotiation in which the claimants Appolonio and Danziger actively participated, in selling the Rhea stock. This was represented by them to the purchaser as the shares of Mrs. Baxter. There was no assertion by them of ownership therein. To a lesser extent, the other claimants, likewise, participated. They were aware that the stock was being offered for sale by the administratrix, knew of the negotiations for sale, and Wood and Littlefield assisted by showing their respective
Rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A., deals with summary judgments and provides in subsection (c) as follows: "The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show 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." Of this Rule, a distinguished member of the Drafting Commission, said: "Another radical departure from our Tennessee practice is a rule providing for summary judgments. Under this Rule, either party may move, with or...
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Industrial Building Materials, Inc. v. Interchemical Corp., 64-432.
...819 (10th Cir. 1965); Elbow Lake Cooperative Grain Co. v. Commodity Credit Corp., 251 F.2d 633, 637 (8th Cir. 1958); Appolonio v. Baxter, 217 F. 2d 267, 270-271 (6th Cir. 1954); Zampos v. United States Smelting, Ref. & Mining Co., 206 F.2d 171, 173 (10th Cir. 1953); Durasteel Co. v. Great L......
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Moore v. Atlanta Transit System, Inc., 39008
...56.02 , at 2019; 3 Barron & Holtzoff, Federal Practice & Procedure, 1958 rev. § 1235, at 148-149 and § 1237, at 164. Appolonio v. Baxter, 217 F.2d 267 (6th Cir.) is directly in point. There the defendant's motion for summary judgment was held properly granted where plaintiff's case was not ......
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Fabrique De Fer De Charleroi S.A. v. U.S., SLIP OP. 01-82.
...Page 813 unenforceable. See, e.g., Johnson v. Johnson, 244 Ill.App.3d 518, 185 Ill.Dec. 214, 614 N.E.2d 348 (1993); Appolonio v. Baxter, 217 F.2d 267 (6th Cir.1954); Robertson v. Miller, 286 F. 503 (2nd Cir. 1922). FAFER's failure to cure this defect in the agreement letter left Commerce no......
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WORTHINGTON CORPORATION v. Lease Management, Inc., 15848.
...in a diversity case tried in federal court on appropriate facts pertaining to the witness and to the deceased. Appolonio v. Baxter, 217 F.2d 267 (C.A.6, 1954). See also Wright v. Wilson, 154 F.2d 616, 170 A.L.R. 1237 (C.A.3, 1946), cert. denied, 329 U.S. 743, 67 S.Ct. 50, 91 L.Ed. 640 Appel......
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Industrial Building Materials, Inc. v. Interchemical Corp., 64-432.
...819 (10th Cir. 1965); Elbow Lake Cooperative Grain Co. v. Commodity Credit Corp., 251 F.2d 633, 637 (8th Cir. 1958); Appolonio v. Baxter, 217 F. 2d 267, 270-271 (6th Cir. 1954); Zampos v. United States Smelting, Ref. & Mining Co., 206 F.2d 171, 173 (10th Cir. 1953); Durasteel Co. v. Great L......
-
Moore v. Atlanta Transit System, Inc., 39008
...56.02 , at 2019; 3 Barron & Holtzoff, Federal Practice & Procedure, 1958 rev. § 1235, at 148-149 and § 1237, at 164. Appolonio v. Baxter, 217 F.2d 267 (6th Cir.) is directly in point. There the defendant's motion for summary judgment was held properly granted where plaintiff's case was not ......
-
Fabrique De Fer De Charleroi S.A. v. U.S., SLIP OP. 01-82.
...Page 813 unenforceable. See, e.g., Johnson v. Johnson, 244 Ill.App.3d 518, 185 Ill.Dec. 214, 614 N.E.2d 348 (1993); Appolonio v. Baxter, 217 F.2d 267 (6th Cir.1954); Robertson v. Miller, 286 F. 503 (2nd Cir. 1922). FAFER's failure to cure this defect in the agreement letter left Commerce no......
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WORTHINGTON CORPORATION v. Lease Management, Inc., 15848.
...in a diversity case tried in federal court on appropriate facts pertaining to the witness and to the deceased. Appolonio v. Baxter, 217 F.2d 267 (C.A.6, 1954). See also Wright v. Wilson, 154 F.2d 616, 170 A.L.R. 1237 (C.A.3, 1946), cert. denied, 329 U.S. 743, 67 S.Ct. 50, 91 L.Ed. 640 Appel......