Fleming v. Etherington, s. 50789

Decision Date10 May 1980
Docket Number50790,Nos. 50789,s. 50789
Citation610 P.2d 592,227 Kan. 795
PartiesJack C. FLEMING, Appellee, v. George C. ETHERINGTON, Appellant. Allen R. DODGE, Appellee, v. George C. ETHERINGTON, Appellant.
CourtKansas Supreme Court

Syllabus by the Court

1. In proceedings in aid of execution the trial court is vested with broad discretion in determining whether an in camera examination of subpoenaed documents is necessary to protect the rights of third parties.

2. Where records or documents of a confidential nature are produced in court in response to a subpoena or other court order, the court is vested with authority to issue such protective orders as it deems advisable to keep the information from prying eyes and to prevent its misuse.

3. The grant or denial of discovery in proceedings in aid of execution rests within the sound discretion of the trial judge.

4. A party cannot be punished for contempt for failure to perform an act which is impossible or beyond his control.

5. In a contempt proceeding where the prior orders of the court have not been complied with, the burden is upon the contemner to produce sufficient evidence to show cause why he should not be held in contempt of court.

6. By the very nature of a contempt proceeding the decision of guilt or innocence of an accused rests in the sound discretion of the trial court before whom the matter is pending. When a trial court has exercised that discretion and its decision has been challenged by appeal the sole duty of the appellate court is to determine whether the record reveals such an abuse of discretion as to warrant a reversal of its action.

7. A point not raised before, or presented to, the trial court cannot be raised for the first time on appeal before this court.

8. In proceedings in aid of execution under K.S.A. 60-2419, the record is examined and it is held the trial court did not commit error in (1) overruling defendant's motion to require the court to conduct an in camera inspection of certain subpoenaed documents and records, and (2) finding the defendant guilty of contempt of court for failure to comply with orders of the court.

Randall E. Fisher, of Barta & Barta, Salina, argued the cause and was on the brief for appellant.

William B. Stokes, of King, Stokes, Knudson & Nitz, Chartered, Salina, argued the cause and was on the brief for appellees.

HOLMES, Justice:

Two cases in the Saline County District Court were consolidated for post-judgment proceedings and have been consolidated on appeal. The defendant, George C. Etherington, appeals from orders of the district court entered during proceedings in aid of execution in which the district court denied his motion for an in camera inspection of certain documents and found him in contempt of court for failing to comply with prior orders of the court.

In separate cases, Jack C. Fleming and Allen R. Dodge filed suits to recover on promissory notes executed by the defendant Etherington. On June 8, 1976, Fleming was granted judgment for the sum of $4,311.01, interest and costs, and Dodge was granted judgment for $3,250.00, interest and costs. No appeals were taken from these judgments and their validity is not an issue on appeal. Subsequently the two cases were consolidated for further proceedings in attempts to secure payment of the judgments. To date all such efforts have been unsuccessful. Defendant was represented in the original proceedings by Philip R. Herzig, a Salina attorney.

The record reveals that defendant is a prominent real estate broker and developer in Salina, having been in business for several years. He was involved in several closely held family trusts and corporations. G & K, Inc., was incorporated in 1964 and the 1977 records in the office of the Secretary of State revealed the defendant was president, secretary, treasurer and sole director. The stock, however, was held by defendant's children. A. B. Seelye Co., Inc., was incorporated in 1959 and defendant was shown as secretary, treasurer and as a member of the board of directors. The stock was held by defendant's children and G & K, Inc. Defendant also was the trustee of the Florence Anna Etherington Trust and his personal automobile was furnished to him by Nursing Home Foundation, Inc. Following various attempts to collect the outstanding judgments, plaintiffs instituted proceedings in aid of execution under K.S.A. 60-2419 and defendant was ordered to appear for examination on February 8, 1978. As a part of such proceedings, a subpoena duces tecum was issued to the defendant commanding him to bring with him:

"1. The last 3 yrs. tax returns of any business entity that you are an officer, director, own stock or receive any monies; 2. Personal income tax returns for the past three years; 3. Stock certificates held by you in your name or your name as custodian for another in any corporation or other business entity or trust; 4. Tax returns of any trust or other entity that you may handle funds on behalf of said entity; 5. Passbooks and all other documentation of all of your investments; 6. Titles to all vehicles owned or operated by you."

On February 7, 1978, a motion to quash the subpoena was filed pro se by the defendant. In the motion filed by defendant he stated he owned no stock; that although he was an officer and director of certain corporations, he did not have access to the corporate tax returns or records; that he was not authorized by the stockholders to produce such records; that he had no passbooks or investments and owned no motor vehicles. Defendant then retained Robert H. Royer, Jr., an attorney of Abilene. Mr. Royer also filed a motion to quash the subpoena duces tecum. After various proceedings and hearings the motions were overruled on October 24, 1978. On January 2, 1979, an order was issued by the court directing the defendant to produce the books and records pursuant to the subpoena duces tecum on January 15, 1979, at his accountant's office for inspection by the accountant for the plaintiffs. On January 11, 1979, Barta and Barta, attorneys of Salina, filed a motion on behalf of the defendant asking the court to conduct an in camera inspection of the books and records and make a determination of what should be made available to plaintiffs. This motion was overruled on January 12, 1979. The defendant failed to produce the books and records on January 15, 1979, and on January 16th a citation in contempt was filed and an order entered for defendant to appear on January 29, 1979, to show cause why he should not be held in contempt for failure to comply with the subpoena duces tecum and the order of January 2, 1979. On January 29, 1979, a hearing was held and the court found defendant in contempt of court and ordered him committed to the Saline County jail until he purged himself of contempt by producing the requested records and documents. The commitment was stayed upon application of the defendant and he appeals (1) from the order of the court overruling his motion for an in camera examination of the documents and (2) from the order finding him in contempt of court for failure to comply with the court's orders.

Appellant's first point on appeal is that the court abused its discretion when it refused to conduct an in camera inspection of the various books and records of the family corporations. It is appellant's contention that the information which might be revealed concerned the rights of third parties not parties to the litigation and as such they were entitled to be protected from revealing such information to plaintiffs. Appellant relies upon Kansas Commission on Civil Rights v. Sears, Roebuck & Co., 216 Kan. 306, 532 P.2d 1263 (1975), wherein this court stated:

"Finally, we think it timely to observe that where records or documents of a confidential nature are produced in court in response to a subpoena or other court order, the court is vested with authority to issue such protective orders as it deems advisable to keep the information from prying eyes and to prevent its misuse." p. 321, 532 P.2d p. 1275.

It is clear that the trial judge is vested with broad discretion in deciding whether an in camera examination of documents is necessary. The court is not required to grant such an examination in every instance. The question is, did the trial judge abuse his discretion in the case at bar? We think not.

Our statute on proceedings in aid of execution, K.S.A. 60-2419, is similar in nature to Fed.R.Civ.P. 69, which likewise provides procedures for the enforcement of money judgments. The scope of Rule 69 is discussed in 12 Wright & Miller, Federal Practice and Procedure: Civil § 3014 at 72 (1973):

"The judgment creditor is allowed discovery so that he may find out about assets on which execution can issue or about assets that have been fraudulently transferred or are otherwise beyond the reach of execution . . . . The scope of examination is very broad, as it must be if the procedure is to be of any value, but third persons can be examined only about the assets of the judgment debtor and cannot be required to disclose their own."

Many of the cases under the federal rules involve situations in which a third party, not involved in the litigation, is sought to be examined about assets which might have some connection with the debtor. In the case at bar it was the debtor who was being requested to furnish information and documents about his possible connection with third parties. The situations are similar insofar as the protection of the interests of the third party non-litigant is concerned. In Burak v. Scott, 29 F.Supp. 775 (D.D.C.1939), the court stated:

"In a proper case Rule 69, Federal Rules of Civil Procedure, permits examination by the taking of depositions, as provided for in said rules, in aid of judgments or executions. This is a salutary advance in those jurisdictions which theretofore did not have the advantage of statutory supplementary proceedings. These rules do not,...

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19 cases
  • Gomez v. Hug
    • United States
    • Kansas Court of Appeals
    • 3 Junio 1982
    ...settled in this state that a point not raised before the trial court cannot be raised for the first time on appeal. Fleming v. Etherington, 227 Kan. 795, 610 P.2d 592 (1980). Regarding Gomez' claim that he was deprived of a property right, there is no evidence in the record that plaintiff h......
  • Unified School Dist. No. 490, Butler County v. Celotex Corp.
    • United States
    • Kansas Court of Appeals
    • 29 Mayo 1981
    ...application of Gorrell in the case before us since Celotex raised this issue for the first time in its brief on appeal. Fleming v. Etherington, 227 Kan. 795, Syl. P 7, 610 P.2d 592 (1980). In any event, Gorrell and Thome v. City of Newton, 229 Kan. 375, 624 P.2d 454 (1981), each held a muni......
  • Harris v. IES Associates, Inc.
    • United States
    • Utah Court of Appeals
    • 17 Abril 2003
    ...legal execution or to reach property concealed or fraudulently transferred" (quotations and citation omitted))); Fleming v. Etherington, 227 Kan. 795, 610 P.2d 592, 595 (1980) (recognizing that judgment creditors are allowed to "find out about assets on which execution can issue or about as......
  • Cyr v. Cyr
    • United States
    • Kansas Supreme Court
    • 12 Julio 1991
    ...any garnishment proceeding, income withholding proceeding or proceeding in aid of execution," is not issued. Fleming v. Etherington, 227 Kan. 795, 798, 610 P.2d 592 (1980). K.S.A.1990 Supp. 60-2419 establishes the procedure of a proceeding in aid of execution. Under the statute, a judgment ......
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