In re Willcox

Decision Date15 August 2005
Docket NumberAdversary No. 04-80337-W.,Bankruptcy No. C/A 04-09605-W.
Citation329 B.R. 554
CourtU.S. Bankruptcy Court — District of South Carolina
PartiesIn re Thomas Law WILLCOX, Debtor. Thomas Law Willcox, Plaintiff, v. Rodger Stroup, Director, South Carolina Department of Archive and History; State of South Carolina ex rel. Henry McMaster, Attorney General for the State of South Carolina; John M. Willcox, and Kathryn Willcox Patterson, Defendants.

Ivan N. Nossokoff, Charleston, SC, for Debtor.

Joseph F. Buzhardt, III, Office of the United States Trustee, Columbia, SC, for Trustee.

ORDER

JOHN E. WAITES, Bankruptcy Judge.

This matter comes before this Court for trial in the above-captioned adversary proceeding pursuant to a complaint (the "Complaint") filed by Thomas Law Willcox (the "Debtor" or "Plaintiff") against the Defendants State of South Carolina ex rel. Henry McMaster, Attorney General and Rodger Stroup, Director, South Carolina Department of Archives and History (collectively, the "State" or "Defendants"). The Defendants John M. Willcox and Kathryn Willcox Patterson filed a counterclaim asserting ownership rights. By Order entered March 3, 2005, the claims raised by John M. Willcox and Kathryn Patterson were bifurcated upon the request of the parties.1 Also before the Court is the State's Motion for Certification of Questions of Law to the State Supreme Court. Based upon the trial of this matter, the evidence presented, the arguments of counsel and the applicable law, the Court makes the following Findings of Fact and Conclusions of Law pursuant to Federal Rule of Civil Procedure 52, which is applicable in bankruptcy proceedings pursuant to Federal Rule of Bankruptcy Procedure 7052.2

FINDINGS OF FACT

1. Plaintiff/Debtor Willcox possesses approximately 444 documents (the "Documents") consisting of documents concerning two former Governors of South Carolina, Governors Francis Pickens (1860-1862) and Milledge Bonham (1862-1864) during their administrations.

2. It is undisputed that the Documents concern Confederate military reports, correspondence and telegrams between various Confederate generals, officers, servicemen, and government officials, and related materials. The Documents also address a wide variety of official duties of the Governor during that time period. Plaintiff found the Documents in a bag in his stepmother's closet after she had passed away, sometime during 1999-2000. Plaintiff testified that he had not been aware of the existence of the Documents prior to this time.

3. Plaintiff eventually sold a few of the Documents to different individuals and has given two (2) to his wife. In May 2004, Plaintiff entered into a contract, through his company Haulover Development Corporation, to auction the remaining Documents.3 The Documents had been previously appraised at approximately $2.4 million.

4. The proposed auctioneer testified at trial and indicated that he had extensively marketed and advertised the auction of the Documents. The auctioneer also testified that he met with Defendant Rodger Stroup, Director of the South Carolina Department of Archives and History (the "Department of Archives") prior to the scheduled auction and that Stroup sought permission to place the Documents on microfilm prior to sale for historical preservation purposes. While there was some dispute about the content of the parties' conversation,4 there is no dispute that Plaintiff agreed following that conversation that the Documents could be microfilmed.

5. One day prior to the auction of the Documents, scheduled for August 7, 2004, Stroup and the Attorney General's Office for the State of South Carolina obtained a restraining order in state court preventing the sale of the Documents.

6. Plaintiff testified that he was seeking to auction the Documents due to serious personal and financial strains. Following the enjoinment of the auction, Plaintiff filed for bankruptcy protection under Chapter 11 of the United States Code on August 16, 2004. The Complaint was thereafter filed and this adversary proceeding commenced.

7. Neither the State nor Plaintiff presented definitive evidence to explain how the Documents came into the possession of Plaintiff's ancestors, although certain evidence related thereto was presented as follows.5

8. Plaintiff is the great-great-nephew of Confederate Major General Evander McIver Law who served in the Civil War. Plaintiff asserts that General Law was involved in the evacuation of Columbia in February of 1865, and that this was the time period during which General Law came into possession of the Documents. The parties do not dispute that in December, 1864, recently-elected Governor A.G. Magrath ordered the State Auditor, James Tupper, to prepare the State's records for removal from Columbia in preparation for the imminent attack upon Columbia by General Sherman. A large number of State archives and records were moved out of Columbia on February 16, 1865 and stored in locations in Chester and Spartanburg, South Carolina, presumably to preserve them from destruction. Thereafter, efforts were made on behalf of the State to return State records to Columbia.6

9. Plaintiff asserts that the papers came into possession of the Willcox and Law families from General Law by being given to Blanche C. Law (Plaintiff's great-aunt and sister of his grandmother) by General Law's descendant, Annie J. Storm. Thereafter, Plaintiff contends the papers were passed to his father and then to Plaintiff.7

10. Both parties agree that a February 16, 1896 letter from General Law to a book dealer in New York may concern some of the Documents in question. Some of the records of the Pickens and Bonham administration are at the Library of Congress, allegedly sold to it from this same New York book dealer. Whether the documents in General Law's possession are in fact part of these same referenced documents at the Library of Congress is not certain.

11. At trial, testimony was presented by Plaintiff and an expert witness on behalf of Plaintiff.8 Plaintiff's expert witness testified that historically, the State has been inactive in securing its records and that, until the creation of the Historical Commission of South Carolina in 1905, there were largely no efforts to preserve public records. He also testified that there is little information as to where Governor's records are kept or have been kept in the past, but that such records are spread about and that private collectors and the South Carolina Historical Society have played a large role in their preservation. Expert witness testimony was also presented by the State by two archivists from the Department of Archives and by Stroup. The archivists testified that the Documents are similar in nature to other documents housed at the Department of Archives from the Pickens and Bonham administrations, and have markings on them consistent with the docketing systems used on those same documents for the purpose of organizing the retention and retrieval of the documents. The State presented testimony that this docketing system includes tri-folding the document, with a notation on the back showing to whom the final version of the documents was sent. The State also indicated that incoming correspondence was similarly docketed and may additionally include notations about actions taken in relation thereto. The State also presented testimony that the Documents are similar to correspondence of other Governors stored at the Department of Archives. Testimony was further presented by the State that these Documents are consistent with what would be considered by the Department of Archives as a public record that would be accessioned into its collection. Finally, the State presented testimony that, while it only has records of one antebellum Governor, it has some records of every other South Carolina Governor since 1860, with few exceptions.

12. Evidence was also presented by both parties that the Documents in this case have been on microfilm at the Southern Historical Society, University of North Carolina, Chapel Hill, since the late 1940's. Plaintiff presented evidence in the form of correspondence between General Law's granddaughter, Annie Storm, and the University of North Carolina as well as with R.L. Meriwether, who was affiliated with the South Caroliniana Library and apparently to some extent with the University South Caroliniana Society. The correspondence concerns Ms. Storm's efforts to sell the Documents to either the Southern Historical Society or the South Caroliniana Library. As a result of these communications, the Documents were placed on microfilm at the Southern Historical Society, University of North Carolina. In the correspondence, Ms. Storm refers to the papers as original South Carolina State House papers entrusted to General Law. Plaintiff asserts that the correspondence evinces that the State of South Carolina knew of the existence of the collection of Documents since 1948 and that Meriwether was a State employee and Secretary of the South Caroliniana Library, which is part of the University of South Carolina. The State asserts that Meriwether was acting on behalf of the South Caroliniana Society rather than as a public employee.

13. The parties presented a summary list description of the Documents.9 There was no convincing evidence from either party as to the exact history of the Documents and precisely how they came into Plaintiff's family's possession. Nevertheless, the parties seek a determination of issues concerning the nature of the Documents, ownership thereof, and other defenses despite this lapse in history.

CONCLUSIONS OF LAW
I. PROCEDURAL POSTURE AND BURDENS OF PROOF

The Complaint seeks declaratory relief and a determination that the Documents are property of the bankruptcy estate. It has been recognized that the burden of proof as to what is property of...

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    ...Case], and [DE # 178 in the Bankruptcy Case]. 65. In re Rollings, 451 Fed. Appx. 340, 345 (5th Cir. 2011); see also In re Willcox, 329 B.R. 554, 562 (Bankr. D. S.C. 2005), rev'd on other grounds, 467 F.3d 409 (4th Cir. 2006) (determining burden of proof under federal law in declaratory judg......
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    ...declaratory judgment [in a bankruptcy adversary proceeding] must bear the burden of proof . . . ."); Wilcox v. Stroup (In re Willcox), 329 B.R. 554, 562 (Bankr. D. S.C. 2005) ("the burden of proof in declaratory judgment actions lies, as a general principle of law, with the moving party who......
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    ...seeking declaratory judgment [in a bankruptcy adversary proceeding] must bear the burden of proof ...."); Willcox v. Stroup (In re Willcox) , 329 B.R. 554, 562 (Bankr. D. S.C. 2005) ("the burden of proof in declaratory judgment actions lies, as a general principle of law, with the moving pa......
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    ...Case], and [DE # 178 in the Bankruptcy Case]. 66. In re Rollings, 451 Fed. Appx. 340, 345 (5th Cir. 2011); see also In re Willcox, 329 B.R. 554, 562 (Bankr. D. S.C. 2005), rev'd on other grounds, 467 F.3d 409 (4th Cir. 2006) (determining burden of proof under federal law in declaratory judg......
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