State ex rel. Douglas v. Ledwith, 42226

• Citation: 281 N.W.2d 729,204 Neb. 6
• Decision Date: 10 July 1979
• Docket Number: No. 42226,42226
• Parties: STATE of Nebraska ex rel. Paul L. DOUGLAS, Attorney General, Appellee, v. Bette Bonn LEDWITH, Appellant.
• Court: Supreme Court of Nebraska

Page 729

281 N.W.2d 729

204 Neb. 6

STATE of Nebraska ex rel. Paul L. DOUGLAS, Attorney General, Appellee, v. Bette Bonn LEDWITH, Appellant.

No. 42226.

Supreme Court of Nebraska.

July 10, 1979.

Syllabus by the Court

1. Supreme Court. It is not within the province of the Supreme Court to determine moot questions.

2. Injunctions: Judgments. Where there is a final judgment against the party enjoined, the temporary injunction merges into the final decree and any questions concerning the propriety of the issuance of the temporary injunction become moot.

3. Statutes: Words and Phrases. Section 87-303.05(1), R.R.S.1943, authorizes the Attorney General to institute proceedings to prevent deceptive trade practices as defined in section 87-302 or 87-303.01, R.R.S.1943.

4. Statutes: Words and Phrases: Restitution. Placing a party found to have been engaging in deceptive trade practices under the supervision of the Attorney General for a fixed period of time and retaining jurisdiction to order restitution should future violations occur is within the power granted to the court by section 87-303.05(1), R.R.S.1943.

5. Statutes. Proceedings brought by the Attorney General under section 87-303.05(1), R.R.S.1943, are civil in nature.

6. Statutes: Words and Phrases: Proof. The requirement in section 87-303.05(1), R.R.S.1943, that the Attorney General must have cause to believe that deceptive trade practices exist or have existed before instituting an action is not an essential element of the action which must be proved at trial.

7. Equity: Appeal and Error. Equity cases are heard de novo in this court with consideration given to the fact that the trial court observed the witnesses and their manner of testifying.

8. Injunctions: Time. An injunction is a remedy designed to control future behavior, and whether that behavior is occurring at the time of the decree granting the injunction is generally irrelevant to the propriety of its issuance.

9. Appeal and Error: Records. Where any fact issue is presented on appeal, in the absence of a bill of exceptions it is presumed the trial court's finding is correct.

10. Pleadings: Counterclaim. A counterclaim must allege facts sufficient to support an independent cause of action in favor of the defendant and against the plaintiff and must be more than a mere defense to the plaintiff's cause of action or in reduction of plaintiff's damages.

11. Appeal and Error. A party does not waive his rights of appeal by complying with a decree against him.

Bette Bonn Ledwith, pro se.

Paul L. Douglas, Atty. Gen., and Jerold V. Fennell, Lincoln, for appellee.

Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, CLINTON, BRODKEY, WHITE, and HASTINGS, JJ.

CLINTON, Justice.

This appeal arises from the granting of an order permanently enjoining the defendant, Bette Bonn Ledwith, hereinafter referred to by the trade name of Bette Bonn, from engaging in certain trade practices in the course of recruiting students for and operating a school to train fashion models and requiring her to file quarterly reports with the Attorney General for 4 years. The proceedings were initiated by the Attorney General, acting pursuant to authority granted by section 87-303.05(1), R.R.S.1943, which is a part of the Nebraska codification of the Uniform Deceptive Trade Practices Act. §§ 87-301 through 87-306, R.R.S.1943. In his petition, the Attorney General described several trade practices allegedly engaged in by Bette Bonn, stated the practices were deceptive, and requested temporary and permanent injunctive relief and restitution to the victims of such deceptive practices.

After a hearing, the court granted a temporary injunction in July 1976, restraining Bette Bonn from advertising for students in the "Help Wanted" section of certain newspapers and from advertising in a manner which would lead individuals reading the advertisements to believe that paid employment as a model was being offered.

Following an extensive trial on the merits, the court made findings of fact and issued its permanent order in May 1978. Details of the findings and the order will be discussed later in this opinion. Bette Bonn appealed, making numerous assignments of error. We affirm.

The Attorney General's evidence consisted primarily of the testimony of many former students and some instructors at the Bette Bonn schools. In addition, Bette Bonn was called as a witness and examined at some length. The evidence established a virtually unvarying pattern of behavior which may be generally summarized without specific reference to the testimony of individuals.

For a number of years, Bette Bonn ran the Bette Bonn Schools of Modeling and Charm in Nebraska and elsewhere. There were two schools in Nebraska, one of which was in Lincoln and the other in Omaha. The business was almost entirely confined to instruction; Bette Bonn did not make a practice of finding employment for professional models who were not enrolled in her schools.

Bette Bonn regularly ran advertisements in the "Help Wanted" section of the classified advertisements of Omaha and Lincoln newspapers which varied from the following only in minor details:

"MODELS BETTE BONN

STATE DIRECTOR

World Modeling Association

OUR 28TH YEAR

OMAHA-LINCOLN

All ages, sizes. No training fee for professionals. See our models 'Lincoln Home Show,' 'ETV Auction, Channels 12 and 13,' beginning soon. 342-7560 New Paxton 346-3330" (Emphasis supplied.)

Most students' initial contact with Bette Bonn came about because they were reading the "Help Wanted" section of the classified advertisements. Some students responded to the advertisement because they wanted to become professional models on a full or part-time basis while others believed the advertisement was offering paid employment.

Those calling for information were given an appointment for an interview with Bette Bonn. The interviews, which Bette Bonn always conducted personally, generally lasted from 1/2 hour to 1 hour. During the interview, Bette Bonn described the courses and fees and made a number of representations concerning the nature and value of the courses.

Three courses of instruction were available, but most or all of the students chose to enroll in the professional modeling course. This course was to consist of 92 lessons. Its price during the time period at issue was $345 initially and $445 later in the period if paid in full before starting the course. There was a $45 surcharge if the price was to be paid in installments. Students were given the option of paying half the installment price and working off half through modeling jobs which they were assured they would obtain while they were students.

Prospective students were led to believe they would earn back all of the tuition money on modeling assignments and probably make a profit while they were still students. They were told there was a great demand for models in Lincoln and Omaha, and they would have no trouble obtaining full or part-time employment upon completion of the course. They also believed Bette Bonn would obtain jobs for them after they completed their training.

Students were promised a "model's card" upon completion of the course which they were told they could show at any modeling agency in the country. It is clear the students believed the card would be at least the equivalent of a diploma in that it would provide nationally recognized certification of completion of an approved course of study.

All of these representations were false in various respects. Most students were given the opportunity to do a few modeling jobs while in school, although many of the jobs involved work such as passing out sample cigarettes on a street corner or acting as a hostess at a trade show. Such jobs were systematically assigned first to students who had signed up to pay half the tuition and work off half. Where students who had paid the tuition in full or who had completed working off their tuition were assigned such jobs, they generally found it impossible to get paid for doing them, although many had specifically inquired as to whether there would be payment for doing the work and had been assured there would be. No student testified she "earned" enough, even considering hours worked for which no payment was forthcoming, to recover the cost of the tuition.

The classes had little if any content, were haphazardly scheduled, and were frequently canceled without notice. Some students quit the course in disgust after arriving at the school several times, finding no one there, and being unable to have their calls returned.

Most students who completed the course were unable to obtain the modeling card. It would have done them no good to obtain it, because the card was worthless for obtaining employment in Nebraska or anywhere else. One of Bette Bonn's own exhibits, a letter from the World Modeling Association, stated: "An association is not capable of accrediting its members. . . . If any association in the modeling field is claiming to give accreditation, this is not true." Thus the card had no value even as a diploma.

Nancy Bounds Scounce, the owner of the Nancy Bounds School of Modeling in Omaha, was called by the plaintiff and qualified as an expert. She testified that Omaha and Lincoln simply could not support full-time professional models. Instructors from the Bette Bonn schools who testified could not recall that any student who completed the professional modeling course had become a full-time professional model. Bette Bonn, when called as a witness for the plaintiff, could name only two or three people who had obtained full-time employment as a model after completing her course.

It is inferable from the record that most students never saw Bette Bonn again after they paid their tuition. Bette Bonn's first strategy for dealing with student complaints was to ignore all telephone messages. If students were undeterred by being ignored, they would be abruptly expelled....