Wasserman et al v. Bowers et al
Filing
72
MEMORANDUM OPINION & ORDER: IT IS ORDERED that the Court having reviewed proposed jury instructions: (1) Parties shall not present argument or evidence pertaining to Tyler Bowers' disaffirmance of an oral agreement to repay expenses relating to Plas' guaranty of loan for motor coach & insurance expenses; (2) parties shall not present argument or evidence pertaining to Tyler Bowers being bound to oral agreement to repay expenses relating to Plas' guaranty of loan for motor coach & insurance expenses under agency theory. Signed by Judge Joseph M. Hood on 4/29/2011.(GLD)cc: COR, Tim Bowers, pro se, Tyler Bowers, pro se
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
LEXINGTON
CASEY WASSERMAN LIVING
TRUST UNDER DECLARATION OF
TRUST DATED JUNE 29, 1999
and
WASSERMAN MEDIA GROUP LLC,
Plaintiffs,
v.
TIM BOWERS and TYLER BOWERS,
Defendants.
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) Civil Action No. 5:09-CV-180-JMH
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) MEMORANDUM OPINION AND ORDER
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Plaintiffs have filed proposed jury instructions [Record No.
61] and Defendant Tyler Bowers has also filed proposed jury
instructions [Record No. 62].
Having reviewed the proposed jury
instructions and considering the law applicable in this case, the
Court
has
determined
that
certain
of
those
proposed
jury
instructions are “not a correct statement of law” and shall not be
given to the jury.
United States v. Svoboda, 633 F.3d 479, 483
(6th Cir. 2011) (citing United States v. Kelley Technical Coatings,
Inc., 157 F.3d 432, 441 (6th Cir. 1998)).
Further, on the Court’s
own motion, the parties shall not present argument or evidence on
those issues as set forth below.
I.
NO JURY INSTRUCTION OR PRESENTATION OF ARGUMENT OR EVIDENCE
ON THE ISSUE OF DISAFFIRMANCE OF ANY ORAL AGREEMENT SHALL BE
ALLOWED.
This Court has already determined that Defendant did not
disaffirm the contract within a reasonable time following his
averred discovery of the alleged oral agreement to repay expenses
related to the Plaintiffs’ guaranty of the loan for the motor coach
and insurance expenses, and this Court shall not instruct the jury
regarding this issue.
California statute allows a minor to “make
a contract in the same manner as an adult, subject to the power of
disaffirmance” which must occur before the minor reaches “majority
or within a reasonable time afterwards.”
Cal. Fam. Code § 6710.
Cal. Fam. Code § 6700;
Furthermore, when a minor has no knowledge
of the contract entered into on his behalf as a minor, the Ninth
Circuit has extended the reasonable time to disaffirm to the time
when the minor first learned of the contract.
Hurley v. S. Cal.
Edison Co., 183 F.2d 125, 131-32 (9th Cir. 1950) (holding that
California law allowed a man in his mid-30s to disaffirm a contract
made while he was a minor within a reasonable time of learning of
the contract’s existence).
While Defendant argues his disaffirmance in his affidavit came
within a reasonable time of his learning of the alleged oral
agreement to repay expenses related to the motor coach, this Court
has repeatedly held to the contrary.
In its Order of February 11,
2011 [Record No. 51], the Court held that Defendant’s attempted
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disaffirmance in his affidavit was untimely as it did not occur
until more than eleven months after the date of the lawsuit and
seventeen months after Defendant had reached the age of majority.
While not expressly held in its Order of February 11, 2011, the
Court later clarified in its Order of February 28, 2011 that:
The only remaining issue for the May 3, 2011
jury trial is whether Tyler Bowers assented to
the oral agreement to repay expenses related
to the Motor Coach. . . . If the jury answers
this question in the affirmative, breach and
damages are not genuinely at issue and have
been established in this action . . . .
[Record No. 54].
The implicit message was that the attempted
disaffirmance contained in Tyler Bowers’ Affidavit of August 18,
2010, and attached to his Response did not come within a reasonable
time after he first became aware of the alleged oral agreement to
repay expenses related to the motor coach.
Accordingly, the Court
will not offer an instruction to the jury on this issue nor will
Defendant
Tyler
Bowers
be
permitted
to
raise
the
issue
of
disaffirmance of the oral agreement to repay expenses related to
the Plaintiffs’ guaranty of the loan for the motor coach and
insurance expenses as seen in Defendant’s Proposed Jury Instruction
8 and Verdict Form C.
See [Record No. 62, p. 13-14].
II. NO JURY INSTRUCTION OR PRESENTATION OF ARGUMENT OR EVIDENCE
REGARDING TYLER BOWERS BEING BOUND TO THE CONTRACT VIA AN AGENCY
THEORY SHALL BE ALLOWED.
Further, Tyler Bowers cannot be bound to the oral agreement to
repay the expenses related to the Plaintiffs’ guaranty of the loan
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for the motor coach and insurance expenses through the actions of
his father Tim Bowers acting as his agent and no instruction to the
contrary shall be given to the jury.
Under California statute, a
minor does not have the authority to make a delegation of power.
Cal. Fam. Code § 6701.
Prior to the passage of this statute,1
California common law held that while a contract executed by a
minor delegating authority to an agent was void, that agent could
execute some contracts, in particular promissory notes, on behalf
of the minor.
1913).
Hawkes Inv. Co. v. Lyons, 137 P. 911, 912 (Cal.
After the statute’s passage, however, the California
Supreme Court held that “the intention of the legislature in
framing [the statute] was to change [the conflicting common law]
and declare the rule that an infant could not execute contracts
through an agent having only a delegated authority executed by the
infant.”
Id.
Thus, in Morgan v. Morgan, 34 Cal. Rptr. 82, 86
(Cal. Ct. App. 1963), the Court of Appeal of California refused to
recognize an endorsement of a check by a minor’s agent despite the
minor giving that agent actual authority, in writing, to endorse
1
In Hawkes Inv. Co. v. Lyons, 137 P. 911 (Cal. 1913), the
California Supreme Court considered California Civil Code § 33,
passed in 1872 as amended by the California Legislature in 1874.
In 1992, the California Legislature passed a series of bills to
establish “a comprehensive scheme for family law” which repealed
this section fo the civil code and placed it under the family code
beginning in 1994. 1992 Cal ALS 162; 1992 Cal ALS 163. Thus, Cal.
Civ. Code § 33 was repealed but the substantive provisions remain
a part of California statute, as codified in Cal. Fam. Code § 6701.
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his name upon the checks the agent received. In doing so, the Court
of Appeal of California held that the minor’s authorization to the
agent “was a delegation of power, and as such, void.”
Id. at 87.
Furthermore, the Court of Appeal of California, has not
recognized an exception to this bright line rule when the agent was
a parent.
In the case of a father’s sale of his children’s stock,
the Court of Appeal held:
The minors could not give a delegation of
power to their father to contract for them. .
. . The contracts having clearly been made by
the father without the knowledge of the
minors, could become the contracts of the
minors only through the adoption of the action
of the father, and this could be done only
upon the theory that the minors thereby
retrospectively made the father their agent.
This could not be done under our statute
[prohibiting minors from delegation of power],
and the contracts must be deemed, therefore,
to be contracts of the father rather than the
minors.
Winkler v. L.A. Inv. Co., 185 P. 312, 313 (Cal. Ct. App. 1919).
Thus, the court refused to recognize even the potential that the
child could grant any authority to their parent to enter into the
contract based on California’s statute prohibiting minors from
delegating power.
As stated in California Jurisprudence,
The provision that a minor cannot give a
delegation of power was passed in order to
overrule a former rule that permitted a minor
to contract effectively merely by acting
through an agent having delegated authority.
Thus, under the present rule, a minor cannot
give a delegation of power to his or her
parents to contract for the minor, nor can the
minor, by the adoption of the parent’s action,
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retrospectively make the parent his or her
agent.
14 Cal. Jur. 3d Contracts § 34 (2011) (citation omitted).
This Court shall do the same and no jury instructions dealing
with agency, as proposed by Plaintiffs and Defendant will be
presented to the jury at trial as they are “not a correct statement
of law.”
United States v. Svoboda, 633 F.3d 479, 483 (6th Cir.
2011) (citation omitted); See also [Record No. 61, p. 12-15](Jury
Instructions No.
5-6, Verdict Form B-C); [Record No. 62, p. 10-
12](Jury Instruction No. 6-7, Verdict Form B).
Nor shall the
parties be permitted to present argument or evidence with respect
to this issue.
III. CONCLUSION
For the reasons stated above, IT IS ORDERED:
(1)
that the parties shall not present argument or evidence
pertaining to Tyler Bowers’ disaffirmance of an oral agreement to
repay expenses related to Plaintiffs’ guaranty of the loan for the
motor coach and insurance expenses; and
(2)
that the parties shall not present argument or evidence
pertaining to Tyler Bowers being bound to the oral agreement to
repay expenses related to Plaintiffs’ guaranty of the loan for the
motor coach and insurance expenses under an agency theory.
This the 29th day of April, 2011.
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