Yup, believe it or not, under the right conditions a Judicial Committee can be deemed as a legally binding arbitration.
In short,some JW brothers were all in business together (they never learn do they?) they operated this company and another brother obtained a franchise in his area for the business. The franchise contract specified that disputes would be submitted to arbitration, including arbitration of the parties’ choice.
When the brother who took the franchise broke his contract, the other brothers, led by the (JW) president of the company, insisted on bringing it all before a Judicial Committee.
The amusing part is that the brother (company president) who dragged the other brother (franchisor) before the JC was smugly sure that things were going to go his way but when the JC looked at it all they decided in favor of the franchisor brother saying that the company had failed to fully support his efforts and meet their obligations towards him so he was released from the agreement.
After a while, brother-president decided that the JC decision wasn’t valid after all and tried to get the legal machinery going ultimately bringing it to this decision below where the court found that, although it was certainly an unorthodox setting, the parties’ expectations regarding the Judicial Committee amounted to a binding arbitration as contemplated in the contract.
……………..for the amusing details the case is below..
TOTAL CAR FRANCHISING CORPORATION, Plaintiff, v. DOUG ANDERSON, Defendant.
1:98CV00829
UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
2000 U.S. Dist. LEXIS 6455
February 1, 2000, Decided
February 1, 2000, Filed
DISPOSITION: [*1] Final judgment entered denying TCFC's request for confirmation of the AAA arbitration award, rendering that award null, void, and unenforceable.
CASE SUMMARY
PROCEDURAL POSTURE: Plaintiff, franchisor, brought action for confirmation of American Arbitration Association award, pursuant to the Federal Arbitration Act, 9 U.S.C.S. ? 9, ordering payment to plaintiff of damages, attorney's fees, and arbitration fees and compensation from defendant, franchisee, for franchise agreement breach.
OVERVIEW: Plaintiff, franchisor, sought arbitration award confirmation under the Federal Arbitration Act, 9 U.S.C.S. ? 9. Defendant, franchisee, did not attend the arbitration. The arbitrators found defendant breached a franchise agreement (agreement), and awarded damages, attorney's fees, and expenses. Defendant argued against confirmation because a prior arbitration award in his favor rendered the arbitrators' award void, and an estoppel defense applied. The parties had submitted their dispute to a local Jehovah's Witnesses judicial committee (committee). Defendant argued the parties agreed the committee decision would be final based on the agreement. Applying the "law of the Bible," the committee found defendant free of contractual obligation based on plaintiff's breaches. Plaintiff argued the committee proceeding was not based on the agreement, advisory only, and not binding. The court found the second arbitration lacked a contract basis or foundation because the first arbitration dissolved the contract, and denied confirmation because the award was null, void, and unenforceable, and the court applied equitable estoppel to preclude the plaintiff from denying the committee decision.
OUTCOME: Confirmation denied, because second arbitration lacked a contract basis or foundation because the first arbitration dissolved the contract, the award was null, void, and unenforceable, and equitable estoppel applied to preclude plaintiff from denying the committee decision.
COUNSEL: For TOTAL CAR FRANCHISING CORPORATION, plaintiff: JAMES H. KELLY, JR., RODRICK J. ENNS, KILPATRICK STOCKTON, L.L.P., WINSTON-SALEM, NC.
For TOTAL CAR FRANCHISING CORPORATION, plaintiff: CHRISTOPHER P. BUSSERT, J. MICHAEL WIGGINS, KILPATRICK & STOCKTON, ATLANTA, GA.
For DOUG ANDERSON, defendant: JEFFREY DEAN PATTON, BOWEN CAREY HOUFF, BLANCO TACKABERY COMBS & MATAMOROS, P.A., WINSTON-SALEM, NC.
JUDGES: P. Trevor Sharp, U.S. Magistrate Judge.
OPINION BY: P. Trevor Sharp
OPINION
MEMORANDUM OPINION
This matter came before the Court on December 7 and 8, 1999 for a bench trial. Plaintiff Total Car Franchising Corporation ("TCFC") called a witnesses Mr. Timothy Galfas II, former President of TCFC, and Mr. Christian Kopp, current Vice President of Franchise Operations. Defendant Doug Anderson testified on his own behalf and presented the testimony of Mr. Thomas Hambrick and Mr. Michael Sulewski, former employees of TCFC. At the close of trial the Court took the matter under consideration, and requested further briefing by the parties of certain [*2] legal issues raised by the evidence. The Court has considered all of the trial evidence and the final briefs of the parties, and now enters this Memorandum Opinion.
THE NATURE OF THE MATTER BEFORE THE COURT
Plaintiff TCFC filed this action pursuant to the Federal Arbitration Act, 9 U.S.C. ? 9, for confirmation of an August 20, 1998 arbitration award by a panel of the American Arbitration Association ("AAA") arbitrators in favor of TCFC. The "Award of Arbitrators" sought to be confirmed is attached to the Complaint in this action. The award recites that Defendant Doug Anderson failed to appear for the AAA arbitration proceedings after due notice. Based upon TCFC's evidence, the arbitrators found that Anderson breached a September 24, 1996 Franchise Agreement between the parties by abandoning his business while operating as a franchisee of TCFC. They further found that Anderson continued to violate the non-competition and confidentiality provisions of the Franchise Agreement after his termination by TCFC. The arbitrators awarded TCFC $ 50,000 from Anderson for his breach of the Franchise Agreement, $ 22,261.50 for TCFC's attorney's fees, and $ 8,449.75 for arbitration [*3] fees and compensation of the arbitrators (pre-paid by TCFC). In answering the Complaint in this judicial action, Defendant Anderson denied that the August 20, 1998 arbitration award by the AAA panel should be confirmed. He presented a number of defenses, including an alleged prior arbitration award in his favor which rendered the AAA award void and of no effect, and an estoppel defense alleged to arise from the prior arbitration. With the issues thus joined, and after full discovery by the parties, the case proceeded to trial before the Court.
FACTUAL BACKGROUND
Plaintiff TCFC is a South Carolina corporation with its principal place of business in Duluth, Georgia, and is the franchisor of a system of approximately 300 licensed vehicle appearance technology franchises throughout the United States. TCFC franchises use the "Colors on Parade" service marks, trademarks, and trade dress. On September 24, 1996, TCFC entered into a Limited Rights Franchise Agreement ("Franchise Agreement") with Defendant Anderson, which granted Anderson the right to use the Colors on Parade System within a Designated Marketing Area. Section 12 of the Franchise Agreement sets out procedures for the resolution [*4] of disputes which may arise under the Franchise Agreement. The full text of Section 12 is as follows:
Colors on Parade has implemented a dispute resolution procedure involving three basic steps. You agree to abide by this procedure. The steps are (1) Private Negotiation, (2) Mediation and (3) Binding Arbitration. The procedure is as follows:
Step 1 - Private Negotiation - Whenever any cause or potential cause for disagreement may occur within the Colors on Parade community, the parties involved will enter into direct communication with one another. Only persons empowered to act conclusively in behalf of the business may be included in this meeting. The object is to contain the difficulty and resolve it at this level before it goes any farther.
At this meeting, the parties will implement the following procedure.
The one bringing the complaint, the claimant, should describe in objective terms the signs or symptoms that indicate a problem or a potential problem may exist.
The claimant should describe what he/she believes should be happening as contrasted to what he/she actually observes happening.
The claimant should try to outline a practical way that [*5] he/she thinks will resolve the issue so that it remains contained among the parties involved.
The respondent must also be allowed to go through the three steps above if he/she cannot agree to some resolution of the issue.
If the parties can agree to a resolution at this stage, they should immediately write down their understanding. The solution may be handwritten with copies for each person made and signed by both parties.
Step 2 - Mediation - If the difficulty becomes so severe that the parties cannot bring themselves to meet personally and maintain a factual perspective, they may skip the first step then, and go directly to mediation. Or if the personal talks have totally broken down they will request the intervention of a mediator or mediators.
Within the Colors on Parade community, in cases of disputes among members of the community, we will provide a list of three suggested mediators to deal with the situation. The disputants may choose one of the mediators. If they are unable to agree on a candidate from the list within 5 business days following receipt of the list, each party will, within 10 business days following receipt of the list, send to us a rating [*6] of the candidates ranked from number 1 to 3 in descending order of preference. The candidate with the lowest combined score will be appointed as the mediator by us. The disputants must inform us of the need for mediation.
As soon as the parties reach agreement, the mediator must commit the understanding to writing. Each disputant must sign the agreement. The mediator will keep a copy, each disputant will receive a copy and the corporate office will receive a copy for its files.
Step 3 - Binding Arbitration - If steps 1 and 2 do not bring resolution, a panel of neutral arbitrators will be appointed.
The parties will each choose one arbitrator. The two arbitrators will select a third. The parties will determine the forum for arbitration. If, however, the parties fail to establish a forum the standard rules of arbitration as set out by the American Arbitration Association will apply. The parties will establish between themselves the law to apply to the proceedings. If, however, they fail to do so the laws of the state of Georgia will apply. The arbitration will be binding and the decision of the arbitrators final.
The format of the arbitration process is this:
One [*7] or each disputant submits a demand for arbitration to us. We will assist in the selection of arbitrators and serve as case administrator.
Once the arbitrators are appointed, they will control the proceedings and all decisions will be final and binding and may be filed in a court of competent jurisdiction.
(Plaintiff's Exh. 1.)
TCFC and Anderson worked together under the Franchise Agreement for a period of time, but in April 1997 a dispute arose between TCFC and Anderson concerning their obligations under the Franchise Agreement. The parties held discussions in an attempt to resolve their disagreements, but no resolution could be reached.
Many officers and employees of TCFC were Jehovah's Witnesses, as was Defendant Anderson. The parties reached an agreement, the scope of which is the subject of this litigation, to submit their dispute to the Winston-Salem Jehovah's Witnesses, by and through its Body of Elders and Judicial Committee, to assist the parties in resolving the dispute. Defendant Anderson maintains in this litigation that the parties agreed that the decision of the Judicial Committee would be final, and constituted "arbitration" under Section 12 of the Franchise [*8] Agreement. Plaintiff TCFC maintains that the proceeding before the Judicial Committee was not a Section 12 arbitration, was advisory only, and did not bind TCFC.
The Judicial Committee, after an extended proceeding, found in favor of Defendant Anderson, finding that he was free of any contractual obligation to TCFC because TCFC had committed numerous serious breaches of the Franchise Agreement. The Judicial Committee's decision was given in writing to the parties in August 1997. Months later, in February 1998, TCFC commenced arbitration proceedings by filing a demand for arbitration with the AAA. The Demand for Arbitration was served on Anderson. By letter dated February 25, 1998, the AAA notified Anderson of the commencement of arbitration proceedings and further indicated that if he did not answer within ten days, his answer would be deemed "denied." In early March 1998, Anderson responded to the Demand by letter to counsel for TCFC, instructing counsel not to contact him again. Anderson wrote TCFC's president to the effect that their dispute had already been "totally arbitrated" before the Judicial Committee and as far as he was concerned, the matter was closed.
On July 9, 1998, a [*9] hearing was held before the arbitration panel with Anderson entering no appearance and being found in default. On August 20, 1998, the arbitration panel entered an award in favor of TCFC, and on September 18, 1998, TCFC commenced this action to confirm the award.
FINDINGS OF FACT
Pursuant to Fed. R. Civ. P. 52, the Court makes the specific findings of fact set out below. Further findings appear in the discussion section of this opinion.
1. In the Spring of 1997 a dispute arose between Plaintiff TCFC and Defendant Anderson concerning their obligations under the Franchise Agreement between the parties.
2. Anderson is a Jehovah's Witness. The great majority of the corporate headquarters management of TCFC are Jehovah's Witnesses, including all of the company representatives who dealt with the Anderson dispute extensively in this matter, specifically, former President Galfas, former Director of Franchise Development Michael Sulewski, former Vice President of Franchise Administration Thomas Hambrick, and current Vice President of Franchise Operations Christian Kopp.
3. Pursuant to the terms of the Franchise Agreement, the parties agreed to enter into a dispute resolution proceeding [*10] and ultimately submitted their dispute to a Judicial Committee of the Jehovah's Witnesses. The parties intended the Judicial Committee to arbitrate the dispute and issue a final decision which would end the controversy. Both parties were fully aware of the rules and procedures followed by the Judicial Committee of the Jehovah's Witnesses and agreed to accept the decision of the Judicial Committee as the final resolution of their dispute under the Franchise Agreement.
4. Michael Sulewski was named by TCFC President Galfas as the company ombudsman who was in charge of resolving the dispute between TCFC and Anderson. There is no evidence that special or unusual limitations were placed on Sulewski's authority as ombudsman. Sulewski was the primary representative of TCFC who dealt with Anderson in attempting to resolve the parties' dispute. When early negotiations failed, Sulewski proffered to Anderson a settlement offer wherein Anderson would be given additional training at TCFC's expense. Anderson refused that offer of settlement.
5. Michael Sulewski told Anderson that, since other attempts at settlement had failed, he was taking their dispute to "the highest court," the Judicial Committee [*11] of the Jehovah's Witnesses. Sulewski also warned Anderson that he could be "disfellowshipped" from the Witnesses if he were found by the Judicial Committee to be in the wrong in his dispute with TCFC. Sulewski intended the proceedings before the Judicial Committee to be a final arbitration under Section 12 of the Franchise Agreement, and his statements on the subject lead Anderson to reasonably believe and understand that TCFC had chosen the Jehovah's Witnesses as the forum for arbitration under Section 12 of the contract. Anderson agreed to this procedure.
6. Sulewski credibly testified that he believed that TCFC, under Timothy Galfas' direction, had previously participated in final arbitration proceedings under Franchise Agreements before Judicial Committees of the Jehovah's Witnesses. It was, in fact, true that TCFC had previously agreed to proceedings before the Jehovah's Witnesses as final arbitrations under Franchise Agreements. These previous arbitrations may have been limited to disputes between franchisees, where the company was not itself a party, but this distinction was not known by Sulewski. Galfas told Sulewski that TCFC had arbitrated business disputes before the Jehovah's [*12] Witnesses and had won most arbitrations. Galfas told Sulewski they had lost one arbitration but had simply proceeded to "beat [the arbitration winner] in the marketplace."
7. Sulewski believed that the proceeding before the Jehovah's Witnesses would constitute the final resolution of the dispute between TCFC and Anderson, and communicated this understanding to Defendant Anderson. Sulewski reasonably believed that the agreement to finally arbitrate the contract dispute in this forum was directed and ratified by TCFC President Galfas, who said to Sulewski that if the company lost to Anderson before the Judicial Committee, "we'll beat him [Anderson] in the marketplace."
8. The dispute actually submitted to the Judicial Committee, although couched in the charging document by Sulewski as a representative of TCFC in terms of alleged spiritual failings by Anderson (lying, thievery, fraud), was based exclusively upon the contract disputes between the parties. The charging document was drafted by Michael Sulewski and Thomas Hambrick for TCFC and advised the Jehovah's Witnesses that the parties had been through "step one and step two" in trying to resolve their dispute and were now submitting [*13] their dispute for resolution by a Judicial Committee as a "last resort." The Judicial Committee held two sessions of hearings with Anderson and representatives of TCFC in attendance. The Judicial Committee rendered a decision resolving the dispute wholly in favor of Anderson, finding TCFC in breach of the Franchise Agreement and Anderson under no further contract obligation to TCFC. The decision included specific findings and set out the following:
1. Colors on Parade field agent Brother Forest Walters failed to provide Brother Anderson with a list of franchisees prior to signing a contract, as required under North Carolina law.
2. Colors on Parade failed to loan Brother Anderson a copy of the Confidential Operations Manual and other vital written information necessary to the successful operation of his franchise as promised in the contract between Colors on Parade and Brother Anderson.
3. The availability of technical assistance by Colors on Parade as promised in the contract was inadequate.
4. Because of problems Brother Anderson encountered when on his own in his assigned territory, training in the "secrets" of Colors on Parade methods appeared to be inadequate [*14] and lacking.
5. In correspondence to Timothy Galfas, Forest Walters, Chris Kopp and phone calls to various ones in the Colors on Parade organization, Brother Anderson made known his concerns and Colors on Parade's various failures to live up to their responsibilities under the contract.
6. Because these were not addressed and remedied in a timely way, Brother Anderson concluded that since Colors on Parade had violated the contract, he was no longer obligated to uphold his agreement as stated in the contract. We are in agreement with him in this regard.
7. Your offer to Brother Anderson at our August 18th meeting, by its generosity, and the point in time during the meeting at which it was presented, indicated to us that you realize Colors on Parade's culpability in the matter, even though you are only willing to admit to "mistakes" on the company's part.
(Def's Exh. 4.)
9. After the decision of the Judicial Committee was given to the parties, Michael Sulewski and Thomas Hambrick considered that TCFC's dispute with Defendant Anderson was finally concluded and was resolved. Defendant Anderson had the same understanding of the finality of the Judicial Committee's [*15] determination. Following the issuance of the Judicial Committee's decision, Anderson did not receive any communication from TCFC for several months, until early 1998 when TCFC, through counsel notified Anderson that TCFC was beginning to take steps to arrange first for a mediation, and then for arbitration before the AAA. Anderson refused to take part in any further mediation or arbitration proceedings with TCFC, correctly believing that the parties had agreed to final arbitration of their contract dispute before the Jehovah's Witnesses, and the Judicial Committee had decided that the parties' contract was dissolved.
10. The AAA proceedings continued despite the fact that Defendant Anderson, after notice, did not appear or participate. A panel of AAA arbitrators ultimately entered a monetary award in favor of TCFC and against Defendant Anderson.
DISCUSSION
This may be thought to be an unusual case: parties to a commercial contract include in their franchise agreement a binding dispute resolution process that allows them to choose the forum and the law to be applied in the case of a dispute, and then, when a dispute arises, they agree to refer the dispute to a body of elders within [*16] a religious congregation for final resolution based upon "the law of the Bible." Although this scenario may seem unusual, the evidence clearly shows that this is what occurred in this case. The parties entered into a final dispute resolution under their contract by means of a Jehovah's Witness Judicial Committee proceeding. Three elders acting as the Judicial Committee decided the dispute in favor of Defendant Anderson and determined that the contract between the parties was dissolved in view of numerous breaches by TCFC. Later, when TCFC pursued a second arbitration of the parties' dispute before an AAA panel, the purported second arbitration lacked a contract basis or foundation, for the contract had already been dissolved by the first arbitration decision. Accordingly, the Court will not confirm the second arbitration award as requested in this action by TCFC and will dismiss this action with prejudice, leaving the parties where they stood after the first arbitration.
More than three-quarters of the headquarter employees of TCFC were Jehovah's Witnesses during the time period relevant to this action. All of the witnesses who testified at trial are Jehovah's Witnesses. 1 The corporate [*17] culture of TCFC was heavily influenced by this predominance of Witnesses within the company, so much so that on several prior occasions business disputes between franchisees of TCFC had been finally resolved under Section 12 of the company's standard Franchise Agreement by submission of the disputes to Judicial Committees of the Jehovah's Witnesses. 2 Timothy Galfas, President of TCFC, had told Michael Sulewski, the ombudsman he appointed to resolve the Anderson dispute, that contractual disputes had previously been resolved this way. Viewed in this light, it is not surprising that TCFC chose the Judicial Committee of Anderson's congregation to be the forum under Section 12 of the contract for final resolution of the business dispute between the parties.
FOOTNOTES
1 The owners of TCFC, Rob and Kathy Lowery, were at one time Jehovah's Witnesses as well, but according to testimony at trial, withdrew from membership in 1996 or 1997.
2 TCFC President Galfas wrote an essay entitled "Christians and Contracts." In it, he describes how Judicial Committees of the Jehovah's Witnesses can hold a forum for resolution of business disputes and describes a corporate culture in which a Christian ethic is observed. Galfas has been a Jehovah's Witness elder for over 30 years.
[*18] Michael Sulewski, the TCFC representative who was assigned primary responsibility for resolving the dispute with Anderson, testified that he fully understood that the proceeding before the body of elders was to be a final resolution under Section 12 of the Franchise Agreement. He had communicated this clearly to Defendant Anderson. Sulewski told Anderson, after private negotiations and discussions with other Witnesses within the company had failed, that he was taking the dispute "to the highest court." Anderson recognized that the Judicial Committee would be comprised of elders selected by the Body of Elders, and that he would not have an opportunity to name one of the arbitrators as contemplated by Section 12. He asked Sulewski point blank, "what happened to me picking an arbitrator," but Sulewski replied simply that, "we're going to take this to the highest court." Thomas Hambrick, the TCFC representative most involved in this matter other than Sulewski, also testified that he understood that the proceeding before the Judicial Committee was to be the final proceeding between the parties. In fact, Hambrick helped draft the "charging document" and cover letter submitted to the Judicial [*19] Committee, wherein the company laid out its case against Defendant Anderson, and informed the committee that "our attempts to resolve this matter have proven unsuccessful. Therefore, as a last resort, we bring the matter to your attention. (Def's Exh. 2.)
While it is clear that Sulewski and Hambrick agreed with Anderson that the proceeding before the Judicial Committee was to be a final proceeding under Section 12 of the Franchise Agreement, Timothy Galfas and Christian Kopp denied at trial that this was their understanding. Kopp, however, by his own testimony, was only minimally involved in the Anderson dispute, and thus his testimony lacks significant weight. Indeed, he testified that when he came to Raleigh in mid-1997 for what he thought would be a mediation, he was "surprised" to find that a full Judicial Committee proceeding was underway. Clearly he was, as he testified, essentially "out-of-the-loop" with respect to this matter. Nonetheless, despite his distance from the events in issue, Kopp opined at trial that Sulewski just "pushed too far," and lacked authority to commit TCFC to final arbitration before the Judicial Committee, Kopp strongly opined that a Jehovah's Witnesses' [*20] Judicial Committee would not under any circumstances resolve a business dispute between an individual member and a corporation, which could not be a congregation member. When it was pointed out to him that that is clearly what happened in this case, he ventured that the Judicial Committee was "out of line." Kopp further believed that Sulewski was "out of line" in submitting the matter to the Judicial Committee.
Upon review, the Court finds the evidence to be clear that Sulewski had the authority to submit the Anderson dispute to the elders of the Jehovah's Witnesses for final resolution. Sulewski did so in the first instance because he understood from Timothy Galfas that Judicial Committees had been used on prior occasions to resolve business disputes that arose under the company's Franchise Agreement. Galfas Was well aware that the Anderson dispute was headed for resolution before the Jehovah's Witnesses, and he informed both Sulewski and Hambrick that the Judicial Committee's decision would be final. Although he never used the particular word "final," he told them that if Anderson won before the Judicial Committee, the company would simply "beat him in the marketplace." Both Sulewski [*21] and Hambrick understood from Galfas' statements that he, as President of TCFC, intended the Judicial Committee's decision to be final, and the Court draws the same inference from Galfas' words.
Galfas testified at trial, when recalled to the stand after the testimony of Christian Kopp, that Sulewski had exceeded his authority when he represented to Defendant Anderson that the proceeding before the Judicial Committee was to be a final arbitration. But when asked on further cross-examination exactly when he had formed this conclusion, Galfas responded that he had realized this absence of authority for the first tine "during this morning's testimony by Chris Kopp." The Court finds this testimony to be remarkable. Only now, years after the events in question, does Galfas, who was president of the company, come to a realization that the highly visible and well-known actions taken by his ombudsman long ago wore "unauthorized." And this is despite the fact that he, not Kopp, was the TCFC officer who dealt with Sulewski on a continuing basis and gave the instructions that Sulewski acted on. Kopp was largely uninvolved in the Anderson matter and had no basis, other than utter surmise, [*22] for knowing whether or not Galfas authorized final arbitration of the Anderson dispute before the Judicial Committee. Galfas' assessment at trial concerning a lack of authority by Sulewski is diametrically at odds with the Court's finding that Galfas advised both Sulewski and Hambrick that the Judicial Committee's decision would be respected and observed by TCFC as the end of the matter and that TCFC would just "beat [Anderson] in the marketplace" if it lost.
Galfas authorized and ratified Sulewski's agreement to finally arbitrate before the Judicial Committee when he told Sulewski that the company, if it lost, would beat Anderson in the marketplace. There would be no need to rely on an ability to compete in the marketplace if the company still held full legal rights under the contract to seek additional arbitration. Galfas was unpersuasive at trial in attempting to explain away the obvious meaning of his words to Sulewski. When asked for the first time on direct examination if his statement meant that he intended to be bound by the elders' decision, he responded, "No. No. I think the idea was that whatever happened there, we had to continue working, the company had to show in the [*23] marketplace, which is the ultimate arbitrator of any business, that it was not lying down and playing dead, but in the field, the franchisee locally had to do whatever they had to do to keep their business going." 3 This response lacks cogency. The Court considers that Galfas was trying to avoid the obvious implication of his words and, of course, failed.
FOOTNOTES
3 When asked about this matter a second time later in the trial, Galfas did better, saying that he did not mean to imply that other avenues were not open.
Plaintiff TCFC has advanced several arguments, based on several lines of testimony and evidence, to justify why the Court should not find that the parties intended the Judicial Committee proceeding of the Jehovah's Witnesses to be a final arbitration of their dispute pursuant to Section 12 of the Franchise Agreement. The Court finds none of these arguments persuasive and none of the related testimony telling. For example, Timothy Galfas and Christian Kopp testified that a company such as TCFC cannot be a [*24] member of the Jehovah's Witnesses and therefore cannot be subject to any enforcement action by a Judicial Committee. With respect to individual Witnesses, a Judicial Committee can privately or publicly reprove or, as an ultimate sanction, "disfellowship" an individual member. Plaintiff argues that since a company cannot be "bound" in the same fashion as an individual, TCFC cannot be found to have intended to be bound. This argument misses the point of arbitration. Arbitrators render decisions, they do not enforce decisions. If there is not voluntary compliance by the losing party, enforcement can be obtained through an action, as here, in federal court. The Court therefore draws no significance from the act that the Judicial Committee of the Jehovah's Witnesses could not enforce its decision against TCFC.
The Court recognizes that at first blush the charging complaint which initiated the arbitration before the Judicial Committee does not look like a complaint concerning a business dispute. The claims of Sulewski, expressly complaining as a representative of TCFC, are couched in terms of alleged "fraud, thievery, [and] lying" by Anderson, but the testimony of Sulewski and Hambrick [*25] (and even Galfas and Kopp) makes it clear that the only disputes in issue before the Judicial Committee were the precise business disputes the parties had tried to resolve by negotiation but could not (i.e., "lying" means failing to live up to contract vows, "thievery" means failing to pay amounts due under the contract, and "fraud" means never having intended to comply with the contract). The dispute actually resolved by the Judicial Committee was the business dispute between the parties. The Committee applied the "law of the Bible" but the parties were free under Section 12 to agree on the law to be applied by the arbitrators. When they agreed to proceed before the Judicial Committee both sides knew absolutely what law would be applied. This is what they both expected and wanted.
Galfas and Kopp testified that they never saw a list of mediators for step 2 mediation under the Franchise Agreement or selected an arbitrator under step 3, and therefore there could not have been a step 3 arbitration under Section 12. Nonetheless, Thomas Hambrick thought that the meeting between Anderson and elders Kopp and Sulewski was a mediation and, in any event, it was Sulewski, on behalf [*26] of TCFC, who directly called for the step 3 arbitration by announcing that he was taking the matter to the highest court. Anderson asked Sulewski about his opportunity, set out in Section 12, to designate one of the arbitrators, but Sulewski ignored that request. He specified, and Anderson agreed, that the matter would go to the Judicial Committee, a committee comprised of arbitrators selected from elders of the congregation, without input by the parties. Sulewski testified that the dispute resolution provisions of the contract were sometimes "loosely" applied, and it is clear that such was the case in this instance.
Defendant Anderson, after winning the arbitration before the Judicial Committee, did not seek to enforce that decision by filing a confirmation action in federal court. No inference arises from this, however, that he believed the decision to be less than final. Anderson won a complete victory before the Judicial Committee, but he was not awarded affirmative or monetary relief against TCFC that needed further enforcement. The Judicial Committee found that TCFC had committed numerous breaches and that, as a result, Anderson was no longer bound by the contract. In short, [*27] the contract between the parties was completely dissolved and each party was free to go about its business without consideration of the provisions of the now defunct Franchise Agreement. Anderson had no reason to pursue any further enforcement action in the matter.
When the arbitration before the Judicial Committee was over and TCFC had lost, Sulewski and Hambrick assumed that the matter was at an end. Anderson also knew that it was over. After a passage of time, however, TCFC began to change its position with respect to the finality of the Judicial Committee's decision. According to Hambrick (and the Court credits his testimony on this point and in general), a decision was made to turn the matter over to outside counsel for review. There was a concern about impinging "upon the right of the rest of the franchise community to have the legal avenue addressed." In fact, according to Sulewski's testimony, which the Court credits, it was the owners of the company, Rob and Kathy Lowery, who didn't want to leave matters where they stood and who ultimately decided to pursue a second arbitration. Thus, it was not the representatives of TCFC who dealt with the Anderson dispute, certainly not [*28] Sulewski or Hambrick or apparently even Galfas, who decided to take the position that the Judicial Committee decision was not binding on TCFC. In fact, this decision to pursue a second arbitration was directly contradictory to the actions consistently taken in this matter by TCFC representatives Galfas, Sulewski, and Hambrick, and contradictory to all representations made to Defendant Anderson.
The outcome of this litigation turns on the resolution of the central factual dispute discussed above: Did the parties agree that the proceeding before the Judicial Committee of the Jehovah's Witnesses would constitute a final and binding arbitration of their business dispute under the Franchise Agreement of September 24, 1996? The Court has now answered this question "Yes." The legal ramifications of that answer are straightforward. Since the arbitration before the Jehovah's Witnesses resulted in a decision that dissolved and terminated the contract between the parties, Plaintiff TCFC had no further contract basis for demanding arbitration before the AAA. Therefore, the AAA's proceedings were without legal basis and the award of the AAA panel sought to be enforced in this action is null and [*29] void and will not be enforced by this Court.
Michae1 Sulewski, acting with both actual and apparent authority to bind TCFC, agreed with Doug Anderson to submit the TCFC/Anderson dispute to the Judicial Committee for final arbitration under the Franchise Agreement. TCFC's president, Timothy Galfas, appointed Sulewski as the company ombudsman to resolve the dispute with Anderson. He placed no special or unusual limitations on Sulewski's authority. The scope of Sulewski's actual authority included all necessary and usual means for executing his assignment. Moreover, Galfas expressly ratified Sulewski's specific agreement to use the Judicial Committee for final arbitration when he told Sulewski that if TCFC lost the arbitration, it would simply beat Anderson in the marketplace.
In briefing, the parties argue the Georgia and North Carolina law of actual or apparent authority. Under the law of either State, the facts found by the Court establish both the actual and apparent authority of Sulewski to bind TCFC. Georgia agency law is largely codified. HN1See Ga. Stat. ? 10-6-1 et seq. (Relation of principal and agent arises wherever one person, expressly or by implication, authorizes [*30] another to act for him or subsequently ratifies the acts of another in his behalf; agent's authority includes all necessary and usual means for executing it; principal is bound by acts of his agent within scope of his authority.) See generally, Tattersall Club Corp. v. White, 232 Ga. App. 307, 501 S.E.2d 851 (1998). HN2North Carolina law provides that a principal is bound by his agent's contract when the agent acts within the scope of his actual authority or when the agent acts within the scope of his apparent authority, unless the third person has notice that the agent is exceeding actual authority. Institution Food House, Inc. v. Circus Hall of Cream, Inc., 107 N.C. App. 552, 421 S.E.2d 370 (1992). HN3A corporation necessarily acts through its officers or agents. When an agent is held out by a corporation in the ordinary course and permitted to act for it in such a way as to justify a third person in good faith to assume that the agent is making a contract within the scope of his authority, the corporation is bound thereby. Moore v. WOOW, Inc., 253 N.C. 1, 116 S.E.2d 186 (1960).
Accordingly, TCFC is bound by the agreement made by Sulewski, [*31] its agent, to enter a final and binding arbitration with Anderson before the Judicial Committee. The arbitration decision by the Judicial Committee was that the Franchise Agreement between the parties was wholly dissolved and of no further effect. Neither party had any remaining rights or obligations under the Franchise Agreement, Despite these facts, TCFC subsequently initiated a second arbitration, purportedly under the contract, before the AAA. Anderson refused to participate in the AAA proceeding, and advised TCFC that the matter had already been fully and finally arbitrated before the Judicial Committee and TCFC had lost. When Anderson did not appear for the AAA. proceeding, the AAA arbitrators entered the default award now sought to be enforced by TCFC. However, in view of the prior final arbitration between the parties, which resulted in a decision for dissolution of the contract, the subsequent AAA award is not enforceable and will not be confirmed by this Court.
HN4Section 3 of the Federal Arbitration Act requires "an agreement in writing" for an arbitration to proceed. 9 U.S.C. ? 3 (1999). Furthermore, "arbitration is a matter of contract and a party cannot [*32] be required to submit to arbitration any dispute which he has not agreed to so submit." Peoples Security Life Ins. Co. v. Monumental Life Ins. Co., 867 F.2d 809, 812 (4th Cir. 1989) (quoting United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 4 L. Ed. 2d 1409, 80 S. Ct. 1347 (1960)). Under the facts of this case, there was no longer any contract obligation on Anderson's part to arbitrate with TCFC by the time TCFC initiated the proceeding with the AAA. HN5The lack of jurisdiction and the nonexistence of an agreement is an appropriate inquiry for a district court when a party attempts to enforce an arbitration award. Hanes Supply Co. v. Valley Evaporating Co., 261 F.2d 29 (5th Cir. 1958). This is not a case wherein Anderson was required to present a res judicata defense to the AAA arbitrators; here, a prior arbitration had served to end the contract between the parties, not simply resolve a particular claim under a contract that continued to operate after the prior arbitration. Cf., John Hancock Mut. Life Ins. Co. v. Olick, 151 F.3d 132, 139-40 (3rd Cir. 1998) (under facts where [*33] continued existence of contract between the parties was not in issue, res judicata effect of a prior arbitration should be presented to second arbitration panel).
The Court further concludes, as an alternative and additional reason for not confirming the AAA arbitration award, that TCFC is equitably estopped from denying the validity and finality of the first arbitration decision made by the Judicial Committee. TCFC's representatives affirmatively represented to Anderson that the Judicial Committee's decision would be final and binding under the Franchise Agreement. TCFC intended that Anderson rely upon this representation and Anderson did in fact reasonably rely. TCFC is charged with actual knowledge that it agreed to finally arbitrate before the Judicial Committee because its authorized agents knew this fact. Defendant Anderson could not have known that TCFC would later repudiate the agreement and the actions of its agents, and Anderson reasonably relied on the acts and representations of TCFC's agents concerning the finality of the arbitration before the Judicial Committee. Anderson would be severely prejudiced if the Judicial Committee's decision were not afforded finality [*34] since he would be required to re-arbitrate a dispute that he had already won. These facts make out an equitable estoppel which is a full and complete defense for Anderson to TCFC's action for confirmation of the AAA award. See generally, Blizzard Bldg. Supply, Inc. v. Smith, 77 N.C. App. 594, 335 S.E.2d 762, 763 (1985) (elements of equitable estoppel include [1] conduct which amounts to a false representation, [2] intention that such representation will be acted on by another party, [3] knowledge of the actual facts, [4] lack of knowledge of the real facts by the other party, and [5] reasonable reliance by the other party to his prejudice.)
CONCLUSION
Accordingly, contemporaneously with entry of the Memorandum Opinion, the Court will enter a final judgment denying TCFC's request for confirmation of the AAA arbitration award, rendering that award null, void, and unenforceable.
P. Trevor Sharp, U.S. Magistrate Judge
February 1, 2000
JUDGMENT
For the reasons set forth in the Memorandum Opinion filed contemporaneously with this Judgment,
IT IS HEREBY ORDERED AND ADJUDGED that Plaintiff's request for confirmation of the August 20, 1998 arbitration [*35] award, copy attached to the complaint herein, is DENIED, and Plaintiff shall have and recover nothing of Defendant in this action. This action is dismissed with prejudice.
United States Magistrate Judge
Oroborus21
JoinedPosts by Oroborus21
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Careful friends, that JC could be viewed as a Legally Binding Arbitration!
by Oroborus21 intotal car franchising corporation, plaintiff, v. doug anderson, defendant.. .
defendant argued against confirmation because a prior arbitration award in his favor rendered the arbitrators' award void, and an estoppel defense applied.
outcome: confirmation denied, because second arbitration lacked a contract basis or foundation because the first arbitration dissolved the contract, the award was null, void, and unenforceable, and equitable estoppel applied to preclude plaintiff from denying the committee decision.. .
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Oroborus21
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Howdy..
by Oroborus21 inim back ....sort of...just testing to see if i can post cause i was having trouble posting.... if anyone sees auld soul tell him he owes me a steak dinner cause absolutely nothing has become of that negligence-tort theory nonsense of the "big news" /blood brochure.. *testing post*.
-eduardo.
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Oroborus21
hey Denise,
ok i will message you. yah would have been fun
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huge announcement after the Watchtower study on the 27 of April?
by Dogpatch inthere will be a huge announcement after the watchtower study on the 27 of april.. for what it's worth, this was just sent to me anonymously.. randy.
www.freeminds.org.
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Oroborus21
a reduction in WT issues?
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A Murder in the Ministry
by Oroborus21 inguess whos back???!!!.
well ok, not really, this is just sort of a random pop-in.
anyways, i hope everyone is doing well.
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Oroborus21
yeah very true GF.....sandwich board wearing fire and damnation types.... its quite sad actually the current state of witnesses today (as we know)....the ones that come to my building don't even have the politeness to knock on my door (im the building manager) but rather skip me as instructed.... but i digress...
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A Murder in the Ministry
by Oroborus21 inguess whos back???!!!.
well ok, not really, this is just sort of a random pop-in.
anyways, i hope everyone is doing well.
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Oroborus21
sorry about the unformatted post guys...for some reason all i got were error messages when i was trying to submitted it any other way...fixed it somehow :-p
oh by the way, i bet you a dollar that the brother was never df'd for this..though probably there was a stern admonition sent out that handguns were no longer approved bookbag items :-p
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A Murder in the Ministry
by Oroborus21 inguess whos back???!!!.
well ok, not really, this is just sort of a random pop-in.
anyways, i hope everyone is doing well.
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Oroborus21
Guess who’s Back???!!!
Well ok, not really, this is just sort of a random “pop-in.” Anyways, I hope everyone is doing well. I was searching Lexis recently and came across this amusing JW case and thought I would share it with you all.
The below is not presented in any way to disparage modern JWs but is only an interesting anachronistic event that is probably not very well known. What I find most interesting about this case was that the defendant was officially represented by the Society.
For those who don’t want to read the whole case I will sum it up more briefly than the official summary.
A “pioneer” took a gun with him into service and when he and his partner were threatened by the “householder,” the brother shot him three times. He said it was self-defense but he was convicted of murder and he lost his appeal.
The case follows for your interest……
1941 Me. LEXIS 47, ***
STATE OF MAINE vs. ARTHUR F. COX.
[NO NUMBER IN ORIGINAL]
SUPREME JUDICIAL COURT OF MAINE, CUMBERLAND
138 Me. 151; 23 A.2d 634; 1941 Me. LEXIS 47
December 16, 1941, Decided
PRIOR HISTORY: [***1] ON APPEAL AND EXCEPTIONS BY THE RESPONDENT.
The respondent Cox was convicted of murder. Cox was a member of the sect known as Jehovah's Witnesses. He and a fellow member, one Carr, went to North Windham and stopped in front of the garage of E. Dean Pray. Carr entered the garage and proposed to Pray that he, Carr, play a phonographic record containing a "message" put out by Jehovah's Witnesses. Pray drove Carr out of the garage and came toward Cox. While still on Pray's premises Cox killed Pray. Cox admitted that he killed Pray, but claimed that the killing was done in self-defense and defense of Carr. The sole question involved was whether, in view of all the testimony, which was conflicting, the jury was warranted in finding that Cox committed the homicide with malice aforethought, express or implied. The case fully appears in the opinion.
Exceptions overruled. Appeal dismissed. Motion for new trial denied. Judgment for the State. Case remanded for sentence.
DISPOSITION: Exceptions overruled. Appeal dismissed. Motion for new trial denied. Judgment for State. Case remanded for sentence.
COUNSEL: Frank I. Cowan, Attorney General,
Albert Knudsen, County Attorney of Cumberland County,
[***2] Richard S. Chapman, Assistant County Attorney of Cumberland County, for the State.
Clarence Scott, of Old Town,
Charles W. Smith, of Biddeford,
Hayden Covington, of Brooklyn, New York, for respondent.
JUDGES: SITTING: STURGIS, C. J., THAXTER, HUDSON, MANSER, WORSTER, MURCHIE, JJ.
OPINION BY: WORSTER
OPINION
[*154] [**637] WORSTER, J. On appeal and exceptions.
At the September Term 1940, of the Superior Court held at Portland, in our County of Cumberland, the respondent, Arthur F. Cox, was indicted, tried and found guilty of the murder of E. Dean Pray, at Windham, Maine, on August 20, 1940. The case is brought here on appeal from the refusal of the presiding justice to grant the respondent's motion for a new trial, and on exceptions.
[*155] THE APPEAL.
On the appeal, the question is whether, in view of all the testimony in the case, the jury were warranted in believing beyond a reasonable doubt, and therefore in finding, that the defendant committed the homicide with malice aforethought, express or implied.
The respondent admitted at the trial that he fired at Pray the shots which caused his death, [***3] but claimed that they were fired without malice aforethought, in self-defense, and in defense of his companion, Kenneth A. Carr.
The jury might have found, from the evidence, that Arthur F. Cox was forty-nine years old, five feet and seven inches tall, and weighed about one hundred twenty-four pounds; that he had worked as a machinist and toolmaker in various parts of the United States; that he belonged to a sect called Jehovah's Witnesses, and that, from 1907 until he came to Portland in [**638] 1940, he devoted his spare time to doing what is called by the members of the sect "witness" work. This work is done, in part at least, by the witness going from door to door in a community, with a phonograph and records, and a bag containing booklets and perhaps other literature pertaining to the work of that sect. A record bearing what is called a message is played on the phonograph to those who will listen to it, and booklets and literature are distributed to those who will receive them. On arrival in Portland during the first part of August, 1940, he became connected with the local company of Jehovah's Witnesses at that place, and thereafterwards, up to the time Mr. Pray was shot [***4] on August 20, Cox devoted his whole time to the work carried on by that sect, of which he says he was an ordained minister, with credentials to that effect, issued to him by the Watch Tower Bible and Tract Society, by J. F. Rutherford, President.
Testimony tends to show that at about 8:30 or 9 o'clock in the morning of August 20, Cox left the headquarters of the local company of Jehovah's Witnesses, at 1 Myrtle Street [*156] in Portland, in company with Kenneth Carr and a woman named Verle Adams Garfein, for that part of Windham known as North Windham, to there do the work carried on by Jehovah's Witnesses. They traveled in Cox' car, which he drove. Each of them had a phonograph and at least one record, and a bag containing booklets and literature, and Cox had a map of the territory to be worked by them that day, which had been loaned to him by the person in charge at the headquarters at Portland. Cox also had in his bookbag a revolver (hereinafter sometimes referred to as a gun) which he had obtained during the previous month, and which because, he said, of an assault made on him in Portland, he had been carrying with him for about two weeks, for protective purposes.
Cox states [***5] that during the forenoon of August 20, while in a store in North Windham, he was told to get out of town in ten minutes. He then went back to a nearby information booth, where he had called earlier in the day, to see Mrs. Robbins, who was in charge of the booth, because, he said, "I had learned that there was a good deal of hostility there, and I wanted to know who could be depended upon to maintain the law and order there in case any disturbance arose for any reason." He did not find her until about two o'clock that afternoon, when she gave him the names of certain persons, including said Pray, who was then a deputy sheriff. Cox testified that at that time he had no knowledge that Pray had previously assaulted another Jehovah's Witness, or that one of them had been evicted by Pray by force, although Cox there learned from Mrs. Robbins that Pray had told them to get out of town. Cox did not go to see Pray, because he had heard that he was unfriendly, and since they were going down that way he knew that they would eventually call on him anyway.
According to Mrs. Robbins, Cox was nervous and perturbed when she saw him the second time. He was upset over something. He wasn't pleasant [***6] but he wasn't viciously angry; he wanted to see somebody in a hurry, somebody who had some [*157] authority. She further testified, when questioned, as follows:
"Q. Did he say anything when you told him not to go down there, not to stay in town, not to go down to Pray's?
A. He said if he started anything he could take care of him, because he had been ordered out of other towns and he knew how to take care of himself."
Cox, evidently referring to the threat he had received while in the store, testified that he told her "that we were going to finish this town in spite of some threats that had been made us."
Evidence indicates that after this conversation with Mrs. Robbins, Cox came out and got into his automobile, where Miss Garfein and Carr were waiting for him, drove a short distance in the direction of Portland, turned around, came back, and parked a little northerly of the booth, on the same side of the road. They then got out, and Miss Garfein took the easterly side of the road, while Cox and Carr crossed the road to make calls on the westerly side. Cox called at the Varney house, and Carr called at the home of Pray, which was the dwelling next northerly. Neither [***7] found anyone at home, and, coming from those houses, they met and walked along together, going northerly on the path which served as a sidewalk until they arrived at some point in front of Pray's garage, where Carr turned off to enter the garage. According to one witness, they parted half way between the pumps and the sign post. And it elsewhere appears that the easterly post, supporting the sign "Pray's [**639] Garage" is thirty feet and seven inches northerly of the center of the so-called "island" on which the pumps stood. Cox testified that he proceeded by the sign post a few steps and waited to see if Carr would get a reception.
According to the plan drawn to scale, which was used at the trial, the center of the pump island is about thirteen feet and nine inches westerly of an extension of the westerly line of the westerly graveled shoulder of the road. The southerly line of [*158] the garage projected to the road would pass a little to the north of that island, the center of which is twenty-nine feet and five inches easterly of an extension of the easterly line of the garage.
This garage is irregular in shape, and is located on the same side of the road as the Pray [***8] house, and next northerly thereof. Its southerly line is about fifty feet long, and the end next to the street is about twenty feet wide.
It appears from the record that Carr entered the garage and proceeded toward the Varney automobile, which was standing in the southwesterly corner thereof, where it was being repaired. Pray was working underneath it and Varney was leaning in, assisting him. At the same time, Clyde M. Elder, an employee of Pray, was working underneath the Ward car, which was also standing in the rear of the garage, but northerly of the Varney car. Ward was standing near Elder. As Carr approached the Varney automobile, he had the phonograph on his arm, and said to Pray, "How do you do? I have a message here. Would you like to hear it?" Pray replied, "Go on. Get to hell out of here."
The respondent and his witness Carr do not agree with the witnesses for the State as to what then happened, especially as to when or where Pray got the tire iron, or as to the position, attitude and conduct of the parties at the time of the shooting and immediately before.
According to Carr's testimony, he turned to walk out when told to go. As he turned, Pray picked up a tire iron and [***9] when Carr had walked about fifteen feet, came up and put his hands on Carr's back, shoved him, and he went out. Pray pushed him four or five steps, gave him a shove and hit him with something. As Carr was going forward, he straightened up and swung around to defend himself. Pray was then about five feet behind him, with the tire iron raised, and said "he was going to knock our damned heads off." Just then Carr heard three or four shots and Pray started for the corner of the house, stumbling. When Carr straightened up he saw Cox standing [*159] a little to his left and probably five or six feet from him. Pray was about six feet tall, and probably weighed one hundred eighty or one hundred ninety pounds, was swearing, raging mad, and close enough to strike Carr, but not to his knowledge within striking distance of Cox at any time that day.
According to testimony of Cox, he was standing between the road and a line drawn from the pumps through the easterly sign post, waiting to see if Carr would get a "reception." He saw Carr enter the garage and go to the rear of the building, and heard him say something. A man now known to have been Pray got out from underneath an automobile and [***10] said, "You can get to hell out of here." With a bar in his hand, Pray drove Carr out of the garage, and, said Cox, "it seemed as he got out to the door the man struck at him and hit him on the back or side here somewhere." When Cox saw Carr coming out of the garage, he thought Carr was in great danger and set the phonograph on the ground; both hands were free to operate the gun. Upon arriving at the door, Pray saw Cox, and said, "You get out of here, too," desisted in his attack on Carr, and in a white rage, with the tire iron in his hand, came on a tangent toward Cox just a second or two before Carr reached the pumps. When Pray, his arm upraised with the bar in his hand, had taken about four steps, Cox saw there was going to be danger, and was feeling in his bag. Pray said, "What have you got in that bag? . . .Give me that"; Cox said "Stand back" and when Pray was about six feet from him and within striking distance of Carr, Cox, fearing he would be killed or injured with the bar, fired the first shot point-blank at Pray, who did not take another step toward Cox but stood there with the bar in his hand. Cox said, "he was stunned, I guess, after the first shot." He stated that his [***11] "purpose was to make a thorough job of repelling," and he did not know the effectiveness of the gun he was using, so he fired two more shots because it appeared to him that it was necessary. Cox said, "There was danger. He had the bar up there in his hands" and also said he (Pray) "might have secured a weapon in a very short time [*160] to destroy all three of us." At the time Cox fired he had not stepped [**640] back or started to leave. Cox said, after the shots were fired "I noticed that Pray was thoroughly repelled and there was no danger there, so I got down toward the car as rapidly as I could." Cox also testified that he did not go down to North Windham that day "asking for trouble"; that he had no ill-feeling or hatred toward Pray or anybody there.
The witnesses for the State give a different version of what happened, in some important particulars.
Francis H. Brown was seated about five feet inside the garage door when Carr entered, Brown testified that he saw nothing in Pray's hands when Carr was going out; that Pray put his hands--Brown thought both hands--on Carr's shoulders, and pushed him out the door; that when Carr got out to the pumps Pray told Cox and Carr [***12] to get out of there, and when neither moved, said "I will see about it," turned around, stepped three or four steps, picked up a tire iron inside of the garage and went just outside the door five or six feet, stopped, and said to Cox "What have you got in that bag there?" When Cox pulled out the gun Pray started forward, took four or five steps, and Cox shot him. Brown said it was hard to tell how many shots were fired--four or five--and that while Cox was shooting, Pray "turned around, kind of staggering and started for the front of his house."
Ellen Harriett Robbins, keeper of the information booth, anticipating there would be trouble, followed Cox and Carr at a distance. She testified that when Carr came out of the yard in a hurry, Cox took a few steps toward him, Carr turned around, and Cox started to shoot. At that time she had not seen Pray, because her line of vision was cut off by the porch or a part of the Pray house. From observations subsequently made, she testified that at the time of the shooting she could see, from the place where she was standing, ten feet westerly of the pumps, so if she could not then see Pray, he could not have been as near to Cox and Carr at the [***13] time of the shooting, as they testified he was.
[*161] She further testified the first time she saw Pray, he came out around the side of his house, and the next time she saw him he was on the ground where he had fallen.
Gertrude Ruth Pray, widow of the deceased, was sitting in an automobile parked northerly of the Pray house, between it and the garage. She testified that although she saw Carr enter the garage she did not see him come out, but saw him crossing the dooryard, walking rapidly toward Cox; they came together. Cox was in line of the pumps and sign post. Cox put his hand in his bag at the same time she saw Pray, who had taken about three steps outside the door and stopped. She did not hear anything said between them. Cox pulled the gun out of the bag, pointed it at Pray, and fired three or four shots. Pray turned partly around, dropped something, and ran toward the house, and when he got in front of the automobile in which she was sitting, she lost sight of him. She did not see Pray strike or attempt to strike anyone in that dooryard.
Clyde M. Elder testified that when he looked out from underneath the Ward automobile, where he was working when Carr entered the garage, [***14] he first saw Pray and Carr, together, in the garage, about eight or ten feet behind the Varney car, and approximately twenty-three or twenty-five feet from the the front door, for which they were headed. Carr was ahead and Pray closely following. Elder did not then see anything in Pray's hand, that he can remember. He did not see them when they reached the door. When Elder got within possibly six feet of the door, Cox was pretty well out by the road, probably in line with the pumps and the post that holds the sign. Pray was practically in the center of the dooryard, at a point marked on the plan which, according to plan measurements, is about thirteen feet and nine inches from the door. Elder stated that he couldn't tell whether Pray had anything in his hand at that time or not; after that Pray might have taken one step, but not more than two. As Elder walked out, Cox and Pray remained in the position just indicated. Elder heard Pray say [*162] "And you get out of here, too. What have you got in that bag?" Then the firing began; he saw Cox fire several shots at Pray. Elder was then probably two steps or two and a half steps outside the garage. He stopped suddenly. Pray dropped [***15] back--stated in cross examination "a step or two" and in direct examination "three or four steps"--turned toward Elder, and was so near that Elder could probably have touched him if he had put out his hand. Elder ran toward a Ford automobile and he doesn't know in which direction Pray went but he staggered toward an automobile. He does not know where Carr was at the time of the shooting.
[**641] Perley W. Varney, who, with Pray, was working on an automobile when Carr entered the garage, testified he saw Pray pushing Carr by the shoulders while in the garage; that Pray did not have anything in his hands; that he saw Pray at the door, still walking; Carr was then ahead of him in the yard. When Varney got to the door, Pray was a few steps, say about ten feet, outside, standing still. He then had a tire iron in his hand, but Varney did not see him when he picked it up. At the same time, Varney places Carr somewhere near the pumps. When Pray was shot, he swung around, came toward Varney, who was standing about five feet from the southerly wall of the garage, and dropped the tire iron about ten feet from the door. Varney picked it up and ran after Cox and Carr; he caught up with them [***16] at the Cox car.
According to the testimony of both Elder and Varney, Pray, although loud and forceful, was not angry.
Deputy Sheriff McDonald testified that when he received the revolver from Varney, he examined it and found four shells had been fired and three had not.
Carr told Dr. Bickmore that evening that he had been hit with a piece of iron, but on examination the doctor found no marks or discolorations.
According to Carr's own testimony, he himself did not look for any marks, and does not know whether there were any or not.
[*163] Without further reviewing the testimony, which is voluminous, suffice it to say that a careful examination of the record discloses evidence from which the jury might have found that both Cox and Carr, at and immediately before the time of the shooting of Pray, were on his premises; that Pray had ordered both of them to leave; and that although they had had reasonable opportunity to do so without danger to themselves before Pray was shot, they had not done so; and that, at the time of the shooting, neither of them had the legal right to be on said premises; that whether they then had the legal right to be on the premises or not, it must have [***17] been reasonably apparent to Cox himself that he could have retreated without any increased danger to either himself or Carr before shooting Pray; that at the time of the shooting, Cox had no reasonable ground to believe that either he or Carr was in imminent danger of death or great bodily harm; and that, at the time the first shot was fired, Pray was in the neighborhood of fifteen or sixteen feet from Cox, and Carr was even farther away from Pray.
It is elementary law that questions of fact, including the question whether or not a homicide was justified under a plea of self-defense, and the question of deliberation and premeditation are for the jury, under appropriate instructions from the court.
It is also for the jury to determine what part of the evidence presented at the trial was credible and worthy of belief, as well as the relative weight of the testimony.
Here we find that under proper instructions given by the court, the jury were warranted in finding that the respondent wilfully and deliberately killed Pray, with malice aforethought, which [***18] was fully and correctly explained to the jury, and so we would not be warranted in disturbing their verdict.
[Omitted a large chunk to see if I can post this now]
A further consideration of the case is unnecessary. After examining all of the exceptions, including those not specifically covered in the respondent's brief, we find none that should be sustained. The mandate is Exceptions overruled.
Appeal dismissed.
Motion for new trial denied.
Judgment for the State.
Case remanded for sentence. -
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Howdy..
by Oroborus21 inim back ....sort of...just testing to see if i can post cause i was having trouble posting.... if anyone sees auld soul tell him he owes me a steak dinner cause absolutely nothing has become of that negligence-tort theory nonsense of the "big news" /blood brochure.. *testing post*.
-eduardo.
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Oroborus21
im back ....sort of...just testing to see if i can post cause i was having trouble posting...
if anyone sees Auld Soul tell him he owes me a steak dinner cause absolutely nothing has become of that negligence-tort theory nonsense of the "big news" /blood brochure.
*testing post*
-eduardo
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Documentary on cult The Family (on Cinemax today)
by Oroborus21 ingreetings!.
i havent been on jwd in ages so i apologize if this topic has been mentioned already.. there's a new documentary on premiering on cinemax tonight that is on the family cult..i was wondering if anyone plans ot watch and will be interested in posting comments later.... hope all is well with everyone,.
eduardo.
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Oroborus21
Greetings!
I havent been on JWD in ages so I apologize if this topic has been mentioned already.
There's a new documentary on premiering on Cinemax tonight that is on The Family cult..i was wondering if anyone plans ot watch and will be interested in posting comments later...
hope all is well with everyone,
Eduardo
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Diane Wilson~~~ex-JW
by purplesofa inpublished in psychology today~~~here is a small bit from the article.
http://www.dianewilson.net/disc.htm.
as desperate as i was to be convinced that the society would have no effect on my destiny, at some level i still believed it was god's channel and that my life hinged on obedience to it.
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Oroborus21
My Review:
Not fearing to tread where others have gone before, Diane Wilson unfolds a somewhat lively but slightly melodramatic recounting of her time spent in the Organization. The biographical passages provide an insightful but too broadly painted look at the culture within Jehovah's Witnesses. The exposé on JW theology is good in itself but it really just represents a regurgitation of findings and conclusions long ago reached by others and available in detail in other better documented and better argued materials. For those unwilling to do their own research, the book provides a handy one-stop compendium of the significant issues facing the Organization.
The book is not so much an "awakening" to insight, much less an "escape" from anything, than an exercise in catharsis for Ms. Wilson. As such it contains all the entertainment and personality of warmed-over macaroni hot-dish. There is no doubt that Ms. Wilson is sincere in her concern to help others. But the knowledge that others have suffered much more than she or have much more interesting and revealing tales to tell, leads one to ask: "so what is so special in this case?" The answer is "nothing."
The principle failing of the book is not its ordinariness or the ordinariness of Ms. Wilson's experience. No, rather it is that the feminine perspective, promising at times, is not adequately explored. Ms. Wilson had the opportunity to address a serious need, namely to write a book that explores what it is like to be a woman in today's Organization but she and her book totally fail in this regard.
Thus we are left referring once again to Barbara Grizutti Harrison's Visions of Glory which is excellent but outdated.
While that may be the most disappointing failure of Ms. Wilson's book, the most disturbing aspect appears to be that Ms. Wilson has only merely succeeded in substituting one Wise Man authority figure, her "therapist," for the one that she "escaped" the Watchtower Organization.
Thus instead of "the Society says" it now seems to be "my therapist says" - and so the reader is left to wonder whether she has truly obtained any measure of self-actualization or "escape" from an external authority at all.
Despite these serious failings, novices and active Jws alike that are beginning to explore behind the Watchtower Curtain will find the book a casual light read. -
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Does anyone have experience in creating discussion boards as this?
by What-A-Coincidence ini am thinking of creating one for my friends.
i need some ideas..
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Oroborus21
i really like YABB..just google it up...