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MAHAN v. TASH

January 30, 1989

DAISY L. MAHAN, Plaintiff,
v.
HYMEN H. TASH, Defendant



The opinion of the court was delivered by: PRATT

 JOHN H. PRATT, UNITED STATES DISTRICT JUDGE.

 Plaintiff Daisy L. Mahan brings this action against defendant Hymen H. Tash for breach of fiduciary duty, breach of contract, trover and conversion, unjust enrichment, accounting and negligence in connection with defendant's purchase of 1000 shares of Fuji Photo Film Co. stock on behalf of plaintiff in 1964. Presently before us is defendant's Motion for Summary Judgment and plaintiff's Motion for Partial Summary Judgment. The issues have been extensively briefed. For the reasons that follow we grant defendant's motion and deny plaintiff's motion.

 From at least 1964 until 1985, the firm of Sinrod and Tash provided plaintiff accounting and legal services in her business and personal affairs. In 1964 defendant Tash and his partner, Nathan Sinrod, while having lunch at plaintiff's business establishment, told plaintiff that they were going to purchase some stock of Fuji Photo Film Company ("Fuji"). Plaintiff Mahan and her business manager, Stella Cauble, remarked that they would also like to purchase some Fuji stock. Plaintiff Mahan paid defendant Tash $ 410.08 to purchase 1000 shares of Fuji Photo Film stock on her behalf. In return, she received a Declaration of Trust, which identified Tash as legal owner of 4,000 shares of Fugi stock. Tash, Sinrod, Cauble, and Mahan were identified as equitable owners of the 4,000 shares, *fn1" in equal shares.

 From 1965 until 1969 defendant forwarded to plaintiff four checks for dividends received on her share of the Fuji stock. For almost twenty years, plaintiff made no inquiries about the stock, which she considered "junk stock." In May of 1985, while reviewing the contents of her safe deposit box, plaintiff discovered the Declaration of Trust, prepared by defendant in 1964, and approximately 135 ADRs for Fuji Photo Film stock. *fn2" On May 16, 1985, plaintiff wrote to defendant asking him to check on the whereabouts of her Fuji stock referenced in the 1964 Declaration of Trust. Defendant responded that he could not find anything in what remained of his records concerning her Fuji stock. On October 7, 1986, counsel for plaintiff made a formal demand for delivery of the stock and for an accounting of all dividends and distributions. Defendant responded to the demand by informing plaintiff's counsel that the Fuji stock originally held for plaintiff was distributed many years ago. *fn3" This action ensued.

 Discussion

 In his Motion for Summary Judgment, defendant raises the affirmative defenses of statute of limitations and laches. Although in some jurisdictions, equity will follow the statute of limitations in determining whether a claim is barred by laches, in this jurisdiction it has been uniformly held that "whether the bar of laches may be set up will depend on the particular circumstances of each case." *fn4" Haliday, 11 F.2d at 567. Summary judgment is appropriate based on a laches defense where there are no genuine issues of material fact relating to either inexcusable delay or material prejudice and where the movant is entitled to judgment as a matter of law. See Jeffries v. Chicago Transit Authority, 770 F.2d 676, 679 (7th Cir. 1985), cert. denied, 475 U.S. 1050, 89 L. Ed. 2d 581, 106 S. Ct. 1273 (1986). We find that the circumstances of the instant case show that plaintiff is guilty of laches, and defendant is entitled to summary judgment.

 Under the doctrine of laches, "equity will not aid a plaintiff whose unexcused delay, if the suit were allowed, would be prejudicial to the defendant." American University Park Citizens Association v. Burka, 400 A.2d 737 (D.C. 1979). "Laches will not provide a valid defense . . . unless two tests are met, the defendant has been prejudiced by the delay and that delay was unreasonable." Id.

 With respect to the element of delay, the threshold issue is when plaintiff could reasonably have asserted her claims so as to trigger the running of the time period for purposes of laches. Defendant argues that even though he cannot produce documentary evidence *fn5" affirmatively proving that he complied with his trust by transferring control of the stock to plaintiff, he is nevertheless entitled to summary judgment. He contends that assuming arguendo that the the Declaration of Trust continued in effect, the uncontested fact that he ceased to deliver any dividends from the stock to plaintiff after 1969 operated as an open disavowal and repudiation of the trust, which would commence the running of the time period for purposes of the statute of limitations and laches. In general, if there has been a termination or an open disavowal and repudiation of a trust, brought to the attention to the cestui que trust, or beneficiary, the time relevant to laches or a statute of limitations defense begins to run. See Young v. Howard, 73 U.S. App. D.C. 340, 120 F.2d 712, 713 (1941); Haliday v. Haliday, 56 App. D.C. 179, 11 F.2d 565, 569 (1926); Watwood v. Yambrusic, 389 A.2d 1362, 1363 (D.C. 1978).

 Laches may be properly invoked when "the party to whom laches is imputed has knowledge of his rights, and an ample opportunity to establish them in the proper forum . . . [and when] by reason of his [or her] delay the adverse party has good reason to believe that the alleged rights are worthless, or have been abandoned." American University Park, 400 A.2d at 742.

 Plaintiff's knowledge of her rights is clear from the record. She had the Declaration of Trust in her possession from 1964 to 1985. *fn6" It is undisputed that the flow of Fuji dividends from defendant to plaintiff ceased in 1969. Repudiation of a trust can be made by actions as well as words, *fn7" and, in this case, a disavowal and repudiation of the trust would have occurred when the flow of dividends from the stock ceased after 1969. *fn8" Taking as true plaintiff's assertion that the 135 ADRs she found with the Trust in her safe deposit box in 1985 were representative of another 1000 shares of Fuji shares purchased by plaintiff in 1966, plaintiff would have been aware that she stopped receiving dividends from defendant relating to her 1964 purchase when she received dividends on the stock she purchased in 1966. *fn9"

 Plaintiff's delay has also caused extreme prejudice to defendant. In the intervening years, records of defendant *fn11" and his brokerage accounts *fn12" have been lost or destroyed. In addition, Sinrod, who was defendant's partner and might have been able to testify as to the termination of the trust or who might have had records pertaining to the stock, has died. *fn13" All of these sources of evidence could have been perpetuated if plaintiff's claims had been timely raised. Because of the loss of evidence during the period of delay, it would be an injustice to ...


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