Greater Kansas City Laborers Pension Fund v. Thummel

738 F.2d 926, 16 Fed. R. Serv. 542
CourtCourt of Appeals for the Eighth Circuit
DecidedJuly 9, 1984
DocketNo. 83-1906
StatusPublished
Cited by21 cases

This text of 738 F.2d 926 (Greater Kansas City Laborers Pension Fund v. Thummel) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Greater Kansas City Laborers Pension Fund v. Thummel, 738 F.2d 926, 16 Fed. R. Serv. 542 (8th Cir. 1984).

Opinion

HENLEY, Senior Circuit Judge.

This is an action by four employee benefit funds against Elmer Thummel individually and E. Thummel Construction Company, a corporation owned by Elmer Thummel and his wife. The funds sought an accounting with respect to contributions Thummel and the corporation were alleged to owe and judgment in the amount found to be owed. The district court1 found Thummel and the corporation to be liable to the funds for unpaid contributions, and [928]*928also awarded attorneys’ fees. Thummel appeals. We affirm.

There are several issues on appeal. Thummel claims that he never signed the contract by which he became obligated to make contributions to the union funds. Next, he argues that the contract was inadequately authenticated and not the best evidence, and that it should have been excluded from evidence. Third, the corporation contests its liability under the contract. Thummel also contends that the agreement does not cover non-union employees for any period or require any contribution for any employee for the period extending from April 2, 1976 to October 13, 1976. Finally, Thummel challenges the district court’s determination of attorneys’ fees.

1. The Contract.

The funds offered into evidence a purported carbon copy of a “Laborers Contract Stipulation.” This contract required Thummel to make the payments at issue here. Thummel argues first that the carbon copy is not admissible.

Generally, carbon copies are admissible as originals under Federal Rule of Evidence 1001(3). See Notes of the Advisory Committee, Paragraph 3. One union official testified that these agreements were executed in quadruplicate, and another official, Mr. McKamey, testified that he saw Mr. Thummel sign the agreement.

There is an additional problem in this case, however. At the signature line was a dim carbon signature of what appeared to be Thummel’s name. Someone had written Thummel’s name over the signature in blue ink. The parties stipulated that the blue ink rendition of Thummel’s name was not Thummel’s signature. Thummel argues that because the most important part of the contract, Thummel’s signature, was “obscured, covered, and obliterated,” the document should be treated as a duplicate under Fed.R.Evid. 1003 instead of an original. Since duplicates are not admissible if a genuine question is raised as to the authenticity of the original, Thummel contends that the carbon copy should have been excluded.

If the funds had offered the top copy of the agreement, the paper which contained the ink signature of Thummel rather than the carbon signature, and if that signature had been obscured in a manner similar to that of the carbon here, the document would clearly be admissible under Fed.R.Evid. 1001. The fact that the signature was obscured would go to the weight attached to the document, not to its admissibility. We see no reason for treating a carbon any differently. There was evidence that the contract was executed in quadruplicate, and that the second, third and fourth copies were not always signed individually, but were usually placed under the top copy and separated by sheets of carbon paper. This is sufficient to qualify a carbon copy as an original, and we see no error in its admission.

Thummel’s second argument concerning the contract is that the district court should not have considered the resemblance of the obscured signature to Mr. Thummel’s admitted signature without the benefit of expert assistance. The district court, in concluding that Mr. Thummel had signed the agreement, relied in part on the resemblance of visible letters in the obscured signature to those letters in Mr. Thummel’s admitted signature. Thummel admits that generally the trier of fact may compare a contested sample of handwriting with an authenticated sample and decide that the contested sample is authentic even in the absence of expert testimony. United States v. Clifford, 704 F.2d 86, 90-91 (3d Cir.1983); United States v. Ranta, 482 F.2d 1344, 1346 (8th Cir.1973). Thummel argues that the fact that the contested signature has been obscured takes the determination out of the realm of the fact-finder’s ability, and requires an expert. In Clifford, the Third Circuit held that the jury could compare a criminal defendant’s admitted cursive writing with the block letter writing in threatening letters. 704 F.2d at 90. Clifford shows that handwriting exemplars do not have to be in the exact [929]*929same form in order for the factfinder to compare them.

Further, the signature on the contract is not the only evidence upon which the district court relied to find that Mr. Thummel signed the contract. The district court relied on Mr. McKamey’s testimony that he saw Mr. Thummel sign the contract, and on the fact that soon after McKamey signed the contract Mr. Thummel began making the required payments. It is likely that these two facts would be sufficient to support a finding that Mr. Thummel signed the agreement even without the district court’s comment that the visible letters in the purported signature were similar to the “distinctive” way in which Mr. Thummel admittedly signed his name. The district court does not appear to have placed undue reliance on his observation, and we cannot conclude that his finding of fact on the issue of whether Mr. Thummel signed the contract is clearly erroneous.

2. Corporate and Individual Liability.

From the late 1960’s to the early 1980’s, Mr. Thummel operated his masonry business as a sole proprietorship. In September, 1980 a corporation named “E. Thummel Construction Company” was formed. Mr. Thummel and his wife own all the stock. Mr. Thummel testified that the corporation does primarily commercial masonry work, whereas his sole proprietorship did mostly residential work. He explained that he finished all the sole proprietorship’s jobs before beginning to do business as a corporation.

The funds claim that Mr. Thummel and the corporation are jointly and severally liable for the unpaid contributions from 1976. The funds contend that the corporation is the “alter ego” of the sole proprietorship, and that the corporation is thus obligated to continue making fund contributions under the contract signed by Mr. Thummel.

The district court found that the corporation was the “alter ego” of the sole proprietorship rather than a mere successor.2 Thummel challenges this finding. We note that this is a finding of fact which we must affirm unless it is clearly erroneous.

A finding that two businesses are alter egos is proper if based on “substantial identity in terms of corporate ownership, management, business purpose, operation, equipment, customers, and supervision.” NLRB v. Campbell-Harris Elec., Inc., 719 F.2d 292, 295 (8th Cir.1983). Continuity of the work force would also appear to be relevant. NLRB v. Tricor Products, Inc.,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Twardowski v. Haskins
E.D. Missouri, 2020
Krekelberg v. Anoka County
D. Minnesota, 2020
Gude v. State
831 S.E.2d 807 (Supreme Court of Georgia, 2019)
Nelson v. Garcia
D. Minnesota, 2019
United States v. Bauzo-Santiago
49 F. Supp. 3d 164 (D. Puerto Rico, 2014)
Rodela-Aguilar v. United States
596 F.3d 457 (Eighth Circuit, 2010)
United States v. Craig L. Watson
479 F.3d 607 (Eighth Circuit, 2007)
United States v. Mottolo
695 F. Supp. 615 (D. New Hampshire, 1988)
Rockney v. Pako Corp.
734 F. Supp. 373 (D. Minnesota, 1988)
Greater Kansas City Laborers Pension Fund v. Thummel
738 F.2d 926 (Eighth Circuit, 1984)

Cite This Page — Counsel Stack

Bluebook (online)
738 F.2d 926, 16 Fed. R. Serv. 542, Counsel Stack Legal Research, https://law.counselstack.com/opinion/greater-kansas-city-laborers-pension-fund-v-thummel-ca8-1984.