IN THE SUPREME COURT OF MISSISSIPPI CASE NO CA-00742

Transcription

1 E-Filed Document Mar :52: CA Pages: 21 IN THE SUPREME COURT OF MISSISSIPPI CASE NO CA CYNDY HOWARTH, INDIVIDUALLY, WIFE, WRONGFUL DEATH BENEFICIARY, AND AS EXECUTRIX OF THE ESTATE OF RICHARD HOWARTH, JR., DECEASED; JULIET HOWARTH MCDONALD, INDIVIDUALLY, DAUGHTER AND AS WRONGFUL DEATH BENEFICIARY OF RICHARD HOWARTH, JR., DECEASED, AND CYNDY HOWARTH, AS GUARDIAN, NATURAL MOTHER AND NEXT FRIEND OF CYNTHIA HOWARTH, A MINOR AND WRONGFUL DEATH BENEFICIARY OF RICHARD HOWARTH, JR., DECEASED APPELLANTS V. M & H VENTURES, LLC APPELLEE BRIEF OF APPELLEE Richard L. Kimmel Glenn F. Beckham MBN: 3772 MBN: 2309 Upshaw, Williams, Biggers Upshaw, Williams, Biggers & Beckham, LLP & Beckham, LLP Post Office Drawer 8230 Post Office Drawer 8230 Greenwood, Mississippi Greenwood, Mississippi (662) (662) Attorney for Appellee Attorney for Appellee

2 CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the Justices of the Supreme Court and/or the Judges of the Court of Appeals may evaluate possible disqualification or recusal: 1. Cyndy Howarth, individually, widow, wrongful death beneficiary, and as Executrix of the Estate of Richard Howarth, Jr., Deceased. 2. Juliet Howarth McDonald, individually, daughter and as wrongful death beneficiary of Richard Howarth, Jr., Deceased. 3. Cyndy Howarth, as guardian, natural mother and next friend of Cynthia Howarth, a minor and wrongful death beneficiary of Richard Howarth, Jr., Deceased. 4. M & H Ventures, LLC, a Montana Limited Liability Company. 5. Wayne E. Ferrell, Jr., Esq., Attorney for Appellants. 6. William W. Simmons, Esq., Attorney for Appellants. 7. Bradley S. Clanton, Esq., Attorney for Appellants. 8. Richard L. Kimmel, Esq., Attorney for Appellee. 9. Glenn F. Beckham, Esq., Attorney for Appellee. 10. Honorable Vernon R. Cotten, Circuit Court Judge. s/richard L. Kimmel RICHARD L. KIMMEL -i-

3 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS i TABLE OF CONTENTS ii TABLE OF AUTHORITIES iii POSITION ON ORAL ARGUMENT STATEMENT OF THE ISSUES STATEMENT OF THE CASE AND STATEMENT OF FACTS SUMMARY OF THE ARGUMENT ARGUMENT A. HOWARTH IGNORES FOUNDATIONAL FACTS B. THE TRIAL COURT PROPERLY DISMISSED THE CLAIMS ASSERTED BY THE HOWARTH PLAINTIFFS AGAINST M & H C. THE CLAIMED NEED FOR DISCOVERY WAS PROPERLY REJECTED BY THE TRIAL COURT CONCLUSION CERTIFICATE OF SERVICE ii-

4 TABLE OF AUTHORITIES CASES Cirillo v. Central Mississippi Radiology LLC, 2013 WL (Miss. 2013) Malone v. Capital Correctional resources, Inc., 808 So.2d 963 (Miss. 2002) Restaurant of Hattiesburg, LLC v. Hotel Restaurant and Supply, Inc., 84 So.3d 32 (Miss. 2012) World Hospitality Limited v. Tow, 983 F.2d 650 (5 th Cir. 1993) STATUTES AND RULES , Miss. Code Ann , 8, (j), Miss. Code Ann Rule 34(b), M.R.A.P Rule 56(f), M.R.C.P , 15 -iii-

5 POSITION ON ORAL ARGUMENT M & H Ventures, LLC (hereinafter M & H ), has no objection to oral argument, but would show that the Order 1 dismissing this case was based upon well-settled principals of law applied to the particular facts of this case. Howarth s Request for Oral Argument does not describe novel issues. The decisional process of this Court will not be aided by oral argument. The Howarth Plaintiffs have not articulated any reason why oral argument would be helpful to the Court as required by Rule 34(b), M.R.A.P. 1 This document was titled by the trial court: Pre-Findings of Fact and Conclusions of Law and Comments by the Trial Judge. It will be referred to herein as the Order of the trial court. 1

6 STATEMENT OF THE ISSUES The Statement of Issues by Howarth attempts to create mythical issues out of facts that do not exist in this case. The sole issue for this Court s adjudication is whether or not the trial court correctly dismissed the claims of the Howarth Plaintiffs against M & H by granting M & H s Motions for Summary Judgment and Motion to Dismiss. 2

7 STATEMENT OF THE CASE AND STATEMENT OF FACTS Richard Howarth, Jr. was killed when his plane crashed shortly after takeoff from the Philadelphia, Mississippi airport on January 16, Howarth was the pilot and sole occupant of this aircraft. 2 The aircraft was owned by Appellee M & H Ventures, LLC, a company comprised of one member, Richard Howarth, the deceased pilot. M & H had no employees. The widow of Richard Howarth, Cyndy Howarth, filed suit against M & H alleging negligence and other causes of action against M & H, the company in which her deceased husband, Richard Howarth, was the sole member. Howarth s Statement of Facts, as with other aspects of her Brief, neglects to emphasize these essential facts serving as the basis for the trial court s dismissal of this case: That M & H Ventures was a company consisting of one member, Richard Howarth, the deceased pilot, and that M & H had no employees. Therefore, M & H obviously could only act, or fail to act, through the actions of its sole member, Richard Howarth. Howarth s Statement of Facts and Brief contains erroneous allegations that should be noted: The Howarth Plaintiffs assert that M & H was a North Dakota corporation. It was not. It was a Montana limited liability company. 3 2 Howarth s Statement of Facts contend that the aircraft was pre-flighted in a normal and thorough manner and in compliance with Federal Aviation Regulations and in compliance with the Aerostar checklist. Howarth further alleges that all relevant checks were made. However, there are no citations to the Record because there is no evidence in the Record supporting these allegations. In any event, as explained in the trial court s Order, this case must be dismissed regardless of what Richard Howarth did or failed to do. 3 Additionally, there was never any contention, nor could there be any contention, that Montana law applied to the facts of this case. 3

8 Howarth makes the assertion that M & H was responsible for the maintenance of the aircraft, but fails to advise the Court, as previously noted, that Richard Howarth was M & H and only Richard Howarth could take any action to maintain the aircraft on behalf of M & H. M & H was not a corporation, but a company. (See Operating Agreement at R ; A.R.E. 2-4). 4 M & H was not a North Dakota Corporation as the Howarth Plaintiffs contend on p. 3 of their Brief. Howarth also alleges that Defendant Tracey Easom was also responsible for the maintenance of the aircraft. Again, there is no citation to the Record for this factual allegation, although Howarth did make such allegations in the Complaint. Howarth fails to advise this Court, as the trial court noted in its Order, that M & H had no employees. Defendant Tracey Easom, who was sued and served with process by Howarth, was therefore not an employee of M & H. Howarth also sued the aircraft manufacturer, and Tracey Easom, an individual. The claims against that manufacturer and Easom are not at issue on this appeal. The trial court entertained oral argument on the Motion to Dismiss and Motion for Summary Judgment of M & H and then requested the submission of proposed findings of fact and conclusions of law by both parties. Subsequently, the Circuit Court, Judge Vernon Cotten, filed an extensive ruling granting M & H s Motion for Summary Judgment and Excerpts. 4 A.R.E. herein refers to Appellee s Record Excerpts; R.E. refers to Appellant s Record 4

9 Motion to Dismiss in a 14-page Order. (R ; R.E. 9-23). Howarth subsequently perfected an appeal from this Order. 5

10 SUMMARY OF THE ARGUMENT The foundation of Howarth s Brief is an inferred assertion that M & H was a mysterious company with multiple members and multiple employees or otherwise somehow acted in the absence of Richard Howarth. Such could not be and was not the case. M & H had one owner and one member only: The deceased pilot, Richard Howarth. That crucial, singular fact is largely ignored throughout the Brief of the Howarth Plaintiffs. Additionally, the Court did not find that M & H could not be sued under Mississippi law, but rather found that the suit that was in fact brought by the Howarth Plaintiffs was futile in view of , Miss. Code, which reduces any recovery by wrongful death beneficiaries by the negligence of the decedent (or injured party). Under these facts, wherein Howarth is the pilot of the aircraft and sole member of M & H, no recovery by the wrongful death beneficiaries is possible. Howarth s claim of a need for additional discovery under these facts is also a figment of creative but baseless legal reasoning. The foundation for the trial court s disposition of this issue was not refuted or even addressed in the Brief of Howarth because the reasoning of the trial court was based upon sound logic and the requirements of Rule 56(f), M.R.C.P. 6

11 ARGUMENT A. HOWARTH IGNORES FOUNDATIONAL FACTS. The factual foundation for the Order of the trial court are found in the Exhibits which M & H attached to its Motion for Summary Judgment. Inexplicably, Howarth avoided offering a coherent explanation as to why these undisputed facts did not support the trial court s Order dismissing the claims against M & H: The Operating Agreement of M & H provided: Richard A. Howarth was the initial and only member of M & H. The Operating Agreement also provided: 8.3 Procedure upon death of member. Upon death of member, this LLC, and all assets contained herein shall immediately proceed to the member s Estate as the new and sole owner of this LLC unless otherwise instructed. (R. 586; A.R.E. 4). M & H owned the aircraft, and Richard Howarth was the sole member of that company. (R. 584; A.R.E. 2). The fact that Richard Howarth was the sole member of M & H was confirmed by the letter of Cyndy Howarth s counsel (R. 587; A.R.E. 5). Subsequent to the accident, Cyndy Howarth, widow of Richard Howarth and Executrix of his Estate, submitted a sworn statement in proof of total loss regarding the aircraft hull damage so as to facilitate payment under an insurance policy to the owner of the plane, M & H and the lienholder, Citizen s National Bank of Meridian. Cyndy Howarth, Plaintiff in this action, executed this document as: Executrix of the Estate of Richard A. Howarth as Sole Beneficiary of that Estate including 100% ownership of M & H Ventures, LLC. (See Proof of Loss Statement at R. 588 _; A.R.E. 6). 7

12 The Affidavit of Plaintiff Cyndy Howarth also confirms that Richard Howarth was the sole member of M & H and M & H had no employees. (Affidavit of Plaintiff Cyndy Howarth at R. 589; A.R.E. 7). Since Richard Howarth was the sole member of M & H, M & H could only act or fail to act by and through the decisions and actions of its sole member, Richard Howarth. No coherent explanation of these facts consistent with the continuation of this lawsuit was offered because such facts cannot be addressed in any manner consistent with any recovery by the Howarth Plaintiffs regarding this accident. B. THE TRIAL COURT PROPERLY DISMISSED THE CLAIMS ASSERTED BY THE HOWARTH PLAINTIFFS AGAINST M & H. The Howarth Plaintiffs cannot articulate any reason why Richard Howarth s actions are not subject to the requirements of , Miss. Code Ann. which provides for a proportionate reduction of damages due to the negligence of the deceased in a wrongful death action, so the Howarth Plaintiffs play word games with such terms as immunity and corporate dissolution, and corporate veil. The trial court never ruled that M & H was immune from suit. Obviously M & H was sued. What the trial court did find was that the suit brought against M & H cannot go forward under these circumstances because the Howarth Plaintiffs cannot state a claim upon which relief can be granted to them against M & H, and that under the undisputed genuine issues of material fact and the applicable law, M & H is entitled to a judgment as a matter of law. The implications of the true facts wherein Howarth was the sole member of M & H were correctly analyzed by the trial court which found that M & H could only act or fail to act through actions of Howarth. See World Hospitality Limited v. Tow, 983 F.2d 650 (5 th 8

13 Cir. 1993), holding that a corporation can only act through its officers and directors. When one person owns a controlling interest in the corporation and dominates the corporation s actions, his acts are the corporation s acts. Tow at 652. Since M & H had no employees and no other members, assertions in the Amended Complaint concerning M & H s negligence in the maintenance, repair, inspection, and certification of the subject airplane can only be the negligence of Richard Howarth, Plaintiff s decedent. (Order at R. 786; R.E. 19). Since this proposition of law is the legal foundation for the Order of the trial court, it is baffling that the Howarth Plaintiffs fail to take issue with it or explain how M & H could do anything without the participation of Richard Howarth. The Howarth Plaintiffs devoted substantial pages of their Brief to whether or not M&H was dissolved upon Howarth s death and whether M&H could be sued as a dissolved corporation. However, those issues make no difference as observed by the trial court:... the intention of the Operating Agreement was that (Cyndy) Howarth would inherit the assets of the LLC and LLC should be dissolved upon Howarth s death. Even if either of these particular assertions (dissolved or undissolved) are incorrect, no construction of this Operating Agreement or applicable Mississippi law can allow the continued prosecution of this action against M&H... Should it be asserted that the entity formally known as M&H Ventures, LLC still exists, it is wholly owned and operated by the Estate of Howarth. Therefore, under the construction of the Operating Agreement, the Estate of Howarth has sued itself. There is no provision in the statutory or common law or in the realm of common sense that allows an entity to sue itself. (If a Plaintiff could do that, the obvious implication is that the Estate of Howarth has pled, and thereby admitted the negligence of M&H 9

14 wherein Richard Howarth was the sole actor and member). (Order at R ; R.E. 18/19). The trial court further observed that... if M&H continues to exist... it appears to the Court that this proposition does not support the continued prosecution of this case against M&H, the owner of the airplane, a company in which Richard Howarth was the sole member. (R. 786; R.E. 19). Thereafter, the Court explained that since Howarth was the sole member of M&H, M&H could only act through the acts of Howarth, and any negligence of Howarth would serve to reduce the damages recoverable by the wrongful death beneficiaries of Howarth pursuant to , Miss. Code Ann. (R ; R.E. 20). M & H and Richard Howarth were not separate legal entities as has been asserted by the Howarth Plaintiffs. M & H has no existence without Richard Howarth. Richard Howarth was M & H s sole actor, without whom M & H could not do anything, or fail to do anything. The Howarth Plaintiffs urge that there was no effort by anyone to pierce the corporate veil protecting him (Richard Howarth) (Brief of Appellant, p. 11). To the extent some veil exists with regard to M&H, there was and is no corporate or company veil to pierce. The Howarth Plaintiffs have admitted Richard Howarth was the sole member of M&H and that it had no employees. In any event, references by the Howarth Plaintiffs to a piercing of the corporate veil is totally misplaced in the analysis of this case. As discussed in those cases cited by Plaintiff 5 the concept of piercing the corporate veil is a term used to impose liability upon individual members of a company or corporation by avoiding the shield or veil of its 5 Cirillo v. Central Mississippi Radiology, LLC, 2013 WL (Miss. 2013) and Restaurant of Hattiesburg, LLC v. Hotel and Restaurant Supply, Inc., 84 So.3d 32 (Miss. 2012). 10

15 company or corporate existence. M & H is taking no such action; rather, it is the Howarth Plaintiffs who are trying to impose liability upon M & H whose sole member was their deceased husband and father, Richard Howarth. While claiming the possibility of some recovery for the Plaintiff in this action, Howarth fails to explain how M & H could have acted or failed to have acted in any way other than by and through its sole member, Richard Howarth. Under long-established Mississippi statutory law, any damages sought by wrongful death beneficiaries are reduced in proportion to the negligence of the deceased pursuant to , Miss. Code, which provides: In all actions hereafter brought for personal injuries or where such injuries have resulted in death... the fact that the person injured... may have been guilty of contributory negligence shall not bar a recovery, but damages shall be diminished by the jury in proportion to the amount of negligence attributable to the person injured. There are no exceptions or restrictions applicable to the provisions of this statute which affect the mandated reduction of damages in the event that the deceased party happens to be the sole member of a company or corporation. The Court should note that the negligence of the injured person does not partially reduce damages, but rather reduces damages in proportion to the total negligence attributable to the injured or deceased person. No construction of this statute has ever allowed only a partial reduction of damages due to the negligence of the deceased or injured person. This case may be the first time anyone has asserted such a position. 11

16 The Howarth Plaintiffs construction of , Miss. Code Ann. is tortured to the point of non-recognition. Concluding their discussion of that statute, the Howarth Plaintiffs allege that the negligence, if any, of the pilot, (Richard) Howarth, is not a bar to recovery. (Brief of Appellant, p. 12). They are certainly correct in this assertion. The Howarth Plaintiffs are certainly free to collect all they can for the negligence of entities who are persons, companies, corporations, or other entities whose negligence caused this aircraft crash, but only to the extent that those entities are not Richard Howarth as in the case at bar. As they argued before the trial court, in the concluding section of their Brief, the Howarth Plaintiffs repeated their reliance on Malone v. Capital Correctional Resources, Inc., 808 So.2d 963 (Miss. 2002) as legal precedent for their position. The trial court easily distinguished Malone in its Order, pointing out that the pilot in Malone was a person other than the owner of the aircraft. (Order of Court at R. 783, R.E. 16). Such are not the facts in the case at bar. The statute which Malone discusses, (j), Miss. Code Ann., provides that the owner of a plane will be treated just like the pilot actually operating the plane (in liability determinations). (Brief of Appellant, p. 12). Then, in an effort to mislead this Court, the Howarth Plaintiffs state in a razzle-dazzle fashion: Even if M&H is correct that the accident was, at least in part, Mr. Howarth s fault, under (j), Miss. Code Ann., Richard Howarth would be 50% liable and M&H would be 50% liable. While picking percentages out of thin air, the particular statute relied upon by the Howarth Plaintiffs does not provide for separate assessments of negligence against both 12

17 the owner and pilot, but rather the statute was enacted to assure that any negligence of the pilot would be that of the owner as well to assure the presence of a solvent Defendant. This is not the first time that the Howarth Plaintiffs have attempted to mislead regarding the substance of aviation law. Repeatedly the Howarth Plaintiffs urged the trial court that there was some Federal Aviation Administration regulation which provided for strict liability in the event of an airplane crash. (R ; A.R.E. 8-16). The trial court concluded in its Order that there was no such regulation providing for strict liability as the result of an aircraft accident of the type before the Court. (R. 781; R.E. 14) C. THE CLAIMED NEED FOR DISCOVERY WAS PROPERLY REJECTED BY THE TRIAL COURT. The Howarth Plaintiffs attempt to impugn the trial court s decision by claiming that it unfairly precluded Howarth from conducting discovery. The trial court never issued any Order staying discovery or prohibiting Howarth from conducting discovery. Furthermore, nothing prohibited Howarth s attorneys from fully investigating the accident or any factual aspect of the case. The trial court correctly disposed of all allegations concerning the claimed need for additional discovery in its Order. (R ; R.E ). The reasons given by the Howarth Plaintiffs in their Brief concerning their need for additional discovery include the need to determine the history of M&H s ownership and maintenance of the aircraft and to investigate the relationship between M&H and Tracey Easom. (Brief of Appellant, p. 5). As discussed by the trial court, the history of M&H s ownership of the aircraft is fully available to Cyndy Howarth since she is now the owner of M&H and in fact previously collected $100, of insurance proceeds for the property damage claim resulting from 13

18 this crash. Furthermore, the history of M&H s ownership is already fully known, the Howarth Plaintiffs having admitted that when the company was formed and at the time of the crash, Richard Howarth was the sole member of M&H. Should any investigation or discovery into the maintenance of the aircraft reveal that entities other than Richard Howarth were negligent with regard to aircraft maintenance, that will certainly be of use to the Howarth Plaintiffs in pursuing their remaining claims against Easom and the aircraft manufacturers; but, it bears them no gain for their suit against M&H. The Howarth Plaintiffs allegation that they need to investigate the relationship between M&H and Tracey Easom remains baffling since the Howarth Plaintiffs already know and have admitted that Easom was not an employee of M&H. It is quite telling that the Howarth Plaintiffs make no attempt to explain what facts could possibly be discovered which would somehow change the foundational facts, or would tend to make any recovery against M & H more likely, or which would overcome the conclusions explained by Judge Cotten in his Order. This is understandable since even with a graphic imagination one cannot envision such facts when it has been fully established that M & H had one member, Richard Howarth, and no employees. At a minimum, the Howarth Plaintiffs should have addressed the trial court s reasoning in rejecting the claimed need for additional discovery. The trial court explained that Howarth did not need additional discovery on the history of M & H through her attorneys. Howarth also did not need to investigate the maintenance of the aircraft since any finding of negligence by M & H would only serve to reduce any damages recoverable by the Estate and wrongful death beneficiaries, and any finding that Howarth was not guilty of any negligence would confirm M & H s entitlement to an Order of Dismissal. The trial 14

19 court also addressed Howarth s claim that it needed to investigate the relationship between M & H and Tracey Easom. The trial court observed that no such investigation needed to be conducted in terms of establishing liability of M & H since Easom was not M &H s employee. Furthermore, Howarth had conceded that M & H could only act or failed to act by and through the decisions of its sole member, Richard Howarth. (Material Undisputed Fact, R. 573; A.R.E. 26). Furthermore, with regard to Easom, Howarth conceded that M & H had no employees. (Motion of M & H, p. 5, 11). In arguing to this Court that the trial court erred by failing to allow additional discovery before ruling upon M & H s Motion to Dismiss and Motion for Summary Judgment, the Howarth Plaintiffs address none of these findings by the trial court. The trial court also rejected Howarth s claim for the need for additional discovery based upon Howarth s failure to follow the well-known provisions of Rule 56(f) M.R.C.P. which require the presentation of Affidavits explaining the reasons why the opponent of a Motion for Summary Judgment cannot present facts essential to justify the opposition. Rule 56(f), M.R.C.P., is not a rule that a trial court can or should brush aside as mere surplusage. It is mandatory. Howarth cannot even utilize lack of knowledge of this provision of Rule 56 as an excuse because Howarth s counsel noted at oral argument on December 14, 2015, that we re entitled to discovery. We didn t do a Rule 56 Affidavit, but we certainly let them know before today that we wanted... we would like discovery and I think we would be entitled to it. (R. 601; A.R.E. 19). It is obvious why no Affidavit was submitted: No such Affidavit could be submitted in good faith under these facts. 15

20 CONCLUSION The trial court correctly dismissed the claims of the Howarth Plaintiffs against M & H, a company comprised of only one member: the deceased pilot, husband and father of the Howarth Plaintiffs. Mississippi law does not permit recovery based on the acts of Howarth if he was free of negligence, and statutory law requires reduction of damages if any acts or failures to act by Howarth were negligent. When this Court affirms the dismissal of M&H, the Howarth Plaintiffs will be free to continue their claims of negligence against the aircraft manufacturer, Ted Smith Aerostar and Tracey Easom, parties which they allege performed aircraft and engine modifications, repairs, maintenance, overhauls, and inspections,... and... were negligent in the repair, testing, inspection, overhaul, rebuilding, owning, operating, selling, and annualing (sic) the aircraft, the aircraft engines, the aircraft fuel system, the aircraft fuel selector switches, and the exhaust system. (Brief of Appellant, p. 3). RESPECTFULLY SUBMITTED, this the 9 th day of March, UPSHAW, WILLIAMS, BIGGERS & BECKHAM, LLP OF COUNSEL: BY: s/glenn F. Beckham GLENN F. BECKHAM, MBN: 2309 RICHARD L. KIMMEL, MBN: 3772 UPSHAW, WILLIAMS, BIGGERS & BECKHAM, LLP POST OFFICE DRAWER 8230 GREENWOOD, MISSISSIPPI TEL: (662) FAX: (662) gbeckham@upshawwilliams.com 16

21 Certificate of Service I hereby certify that on March 9, 2017 I electronically filed the foregoing with the Clerk of the Court using the ECF system which sent notification of such filing to the following: Wayne E. Ferrell, Jr., Esq. Attorney at Law 405 Tombigbee Street Post Office Box Jackson, Mississippi William W. Simmons, Esq. Glover, Young, Hammack, Walton & Simmons, PLLC Post Office Box 5514 Meridian, Mississippi Bradley S. Clanton, Esq. Clanton Law Firm, PLLC Post Office Box 4781 Jackson, Mississippi I do certify that I have mailed, via first class mail, postage pre-paid, a true and correct copy of the foregoing Record Excepts of Appellee to: Honorable Vernon R. Cotten Circuit Judge 205 East Main Street Carthage, Mississippi SO CERTIFIED, this the 9 th day of March, s/glenn F. Beckham GLENN F. BECKHAM K:\user7\RK\M & H Ventures adv. Howarth\Brief of Appellee.wpd17