Brown & Root, Inc. v. Big Rock Corporation

Decision Date12 September 1967
Docket NumberNo. 22895.,22895.
Citation383 F.2d 662
PartiesBROWN & ROOT, INC., Appellant, v. BIG ROCK CORPORATION et al., Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

Nauman S. Scott, Alexandria, La., William A. Brown, Houston, Tex., for appellant.

William E. Skye, Alexandria, La., J. B. Willis, St. Martinville, La., for appellees.

Before JONES and COLEMAN, Circuit Judges, and HEEBE, District Judge.

JONES, Circuit Judge.

This litigation, begun in 1961, has been around quite a long time. It had its origin in a contract between the appellant, Brown & Root, Inc., a Texas corporation, and the United States for the construction by Brown & Root of locks upon the Mississippi River, referred to as the Old River Navigation Locks or as the Old River Project. Some of the appellees had made bids for supplying Brown & Root with concrete aggregate, or had participated in one way or another in supplying or agreeing to supply aggregate for the project. Those who undertook to supply the aggregate were unable to get Government approval for one of the types of gravel resulting in the financial collapse of the supplier and the necessity of Brown & Root to go elsewhere for aggregate and to pay a higher price. Brown & Root, by its original complaint, sought judgment against some of the defendants for breach of contract in failing to deliver aggregate and claiming as damages the difference between the contract price and the actual cost. The complaint charged the defendants with an anti-trust conspiracy and monopoly in fixing the price of aggregate above the cost under competitive conditions. Other issues were interjected by interpleaders and counterclaims. One phase of the case was disposed of by a decision of this Court. Brown & Root, Inc. v. Gifford-Hill & Company, 5th Cir. 1963, 319 F.2d 65. Other matters went out of the case by summary judgment, orders of court and dismissals. One of the counterclaims was filed by O. R. Stephens asserting that the anti-trust claim against him was false, malicious and made without probable cause and seeking balm in the amount of $75,000. Brown & Root filed an amended complaint in which it adopted the allegations of its original complaint and by which it asserted, as an alternative cause of action, the conclusionary averment that if it is not entitled to the relief originally sought, it should be given a declaratory judgment that it had good cause for instituting the action, that it was instituted and prosecuted in good faith and that it is not liable to any of the defendants for damages resulting from the institution and prosecution of the suit.

Prior to the trial counsel for Brown & Root wrote to the district judge saying that it did not care to prosecute its anti-trust claim unless it was necessary to do so to provide a defense to threatened malicious prosecution actions. An advanced trial of the declaratory judgment issue was requested. The judge replied saying that the "probable cause" question would be submitted to the jury by interrogatory along with other questions. Later there was a change of mind and the judge advised counsel that the "probable cause would not be submitted to the jury." The case was tried to a jury on the anti-trust and contract issues. The court disposed of the breach of contract claims by directing verdicts for Brown & Root and against the defendants Richard Coco, Lake Pearl Sand & Gravel Company, Inc., and Central Sand & Gravel, Inc., for $7,123.10 and against the defendants Richard Coco, Lake Pearl Sand & Gravel Company, Inc., and Big Rock Corporation for $100,000. The court directed verdicts on the contract claim against Brown & Root and for the other defendants. The court directed a verdict for one of the defendants on the anti-trust claim. Interrogatories were submitted to the jury as to each of the other defendants as to whether they and others conspired to monopolize or attempt to monopolize the sources of concrete aggregate available to Brown & Root for the Old River Project, or to dictate the price at which its aggregate requirements would be supplied. While the jury was out the court sent in a note asking whether it appeared that a verdict would be reached. An answer, signed by the foreman, said "I do not believe we are going to agree on a verdict." However, a verdict was reached, returning a negative answer to each interrogatory. Brown & Root filed a motion requesting that the court investigate possible jury misconduct. On motion of Stephens, his counterclaim for damages for malicious prosecution was dismissed as being premature.

The court, by an instrument styled "Memorandum Rulings on Post-Verdict Motions of Plaintiff," stated that the claim of Brown & Root for a declaratory judgment had not been litigated and was not a part of the anti-trust case although possibly ancillary to it. The court certified that there was no reason for delay of the entry of judgment on the anti-trust phase of the case. A money judgment was entered for Brown & Root on the contract claims in accordance with the directed verdicts. Judgment was entered against Brown & Root in accordance with the special verdicts on the contract claims.

Brown & Root appealed, asserting the following seven specifications of error:

1. The trial court erred in refusing to declare probable cause existed for filing this suit.
2. The court erred in refusing to grant judgment for plaintiff on the anti-trust claim.
3. The court erred in rejecting appellant\'s contract claim against the individuals as joint venturers.
4. The court erred in excluding admissible evidence.
5. The court erred in the charge to the jury.
6. Defendants\' jury argument was inflammatory, prejudicial and improper.
7. The court erred in preventing investigation of possible jury misconduct.

The appellant, Brown & Root, by brief and oral argument disclaims any desire for recovery of a money judgment and avows that its only desire is to procure a declaratory judgment that will protect it against liability for malicious prosecution to those against whom it asserted the anti-trust claim.

It is clearly apparent that the district court, in deciding the contract claims and the anti-trust claim, and withholding its decision in the probable cause issue was intending to make a final adjudication of two of the three claims for relief asserted by Brown & Root. Fed. Rules Civ.Proc. 54 (b). We think this was the result of the district court's action and that there was no final and appealable judgment or order on the probable cause issue. Although we decide that there is no jurisdiction in this Court to consider the first of the assignments of error because of the absence of an appealable judgment, nevertheless we are constrained to observe that there is another fatal defect which prevents our consideration of the question. Declaratory judgments may be sought "in cases of actual controversy." 28 U.S.C.A. § 2201. No cause of action for malicious prosecution comes into existence until the termination of the particular judicial proceeding which is the gravamen of the malicious prosecution action. Guerra v. Gonzalez, 5th Cir. 1965, 340 F.2d 227; Bass v. Commercial Credit Corporation, 5th Cir. 1963, 317 F.2d 910; Dickey v. Kaiser Aluminum & Chemical Sales, Inc., 5th Cir. 1960, 286 F.2d 137; Muldrow v. Jones, La.App., 85 So.2d 711; Scott v. Citizens' Hardware & Furniture Co., 180 La. 473, 156 So. 469.

Where the Declaratory Judgments Act is invoked the same jurisdictional requirements as to a case or controversy must be met as in other suits. Altvater v. Freeman, 319 U.S. 359, 63 S.Ct. 1115, 87 L.Ed. 1450....

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