U.S. for Use and Benefit of Greenhalgh v. F. D. Rich Co., Inc.

Citation520 F.2d 886
Decision Date08 July 1975
Docket Number73-1432,Nos. 73-1431,s. 73-1431
PartiesUNITED STATES of America for the Use and Benefit of Val GREENHALGH and George Piper, d/b/a Acme Granite and Tile, Plaintiff-Appellant and Cross-Appellee, v. F.D. RICH COMPANY, INCORPORATED, a corporation doing business in the State of Washington, and American Surety Company, Defendants-Appellants and Cross-Appellants, and B & G Constructors, Incorporated, et al., Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
OPINION

Before DUNIWAY and CHOY, Circuit Judges, and Skopil, * District Judge.

DUNIWAY, Circuit Judge:

This is the second appeal in this case, see 437 F.2d 549. It was begun in 1963 by the Acme Granite and Tile Company (Acme) 1 to recover damages for alleged wrongful termination of its lathing, plastering and ceramic tile work subcontract by the F.D. Rich Company (Rich), the prime contractor for construction at Fort Lewis, Washington, of a 500 unit military housing project funded under the Capehart Act, 42 U.S.C. Secs. 1594-1594k, Acme's complaint also included a lien claim against Rich for an unpaid progress payment and a claim for damages against B & G Constructors, Inc. (B & G), the subcontractor responsible for framing the surfaces on which tile was to be placed. Acme claimed that some of the defects in its own performance resulted from defective framing installing by B & G. Rich, B & G and their bonding companies counterclaimed against Acme and its bonding company for delay damages and the costs of correcting defective work done by Acme.

By agreement, the issues of liability and damages were separated for trial. Only the liability issues were tried to a jury; the damages issues were referred to a special master by stipulation.

There were two principal liability issues. The first was whether Acme had committed a substantial breach justifying termination of the subcontract by Rich (the termination issue). This sub-sumed three sub-issues: whether Acme had committed a substantial breach by (1) failing to discover and report framing defects before placing its work over the frame; 2 (2) failing to resume work at Rich's written order; 3 and (3) repudiating the contract. The second issue was whether Acme's placing its work over the defective framing, and other defects in Acme's work unrelated to the framing, constituted insubstantial or partial breaches rendering Acme liable to Rich in damages for the costs of corrective work performed by a substitute subcontractor after Acme's termination (the partial breach issue).

The trial judge fully instructed the jurors on the law applicable to both issues and submitted the case on a form of special verdict which had been extensively discussed and approved by all counsel. The verdict was as follows:

We, the jury in the above-entitled cause do find our verdict as follows:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

TABLE

Acme's victory was short-lived. The trial judge entered judgment for Rich and the other defendants notwithstanding the verdict, and also entered an order conditionally granting their motion for a new trial, to take effect only if the judgment n. o. v. were to be reversed on appeal.

In addition, it was called to the court's attention that the special verdict form had omitted the issue of partial breach. Under Rule 49(a), F.R.Civ.P., this meant that the parties were deemed to have waived jury trial pro tanto and that the issue was submitted to the court for decision. The trial judge found Acme liable for partial breach. Thereafter, the damages issues were referred to a master, who was instructed to make findings and compute damages on the alternative assumptions (1) that the judgment n. o. v. would be sustained on appeal; and (2) that the jury verdict would be reinstated. With minor modifications, the court adopted the master's findings and entered final judgment.

On the first appeal, we reversed the judgment n. o. v. on the termination issue, but affirmed the conditional order granting a new trial, expressly declining to reinstate the jury verdict. See 437 F.2d at 553.

On remand, the original trial judge was unavailable to retry the case and it was reassigned. The new judge, believing himself not bound by his predecessor's new trial order, rescinded it, reinstated the jury verdict, and entered judgment for Acme on the termination issue. Rich now argues, and we agree, that this action was foreclosed by this court's mandate on the first appeal, which directed retrial. Acme has also appealed, assigning as error a ruling on damages by the original trial judge and contending that our previous mandate requires retrial not only of the termination issue, but of the partial breach issue as well. Neither point is well taken.

As a general rule, an order for a new trial, being interlocutory, is subject to modification or rescission by the trial judge at any time before entry of final judgment. Bateman v. Donovan, 9 Cir.,1942, 131 F.2d 759, 764; 6A Moore, Federal Practice, p 59.13. However, when once affirmed on appeal such an order loses its interlocutory character and becomes the law of the case, invulnerable on remand to any modification whatsoever. In re Sanford Fork & Tool Co.,1895, 160 U.S. 247, 255, 16 S.Ct. 291, 40 L.Ed. 414. Atlas Scraper & Engineering Co. v. Pursche, 9 Cir.1966, 357 F.2d 296, 298. On the previous appeal we held that the new trial order was not an abuse of the original trial judge's discretion and remanded the case for partial retrial. The trial court had no power to deviate from this court's mandate. See also Tanner Motor Livery, Ltd v. Avis, Inc., 9 Cir.,1963, 316 F.2d 804. A new trial on the termination issue is required.

Acme, however, questions the scope of the new trial, contending that our first opinion requires retrial of both liability issues. This is not the case. The last sentence of that opinion directs a remand "for a second trial in accordance with the order granting the motion for new trial." 437 F.2d at 553 (emphasis added). The order...

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  • Gallimore v. Missouri Pac. R. Co., 80-1390
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • February 5, 1981
    ...Court of Appeals for the Ninth Circuit in Bateman v. Donovan, 131 F.2d 759, 764 (9th Cir. 1942), and United States ex rel. Greenhalgh v. F. D. Rich Co., 520 F.2d 886, 889 (9th Cir. 1975). That position and its underlying rationale have been eloquently described by Professor There is no soun......
  • Christian v. State, 152
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    ...new trial destroys the finality of the judgment and, thus, is interlocutory and may be reconsidered); United States v. F.D. Rich Co., Inc., 520 F.2d 886, 888 (9th Cir.1975) (relying on Bateman v. Donovan, 131 F.2d 759, 764 (9th Cir.1943) to hold that a new trial order, being interlocutory, ......
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    ...Carlo Shirt, Inc. v. Daewoo International (America) Corp., 707 F.2d 1054, 1056 n. 2 (9th Cir.1983), United States ex rel. Greenhalgh v. F.D. Rich, Co., 520 F.2d 886, 890 n. 4 (9th Cir.1975). Even if timely, Aetna's objections are without merit. The trial judge gave adequate instructions on ......
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    .... . . an interlocutory order loses its interlocutory character and becomes the law of the case." United States ex rel. Greenhalgh v. F. D. Rich Co., 520 F.2d 886, 889 (9th Cir. 1975). See also National Airlines, Inc. v. International Association of Machinists & Aerospace Workers, 430 F.2d 9......
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