Evans v. Suntreat Growers & Shippers, Inc.

• Decision Date: 25 February 1976
• Docket Number: No. 9-29.,9-29.
• Citation: 531 F.2d 568
• Court: U.S. Temporary Emergency Court of Appeals Court of Appeals
• Parties: Berne H. EVANS, III, et al., Plaintiffs-Appellants, v. SUNTREAT GROWERS & SHIPPERS, INC., a California Corporation, Defendant-Appellee.

531 F.2d 568

Berne H. EVANS, III, et al., Plaintiffs-Appellants, v. SUNTREAT GROWERS & SHIPPERS, INC., a California Corporation, Defendant-Appellee.

No. 9-29.

Temporary Emergency Court of Appeals.

Argued December 30, 1975.

Decided February 25, 1976.

As Modified on Denial of Rehearing and Rehearing April 1, 1976.

Kendall L. Manock, of Baker, Manock & Jensen, Fresno, Cal., with whom James M. Phillips, Fresno, Cal., was with him on the brief, for appellants.

J. Thomas Crowe, of Crowe, Mitchell & Crowe, Visalia, Cal., with whom Daniel W. Crowe, Visalia, Cal., was with him on the brief, for appellee.

Before CARTER, CHRISTENSEN and ESTES, Judges.

As Modified on Denial of Rehearing and Rehearing En Banc April 1, 1976.

PER CURIAM:

Appellants commenced this action under the Economic Stabilization Act of 1970, 12 U.S.C. § 1904 note (Supp.1975), for recovery of treble damages and attorney's fees. Appellants claim a violation of the Act, as implemented by the Regulations, 6 C.F.R. §§ 300.11, 300.13, 300.14 and 300.5, involving the crop years 1970-1971, 1971-1972, and 1972-1973. Appellants abandoned their claim based on the first crop year of 1970-1971.

The trial court, after trial, filed a memorandum decision in favor of appellee and directed that proposed findings of fact, conclusions of law and judgment be prepared.

In its memorandum decision the court stated:

"Defendants' sic evidence indicates that its charges are based on a fixed amount per field box, plus a share of the operating costs of the corporation. Although plaintiffs' share of the operating costs increased within the amounts permitted by the Act, their charges for processing their fruit actually decreased from 10 cents per field box for 1970-71, 81/2 cents for 1971-72 and 61/2 cents for 1972-73.

"Thus the charges for the services rendered by defendant to plaintiffs were not in violation of the Economic Stabilization Act of 1970. It should also be noted that defendant's profit did not increase during the years in question which was the intent of the Act.

"It follows that defendant did not intentionally violate the provisions of the Act."

The memorandum decision over-simplified the issue by not mentioning the profit margin test set forth in the Regulations in 6 C.F.R. §§ 300.14 and 300.5, but instead stated that the court found that the appellee's profits had decreased in each of the three successive crop years.

The formal findings of fact signed by the trial court stated:

"13. The defendant did not charge the plaintiffs or any of its growers for its services in handling their citrus fruit during the 1970-71 citrus fruit season, or during the 1971-72 citrus fruit season, or during the 1972-73 citrus fruit season on the basis of any flat rate per packed carton, or on any packed carton basis.

"14. That except as hereinbefore expressly found to be true, each and all of the allegations contained in paragraphs numbered 8 through 38 in the Plaintiffs' Complaint are not true.

"15. The defendant's net operating profit for its fiscal year 1970-71 was the sum of $135,562.00; its net operating profit in its fiscal year 1971-72 was the sum of $91,261.00; and its net operating profit in its fiscal year 1972-73 was the sum of $64,439.00; and the profit margin of said defendant during said fiscal years of 1971-72 and 1972-73 did not equal or exceed the profit margins allowable under the Phase II or Phase III Price Control Regulations issued pursuant to the Economic Stabilization Act of 1970 as amended."

Appellants make several attacks on the findings of fact.

(1) That Finding # 13 was erroneous in finding that appellee did not charge appellants on any flat rate per packed carton or any packed carton basis.

Appellants on page 1 of their reply brief state: "All the facts listed in defendant's appellee's statement of facts from page 2:8 through 5 of defendant's appellee's appellate brief are true with the exception of the statement on page 5, line 9-10, which states that defendant appellee reduced its charges for services. . . " On page 5 of appellee's brief referred to above, we find the following: ". . . the net operating profit of the defendant appellee declined from $135,562.00 in its 1970-1971 fiscal year to $91,261.00 in its 1971-1972 fiscal year, and again declined to $64,439.00 in its 1972-1973 fiscal year. . . .

* * * * * *

"The charts prepared by the witness Benneyan witness for the appellants and on which plaintiffs appellants rest their case were prepared on a packed carton basis, although said witness was compelled to admit that he found absolutely nothing in the books and records of the defendant appellee that indicated that said defendant appellee had ever charged or attempted to charge or bill its growers for handling their fruit on any packed carton basis . . . The witness Benneyan conceded that the charges of $1.10, $1.13, $1.23 and $1.39 per packed carton set forth in his Price Comparison Sheet Plaintiffs' Exhibit 2 are all calculated figures made by him and that the same are not reflected in the books and records of the defendant appellee."

The foregoing appears to lend credence to the trial court's finding that appellee did not charge appellants on any packed carton basis; but whether this is so or not, it is thereby shown that the problem before the court was complex and that the substance of its decision should not be lightly disregarded. There is substantial evidence in the record supporting the trial court's ultimate finding of fact against appellants.

(2) Appellants attack Finding # 14, which stated that certain allegations of the complaint are not true. Appellants concede that as to most of the paragraphs cited, the finding is correct. At argument counsel stated he did not draw the complaint but it is apparent he proceeded to trial on it without bothering to correct or strike the faulty paragraphs. We cannot say the finding was clearly erroneous.

(3) That Finding # 15 was not a finding of fact but instead was a conclusion of law, and was erroneous. We hold that it was an ultimate finding of fact that the margin of profit was not increased above the permissible margin and a conclusion of law that no violation occurred.

The trial court did not make findings of special facts or computations on which it based Finding # 15. Appellants did not propose additional or alternate findings nor did they apply to the district court for an amendment of its findings under Rule 52(b) F.R.Civ.P. See Kennedy v. United States, 115 F.2d 624 (9 Cir. 1940). We agree with the statement that

"It would seem that if a party is not willing to give a trial judge the benefit of suggested findings and conclusions, he is not in the best of positions to complain that the findings made and conclusions stated are incomplete. Sonken-Galamba Corp. v. Atchison, T. & S. F. Ry., 34 F.Supp. 15, 16 (W.D.Mo.1940), aff'd 124 F.2d 952 (8 Cir. 1942), cert. den., 315 U.S. 822 62 S.Ct. 917, 86 L.Ed. 1218 (1942)."

Appellants rightly contend that such failure does not prevent them from attacking a finding which is erroneous. But as to Finding # 15 they cannot complain of lack of specificity in the findings, when they proposed nothing to this effect.

For example, in a personal injury case the trial court...