609 F.2d 1101 (5th Cir. 1980), 76-2373, Potashnick v. Port City Const. Co.

Docket Nº:76-2373, 78-2386.
Citation:609 F.2d 1101
Party Name:R. B. POTASHNICK, an Individual, and Continental Casualty Company, Plaintiff-Third Party Plaintiff, Appellees-Appellants, v. PORT CITY CONSTRUCTION COMPANY and United States Fidelity & Guaranty Co., Defendants-Appellants, v. The CITY OF MOBILE, ALABAMA, Third-Party Defendant-Appellant, Appellee, v. J. B. CONVERSE & COMPANY, INC., Third Party Defend
Case Date:January 15, 1980
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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609 F.2d 1101 (5th Cir. 1980)

R. B. POTASHNICK, an Individual, and Continental Casualty

Company, Plaintiff-Third Party Plaintiff,




Guaranty Co., Defendants-Appellants,


The CITY OF MOBILE, ALABAMA, Third-Party Defendant-Appellant, Appellee,


J. B. CONVERSE & COMPANY, INC., Third Party Defendant-Appellee.


Port City Construction Company, Inc., et al., Defendants-Appellants,


W. D. BRUNSON, d/b/a W. D. Brunson Construction Company,


Nos. 76-2373, 78-2386.

United States Court of Appeals, Fifth Circuit

January 15, 1980

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Joseph J. Boswell, Mobile, Ala., for Port City Const. Co.

John D. Richardson, Mobile, Ala., for Fidelity & Guaranty Co., Inc.

William H. Brigham, Mobile, Ala., for City of Mobile.

G. Hamp Uzzelle, III, Paul W. Brock, Mobile, Ala., for R. B. Potashnick and Cont. Casualty Co.

James H. Lackey, Mobile, Ala., for W. D. Brunson.

W. Boyd Reeves, Broox G. Holmes, Mobile, Ala., for J. B. Converse & Co.

Appeals from the United States District Court for the Southern District of Alabama.

Before COLEMAN, Chief Judge, RONEY and FAY, Circuit Judges.

FAY, Circuit Judge:

The case began amid a flurry of claims, counterclaims, and cross-claims. The thirty-three day trial of the action spawned a record of twenty-five volumes as well as the eleven briefs submitted on appeal. Out of this morass emerge questions involving the right to the effective assistance of hired counsel in a civil case, and the disqualification of a trial court judge from participation in the proceeding before him. Our resolution of the issues requires us to reverse this case on two separate grounds.

Our first ground for reversal results from the trial court judge's failure to disqualify himself from participation in the proceeding before him. The judge in this case was involved in business dealings with the plaintiff's attorney. The judge's father was senior partner in the law firm representing the plaintiff. The parties do not allege that the judge exhibited any actual bias or prejudice in the case; they assert only that under the circumstances his impartiality might reasonably be questioned.

A recently amended federal statute sets forth the applicable requirements for judicial disqualification. Relying on the legislative history and policy underlying the statute, we hold that the judge in this case was required to disqualify himself on grounds that either were not or could not be waived by consent of the parties. We therefore reverse the judgments in the main action of this lawsuit and order a new trial before a different judge. We affirm the judgment entered in the case consolidated with the main action for trial, since the disqualification of the judge arose out of circumstances unrelated to the consolidated lawsuit.

The second ground for reversal stems from the application of the trial court judge's rule prohibiting each witness from conferring with his or her attorney during breaks and recesses in the witness' testimony. One of the attorneys in the case violated this rule by talking to his client, a party to the action, during an overnight recess in the party-witness' testimony. The judge granted opposing counsel's motion to exclude further testimony by the party-witness, but the party-witness then agreed to waive trial by jury in lieu of excluding his testimony.

Our analysis of the fifth amendment to the United States Constitution establishes that a civil litigant has a constitutional right to retain hired counsel. Because the prohibiting of communication between a testifying party-witness and his attorney during an overnight recess in the party-witness' testimony impinges on that constitutional right, we are compelled to reverse. This second ground for reversal applies only to the main action of the lawsuit since the party raising this issue does not contest the judgment in the case consolidated with the main action for trial. We again affirm the judgment in the consolidated action.

I. The Facts and Proceedings

A. The Underlying Lawsuit

This convoluted multi-party diversity action arose out of the construction of an aerated lagoon for the City of Mobile, Alabama (City). On October 5, 1973, R. B. Potashnick (Potashnick), the general contractor for the lagoon project, filed a complaint against Port City Construction Company (Port City), a subcontractor hired to

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perform dirt work, and United States Fidelity and Guaranty Company (U.S.F. & G.), Port City's bonding company. Port City had left the project and plaintiff Potashnick sought recovery for the cost overrun he incurred in completing Port City's work. The complaint also asked for damages resulting from delay of the project caused by Port City's alleged unsatisfactory performance, and included a claim for recovery over of liquidated damages claimed against Potashnick by the City of Mobile, the owner of the project.

Port City and U.S.F. & G. answered the complaint, and Port City filed a counterclaim seeking damages against Potashnick and his bonding company, Continental Casualty Company (Continental). Port City's counterclaim asserted breach of implied warranty, misrepresentation, breach of contract by failure to pay on time, extra work over and above contractual obligations, anticipatory breach of contract, and extra work plus a modification of the contract. Potashnick and Continental answered Port City's counterclaim, denied liability, and filed a third-party complaint against the City and J. B. Converse and Co., Inc. (Converse), the engineering firm which designed the lagoon project and supervised its construction. The third-party complaint sought recovery against Converse and the City for breach of implied warranty, negligence in design, negligence in supervision, and misrepresentation. In addition, recovery was sought against the City alone for work over and above contractual obligations. Potashnick made a separate claim for recovery of the withheld retainage and payment due on the contract plus interest. Potashnick and Continental prefaced each of their jointly asserted claims against the City and Converse with the caveat that they strongly denied all claims by Port City and that the third-party complaints were asserted only on the alternative possibility that the court might find in favor of Port City on its claim against Potashnick and Continental.

The City answered the third-party complaint of Potashnick and Continental and filed a counterclaim against them seeking to recover liquidated damages as well as indemnity from Potashnick for any damages that might be awarded in favor of Potashnick and Continental against the City. The City also filed a cross-claim against Converse, the engineer, seeking indemnity from it on theories of negligence, breach of warranty, and misrepresentation. In its cross-claim the City emphatically denied that Converse had been guilty of negligence, breach of warranty, or misrepresentation but asserted its claim for indemnity solely on the basis that it was entitled to indemnity should the court find any merit to Port City's allegations.

The above claims were all asserted in the case of Potashnick v. Port City Construction Co. Consolidated with this case for trial was the case of United States Fidelity and Guaranty Co. v. Port City Construction Co. This second case was initially filed as an action by U.S.F. & G. seeking exoneration from liability on the labor and material bonds which it had entered into as surety for Port City on its contracts with Potashnick. Prior to trial, judgments were entered on all but one of the many labor and material claims asserted in that litigation. In addition, U.S.F. & G. obtained a judgment for indemnity on the master surety agreement against Port City and the indemnitors on that agreement. The remaining claim in the exoneration action was that of W. D. Brunson (Brunson), a supplier and subcontractor of Port City seeking to recover payment for the work he performed on the job. Brunson's counterclaim against U.S.F. & G. and his cross-claim against Port City were transferred to the Potashnick action for further proceedings.

B. The Proceedings in the District Courts

Most of the issues raised in this appeal arise out of the actual proceeding which commenced on August 4, 1975 as a jury trial. Prior to the taking of any testimony, District Court Judge William Brevard Hand instructed all witnesses, parties, and counsel that witnesses were not to discuss their testimony with anyone except counsel, and

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then only individually and out of the presence of other witnesses. The judge further instructed that no direct reference was to be made to one witness of the prior testimony of another witness. The stated purpose of these instructions was to avoid the programming of witnesses to rebut other witnesses' testimony. Record, vol. 12, at 47-49. Subsequently, during a break in the testimony of the first witness, the judge instructed that during recesses and breaks in a witness's testimony it would be highly improper for counsel to have any conversations with that witness until his testimony was complete. No objections were raised to this instruction. Record, vol. 13, at 652-53.

Several weeks into the trial, on September 23, 1975, the court was informed that counsel for Port City had violated the court's instructions by conversing with a testifying client-witness during a break in that witness's testimony. An in-chambers conference between the court and counsel revealed...

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