New York Life Ins. Co. v. Baum, 82-2086

• Decision Date: 27 June 1983
• Docket Number: No. 82-2086,82-2086
• Citation: 707 F.2d 870
• Parties: NEW YORK LIFE INSURANCE COMPANY, Plaintiff-Appellee, v. Noel B. BAUM and Media Sales and Marketing, Inc., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 870

707 F.2d 870

NEW YORK LIFE INSURANCE COMPANY, Plaintiff-Appellee, v. Noel B. BAUM and Media Sales and Marketing, Inc. Defendants-Appellants.

No. 82-2086.

United States Court of Appeals Fifth Circuit.

June 27, 1983.

Robin C. Gibbs, Debora Ratliff, Houston, Tex., for Baum.

John A. Bailey, Tara L. Wall, Houston, Tex., for Media Sales & Marketing, Inc.

Baker & Botts, Richard L. Josephson, Tom Adolph, Houston, Tex., for plaintiff-appellee.

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

ON PETITIONS FOR REHEARING

(Opinion Feb. 14, 1983, 5th Cir.1983, 700 F.2d 928)

Before CLARK, Chief Judge, THORNBERRY and POLITZ, Circuit Judges.

PER CURIAM:

IT IS ORDERED that the petition for rehearing filed by New York Life Insurance Company in the above entitled and numbered cause be and the same is hereby DENIED.

IT IS ORDERED that the petition for rehearing filed by Media Sales and Marketing, Inc. ("Media Texas") in the above entitled and numbered cause be and the same is hereby GRANTED.

In its petition for rehearing, Media Texas has suggested that the panel had evaluated the evidence in this case under the wrong standard, pointing out the opinion's application of the clearly erroneous standard to findings of fact made by the district court in a summary judgment proceeding. Because the proper standard for evaluating findings of fact on motions for summary judgment is that set out in Rule 56(c) of the Federal Rules of Civil Procedure, we have granted the petition for panel rehearing. See Waganer v. Sea-Land Service, Inc., 486 F.2d 955, 960 (5th Cir.1973); 9 C. Wright & A. Miller, Federal Practice and Procedure Sec. 2575, at 692-3 (1971).

We have reviewed the record in this case and have carefully and critically evaluated the evidence to determine whether "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FRCP 56(c). After considering and evaluating the evidence in this light, we adhere to our reversal of the district court in all issues concerning New York Life, but we delete the last three paragraphs in our prior opinion dealing with Media Texas, beginning with "On appeal, findings of fact will not ...," 700 F.2d at 935, and substitute the following in their stead.

"The record contains evidence that Baum, Cook, and Cutler at one point contemplated incorporation in Texas. The record, however, contains conflicting testimony as to the events surrounding that incorporation. While Baum argues that the Texas incorporation occurred without his knowledge or consent, and had the effect of cutting him off completely from the venture, Cutler testified that Baum did in fact agree to the incorporation of Media Texas. We cannot at this point resolve this factual dispute. Baum argues that this dispute is not material, because at the time he substituted Media Sales and Marketing, Inc. for himself as the...