Berry v. McLemore

• Decision Date: 28 July 1986
• Docket Number: No. 85-4421,85-4421
• Citation: 795 F.2d 452
• Parties: Earl BERRY, Plaintiff-Appellant, v. Jimmy McLEMORE, et al., Defendants, Town of Maben, Mississippi and New Hampshire Insurance Co., Garnishee-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 452

795 F.2d 452

Earl BERRY, Plaintiff-Appellant, v. Jimmy McLEMORE, et al., Defendants,

Town of Maben, Mississippi and New Hampshire Insurance Co.,

Garnishee-Appellees.

No. 85-4421.

United States Court of Appeals, Fifth Circuit.

July 28, 1986.

Jim Waide, Estes & Waide, Tupelo, Miss., for plaintiff-appellant.

H. Russell Rogers, Ward & Rogers Starkville, Miss., for New Hampshire Ins. Co.

Thomas Coleman, Ackerman, Miss., for Maben.

Appeal from the United States District Court for the Northern District of Mississippi.

Before WILLIAMS, JOLLY, and HIGGINBOTHAM, Circuit Judges.

OPINION

E. GRADY JOLLY, Circuit Judge:

In 1982, as a result of a district court judgment and this court's decision, James McLemore was held liable to Earl Berry for $10,000 in damages plus attorney and expert witness fees. See Berry v. McLemore, 670 F.2d 30 (5th Cir.1982) (Berry I ). When McLemore failed to pay this judgment, Berry filed a suggestion for a writ of garnishment against the Town of Maben, Mississippi (Town), McLemore's employer at the time of the incident giving rise to McLemore's liability, and the New Hampshire Insurance Co. (NHI), the insurer of the Town at the time of the incident.

After hearing evidence, the district court granted directed verdicts for NHI and the Town. Berry has appealed these verdicts. After reviewing our jurisdiction in these actions, we conclude that there is no federal jurisdiction over Berry's claims against the Town, and thus we vacate the directed verdict for the Town and dismiss that action. Although we do have jurisdiction over Berry's claims against NHI, we hold that the insurance policy issued by NHI to the Town does not cover the incident in question, and thus affirm the directed verdict for NHI.

I

This is the second time this case has come before our court. The facts of the first action, as recited by this court in Berry I, are as follows:

The Town of Maben hired McLemore as a police officer in April 1978, and promoted him to Chief of Police on a probationary basis one year later. Shortly after his promotion, McLemore attempted to make a custodial arrest of Berry for an alleged traffic offense. When Berry protested his innocence, McLemore became angry and hit Berry four or five times about the face. Berry responded by striking the officer, whereupon McLemore pulled his gun and shot Berry through the stomach and arm. As Berry turned and fled, McLemore again fired at him and a ricochet entered the back of Berry's neck.

In January 1980 Berry brought suit both under 42 U.S.C. Sec. 1983 and directly under the Constitution, alleging that McLemore was liable to him for violating his constitutional rights, and that the Town of Maben was also liable both vicariously and directly for the constitutional deprivations perpetrated by McLemore. Berry's claims against McLemore and the Town were tried before a jury. At the conclusion of plaintiff's case, the district court directed a verdict in favor of the Town. The jury returned a verdict against McLemore in the amount of $5,000 compensatory damages and $5,000 punitive damages, and the court entered judgment accordingly. The court assessed McLemore, but not the Town, $5,000 for Berry's attorneys' fees and disallowed as an item of costs the $750 fee of an expert medical witness who testified on Berry's behalf.

Berry I, 670 F.2d at 31. Berry appealed that portion of the district court judgment concerning the Town and the assessment of expert witness fees. Id. at 32. This court affirmed the directed verdict dismissing the Town, but reversed the district court's assessment of expert witness fees, holding McLemore liable for the fees. Id. at 33-34.

When McLemore failed to pay the judgment by December 1982, Berry filed this present action as a "suggestion of garnishment" against the Town for the amount of the judgment, costs and attorneys' fees awarded in the initial suit. The suggestion alleged that the Town was indebted to McLemore for two reasons. First, Berry claims that immediately after he filed his original action, Town officials informed McLemore that the Town would pay any judgment obtained by Berry, and that, in reliance on this representation, McLemore failed to obtain independent counsel for the trial. Second, Berry contends that the Town provided McLemore with counsel who had a conflict of interest in representing McLemore, ¹ and who, in fact, acted contrary to McLemore's interests. In September 1983, Berry filed another "suggestion of garnishment" against NHI, the liability insurer of the Town. Berry alleged that NHI was liable to McLemore because it had breached its duty to defend McLemore, an insured under the Town's insurance policy issued by NHI, and to indemnify him against the judgment.

In June 1985, a jury trial was conducted in federal district court on Berry's garnishment claims. At trial, with respect to the garnishment proceeding against NHI, McLemore testified that he intended only to fire warning shots at Berry. Berry asserted that McLemore's lack of intent to shoot Berry brought the incident under the terms of the NHI policy. With respect to the garnishment proceeding against the Town, McLemore testified that the Town had promised to pay any judgment against him, and that his counsel in Berry I, provided by the Town, had acted against McLemore's interest by seeking a directed verdict for the Town, claiming McLemore's training was adequate, by failing to appeal, and by failing to confer with him. Berry claims that these acts caused the Town to be liable to McLemore for the amount of the judgment found against McLemore in Berry I.

At the close of the evidence, the judge granted directed verdicts for both NHI and the Town. The district court held that NHI did not wrongfully refuse to defend McLemore because the complaint in Berry I, taken as a whole, stated a cause of action for an intentional harm by McLemore, and the policy only insured against negligence. Thus, the district court ruled that the NHI policy did not cover the Berry-McLemore incident. As an alternative ground, the district court held that the jury findings in Berry I collaterally estopped Berry from holding NHI liable in the garnishment action because the jury found liability against McLemore on intentional grounds, which again precluded application of the policy.

The district court further held that Berry had not properly raised the issue of garnishment against the Town. Applying Mississippi law, the district court held that Berry could not recover on a writ of garnishment from the Town because McLemore had not obtained a judgment against the Town for the amount allegedly owed. Since McLemore had not obtained such a judgment against the Town, the district court directed a verdict for the Town. Berry filed a timely notice of appeal challenging both directed verdicts.

II

On appeal, Berry contends that the district court erred in directing a verdict for NHI because NHI wrongfully refused to defend McLemore in Berry I; because the jury should have been allowed to determine whether the insurance policy covered the incident between McLemore and Berry; and because McLemore was covered under the policy for the purposes of indemnifying him against the judgment in Berry I. Berry also argues that the district court erred in directing a verdict for the Town because under Mississippi law there was no need to obtain a judgment against the Town before a writ of garnishment could be issued.

After reviewing the facts of this case, we find no need to respond to each of Berry's contentions. First, from a review of the procedural posture and facts of the garnishment actions before this court, we conclude that there is no federal jurisdiction over the action by Berry against the Town. Since there is no federal jurisdiction, we vacate the directed verdict for the Town and dismiss this action without reaching the merits of Berry's arguments concerning the Mississippi law of garnishments. Second, we note that the threshold question in Berry's claim against NHI is whether the insurance policy covered the incident between McLemore and Berry. After reviewing the terms of the policy and the applicable Mississippi case law, we conclude that the district court properly determined that the policy was inapplicable. Since the NHI policy does not cover the Berry-McLemore incident, we find no reason to consider Berry's other contentions against NHI.

III

A.

(1)

The first consideration of this court is whether we have jurisdiction over the claims before us. At the outset, we note that garnishment actions against third parties ² are construed as independent actions from the primary action which established the judgment debt. Butler v. Polk, 592 F.2d 1293, 1295 (5th Cir.1979). Berry vigorously contends otherwise, asserting that this court has ancillary jurisdiction over the present action as necessary to enforce the judgment rendered in Berry I.

It is black letter law that:

the jurisdiction of a court is not exhausted by the rendition of judgment, but continues until that judgment is satisfied.... Process subsequent to judgment is as essential to jurisdiction as process antecedent to judgment, else the judicial power would be incomplete and entirely inadequate to the purposes for which it was conferred by the Constitution.

Riggs v. Johnson County, 73 U.S. (6 Wall.) 166, 187, 18 L.Ed. 768 (1868). This post-judgment jurisdiction, however, is limited to those actions that a court may take in that same action. For instance, in Interstate Commerce Commission v. Central of Georgia Railway Co., 429 U.S. 968, 97 S.Ct. 474, 50 L.Ed.2d 578 (1976), a case Berry strongly relies upon, the Supreme Court summarily affirmed a three-judge district court's grant of a motion to require the Interstate Commerce Commission to comply with a previously issued order against it in the same case. That case is distinguishable from the facts before us since the motion to enforce the previous judgment was...