U.S. v. Palmer
| Decision Date | 05 December 1991 |
| Docket Number | No. 91-1387,91-1387 |
| Citation | 956 F.2d 3 |
| Parties | UNITED STATES of America, Plaintiff, Appellee, v. Ann M. PALMER, et al., Defendants, Appellees, Philip F. Mulvey, Jr., Defendant, Appellant. . Heard |
| Court | U.S. Court of Appeals — First Circuit |
Alexander H. Pratt, Jr., with whom Harvey Weiner and Peabody & Arnold, Boston, Mass., were on brief, for Philip P. Mulvey, Jr.
Peter R. Tritsch, Dallas, Tex., with whom George S. Chefitz, Newton, Mass., was on brief, for Ann M. Palmer and Peter R. Tritsch.
Before TORRUELLA, Circuit Judge, COFFIN and BOWNES, Senior Circuit Judges.
This appeal is hopefully the occasion for interment of an agonizingly long dispute over an attorney's fee between two counsel for a plaintiff with whom the United States reached a settlement. The present dispute is not even over the fee, which has been awarded in its entirety to appellee Tritsch, but over the form of the judgment. Appellant Mulvey argues that it should have taken the form of a dismissal of his cross claim alleging an express fee-sharing contract, filed in the interpleader action brought by the United States. 1 The court, however, entered a default judgment against Mulvey, after his substantial and prolonged failure to comply with discovery orders. The judgment recited that facts pleaded by Tritsch in response to the cross claim established a breach of the express contract by Mulvey, disentitling him to any fee. Mulvey made no effort to obtain modification of the judgment under Fed.R.Civ.P. 60(b)(6) and did not otherwise raise the issue below, although given more than ample notice of the court's intention. 2 We affirm.
We set forth a brief synopsis of the relevant proceedings in this four-year ordeal. In May 1987 the United States filed its complaint in interpleader, tendering settlement checks and seeking a declaration as to which attorney, Tritsch or Mulvey, should receive the funds. A conference was promptly held and the court ordered that $11,000 of the settlement be deposited in an escrow account to await agreement of the parties or order of the court.
Tritsch (and Palmer) filed an answer, requesting principally that the court determine that Mulvey was not entitled to any fee. Subsequently, Mulvey filed his answer with a cross claim against Tritsch (and Palmer), alleging that they had agreed to pay him 30 percent of any fees. Tritsch (and Palmer) replied, admitting the express contract, but setting forth three "affirmative defenses" alleging breach of contract. Tritsch claimed that Mulvey failed to prosecute Palmer's claim with zeal, failed to act competently, and resigned without consent of Palmer and Tritsch, all contravening the standards set forth in Rule 3:07 of the Rules of the Supreme Judicial Court of Massachusetts.
Very little then happened, except discovery and an abortive effort by Mulvey to have the case assigned to a Magistrate-Judge. In July 1990 the district court imposed sanctions on Mulvey for "incomplete and evasive" answers to a Second Request for Production and stated no fewer than three times that further failure to comply with orders would result in the additional sanction of a default judgment. Late in the year Tritsch filed a motion for default, which Mulvey opposed by professing compliance with all requests. The court granted the motion in February 1991, having found that Mulvey had "continu[ed] to make evasive and incomplete responses."
This action led to a hearing on March 4, 1991 in which the only issue was the form of final judgment. In response to a contention by Mulvey's counsel that the count for an express fee allocation contract had not been adjudicated, the court patiently explained that the "affirmative defense" allegations of Tritsch and Palmer in response to Mulvey's cross claim had, by the default judgment, been determined against Mulvey. Mulvey's only response at this juncture was to attempt to reopen the question of his resignation and that of his violation of the court's orders.
At a hearing a week later, on March 11, Mulvey's counsel made an offer in open court to end the matter by giving to Tritsch all of the principal and interest held in escrow, together with costs, "and he goes away and we go away." Counsel submitted a proposed form of judgment containing these propositions and ending with a statement that, "as the Court has heard the arguments of counsel and has delivered due deliberation on this matter, and having rendered it's [sic] opinion dated March, 1991, that the defendant, Philip F. Mulvey, Jr., take nothing, and that this matter be dismissed on its merits." Tritsch also submitted a proposed form of judgment, setting forth as findings the substance of his "affirmative defenses," and he also requested findings of fact as a basis for possible future sanctions. The court declined to take this latter step, reasoning that the default had made unnecessary any further findings and that laying a basis for future sanctions was premature.
The court then asked if Mulvey's counsel had any problem with Tritsch's proposed form of judgment. Counsel made this reply: The court responded: Shortly thereafter the court issued its Final Judgment, ordering payment of the total fee to Tritsch and, in a prefatory paragraph, stating, "the court having determined that this default judgment established the well-pleaded facts alleged in the pleadings of defendants Palmer and Tritsch against defendant Mulvey and thereby established a breach by defendant Mulvey of his contract ... for legal services ... by reason of which breach defendant Mulvey is not entitled to any fee...."
This is the language to which appellant objects, both because it reflects unfavorably upon his conduct as an attorney and because of possible impact in future litigation by way of collateral estoppel. A simple dismissal on the merits of his cross claim, he urges, was all that was required.
The crucial question on this record is whether Mulvey has preserved the right to challenge the form...
To continue reading
Request your trial
-
Douglass v. United Services Auto. Ass'n
...the result of a plain error. 13 And, other cases seem to have equated plain error with manifest injustice. See United States v. Palmer, 956 F.2d 3, 7 (1st Cir.1992) (where issue raised for first time on appeal, court found that "this most certainly is not a case of plain error" and that "th......
-
In re Slosberg, Bankruptcy No. 97-20908
...citing Restatement (Second) of Judgments § 24, comment e (1980)). The First Circuit has but tested the waters. See United States v. Palmer, 956 F.2d 3, 7 (1st Cir.1992) (concern that a default judgment may later be used against a party is "sheer speculation" and does not qualify as "manifes......
-
Andrade v. Jamestown Housing Authority
...with prospective contractual relations. Andrade, however, not only failed to raise this argument below, see United States v. Palmer, 956 F.2d 3, 6 (1st Cir.1992) (holding that argument not raised below is waived), she failed to assert this claim in her complaint. Accordingly, we refuse to c......
-
Hudson Savings Bank v. Austin
...facto suit between the claimants to the stake (even though, nominally, they were the defendants in the action). See United States v. Palmer, 956 F.2d 3, 7 (1st Cir.1992) (noting that the claimants "were at once plaintiffs and defendants, [each] seeking a share of the fee disputed by the oth......