Barton's Disposal Service, Inc. v. Tiger Corp.
| Decision Date | 31 October 1989 |
| Docket Number | No. 87-2887,87-2887 |
| Citation | 886 F.2d 1430 |
| Parties | 1989-2 Trade Cases 68,829 BARTON'S DISPOSAL SERVICE, INC., Plaintiff-Appellant, v. TIGER CORP., d/b/a Southwest Disposal, Inc. and Pine Hill Landfill, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Jackee Cox, Longview, Tex., for plaintiff-appellant.
Mike A. Hatchell, Greg D. Smith, Ramey, Flock, Hutchins, Jeffus, McClendon & Crawford, Tyler, Tex., for defendants-appellees.
Appeal from the United States District Court For the Eastern District of Texas.
Before BROWN, JOHNSON and DAVIS, Circuit Judges.
Antitrust and Waste Disposal
Barton's Disposal, Inc. (Barton's) brought this antitrust action against Southwest Disposal, Inc. (Southwest) 1 and Pine Hill Landfill (Pine Hill), alleging monopolization and attempted monopolization of the solid waste collection business in two sub-markets, the Longview area of Gregg County and the Tyler area of Smith County.
Barton's claim regarding monopolization and attempted monopolization in the Tyler sub-market was based on (i) evidence that Southwest successfully got the City of Tyler to grant it monopolistic control of a city owned landfill, an essential facility to the solid waste disposal business in the two sub-markets, and (ii) on evidence of predatory pricing by Southwest in the Tyler sub-market. Pursuant to F.R.Civ.P., Rule 49(a), 2 the jury returned a verdict in response to interrogatories framed by the trial court, 3 and the trial court entered judgment for Southwest.
Barton's appeals on the basis that the jury instructions on Noerr-Pennington were erroneous in two respects: (i) because the special interrogatories did not adequately differentiate between Southwest's associations with the cities of Tyler and Longview on the one hand and Southwest's purely private, including predatory, activities in Tyler on the other, they permitted the jury to apply Noerr-Pennington immunity to what was strictly private conduct by Southwest unrelated to any legislative lobbying efforts with the municipal entities; and (ii) the trial court's charge to the jury regarding the nature of Noerr-Pennington immunity was incorrect because the trial court did not adequately distinguish between the two types of contracts entered into by Southwest, those with the governmental agencies of the Cities of Tyler and Longview on the one hand and those with other private business organizations on the other hand, thus also allowing the jury to apply Noerr-Pennington immunity to purely private activity with private, non-governmental concerns by Southwest again, wholly unrelated to any legislative lobbying efforts with these municipal entities.
We agree with Barton's argument that the trial court erred, essentially by charging the jury that Noerr-Pennington encompassed both the contracts with the city governments and the private conduct of Southwest unrelated to these municipalities, and by placing an incorrect burden of proof on Barton's.
Although we agree with Barton's arguments, we must nonetheless affirm that portion of the judgment regarding the City of Longview because the jury found no actual damages. 4 We, however, reverse that portion of the judgment regarding the City of Tyler and the private activities of Southwest in that submarket and remand for new trial.
Southwest entered the Gregg and Smith County sub-markets as a solid waste collection business in 1966. Southwest became the dominant company in both sub-market areas, having approximately 66% of the Tyler sub-market by 1986. For its Tyler area operations, Southwest had access to a landfill owned and operated by the City of Tyler. As part of its Longview area operations, Southwest also operated the Pine Hill Sanitary Landfill under license from the City of Longview.
Barton's entered the solid waste disposal business in the Tyler and Longview sub-markets in 1978. Barton's did not grow as aggressively as Southwest, but did have some 8% of the Tyler sub-market by 1986. 5 Barton's filed suit against Southwest in the District Court on October 19, 1982, alleging antitrust violations. Count I of the complaint alleged violations of Sec. 3 of the Sherman Antitrust Act, specifically that Southwest engaged in attempting to monopolize and monopolization of the solid waste disposal business in Smith and Gregg Counties. In support of this claim, Barton's alleged, among other things, that Southwest engaged in predatory pricing. Specifically, Barton's claimed that Southwest cut prices, up to 50% in some cases, to take customers away from Barton's. 6
Upon the close of all evidence, the trial court, wisely 7 undertaking to follow Rule 49(a), submitted to the jury special interrogatories which ostensibly required the jury to make specific findings of fact regarding various claims raised by Barton's and the parties. 8
On appeal, Barton's complains that the trial court erred in (i) instructing the jury that Noerr-Pennington immunity applied to purely private commercial activity, (ii) submitting to the jury impermissibly broad, multifarious and ambiguous interrogatories that compounded the error regarding the application of Noerr-Pennington immunity, and (iii) in effect, combining the broad special interrogatories with a special interrogatory specifically addressing the Noerr-Pennington issue which resulted either in logically and legally inconsistent findings by the jury or an impossible task for the jury.
We reverse the judgment regarding the Tyler submarket on the basis that the trial court erred in submitting to the jury interrogatories that failed to distinguish adequately between the various types of commercial activity of Southwest occurring in the Tyler submarket thus allowing the jury to mistakenly apply the Noerr-Pennington governmental petition doctrine to private commercial activity wholly unrelated to governmental importunity. We affirm the judgment regarding the Longview submarket both because Barton's neither complained of nor proved separate private predatory activity by Southwest in that submarket and because the jury found no actual dollar damages for the submarket.
Generally, a trial court is afforded great latitude in the framing and structure of the instructions and special interrogatories given to the jury, 9 so much so since we are loath to disturb that discretion absent a showing of abuse of discretion. 10
When reviewing the form or content of special interrogatories it is essential that adequate objections were timely made. The requirement is not technical nor technically applied. The purpose is to afford the trial court the opportunity of correcting possible errors. Thus, we have held that:
a party preserves a claim of error either by proposing and being denied a special interrogatory or by objecting to a proposed special interrogatory before the jury has retired.... Either method serves the ultimate purpose of directing the trial court's attention to the issue.... A final requirement is that each party desiring to preserve the claim of error must object.
Barton's clearly satisfied this requirement. Barton's proposed a special interrogatory that specifically delineated between the public/private and the private/private claims in Tyler. 12 Barton's also objected to the instructions and interrogatories as given to the jury. 13 Whether the special interrogatories were erroneous is fully open to review.
Our review of special interrogatories submitted to a jury calls for an inquiry into several specific factors:
(i) whether, when read as a whole and in conjunction with the general charge the interrogatories adequately presented the contested issues to the jury; (ii) whether the submission of the issues to the jury was "fair"; and (iii) whether the "ultimate questions of fact" were clearly submitted to the jury.
Dreiling v. General Electric Co. 14 Abuse of the discretion is established if the Charge and Interrogatories fail to meet the Dreiling factors.
Furthermore, while Dreiling places a substantial burden 15 on the trial court to ensure that the jury has been adequately and clearly presented with each of the issues that have been contested at trial, obviously, academic perfection is not demanded. 16 The process of proposed Interrogatories and objections to the Charge all work together in assuring an acceptable structure by which the critical fact issues are submitted for resolution by the jury independent of which side will win.
Barton's complained about three types of antitrust violations, that (i) in the two sub-markets, Southwest monopolized the use of both the Tyler landfill and a publicly owned essential facility, Pine Hill, (ii) Southwest, under the Noerr-Pennington "sham" exception, impermissibly lobbied city governments to monopolize and attempt to monopolize waste disposal business in the two sub-markets, and (iii) Southwest engaged in predatory pricing activities to drive Barton's out of the waste disposal business in the Tyler sub-market.
The Noerr-Pennington doctrine recognizes that, under the First Amendment business entities have the right to advocate policies to federal, state and local government bodies that may destroy competitors. As this Court has written, the "principle thus emerging from these decisions [Noerr and Pennington ] is that genuine efforts to influence governmental decisionmaking are to be encouraged, not penalized through the application of the antitrust laws." 17 The "sham" exception to the doctrine holds that, nonetheless, it is illegal to advocate policies under color of Noerr-Pennington that are actually nothing more than attempts to interfere directly with the business of a competitor.
The Noerr-Pennington defense, thus, shields a business entity when it has engaged in some sort of lobbying activity of a governmental body. Direct...
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