Carter v. Fenner

• Decision Date: 06 March 1998
• Docket Number: No. 96-31006,96-31006
• Citation: 136 F.3d 1000
• Parties: , 48 Fed. R. Evid. Serv. 1380 Nicole Marie CARTER, as Administratrix of and the Estate of Vergil Braud; Jacqueline Esteen, individually and as tutrix of the minor child Tahara Braud; Christy Francis, Plaintiffs-Appellants, v. Kevin FENNER; Joel Tallant; City of New Orleans, Defendants-Appellants. Nicole Marie CARTER, Administratrix of and the Estate of Vergil Braud, Plaintiffs, v. Kevin FENNER, et al., Defendants, Kevin Fenner; Joel Tallant; City of New Orleans, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1000

136 F.3d 1000

40 Fed.R.Serv.3d 370, 48 Fed. R. Evid. Serv. 1380

Nicole Marie CARTER, as Administratrix of and the Estate of

Vergil Braud; Jacqueline Esteen, individually and

as tutrix of the minor child Tahara

Braud; Christy Francis, Plaintiffs-Appellants, v. Kevin FENNER; Joel Tallant; City of New Orleans,

Defendants-Appellants.

Nicole Marie CARTER, Administratrix of and the Estate of Vergil Braud, Plaintiffs, v. Kevin FENNER, et al., Defendants, Kevin Fenner; Joel Tallant; City of New Orleans,

Defendants-Appellees.

No. 96-31006.

United States Court of Appeals Fifth Circuit.

March 6, 1998.

Rehearing Denied April 22, 1998.

Iris A. Tate, Sonje W. Wilkerson, Wilkerson, Tate & Williams, New Orleans, LA, for Plaintiff-Appellant.

Franz L. Zibilich, Lee, Martiny & Caracci, Metairie, LA, Avis Marie Russell, Annabelle H. Walker, New Orleans, LA, for Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before EMILIO M. GARZA, STEWART and DENNIS, Circuit Judges.

STEWART, Circuit Judge:

This appeal asks us to determine whether (1) a consent judgment entered into between plaintiff-appellant Nicole Marie Carter and defendant-appellee City of New Orleans was properly vacated by the district court pursuant to Federal Rule of Civil Procedure 60(b); (2) the district court should have set aside the jury verdict in the underlying wrongful death action and granted a judgment as a matter of law and/or a new trial; and (3) the district court erred in admitting certain testimony at trial. Addressing each contention in turn below, we AFFIRM the district court.

The written consent judgment in question was confected at the culmination of pretrial settlement negotiations between the parties--purportedly settling the wrongful death claim which Carter brought on behalf of her son for $1,000,000 plus interest from the date of judicial demand. Shortly thereafter, the City challenged the validity of the consent judgment. The district court recalled, vacated, and set aside the consent judgment pursuant to Rule 60(b)(1), finding that the consent judgment could not stand due to mistake and inadvertence on the part of both parties to the agreement. Because we find that the consent judgment was void as a matter of Louisiana law, we AFFIRM the judgment of the district court pursuant to Rule 60(b)(4). In addition, finding that Carter did not present evidence sufficient to show that the jury's verdict is inconsistent with the applicable law, we AFFIRM. Finally, we conclude that the district court made no error in admitting evidence at trial to warrant granting Carter's request for judgment as a matter of law or a new trial.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On October 5, 1992, New Orleans police officer Kevin Fenner shot and killed Vergil Braud. ¹ Carter subsequently brought suit on behalf of her minor son, Vergil Carter and the Estate of Vergil Braud. The defendants in the suit were Fenner; the City of New Orleans ("City"); Arnesta Taylor, the City Police Chief; and Joel Tallant, Fenner's companion police officer. ² Trial of the case was set for May 2, 1994--which also happened to be inauguration day for Mayor-Elect Marc H. Morial and other recently elected city officials. Prior to the trial date, the parties entered negotiations toward settlement. As the result of a meeting held on April 29, 1994 between Carter's attorney and then Mayor Sidney J. Barthelemy, an agreement was reached which was later incorporated into a written consent judgment between the parties. Acting just three days prior to the end of his tenure in office, Barthelemy authorized former City Attorney Kathy Torregano to settle the case. ³ The resulting consent judgment was signed by Carter's attorney--Sonje Wilkerson--and Torregano. Receiving notification of the consent judgment that same day, the court canceled the jury trial. The consent judgment was presented to the court on May 2, 1994 and filed on that date as well.

On April 5, 1994--after his election, but prior to his taking the oath of office--Morial had requested in writing that Barthelemy not bind the City to any large monetary or policy contracts in the waning days of Barthelemy's administration. ⁴ Thus, the City decided to contest the agreement when new City Attorney Avis M. Russell brought the consent judgment to Morial's attention. Shortly after the consent judgment had been signed and entered by the district court judge, the City--acting under its new administration--chose not to appeal the judgment, but instead moved to have the consent judgment set aside pursuant to Rule 60(b).

The Morial administration argued in its pleadings to annul the judgment that the written request to Barthelemy amounted to a "contract" between the two administrations and that the consent agreement and subsequent judgment for Carter was tantamount to a "breach" of such contract. ⁵ Further, the City argued that pursuant to Rule 60(b)(1), the consent judgment between Carter and the City suffered from "mistakes" or "inadvertence" and lacked the requisite "meeting of the minds" in the following respects: (1) it calls for "interest from the date of judicial demand," a factor which would increase the settlement sum to Carter by about 20%; (2) it fails to address all of the parties, namely defendant Taylor; ⁶ and (3) it directs payment to Carter in her role as mother of Vergil Carter in an attempt to discharge a debt owed to her minor child contrary to Louisiana law. The City also argued that the settlement was void pursuant to Rule 60(b)(4) because the plaintiff failed to comply with Louisiana's requirements for establishing a valid tutorship for the child, and in failing to obtain prior state court approval of the minor's settlement.

After an evidentiary hearing, the district court granted the City relief from the consent judgment based on the aforementioned mistake and inadvertence. Alternatively, the district court held that the consent judgment was void under Rule 60(b)(4) for want of compliance with the Louisiana Code of Civil Procedure Article 4271 et al.

After the consent judgment was set aside, Carter sought an appeal in this court pursuant to 28 U.S.C. § 1291 as construed by the collateral order doctrine. ⁷ Finding that the order granting the City's Rule 60(b) motion did not meet the requirements of the doctrine, this court dismissed Carter's appeal. The underlying wrongful death claim proceeded to a trial on the merits in July 1996, resulting in a jury verdict in favor of the defendants. On August 27, 1996, the district court entered judgment in favor of defendants, dismissing plaintiffs' complaint with prejudice and costs. On behalf of her minor son--Vergil Carter, Carter timely brings this appeal from the judgment of the district court that set aside the consent judgment and the jury's verdict in the trial on the merits.

II. STANDARD OF REVIEW

Carter disputes the City's assertion that Rule 60(b)(1), (4) and (6) afford bases for relief from the consent judgment. Before we can reach the question regarding whether the consent judgment is voidable under the discretionary prongs of Rule 60(b)(1), we must answer the threshold question whether the consent judgment is void as a matter of law under the nondiscretionary prong of Rule 60(b)(4).

This court is not often confronted with Rule 60(b)(4) review of a final judgment and has considered the application of Rule 60(b)(4) in the consent judgment context only in the rarest and most tangential of circumstances. See United States v. 119.67 Acres of Land, 663 F.2d 1328, 1331 (5th Cir.1981) (Unit A) (interpreting a Rule 60(b) motion to set aside a consent judgment as one for relief under 60(b)(4) because "[a] judgment is not void simply because it is erroneous, but only where the rendering court lacked subject matter jurisdiction or acted in a manner inconsistent with due process of law"). We therefore look not only to our own precedent, but to the law of our sister circuits in determining our standard of review. Such sources indicate that we review the district court's ruling on a Rule 60(b)(4) motion de novo. See, e.g., Wilmer v. Board of County Comm'rs, 69 F.3d 406, 409 (10th Cir.1995). This circuit has stated:

Typically, "[m]otions under Rule 60(b) are directed to the sound discretion of the district court, and its denial of relief upon such motion will be set aside on appeal only for abuse of that discretion." Seven Elves v. Eskenazi, 635 F.2d 396, 402 (5th Cir.1981). When, however, the motion is based on a void judgment under rule 60(b)(4), the district court has no discretion, the judgment is either void or it is not.

Recreational Properties, Inc. v. Southwest Mortgage Service Corp., 804 F.2d 311, 313-14 (5th Cir.1986). Unlike motions pursuant to other subsections of Rule 60(b), Rule 60(b)(4) motions leave no margin for consideration of the district court's discretion as the judgments themselves are by definition either legal nullities or not. The Seventh Circuit has explained that when the motion is pursuant to Rule 60(b)(4), however, the review is plenary and courts have little leeway as it is a per se abuse of discretion for a district court to deny a motion to vacate a void judgment. United States v. Indoor Cultivation Equipment From High Tech Indoor Garden Supply, 55 F.3d 1311, 1317 (7th Cir.1995). A judgment is void for purposes of Rule 60(b)(4) if the court that rendered it entered an order outside its legal powers. Id. at 1316; In the Matter of Edwards, 962 F.2d 641, 644 (7th Cir.1992). The Ninth Circuit's approach is also instructive: "We review de novo .... a district court's ruling upon a Rule 60(b)(4) motion to set aside a judgment as void, because the question of the validity of a judgment is a legal one." Export Group v. Reef Industries, Inc., 54 F.3d 1466, 1469 (9th Cir.1995).

III. RULE 60(B)(4) RELIEF

Because there is a paucity of case law construing Rule 60(b)(4) in our...