Chevron, U.S.A., Inc. v. Hand, 84-1954
| Decision Date | 07 June 1985 |
| Docket Number | No. 84-1954,84-1954 |
| Citation | 763 F.2d 1184 |
| Parties | CHEVRON, U.S.A., INC., Plaintiff-Appellee, v. Beth HAND, now known as Beth Hand Charles, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Benjamin M. Sherman of Sherman and Sherman, P.C., Deming, N.M., for defendant-appellant.
Jeffrey R. Brannen and Galen M. Buller of Montgomery & Andrews, P.A., Santa Fe, N.M., for plaintiff-appellee.
Before McKAY, LOGAN and SEYMOUR, Circuit Judges.
This is an appeal from the district court's denial of the defendant Beth Hand Charles' 60(b) motion seeking to set aside a stipulation by the parties dismissing the lawsuit purportedly entered in the defendants' behalf by their attorneys of record.
The district court found that the attorneys had been authorized by all of the defendants to enter the stipulation and that the motion to set aside the stipulation was brought frivolously and for the purpose of delay. Therefore, the district court both denied the defendants' motion and entered an order assessing costs and attorneys' fees against defendants for having brought the motion.
The lawsuit was brought by Chevron, Inc. against defendant Ed Babers, Inc. for collection of a debt, and against the defendants Kenneth Hand and Beth Charles as guarantors of the Ed Babers, Inc. liabilities. After extended negotiations, attorneys for Chevron and attorneys for the defendants entered into a stipulation and dismissal that was filed on February 27, 1984. Defendants Ed Babers, Inc. and Kenneth Hand supported the stipulation as having been authorized by them and did not join in defendant Charles' 60(b) attack on the stipulation. At the hearing on the motion Ms. Charles testified that she had never given authority to her attorney to sign a stipulation on her behalf. She did, however, testify that the terms of the agreement were most favorable but that she simply could not live with the agreement at that time. On the other hand, Ms. Charles' attorney testified that he had met with his client the day before he signed the stipulation. In that meeting she informed him that she agreed that the stipulation was a good agreement and that he was authorized to sign the stipulation, but that in order to delay its entry until she was able to find another source of supply, she would hire another attorney to attempt to have the stipulation set aside. In addition to this evidence, both defendant Hand and his attorney testified that they had met with Ms. Charles on February 15th and had fully explained all of the provisions of the stipulation to her at that time. Ms. Charles admitted attending the February 15th and February 20th meetings but, as noted above, her version of what transpired at those meetings is somewhat different from that of the other witnesses.
Based on this evidence, the district court was faced with a factual issue that turned exclusively on the credibility of the witnesses in the proceeding. This court would be hard-pressed to reverse the district court's findings of fact in this situation. We have recently been instructed by the Supreme Court that "when a trial judge's finding is based on his decision to credit the testimony of one of two or more witnesses, each of whom has told a coherent and facially plausible story that is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can virtually never be clear error." Anderson v. City of Bessemer City, --- U.S. ----, ----, 105 S.Ct. 1504, 1513, 84 L.Ed.2d 518 (1985). Therefore, unless there was some injustice in the 60(b) hearing, the district court's findings and decision will not be disturbed.
Defendant claims that she was denied due process in the 60(b) hearing. She asserts that her counsel was denied the opportunity to introduce rebuttal evidence after Chevron's case and, in a similar vein, she claims her attorney was denied the opportunity to make a closing argument. Defendant attempts to support this claim merely by pointing out that at the end of Chevron's case the district court, without asking whether defendant had any rebuttal evidence to offer, announced to the parties that he was ready to make his judgment. The court then proceeded to make findings of fact and conclusions of law. At no time, however, did defendant's attorney request an opportunity...
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