Delesdernier v. Porterie
| Decision Date | 20 January 1982 |
| Docket Number | No. 80-3564,80-3564 |
| Citation | 666 F.2d 116 |
| Parties | 9 Fed. R. Evid. Serv. 1196 Gloria DELESDERNIER, wife of Clay N. Gerald, Plaintiff-Appellant, v. Louis B. PORTERIE, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Roger R. Roy, New Orleans, La., for plaintiff-appellant.
H. Martin Hunley, Jr., New Orleans, La., for defendants-appellees.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before POLITZ and RANDALL, Circuit Judges, and GORDON *, District Judge.
This case involves a suit for malpractice arising out of defendants' representation of plaintiff in a protracted litigation of land claims. The malpractice litigation itself has gone through two full trials and plaintiff now seeks reversal and a third trial. For the reasons stated below, we affirm.
In March of 1957, plaintiff Gloria Delesdernier employed defendant Louis Porterie and his law firm, then known as Duke, Porterie & Davidson, to represent her in connection with her claims to various properties located in Plaquemines Parish, Louisiana. This litigation continued under Porterie's direction for over fifteen years. Delesdernier assisted in the preparation of her case; in order to facilitate the work on the litigation, she was given a key to Porterie's office and the case file was kept in a special place where she could work on the file after hours.
A trial date was finally set for October 16, 1972. Porterie consistently made it clear that he wanted Delesdernier to settle the case instead of going to trial, but Delesdernier refused. Finally, Porterie informed Delesdernier in a letter, dated August 11, 1972, that he refused to proceed any further on her behalf and that he was resigning from the case. The trial date being only two months off, Delesdernier picked up the case files from Porterie's office using the key she had been given and began representing herself in the litigation. Porterie thereafter wrote a letter to the plaintiff on August 17, 1972, accusing her of illegally removing the files from his office. On August 13, 1973, Delesdernier filed the present suit against Porterie, his partners Claude Duke, John Hantel, and Eric Lundin, and their malpractice insurer, St. Paul Fire & Marine Casualty Company, claiming defamation, breach of contract, malpractice, and negligent infliction of emotional distress. Among other things, Delesdernier claimed that she suffered severe mental anguish as a result of her attorney's withdrawal from her case because he had represented her for fifteen years, and then had left her without counsel only two months away from trial with certain interrogatories and requests for admissions still to be answered.
Trial was scheduled for February 14, 1977, before then District Judge (now Circuit Judge) Alvin B. Rubin. Before trial commenced, the judge called the attorneys and plaintiff into his chambers. He informed them that he had some concern about his ability to act as a trier of fact if the parties elected to try the case without a jury:
Yesterday afternoon, Mr. Chesnutt (counsel for Delesdernier) mentioned to me that both parties were considering the possibility of a non-jury trial. You do have a right to a non-jury trial, if you want one; and if you do elect to have one, I would ask another judge to hear the case, because while I don't believe I know either Mr. Porterie or Mr. Duke well enough to prevent me from presiding over a jury trial, I do believe that if a matter came down to credibility of witnesses, that I would not want a juror sitting in the case who knew the parties to that degree.
The judge explained that he was an acquaintance of both Porterie and Duke but was not "social friends" with either. He proceeded to give a detailed account of the circumstances in which he met both men and how he was acquainted with them. He explained further:
I don't know either of them any better than I know three or four hundred lawyers in New Orleans. But I do know three or four hundred lawyers well enough that I wouldn't want to be in the jury where they were on one side and a non-lawyer was on the other side.
So, if you do wish to try the case to a jury, I see no reason to disqualify myself. I can be, I think, completely objective in my rulings, and I don't have any feeling that my degree of friendship with either of them would affect any legal rulings I make. I do have a feeling that my degree of acquaintanceship with them might have some weight one way or the other in weighing credibility if either or both of them testify. It might, indeed, weigh against them. I'm not sure. It might be that I would lean over backwards. But, in either event, they are entitled to someone who will neither lean forwards nor backwards but just stay straight up in the middle.
So, the net of that is that if you and Mr. Chesnutt decide that you do want a non-jury trial, I won't require you to have a jury trial, but I will re-allot the case to another judge. That's what we do all the time when that problem arises.
Delesdernier did not wish to waive her right to a jury, and as neither side objected to Judge Rubin as a trial judge, he presided at the trial. After a three day trial, the jury returned a verdict of $25,000 for negligent infliction of mental anguish. The jury also determined that the defendants had not defamed Delesdernier. The breach of contract issue was dismissed without prejudice at the close of plaintiff's case.
After the trial, Delesdernier moved for a new trial on the issue of defamation. The court denied this motion. It also denied defendants' motion for a judgment N.O.V. on the negligence issue. However, the court granted defendants' motion for a remittitur and in the alternative for a new trial; specifically, it ordered Delesdernier to accept an award of $10,000 or face a new trial. Delesdernier refused the award, and a new trial was ordered. The court's remittitur order was made in a minute entry and did not discuss which issues would be retried if the remittitur were refused.
Subsequently, Judge Rubin was appointed to this court. Judge Robert Collins became the presiding judge assigned to replace him. Judge Collins ruled that the second trial would be limited to the issue of negligence, and that the issue of defamation would be excluded. On September 22, 1979, the case was reassigned to Judge Peter Beer, who presided at the second trial, held on June 9 and 10, 1980. In the second trial, the jury found for Delesdernier on the negligence issue, but awarded her only $1,500. Delesdernier then brought the present appeal, claiming that errors were committed by the district judges in both her trials.
Delesdernier's first point on appeal is that Judge Rubin should have disqualified himself from the first trial under the judicial disqualification provisions of 28 U.S.C. § 455(a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
Delesdernier's argument is based on Judge Rubin's claim that he would have to recuse himself if the parties asked him to act as a trier of fact in a bench trial. He did this because he believed that his degree of acquaintanceship with defendants Porterie and Duke might have some weight in assessing the credibility of their testimony. However, argues Delesdernier, when Judge Rubin considered whether to grant a remittitur and a new trial in the alternative, he was required to weigh the credibility of the witnesses in any event; this is because a motion for a new trial requires the judge to decide if the verdict is against the great weight of the evidence. 1
Defendants argue in reply that even if this is so, Delesdernier has raised this argument for the first time on this appeal, whereas Judge Rubin's disclosures were made prior to the first trial. Delesdernier should have raised the argument concerning the possibility that Judge Rubin would have to weigh evidence at that point. After all, a motion for a new trial by the losing party is hardly an unforseeable event in a jury trial-indeed it is usually offered as a matter of course by any counsel with more than limited experience. In any case, a motion for disqualification was not raised even after defendants did move for a new trial. Defendants thus insist that the lack of timeliness of the motion prevents our consideration of it now.
In order to decide to what extent a motion for disqualification under § 455(a) 2 must be timely made, a preliminary discussion of the history of the statute and related provisions is necessary. Prior to 1974, there were two relevant provisions concerning disqualification of federal judges. These were 28 U.S.C. § 144 and an earlier version of 28 U.S.C. § 455 (amended 1974):
§ 144. Bias or prejudice of judge
Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.
The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith.
§ 455. Interest of justice or judge
Any justice or judge of the United States shall disqualify himself in any case in which he has a substantial interest, has been of counsel, is or has been a material witness, or is so related to or connected with any party or his attorney as to render it improper, in his...
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