Glazer v. Glazer, Civ. A. No. 10567.
| Decision Date | 12 October 1967 |
| Docket Number | Civ. A. No. 10567. |
| Citation | 274 F. Supp. 471 |
| Parties | Guilford GLAZER, Plaintiff, v. Jerome S. GLAZER et al., Defendants. |
| Court | U.S. District Court — Eastern District of Louisiana |
Bernard Marcus, R. Emmett Kerrigan, New Orleans, La., for plaintiff.
Harold R. Ainsworth, New Orleans, La., James C. McKay, Alfred H. Moses, Washington, D. C., for defendants.
Guilford Glazer sued his brothers, Jerome and Louis, to recover damages resulting from their breach of a contract with him when they removed him as an officer and director of various corporations in a complex controlled by the family. After the jury returned a verdict in favor of the plaintiff, Judge Frank B. Ellis granted a motion for judgment notwithstanding the verdict, and entered judgment for the defendants. The plaintiff appealed, and the Court of Appeals reversed. Its mandate to this court is:
"We * * * remand for a remittitur and, if the plaintiff refuses, we require a new trial limited to the issue of damages." 374 F.2d at 394.
The defendants have filed a motion to reopen the record for the admission of additional evidence to be considered by the court in determining the amount of the remittitur. They seek to introduce additional evidence both with respect to events "which were occurring or had occurred at the time of trial," and evidence of events which occurred after the time of trial. They contend that this court has power to hear such evidence and that the Court of Appeals "intended to permit this Court, during the remittitur proceedings, to hear additional evidence on the damages issue." They therefore urge that the Court "exercise its discretion by hearing additional evidence."
The first step is to consider the mandate of the Court of Appeals. It does not in terms say anything about additional evidence. But there are parts of the court's opinion from which counsel seek to derive sanction for the introduction of additional evidence. For instance:
1. In discussing whether the trial court properly refused to compel the discovery of the plaintiff's income tax return, the court said, " * * * the trial judge on remand may wish to re-examine this decision in the course of further proceedings on the damages issue." 374 F.2d at 414.
2. In discussing amounts agreed to be paid as compensation to the plaintiff from a West Virginia corporation in which there were outside shareholders, the court said, " * * * on remand, the plaintiff will have the opportunity to prove that the outside shareholders * * * did consent to the agreement." 374 F.2d at 411.
3. The court observed that "we are remanding the case for re-determination of the damages." 374 F.2d at 412. Moreover, the court referred to errors of law, and defendants contend that this would indicate these errors should be corrected on remand.
4. The Court of Appeals did not itself set the amount of remittitur. It is contended that the Court of Appeals could itself have entered the remittitur on the basis of the existing record, and therefore the fact that it remanded the case indicates that it intended this court to hear additional evidence.
The mandate must of course be "interpreted reasonably and not in a manner to do injustice." Wilkinson v. Massachusetts Bonding and Ins. Co., 5 Cir., 1926, 16 F.2d 66, 67; quoted in Bailey v. Henslee, 8 Cir., 1962, 309 F.2d 840, 844. In attempting to interpret the mandate, let us examine each of these arguments.
In saying that the trial court may wish to re-examine the decision relative to the discovery of the plaintiff's income tax returns in the course of further proceedings on the damages issue, it is at least as likely that the Court of Appeals was referring to a new trial in the event a remittitur was refused by the plaintiff as that it was referring to the proceedings to determine the amount of the remittitur. If the court had intended that these documents should be produced for consideration in determining the remittitur, it could easily have said so. And in that event, it likely would not have expressly sustained Judge Ellis' ruling.
The observations concerning the West Virginia corporation do refer categorically to an opportunity "on remand." But the court refers to an opportunity for the plaintiff to prove a fact on remand. Taken in context, this may mean merely that, since it is the plaintiff who may elect to have a new trial, it is likewise the plaintiff who may thus have this opportunity.
The fact that the case has been remanded for redetermination of damages does not indicate how the determination is to be accomplished. The Court of Appeals said that the case is remanded for the entry of "a remittitur and, if the plaintiff refuses * * * a new trial limited to the issue of damages." 374 F.2d at 394. This would indicate that there is to be a new trial only in the event the plaintiff refuses to accept the remittitur.
The form of the mandate is not unusual. When a Court of Appeals remands a case on the basis that the judgment is excessive, it frequently does not enter the remittitur itself, but orders the trial court to do so. See, e. g., Plumbers & Steamfitters Union v. Dillion, 9 Cir., 1958, 255 F.2d 820; Baldwin v. Warwick, 9 Cir., 1954, 213 F.2d 485; Cominskey v. Pennsylvania Railroad Co., 2 Cir., 1956, 228 F.2d 687.
Where the Fifth Circuit has wished to direct a trial court to consider additional evidence it has expressly done so. Thus, in DuBreuil v. Stevenson, 5 Cir., 1966, 369 F.2d 690, the court said, See also Theriot v. Mercer, 5 Cir., 1959, 262 F.2d 754, 316 F.2d 635, rev'd, 377 U.S. 152, 84 S.Ct. 1157, 12 L.Ed.2d 206, in which the court stated that judgment for the defendant was to be entered "unless plaintiff * * makes a satisfactory showing that on another trial evidence of sufficient probative force to justify submission of the cause to the jury will be offered * *." 262 F.2d at 761.
On occasion the Fifth Circuit has expressly directed the trial court to hear evidence on remand of a jury case. Thus in Car and General Ins. Corporation v. Thibaut, 5 Cir., 1947, 161 F.2d 657, 659, the mandate was, "The judgment is reversed and the cause is remanded with directions that judgment be entered for the defendant unless on a pre-trial hearing the plaintiff can show that other evidence is available which might reasonably change the result, in which event a new trial may be granted." (Emphasis supplied.) After a writ of certiorari was granted and the judgment was reversed, 332 U.S. 751, 68 S.Ct. 79, 92 L.Ed. 338, the order granting certiorari was vacated, and the writ was denied. 332 U.S. 828, 68 S.Ct. 205, 92 L.Ed. 403. Then the court permitted affidavits to be filed, as reported in E.D.La., 1949, 90 F.Supp. 222, but concluded that the evidence brought forward in them was not sufficient to grant a new trial. It will be noted that the District Court did not hear evidence on the remand, or reach any determination of fact; it merely decided whether the affidavits presented made a prima facie case that there was sufficient evidence available to justify granting a new trial.
The situation in the Thibaut case differed from the one presented here: in Thibaut the question considered by the Court was one that had never been and would never be put to a jury.1 It was whether a new trial should be granted after the earlier judgment had been reversed.
Courts can, of course, consider evidence in determining whether a new trial should be granted.2 But this is a far different question from determining the amount of a remittitur because, by definition, in determining the amount of a remittitur a court is saying: you must try this case again unless you agree to accept an amount that the jury might properly have awarded you.3
It is almost a misnomer to ask if a mandate grants permission to the court mandated. A mandate is in terms a command. In Thibaut the Court of Appeals did not say to the trial court, "You may hear evidence if you choose." The command was to enter a judgment unless evidence was presented to justify a new trial. The command here is to enter a remittitur and, if the plaintiff rejects it, to give him a new trial.
If, however, the mandate should be construed as leaving to this court the decision whether it should hear evidence on the question of the amount of the remittitur, the question arises whether this court should do so. And one question to be resolved in reaching that determination is the interpretation of the Seventh Amendment which provides:
"In Suits at common law, where the value in controversy shall exceed twenty dollars, the right to trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law."
The Supreme Court held, almost a century ago, in Northern Pacific Railroad Co. v. Hebert, 1886, 116 U.S. 642, 6 S.Ct. 590, 29 L.Ed. 755, that the remission by the plaintiff of a part of a jury verdict, followed by a judgment for the sum remaining, did not deprive the defendant of his constitutional right to have the question of damages tried by a jury. This decision was re-examined and approved in Arkansas Valley Land & Cattle Co. v. Mann, 1889, 130 U.S. 69, 9 S.Ct. 458, 32 L.Ed. 854. Whether the constitutional right of the plaintiff to a jury trial is abridged when a court orders a new trial conditioned on a remittitur appears never to have been raised in the Supreme Court, although the constitutionality of the practice is tacitly approved in both these cases. But in neither case is it intimated that a court should or indeed constitutionally may hear evidence on the question of the amount of the remittitur. The parties have...
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Evers v. Equifax, Inc.
...remittitur is discretionary with the trial court. 6A J. Moore, Federal Practice P 59.05(3), n.3 (2d ed. 1979); see also Glazer v. Glazer, 274 F.Supp. 471 (E.D.La.). Moreover, we read the district court's order granting the new trial as indicating concern that the jury's finding of liability......