Gough v. Rossmoor Corp., s. 75-1138

• Decision Date: 17 March 1976
• Docket Number: 75-1139,Nos. 75-1138,s. 75-1138
• Citation: 533 F.2d 453
• Parties: 1976-1 Trade Cases 60,824 Kerry M. GOUGH, Trustee in Bankruptcy of Louis Rosen, dba Walnut Creek Furniture, Plaintiff-Appellee, v. ROSSMOOR CORPORATION and Crestmark Carpet and Drapery Company, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 453

533 F.2d 453

1976-1 Trade Cases 60,824

Kerry M. GOUGH, Trustee in Bankruptcy of Louis Rosen, dba

Walnut Creek Furniture, Plaintiff-Appellee, v. ROSSMOOR CORPORATION and Crestmark Carpet and Drapery

Company, Defendants-Appellants.

Nos. 75-1138, 75-1139.

United States Court of Appeals, Ninth Circuit.

March 17, 1976.

Rehearing and Rehearing En Banc Denied June 4, 1976.

James E. Harrington, Jr. (argued), of Pettit, Evers & Martin, San Francisco, Cal., for defendant-appellant.

Maxwell Keith (argued), San Francisco, Cal., for plaintiff-appellee.

OPINION

Before WRIGHT and KILKENNY, Circuit Judges, and CHRISTENSEN, ^* Senior District Judge.

WRIGHT, Circuit Judge:

This antitrust case appears before us for the second time. At trial the jury returned a verdict for defendant Rossmoor through answers to special interrogatories. On appeal this court determined that one of the interrogatories was improperly submitted to the jury and that the jury's answer was wrong as a matter of law. With this answer disregarded, all remaining jury answers were in favor of plaintiff Gough. Gough v. Rossmoor Corp., 487 F.2d 373 (9th Cir. 1973).

This court originally directed that

(i)n view of the jury's findings with respect to substantive violation and damage, judgment should have been entered for plaintiff. The judgment is reversed and the cause remanded for this purpose.

Rossmoor petitioned for rehearing and included within that petition motions for judgment n.o.v. and new trial. The petition was denied, without reference to the motions included therein. However, this court modified the order quoted above, to read as follows:

The judgment is vacated and the cause remanded for further proceedings consistent with this opinion.

487 F.2d at 378.

On remand, Rossmoor renewed its motions for judgment n. o. v. and new trial. The trial judge, believing that he was foreclosed by our modified opinion from exercising his discretion as to these motions, denied both of them.

The sole issue presented is whether the trial judge correctly determined that our order remanding "for further proceedings consistent with this opinion" foreclosed his subsequent exercise of discretion on the motions for judgment n. o. v. and new trial. We hold that he did not.

That this court might have considered the motions for judgment n. o. v. and new trial on their merits is made clear by the Court in Neely v. Eby Construction Co., 386 U.S. 317, 323, 87 S.Ct. 1072, 1077, 18 L.Ed.2d 75, 81 (1967). However, more often than not this court should refer such motions, arising for the first time on appeal, to the trial court so that it can first pass on them. Id. at 323-26, 87 S.Ct. at 1077-79, 18 L.Ed.2d at 81-83. See also Iacurci v. Lummus Co., 387 U.S. 86, 88, 87 S.Ct. 1423, 1424, 18 L.Ed.2d 581, 583 (1967).

Unless this court expressly or by clear implication disposes of motions raised for the first time on appeal, it must be presumed that they will first be acted upon by the trial court on remand. The above rule is necessary to insure that some court consider the merits of the motions which a party is entitled to present.

In the first appeal of the instant case, this court neither expressly nor by clear implication ruled on the motions presented in the rehearing petition. To the contrary, the modification of the order from one requiring that "judgment . . . (be) entered for plaintiff" to one remanding "for further proceedings consistent with this opinion" strongly implied that the motions were to be entertained below on remand.

Gough directs our attention to certain language in our earlier opinion regarding the jury's factual findings on (a) power and intent to exclude, and (b) damages. We said those findings "established, as...