Harris v. Rivera Cruz

• Decision Date: 29 March 1994
• Docket Number: No. 93-1630,93-1630
• Citation: 20 F.3d 507
• Parties: John Fulcher HARRIS, et al., Plaintiffs, Appellees, v. Hon. Hector RIVERA CRUZ, et al., Defendants, Appellees. Joanna Dimarco Zappa, Plaintiff, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 507

20 F.3d 507

John Fulcher HARRIS, et al., Plaintiffs, Appellees, v. Hon. Hector RIVERA CRUZ, et al., Defendants, Appellees Joanna Dimarco Zappa, Plaintiff, Appellant.

No. 93-1630.

United States Court of Appeals First Circuit.

Argued Nov. 4, 1993.

Decided March 29, 1994.

Arturo Aponte Pares, for appellant.

Reina Colon De Rodriguez, Acting Deputy Sol. Gen., Dept. of Justice, with whom Carlos Lugo Fiol, Acting Sol. Gen., was on brief, for defendants.

Before BREYER, Chief Judge, TORRUELLA and BOUDIN, Circuit Judges.

BOUDIN, Circuit Judge.

This case presents a novel dispute in which jurisdictional and merits issues are entangled with a question of decree interpretation. The course of the litigation, which must be traced in some detail in order to understand the issues, may also be unique. We certainly hope so and regret that this litigation, already prolonged by the parties' antics, requires one more round.

I.

In April 1988, Joanna Dimarco Zappa ("Dimarco") joined as co-plaintiff in a pending civil lawsuit brought by another individual against members of the Real Estate Examining Board in Puerto Rico ("the Board"). ¹ The Board had awarded Dimarco a failing grade in the examination given on October 31, 1987, for a real estate broker license in Puerto Rico. Dimarco contended that the examination had been given in English and Spanish and that the Board had followed a policy of making the English version, which Dimarco took, substantially more difficult than the Spanish version.

The suit was brought under 42 U.S.C. Sec. 1983, and the complaint (generously construed) asserted that the Board's policy and action violated constitutional guarantees. At least by implication, Dimarco sought injunctive relief to compel issuance of the license, and she expressly sought damages including compensation for lost income in the amount of $100,000 per year. The complaint also alleged that the Board proposed to give future examinations only in Spanish, and Dimarco sought an injunction to require that it also be given in English.

After a hearing in July 1988, the district court in March 1989 issued a preliminary injunction requiring the Board to continue to offer the examination in English, as well as Spanish, and to assure that the two versions were equivalent. Harris v. Rivera Cruz, 710 F.Supp. 29 (D.P.R.1989). The Board appealed, a cross appeal was filed, and both appeals were later withdrawn. The Board made repeated, and sometimes frivolous, efforts to have the case dismissed.

In August 1989, after a pretrial conference and waiver of jury trial by both sides, the court ordered both sides to submit briefs and evidence concerning each plaintiff's actual performance on the October 31, 1987, examination. The plaintiffs complied in September 1989. Their analysis purported to show which questions differed significantly in English and Spanish and how the plaintiffs' own grades had been lowered by mathematical errors; specifically, certain true-false questions had been answered differently by the two plaintiffs but both answers had been graded as wrongly answered. The Board submitted no analysis or rebuttal.

Then on March 19, 1990, the parties attended a status conference. On March 22, 1990, the court entered a one-paragraph "status conference order" that concluded with the following sentence: "The parties have agreed that the examination will be given in English, and that the only remaining issue is whether the plaintiffs passed this exam." Nothing in the order refers to Dimarco's damage claim. No transcript of the conference has been supplied, and quite possibly no reporter was present.

Nothing more occurred until November 1990 when Dimarco filed a motion asking the court to enter judgment determining that Dimarco had passed the examination with a score of 97 points out of 100. The motion argued that more than a year had passed since Dimarco's evidence had been filed and no rebuttal had been offered by the Board. The Board did not respond. On April 23, 1991, the district court entered an order determining that Dimarco had passed the examination and directing the Board to issue her a license. The order stated that "because both parties have previously agreed that this was the only issue remaining in the case, [j]udgment shall be entered accordingly."

On the same day, the court entered a "Judgment" which decreed that "[j]udgment be entered in favor of the plaintiffs ... as both of these plaintiffs have passed the realtor's examination" and "ordered" that the Board issue real estate broker's licenses to the plaintiffs. Once again, there was no reference to damages. Nothing in the April 23, 1991, order or the separate judgment stated that the judgment was final as to all claims or that the case was formally complete. However, on May 2, 1991, Dimarco's counsel filed a memorandum seeking costs, a portion of which were later awarded.

On May 9, 1991, the Board filed a motion purportedly under Fed.R.Civ.P. 59(e) claiming that the injunction was improper because other requisites, apart from passage of the examination, had to be satisfied before a license could be granted. The Board also asserted that plaintiffs had not exhausted their administrative remedies. The court denied the motion by order filed July 1, 1991; it noted that exhaustion was not required in section 1983 actions and it observed again the parties had earlier agreed that "the only remaining issue before the Court was the issue of whether the plaintiffs had passed this examination."

Instead of issuing a license, the Board then filed a new appeal to this court, which was later withdrawn. Dimarco filed a motion to hold the Board in contempt. The Board then issued a license to Dimarco in August 1991 but the Board noted on the face of the license that it was given by court order. Dimarco filed a new contempt motion in February 1992. In March 1992 the court ordered that an undefaced license be issued. Once again the Board did nothing until, after another contempt motion and an order to show cause from the court, a clean license was finally issued to Dimarco in August 1992.

On January 5, 1993, Dimarco requested a date for trial on the issue of damages. The court clerk set a trial date but the Board asked the court to reconsider, arguing that in the March 19, 1990, status conference, "the parties agreed that the examinations at issue in this case would be given in English and that the only remaining issue in the case was whether the plaintiffs had passed the exams." Dimarco responded opaquely that damages had been requested from the outset and had never been adjudicated by the court. After a status conference, the court on May 12, 1993, entered an order, which says in part:

The Court [in the May 11, 1993, status conference] clarified with the parties that since Judgment was entered in this case based on a settlement between the parties, without the imposition of damages, and the plaintiffs failed to appeal the Judgment, this case is closed. The plaintiffs' attempt to recover damages at this juncture in the litigation is extremely belated and therefore unavailing.

Dimarco has now appealed from the May 12, 1993, order and requested that we reverse the district court and direct a trial on damages. Dimarco's brief, without discussing the March 19, 1990, conference, argues that her damage claim cannot have been abandoned since Dimarco was never paid anything in settlement and that such a payment is required under Puerto Rican law in order to compromise a law suit. Dimarco also asserts that nothing shows that the court ever consolidated the injunction and damage phases of the case.

In response, the Board argues that this court lacks jurisdiction over the appeal. ² Its theory is that the April 23, 1991 order and judgment "finally decided the case"; that no appeal was lodged by Dimarco until two years later in June 1993; and that this two year interval is long past the 30 days allowed for appealing a final judgment. Fed.R.App.P. 4(a)(1). Like Dimarco, the Board's brief casts no light on what actually happened at the March 19, 1990, status conference.

II.

We think that this appeal presents two related questions: one is whether Dimarco waived or settled her damage claim on or about March 19, 1990; and the other is whether, even if she retained her damage claim after March 19, 1990, her rights were cut off by failing to appeal the judgment entered on April 23, 1991. We consider the issues in that order.

1. On this record it is not possible to tell for certain whether Dimarco's claim for damages was settled or waived on March 19, 1990, but it is possible to say with assurance that the record does not demonstrate such a settlement or waiver. One might expect that, if a plaintiff had agreed to forego a damage claim set forth in the complaint, this would be embodied in a stipulation or evidenced by a transcript statement of counsel. No such document or transcript reference has been supplied or cited to us by the Board. ³ Indeed, in this instance we are not even offered any plausible reason why Dimarco might have wished...