Keiser v. Coliseum Properties, Inc., 84-8279

• Decision Date: 01 July 1985
• Docket Number: No. 84-8279,84-8279
• Parties: Bernhard E. KEISER, Plaintiff-Appellant, v. COLISEUM PROPERTIES, INC., et al., Defendants, Robert L. Bonner, John H. Candler and Jon P. Herring, Defendants-Appellees. A. Don FLECK, Plaintiff-Appellant, v. AUDITING SERVICES, INC., et al., Defendants, Robert L. Bonner, John H. Candler and Jon P. Herring, Defendants-Appellees. H.G. LORTSCHER, Roger O'Hanlon, J. Reed Stovall, Jr., Plaintiffs-Appellants, v. AUDITING SERVICES, INC., et al., Defendants, Robert L. Bonner, John H. Candler and Jon P. Herring, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 783

764 F.2d 783

Bernhard E. KEISER, Plaintiff-Appellant, v. COLISEUM PROPERTIES, INC., et al., Defendants, Robert L. Bonner, John H. Candler and Jon P. Herring,

Defendants-Appellees.

A. Don FLECK, Plaintiff-Appellant, v. AUDITING SERVICES, INC., et al., Defendants, Robert L. Bonner, John H. Candler and Jon P. Herring,

Defendants-Appellees.

H.G. LORTSCHER, Roger O'Hanlon, J. Reed Stovall, Jr., Plaintiffs-Appellants, v. AUDITING SERVICES, INC., et al., Defendants, Robert L. Bonner, John H. Candler and Jon P. Herring,

Defendants-Appellees.

No. 84-8279.

United States Court of Appeals, Eleventh Circuit.

July 1, 1985.

Richard C. Freeman, III, Atlanta, Ga., for plaintiff-appellant.

William Lewis Spearman, Atlanta, Ga., for defendants-appellees.

Appeal from the United States District Court for the Northern District of Georgia.

Before HENDERSON and HATCHETT, Circuit Judges, and ALLGOOD ^*, District Judge.

ALLGOOD, District Judge:

In 1970 a company known as Coliseum Properties, Inc., began selling utility auditing franchises through its subsidiary, Auditing Services, Inc. The appellants here were among the approximately 100 people who paid between 5,000 and 15,000 dollars for the franchises. Auditing Services, Inc., was to provide a computerized review of utility bills and recover overcharges for customers of the franchisees. The franchisees had contracted with businesses to provide this service for 50 percent of the recovery. By the end of 1971 the franchise owners began having serious doubts about ASI's ability to provide the service and began taking steps to recover their investments.

In March 1972 Coliseum Properties, Inc., was sold to the appellees, Bonner, Candler and Herring. In May 1972 the first of three actions was initiated. The first lawsuit was filed on behalf of all the franchisees against the original owners, Speigel, Carroll, Lawson, et al. (Speigel group) and did not include any claims against Candler, Bonner or Herring (Candler group). Over the course of years the three suits were consolidated, various defendants were dismissed, and appellees were added. In 1980 the claims against the Candler group were severed from the claims against the Speigel group. The case against the Speigel group proceeded to trial and resulted in a verdict in favor of the plaintiffs against Speigel, Lawson, Carroll, et al. At that trial the plaintiffs proved that they had been victims of a conspiracy to defraud and were awarded damages as a result.

In 1983 ten of the original plaintiffs proceeded to trial against the remaining defendants, the Candler group. Of those ten, Keiser, Fleck, Stovall, Lortscher and O'Hanlon (Keiser group) were the only ones who testified. Prior to trial, all the parties stipulated that the plaintiffs had been victims of a conspiracy to defraud perpetrated by the Speigel group. The court also informed the jury that the amount of damages had been established in the 1980 trial and instructed the plaintiffs that no additional damages could be shown. The only question presented to the jury at the 1983 trial was whether or not there was evidence to find the Candler group jointly liable with the Speigel group for the 1980 judgment. Following a two week trial the jury found the Candler group was jointly liable for the damages of the five plaintiffs who testified, but not to the five who did not testify.

On March 2, 1984 the trial judge granted a defense motion for judgment notwithstanding the verdict as to the Keiser group in whose favor the jury returned a verdict. The judge also conditionally granted a new trial pursuant to Fed.R.Civ.P. 50(c). It is from this order that the plaintiffs appeal.

The standard of review on the motion for a judgment notwithstanding the verdict is governed by federal law. Federal Kemper Life Assur. Co. v. First Nat'l. Bank, 712 F.2d 459 (11th Cir.1983). The court on appeal must apply the same principles as applied by the trial court:

On motions ... for judgment notwithstanding the verdict the Court should consider all of the evidence--not just that evidence which supports the non-mover's case--but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the court believes that reasonable men could not arrive at a contrary verdict, granting of the motion is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair minded men might reach different conclusions, the motions should be denied.

Rabun v. Kimberly-Clark Corp., 678 F.2d 1053 (11th Cir.1982) (citing Boeing v. Shipman, 411 F.2d 365, 374-75 (5th Cir.1969)). Applying this standard to the present case the judgment notwithstanding the verdict must be affirmed.

In this diversity case the law of Georgia governs the substantive issues. The court charged the jury that the appellees could be found jointly liable for the damages which had been established in the 1980 trial against...