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

• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)
• Writing for the Court: Before HENDERSON and HATCHETT; ALLGOOD
• Citation: 764 F.2d 783
• 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.
• Docket Number: No. 84-8279,84-8279
• Decision Date: 01 July 1985

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.

Page 784

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

Page 785

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....