Lehrman v. Gulf Oil Corp.

• Decision Date: 11 September 1974
• Docket Number: No. 73-2822,73-2822
• Citation: 500 F.2d 659
• Parties: 1974-2 Trade Cases 75,236 Kenneth LEHRMAN, Plaintiff-Appellee, v. GULF OIL CORPORATION, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 659

500 F.2d 659

1974-2 Trade Cases 75,236

Kenneth LEHRMAN, Plaintiff-Appellee, v. GULF OIL CORPORATION, Defendant-Appellant.

No. 73-2822.

United States Court of Appeals, Fifth Circuit.

Sept. 11, 1974, Rehearing and Rehearing En Banc Denied Nov. 5, 1974.

John B. McNamara, Jr., Waco, Tex., W. B. Edwards, Catherine C. McCully, John E. Bailey, Houston, Tex., for defendant-appellant.

Jack N. Price, Longview, Tex., Charles M. McDonald, Waco, Tex., for plaintiff-appellee.

Before GEWIN, THORNBERRY and RONEY, Circuit Judges.

GEWIN, Circuit Judge:

I

This is the second appeal in this case, and we are now concerned only with the issue of damages. The first appeal arose out of a treble damage antitrust action filed by Mr. Kenneth Lehrman under Section 1 of the Sherman Act ¹ against the Gulf Oil Corporation (Gulf) alleging that Gulf's complicated system of setting wholesale prices for its gasoline was used as a mechanism for fixing the retail prices at which station operators like Lehrman resold the gasoline. He alleged that these illegal pricing policies drove him out of his service station business in Mart, Texas, by making it impossible for him to compete with the prices charged by other stations in his area. ² After the initial jury trial a verdict was returned in Lehrman's favor in the amount of $60,000 in compensatory damages, but the district court set aside this verdict, reduced the award, and entered a judgment for Lehrman for the sum of $21,000-$63,000 trebled.

Gulf appealed to this court ³ raising the questions of jurisdiction and liability. Both parties to the previous appeal complained of the district court's treatment of the damages assessed against Gulf. This court concluded that the district court did not lack subject matter jurisdiction and that Gulf was indeed liable for an antitrust violation. We found it necessary, however, to remand the cause for further proceedings restricted to the question of the proper measure of Lehrman's damages. Although our opinion emphasized the principle that courts are 'to take a charitable view of the difficulties of proving damages in a case when a treble-damage plaintiff must try to prove what would have accrued to him in the absence of the defendant's anticompetitive practice,' it was concluded that 'we must at least insist upon 'a just and reasonable estimate of the damage based on reasonable data." ⁴

Specifically, on the first appeal this court found that there should have been an allowance in the original jury verdict for mitigation of Lehrman's damages by the amount of his earnings in his current line of work. ⁵ Moreover, it was determined that the district court's remittitur was inappropriate. Without noting any other specific criticism of the evidence on damages we offered the following observations in the concluding portion of the opinion:

At the new trial, Lehrman may introduce additional evidence to provide the jury with a better 'yardstick' to measure Lehrman's losses. There may be additional evidence to clarify the possible length of Lehrman's future tenure in the station and therefore the appropriate duration of future profits. Additional evidence will likely be necessary to provide some measure of the deduction from Lehrman's damages which must be attributed to the present and future earning capacity he now has which he would not have enjoyed had he continued to look chiefly to the station for his income and to devote most of his time to its operation.

With our former opinion as a guide the case was retried on the damage issue only. Lehrman attempted to remedy the specially enumerated defect in his prior proof by introducing evidence of his alternative sources of income. A second jury returned a verdict for $40,000 and a treble damage judgment of $120,000 was entered by the court. Gulf has appealed again, and today we must decide whether Mr. Lehrman's efforts on retrial to prove his damages comply with standards prescribed by our previous opinion and by sound precedent. We feel that they do and affirm.

II

Before addressing Gulf's contentions, however, we should briefly discuss the 'law of the case' doctrine which plays an important role in subsequent appeals. This laudable and selfimposed ⁶ restriction is grounded upon the sound public policy that litigation must come to an end. An appellate court cannot efficiently perform its duty to provide expeditious justice to all 'if a question, once considered and decided by it were to be litigated anew in the same case upon any and every subsequent appeal.' ⁷ Not only does the doctrine promote judicial efficiency but it also discourages 'panel shopping' at the circuit level, for in today's climate it is most likely that a different panel will hear subsequent appeals. ⁸

Nevertheless, there are important boundaries to the scope of the doctrine. In the federal courts, for example, the law of the case does not carry the same consequences as the rule of res judicata; it does not preclude a second review if considerations of substantial justice warrant it. ⁹ More important to the instant case is the limitation that the doctrine does not include all questions which were present in a case and which might have been decided but were not. ¹⁰ As a general rule if the issues were decided, either expressly or by necessary implication, those determinations of law will be binding on remand and on a subsequent appeal. ¹¹

III

Gulf has massed a repetitive and caustic assault upon Lehrman's case, but its contentions can be distilled into three broad categories: (1) improper jury instructions; (2) the admission of allegedly improper evidence, particularly 'yardstick' evidence; (3) the allegedly undue speculation on which the jury verdict is based. The jury instructions are asserted to be deficient in four respects: (1) going concern value should be the only measure of damages, not future profits; (2) the jury should be instructed on the present value concept; (3) the charge allowed the jury to award duplicative damages; (4) an instruction on treble damages should have been given.

The first of these assertions-- inappropriateness of future profits as a measure of damages-- is clearly without merit. Initially, we feel that the law of the case has been clearly established here. Gulf objected to the use of future profits on the first appeal but we rejected the challenge and stated:

Gulf raises several objections to the damage calculation. First, it objects to the use of future profits as a measure of Lehrman's damages because, it contends that allowing Lehrman to recover for future profits would enable a proprietor who has been the victim of a single anticompetitive practice to walk away from his business and collect damages for future profits despite the possibility that the business might still be operated successfully. Gulf stresses that the cases which have allowed future profits as a measure of antitrust damages have been cases involving refusals to deal, or cancellation of leases, both of which practices rendered it impossible for the proprietor who had been damaged to continue in business.

We do not accept Gulf's restrictive application of the principle of future profits as antitrust damages. ¹²

Indeed, Lehrman is cited in Terrell v. Household Goods Carriers' Bureau ¹³ as support for the proposition that lost future profits are an appropriate measure of damages.

Even if we did not feel constrained by the strong policy against continuous relitigation we would still reject Gulf's contention on the merits. Clearly, going concern value and lost future profits are each viable alternative measures of antitrust damages. ¹⁴ Future profits cannot be condemned as inordinately more speculative than the going concern value since the former is a crucial component of the latter. In addition going concern or goodwill value may present difficult problems of proof if the lessor of a particular station places restrictive conditions on the transfer of the lease. ¹⁵ Finally, future profits accompanied by an award for any decline in asset values will often more fully compensate a businessman by measuring his lost earnings, not just what it is worth to someone else to reach for those earnings. ¹⁶

Gulf also claims that the jury should have been instructed to award only the present value of lost future profits, and we agree that this would be the better practice. But we do not find this issue raised in Gulf's objection to the court's charge. Even assuming the matter is properly preserved we find the error harmless in light of the complex proof.

Pointing to the following instruction, Gulf assigns as a third defect the contention that the court permitted the jury to award duplicative damages:

Our law permits the jury to take into account both any damages which may have been inflicted on existing property and the damages which may have been sustained as a result of being unable to make profit which may reasonably could have been anticipated and would have been realized if it were not for the violation of the antitrust laws.

Of course, 15 U.S.C. 15 provides that 'any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor . . ..' But Gulf contends that the above quoted instruction by the district court permits the jury to award damages for both lost future profits and going concern value. Courts have recognized that future profits are a principal element in going concern value. ¹⁷ Thus, it is clear that an award including both is inappropriately duplicitous.

Before examining the instruction to see whether it permits such duplication we should consider the possible application of the law of the case. The allegedly duplicative and defective instruction was quoted at length by this court on the first appeal. ¹⁸ Our decision expressly stated that the only error in the charge was the failure to instruct the jury to deduct a reasonable amount attributable...