Litman v. Massachusetts Mut. Life Ins. Co., 85-5939

• Decision Date: 17 June 1986
• Docket Number: No. 85-5939,85-5939
• Citation: 791 F.2d 855
• Parties: Bernard LITMAN, Plaintiff-Appellant, v. MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 855

791 F.2d 855

Bernard LITMAN, Plaintiff-Appellant, v. MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY, Defendant-Appellee.

No. 85-5939.

United States Court of Appeals Eleventh Circuit.

June 17, 1986.

Joel D. Eaton, Miami, Fla., for plaintiff-appellant.

Gerry S. Gibson, Steel Hector & Davis, Miami, Fla., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before FAY, Circuit Judge, HENDERSON ^* and NICHOLS, ^** Senior Circuit Judges.

NICHOLS, Senior Circuit Judge:

This suit, for breach of a general agency agreement and for slander, resulted in a jury verdict for Litman, and a panel of this court decided the appeal of Massachusetts Mutual Life Insurance Company (Mass. Mutual) for the most part favorably to Litman, but remanded for a new trial the issue of punitive damages. Litman v. Massachusetts Mutual, 739 F.2d 1549 (11th Cir.1984). There had been no cross-appeal. In the court below, Mass. Mutual stipulated it waived the new trial but accepted and would pay the full amount of punitive damages the jury had awarded, $250,000, whereupon the district court entered judgment for that amount. Litman, who did not join in the stipulation, now appeals, alleging the mandate of this court entitled him to a new trial on punitive damages unlimited by the $250,000 or any other ceiling on the amount the jury might award. We affirm.

Facts

The panel opinion cited, supra, shows that Litman, a former salesman of Mass. Mutual, rose to become its general agent in Miami, but a falling out occurred by reason of dissatisfaction on the part of Mass. Mutual with aspects of the way Litman ran his business. It terminated his general agency in 1977. Following this, other representatives of Mass. Mutual made to Litman's former employees, and to a prospective new employer, unfavorable comments about his abilities as a businessman, and whether he paid his business debts. Litman sued in the Florida State court, in four counts, two alleging wrongful breach of contract, and two alleging slanders. Mass. Mutual removed the suit to the U.S. District Court where, after trial a jury awarded $2,000,234 for breach by Mass. Mutual of a general agent's contract as orally modified, $100,000 for a slanderous statement to a prospective new employer, $150,000 for slanderous statements to Litman's own former employees, and $250,000 in punitive damages for the slanders, not allocated between the two slander counts. Mass. Mutual's appeal vigorously and nonfrivolously attacked every part of that verdict, but successfully only with respect to a relatively minor issue. The slanderous statement to a prospective employer the panel held privileged and not actionable as slander. It would have eliminated, besides the $100,000 awarded for that, also any portion of the punitive damages allocated to that count, but unfortunately these damages were not so allocated, and therefore the panel saw no alternative but to reverse the punitive award and it held "the issue remanded for a new trial." There is nothing in the panel opinion to indicate it perceived any "issue" or issues before it as to punitive damages except that they were improperly awarded or excessive because attributable in part to conduct held not tortious, and should be reduced or eliminated.

It was "uncontroverted," as the panel stated, that the breach of contract issues were to be decided under Massachusetts law, as stipulated in the general agency contract, but the measure of damages as to all claims, and the slander issues in all their aspects were to be determined under Florida law, which thus governs the punitive damages question in all its aspects. No punitive damages had been or could be awarded for the breach of contract.

Although on its face the order for a new trial as to punitive damages was a partial success for Mass. Mutual, and in a wholly rational world the punitive damages under one count might be expected to be less than those awarded previously under two, the operation of law does not always transpire according to logic. Both parties, by their acts and by their words, tell us that in their judgment a new jury trial on punitive damages, with the jury equally free to award more or less than $250,000, would probably, perhaps almost certainly, result in more rather than less. The expectations of plaintiff Litman, as stated by counsel to us on oral argument, fall little if at all short of gloating. Under the law of Florida, which governs here, the wealth or net worth of the tort defendant is a factor in assessing punitive damages, though not of course the only one. St. Regis Paper Co. v. Watson, 428 So.2d 243 (Fla.1983). In that case, however, a dissent argues it is the only factor controlling the amount of a punitive damages award. Counsel for Litman believes, rightly or wrongly, that the depth of Mass. Mutual's pockets is almost unfathomable.

Massachusetts Mutual makes 250,000 dollars every six minutes or so. That's not in the record and I made it up. It's an exaggeration, but they make a lot of money.

Mass. Mutual is seen as placed on this earth by a beneficent providence to enrich the party who can claim a punitive damages award against it. It would be arguable to the jury that $250,000 was a mere pin prick that would not have the educational effect on the tort feasor that punitive damages are supposed to have.

Defendant's stipulation to accept the award of $250,000 punitive damages against it is embodied in a document entitled a "waiver of right to a new trial" and "consent to the entry of judgment." It was intended to take effect unilaterally. Litman argued the mandate bound the court to conduct a trial, and another outcome would condone frivolous appeals, as a defendant could ask for a new trial and if it got one, accept or reject it as its advantage might appear. To avoid such frivolity, his argument runs, an appellant who seeks a new trial must take the bad with the good--accepting the new trial, however modified and circumscribed to its disadvantage the new trial may be as actually mandated.

The court in its order stated it was "under a strict obligation to follow the dictates of a mandate," which it must implement both in letter and spirit, citing Piambino v. Bailey, 757 F.2d 1112, 1119 (11th Cir.1985). But it said, according to the same authority, a trial court is free to address, as a matter of first impression, those issues which the appellate court did not address.

The trial court held that the issue before it had not been addressed by the appellate court, having arisen subsequently. It was--

may a defendant, whose right to a new trial has been recognized by the Court of Appeals, waive that right by offering to accept the original judgment, in the situation where the infirmity at the first trial necessarily inflated Plaintiff's recovery? [Footnote omitted.] This Court finds that the answer, on the facts of this case, is yes.

Accordingly, the court entered judgment for $250,000 with interest from the date of the original final judgment. The rest of it had already been paid.

Discussion

Appellant's brief here relies on the point made in Piambino v. Bailey, supra, i.e., that a trial court may not alter, amend, "or examine" a mandate received from an appellate court, but must enter an order in strict compliance with the mandate, implementing both its letter and spirit. We note Piambino also says the trial court must take into account the "circumstances it embraces," 757 F.2d at 1119, i.e., interpret the mandate in light of its background of operating and procedural fact. All this is the "mandate rule," but it is, the Piambino panel says at 1120, nothing more than a specific application of the "law of the case doctrine." The exceptions to that doctrine applicable to the mandate rule, are instances of new evidence, an intervening change in controlling law, or a clearly erroneous decision working a "manifest injustice." Appellant adds a point derived from Utah Public Service Commission v. El Paso Natural Gas Co., 395 U.S. 464, 89 S.Ct. 1860, 23 L.Ed.2d 474 (1969), i.e., that (at least in some circumstances) a trial court cannot dispose of a case contrary to a mandate even if all parties stipulate and agree to do so. As Mass. Mutual stipulated here, but not Litman, this appears to appellant as an a fortiori case.

The least of the objections to this argument is that appellant did not clearly urge it below. That is, he relied on the mandate but did not spell out the obligations it imposes as he now does. He appears to have derived his awareness of Piambino from its citation in the trial court's order. It was then a very recent decision, so lack of previous awareness of it is understandable. It does not, however, add to or change prior case law, as copiously cited in the Piambino opinion. The argument based on it misses the point for the further reason that the district court, well aware of it, clearly had no intention of doing any of the things Piambino teaches he must not do. He thought he was interpreting the mandate, not altering, amending, or "examining," it. (We suppose "examining" really means re-examining in this context.) He might have been mistaken, but the suggestion by appellant that he rendered mere "lip service" to the Piambino rule is inappropriate and unhelpful to this court. We must and do suppose the district judge acted in entire good faith, and we do not agree he was even mistaken, though we would state the reasons for denying a new trial a bit differently than he did.

It hardly requires citation of authority that a mandate, like any other writing, will at times require interpretation. In Federal Communications Commission v. Pottsville Broadcasting Co., 309 U.S. 134, 140, 60 S.Ct. 437, 440, 84 L.Ed. 656 (1940), the Court said:

The Court of Appeals invoked against the Commission the familiar doctrine that a lower court is bound to respect the mandate of an appellate tribunal and cannot...