Progress Development Corporation v. Mitchell

• Decision Date: 11 July 1963
• Docket Number: No. 59 C 2050.,59 C 2050.
• Citation: 219 F. Supp. 156
• Parties: PROGRESS DEVELOPMENT CORPORATION, a corporation, and Modern Community Developers, Inc., a corporation, Plaintiffs, v. James C. MITCHELL et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

219 F. Supp. 156

PROGRESS DEVELOPMENT CORPORATION, a corporation, and Modern Community Developers, Inc., a corporation, Plaintiffs, v. James C. MITCHELL et al., Defendants.

No. 59 C 2050.

United States District Court N. D. Illinois, E. D.

June 28, 1963.

July 11, 1963.

John W. Hunt, Richard G. Kahn and Howard Hoosin, Chicago, Ill., for plaintiffs.

Gerald C. Snyder and Lewis D. Clarke, Snyder, Clarke, Dalziel, Holmquist & Johnson, Waukegan, Ill., Allyn J. Franke, c/o Norman, Engelhardt & Zimmerman, Chicago, Ill., for defendants Deerfield Park District, James C. Mitchell, Dudley L. Dewey, Edward J. Walchli, Donald W. Keller and Aksel Petersen.

Thomas A. Matthews and Byron S. Matthews, John B. Moser, Moser & Compere, Chicago, Ill., for defendants Village of Deerfield, Winston Porter, Harold L. Peterson, John Aberson, Maurice Petesch, Arno Wehle and Joseph Koss.

Edward J. Kelly, Chicago, Ill., for defendant Joseph Powell.

George B. Christensen and Charles J. Calderini, Jr., Winston, Strawn, Smith & Patterson, Chicago, Ill., for defendants Harold C. Lewis, Herbert H. Garbrecht, Hal A. Petit, Robert D. Rierson, Robert G. Mullen, Leonard Bronstein, David J. Maundrell and Frank M. Blake.

On Counter-Defendants' Motion to Dismiss Counter-Plaintiff's Counter-claim July 11, 1963.

ROBSON, District Judge.

The core of the controversy presented by the several motions of defendants to dismiss or for judgment upon the recently filed affirmative defenses is whether the finding by Judge Bernard M. Decker in his October 18, 1961 opinion in Cause No. 71780, Deerfield Park District, et al. v. Progress Development Corporation, in the Circuit Court of Lake County, Illinois, that "The evidence wholly fails to establish the charge of conspiracy against the members of the Park Board" obviates the need for this Court's "trial on the merits of Count III" as directed by the Court of Appeals' mandate of February 7, 1961. Judge Decker's opinion has been affirmed by the Illinois Supreme Court, 26 Ill.2d 296, 186 N.E.2d 360, and certiorari denied by the United States Supreme Court, 372 U.S. 968, 83 S.Ct. 1093, 10 L.Ed.2d 131, and rehearing denied June 11, 1963, 374 U.S. 818, 83 S.Ct. 1692, 10 L.Ed.2d 1042. Count III is the conspiracy count of the complaint.

The four pending separate motions by defendants to dismiss the complaint or for judgment on the pleadings are filed by the Park District and its individual members, the resident defendants, the Village of Deerfield and the individuals constituting its board of trustees, and Joseph Powell, a member of the "citizens committee." These motions were filed in the month of May, 1963, and are predicated on the United States Supreme Court's denial of certiorari from the Illinois Supreme Court holding which was adverse to Progress.

Supplemental answers have been filed by the resident defendants, the trustees of the Village of Deerfield, and Joseph Powell, setting forth "affirmative defenses" that the state court ruling constitutes a res judicata holding that there was no conspiracy as charged in the complaint.

There can be no question of the strict adherence required by a District Court of the mandate of a Court of Appeals. (Paull v. Archer-Daniels-Midland Company, 313 F.2d 612, 617 (C.A.8, 1963)). While requiring "strict compliance," the Court went on to say that "the trial court is free to pass upon any issue which was not expressly or impliedly disposed of on appeal." The United States Supreme Court has said that an inferior court "has no power or authority to deviate from a mandate issued by an appellate court." (Briggs v. Pennsylvania Railroad Co., 334 U.S. 304, 68 S. Ct. 1039, 92 L.Ed. 1403) Chief Judge John S. Hastings stated in Lee v. Terminal Transport Co., Inc., 7 Cir., 301 F.2d 234, that a district court is "without authority to modify the mandate" of the Court of Appeals. Judge Latham Castle stated similarly in Bankers Life and Casualty Company v. Bellanca Corporation, 7 Cir., 308 F.2d 757, at p. 759. Further holdings accord. Thus, where a cause has been remanded for procedure in compliance with a mandate, the District Court may not undertake to revise its original opinion in a material respect. (Stiller v. Squeez-A-Purse Corporation, 296 F.2d 504 (C.A.6, 1961)) Judge F. Ryan Duffy in Independent Nail & Packing Co., Inc. v. Perry, 7 Cir., 214 F.2d 670 (1954), stated that the District Judge had exceeded his powers in withholding from the petitioner the relief to which the Court of Appeals had decided it was entitled. To similar effect is Judge Walter C. Lindley's holding in Criscuolo v. United States, 7 Cir., 250 F.2d 388 (1957), where he held the District Court had deviated from the mandate. The limited and strict duty of the District Court is emphasized in the Sixth Circuit opinion in Scientific Anglers, Inc. v. B. F. Gladding & Co., Inc., 260 F.2d 662 (1958), and the Fourth Circuit opinion in Tribble v. Bruin, 279 F.2d 424 (1960).

Nevertheless,

"* * * Blind obedience to the letter of the mandate is not exacted where injustice will result therefrom, as where that would allow execution to go against parties who have compromised their liability * * *. Illustrating this rule of reasonably substantial compliance, some cases may be cited where dismissals, executions, injunctions and receivership proceedings were sustained although not in exact accord or wholly within the directions sent down." (Cyclopedia of Federal Procedure, § 69.34.)

That strict compliance with the dictates of a mandate may be relaxed to encompass intervening circumstances is indicated by Judge Elmer J. Schnackenberg's statement in A. C. Becken Co. v. Gemex Corporation, 7 Cir., 314 F.2d 839 (1963), at p. 840:

"The record before us shows that the district court on remandment proceeded along the lines suggested. It heard additional evidence which was devoted to actual occurrences during the time which elapsed while the case was being litigated upon appeal. The court * * * had the superior advantage of evidence of conditions which had in fact occurred while the case had been on appeal. We concur in the conclusion of the district court that, under these circumstances, evidence of actual occurrences and experiences between the first and last hearings may be considered in connection with the estimates of future damage introduced at the first hearing. * * * The entire evidence must be considered together." (Emphasis supplied.)

In order to determine whether this Court's inescapable duty to comply with the Court of Appeals' mandate requires it to conduct anew a trial of the conspiracy issue raised by Count III despite the state court's intervening holding of the nonexistence of a conspiracy, this Court has studied carefully the very exhaustive opinion of Judge Decker, and the affirming opinion of the Illinois Supreme Court. This Court concludes there can be no question that Judge Decker granted the fullest opportunity to Progress to present all the evidence it could adduce against anyone charged with the alleged conspiracy. And upon that evidence there can be no question that Judge Decker found no conspiracy actually existed. Thus he states:

"The only remaining issue is whether Progress has shown by clear and convincing evidence the existence of a conspiracy to prevent it from doing business in which the participants are guilty of `purposeful discrimination' against it. * *

"When this evidence is analyzed it reveals nothing more than that a large number of Deerfield citizens were opposed to the type of integrated subdivision proposed by Progress. * * *

* * * * * *

"Stripped to its essentials the contention of Progress is that the residents of Deerfield had no legal right to make a choice between the use of Progress' land for park purposes for the benefit of the general public of Deerfield in preference to its use by the defendant for a private residential development. * * *

* * * * * *

"Unless suspicion and conjecture are to be substituted for evidence there is no proof in this record of any express or implied agreement on the part of the members of the Park Board with any other persons to institute this condemnation for the sole purpose of forcing Progress out of business. * * *

* * * * * *

"The acquisition by the Park Board of additional land for public use by the citizens of Deerfield was a lawful purpose. The means adopted to accomplish this object — the referendum and the condemnation — were lawful means. A common undertaking to accomplish a lawful object in a lawful manner is not a conspiracy irrespective of the motives of those engaged therein. * * *

* * * * * *

"* * * The evidence wholly fails to establish the charge of conspiracy against the members of the Park Board." (Emphasis supplied.)

In its conclusion of law the Court stated:

"There is no evidence that any member of the Park Board formed or engaged in any conspiracy to deprive Progress of any of its legal rights."

The judgment by Judge Decker, after remand, also recites that the defendants were entitled to a full and complete hearing as to all matters alleged in said Motion to Dismiss. He found that:

"There is no evidence that any member of the Park Board formed or engaged in any conspiracy to deprive Progress or anyone else of any legal right. * * * The Court specifically finds that the Petitioner did not, nor did any member of the Park Board of the Deerfield Park District conspire with any one or discriminate against the Plaintiffs in Case No. 59 C 2050 the instant complaint * * * as charged. * * *"

The judgment order of Judge Decker states that some of the bases for Progress' motion to dismiss in the Circuit Court suit were:

(1) The filing and pendency of the instant suit, attaching a copy of the complaint and making it a part of motion to dismiss.

(2) The filing of the condemnation suit was an additional overt act in the "alleged concerted plan and conspiracy to deprive these Defendants of their civil rights, including the right to build

...