Tollett v. City of Kemah

• Decision Date: 06 March 2002
• Docket Number: No. 00-20994.,00-20994.
• Citation: 285 F.3d 357
• Parties: Sandy G. TOLLETT, Plaintiff-Appellee-Cross-Appellant, v. The CITY OF KEMAH, Defendant-Appellant-Cross-Appellee, William S. Helfand, Appellant-Cross-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

285 F.3d 357

Sandy G. TOLLETT, Plaintiff-Appellee-Cross-Appellant, v. The CITY OF KEMAH, Defendant-Appellant-Cross-Appellee, William S. Helfand, Appellant-Cross-Appellee.

No. 00-20994.

United States Court of Appeals, Fifth Circuit.

March 6, 2002.

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Anthony P. Griffin (argued), Anthony P. Griffin Inc., Galveston, TX, for Tollett.

John J. Hightower (argued), Olson & Olson, Houston, TX, for Helfand.

Ramon Gustave Viada, III (argued), Abrams, Scott & Bickley, Houston, TX, for City of Kemah.

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

Before DAVIS, WIENER, and BARKSDALE, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

For this second appeal in this action, the principal issue is whether, on remand from the first appeal, the district judge exceeded our mandate directing him to recalculate sanctions. Following her unsuccessful trial on the merits, and prior to that first appeal, plaintiff Sandy G. Tollett had been awarded sanctions (attorney's fees and all court costs) against not only the defendant, the City of Kemah, Texas, but also two of its employees. The sanctions arose out of a discovery dispute.

Tollett conceded in the first appeal, however, that those sanctions were not supported by proof of reasonable fees and costs. Therefore, our mandate for the first appeal, consistent with the terms of the contested sanctions order, directed the district court to assess reasonable fees and costs, pursuant to Federal Rule of Civil Procedure 37 (failure to produce documents and to comply with discovery order). Instead, on remand, pursuant to its inherent power, the district court imposed sanctions and attorney's fees against the City and, instead of its two employees, against its counsel, William S. Helfand. Those remand-actions followed the district judge's stating he was "insulted" and "angry" because the original sanctions had been appealed.

In addition to the challenge by the City and its counsel to the revised sanctions, Sandy G. Tollett contests the denial, on remand, of a new trial.

That denial is AFFIRMED; the sanctions and attorney's fees awarded on remand, as well as the findings and conclusions in the post-remand orders, are VACATED; and judgment is RENDERED, with the original sanctions being recalculated in accordance with our original mandate.

I.

Most unfortunately, what should have been a simple, expeditious, and inexpensive undertaking on remand has been just the opposite, to say the least. It goes without saying that our mandate from the first opinion stands. Therefore, it is neither necessary, much less appropriate, to question, or otherwise reconsider, the merits of the underlying discovery dispute or the correctness of either the original sanctions or our subsequent first opinion and corresponding mandate. But, to unravel the erroneous result on remand, as well as to understand why this remand-chapter was unnecessary, requires revisiting and dissecting, in considerable detail, the events leading up to, and following, our mandate for the first appeal.

A.

Tollett was a full-time, non-paid city police officer. Becoming pregnant, she left that position; on returning, she was allegedly informed she would have to retrain and would be on probationary status. As a result, she brought this action in September 1996 against the City, claiming sex discrimination, violative of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and violation of the Family and Medical Leave Act, 29 U.S.C. § 2601, et seq.

Tollett made discovery requests in January 1997. Simply put, the City's position, as stated in the affidavit of its Secretary, further discussed below, was that it "ha[d] no records to produce of any employee or volunteer who [was], as described [earlier in the affidavit], `similarly situated' to Sandy Tollett". (Emphasis added.) That May, unsatisfied with the City's responses concerning police department personnel records, Tollett moved to compel. The motion was granted that June.

That October, claiming the City had failed to comply with the discovery order, Tollett moved, pursuant to Federal Rules of Civil Procedure 11 and 37, for sanctions ($50,000) and attorney's fees ($7,500). Tollett reasserted that motion during a pre-trial hearing; the court took it under advisement.

During the March 1998 trial, the discovery dispute over the existence of the records became hotly contested when one of Tollett's witnesses, deputy police chief Peter Munoz, acknowledged the existence of some employment records. The district court ordered that any records be produced in court the next day, and announced that, if it was shown there had been any impropriety with respect to them, it was "going to ask the FBI to go over there [to the police department] and turn that office upside down and put everybody in jail that belongs ... there". The records were produced the next day, the last day of testimony; and the court engaged in extensive questioning about them.

A jury found for the City, with judgment entered on 20 March 1998. On 30 March, Tollett moved for a new trial pursuant to Federal Rule of Civil Procedure 59 — not Rule 60, as discussed infra.

Tollett asserted in the new trial motion: the City had improperly withheld employment records; it and its counsel had lied about the records' existence; and, had they been properly produced, the outcome of the trial would have been different. But, without explanation, the district court denied the new trial motion that May.

Earlier, however, in a 24 March order (four days after entry of judgment and six days before the new trial motion was filed), the district court had granted the sanctions motion. In the sanctions order, it made the following findings and conclusions: the City Secretary "knew that her statements in [her summary judgment] affidavit [concerning the requested records] would mislead the Court"; the Deputy Chief "knew the falsity and deception of the City Secretary's statement. Nevertheless, he testified falsely concerning the whereabouts of the police personnel records"; and "These perversions of the truth are serious and require serious sanctions against the [two] individuals and the City". But, instead of imposing the requested extreme sanctions and attorney's fees, and in the light of its knowledge about, and extensive participation in resolving, the discovery dispute, it assessed $5,000 in attorney's fees and "all court costs" against the defendant City, as well as the two non-defendant employees discussed in the sanctions order, City Secretary Kathy Pierce and Deputy Chief Munoz.

The City moved the court to reconsider the award, asserting there had been no proof to support the amount awarded. The motion was denied without explanation.

Both sides appealed. The City did not challenge the imposition of sanctions, only their amount. Nor did the two city employees contest being included among those liable for the sanctions. The City maintained, as it had in its motion to reconsider, that Tollett had not submitted any evidence to support her fees request; and stated that the district court had "failed to articulate why it assessed the specific amount of $5,000.00 or what proof existed to support that amount".

In no respect did Tollett appeal the sanctions. Instead, she challenged only the new trial denial.

That denial was affirmed. Tollett v. City of Kemah, No. 98-20547, at 4 (5th Cir.13 Sept.1999) (unpublished) (Tollett-USCA). Concerning the City's challenge to the sanctions amount, we held: "The City contends, and Tollett concedes, that the sanction imposed by the [district] court is not supported by proof of the incurred fees and expenses. It is necessary, therefore, to remand for a redetermination and assessment of reasonable attorney's fees and costs under Rule 37". Tollett-USCA, at 5 (emphasis added).

B.

On remand, the district court stated in a 15 October 1999 order: "[T]he Court is required to determine reasonable sanctions for the conduct of the defendants [sic] and/or counsel [not named in the original sanctions order] in failing to comply with [the] discovery request ordered by the Court". Approximately two months later, at a 6 December hearing, the following colloquy ensued:

[COUNSEL FOR THE CITY]: As I'm sure this Court is aware, the issue here today is solely regarding the issue of the amount of sanctions.

THE COURT: Well, I don't know that that's all that it's about, because what the Circuit Court did is I believe they said that the record was not sufficient for me to have entered sanctions. They're not saying sanctions should not have been entered. They're saying I need to make a complete record, it seems to me, and then determine whether sanctions should be entered or not. Because based on the way that I did it, the Circuit Court reversed it, I believe. Maybe I read that incorrectly, but I believe they're saying the record is insufficient to support any amount of sanctions, because it seems to me that they could have said, well, there is some evidence to support some of this, not all of this. Let's redetermine what amount, if any.

....

I do not intend to walk away from this, because I'm insulted. I'm angry by the fact that this case would go up on a simple $5,000 award that was designed to ameliorate Ms. Tollett's problem.

(Emphasis added). The district judge stated he "had hoped that this would have gone away; ... [he] was disappointed that the appeal was taken [by the City]"; and "it might be that the Court ought to defy, if necessary, the Fifth Circuit and say I'm granting a new trial and I'm going to retry this case". (Emphasis added.)

The district court ordered an evidentiary hearing to investigate the circumstances of the discovery requests and the personnel records, and advised the City to retain new counsel, opining that a conflict of interest existed between the City and its counsel, William S....