Whalen v. Ford Motor Credit Co.

• Decision Date: 30 June 1982
• Docket Number: No. 80-1496,80-1496
• Citation: 684 F.2d 272
• Parties: Cornelius M. WHALEN t/a Towson Associates Limited Partnership, to its own use and to the use of Robert Whalen Company, Inc., Appellee, v. FORD MOTOR CREDIT COMPANY, a body Corporate, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 272

684 F.2d 272

Cornelius M. WHALEN t/a Towson Associates Limited Partnership, to its own use and to the use of Robert Whalen Company, Inc., Appellee, v. FORD MOTOR CREDIT COMPANY, a body Corporate, Appellant.

No. 80-1496.

United States Court of Appeals Fourth Circuit.

Argued March 29, 1982.

Decided June 30, 1982.

Paul V. Niemeyer, Baltimore, Md. (Jeffrey D. Herschman, William L. Marbury, Piper & Marbury, Baltimore, Md., on brief), for appellant.

David Freishtat, Baltimore, Md. (Michael L. Schwartz, Freishtat, Schwartz & Sandler, Baltimore, Md., on brief), for appellee.

Before WINTER, Chief Judge, and BUTZNER, RUSSELL, WIDENER, HALL, PHILLIPS, MURNAGHAN, SPROUSE, ERVIN and CHAPMAN, Circuit Judges, sitting en banc.

FRANCIS D. MURNAGHAN, Jr., Circuit Judge, with whom DONALD RUSSELL, WIDENER, ERVIN and CHAPMAN, Circuit Judges, join:

Jurisdiction here depends on diversity. Suit was instituted on December 10, 1975. Trial by jury commenced on March 31, 1980 in the United States District Court for the District of Maryland, with Judge C. Stanley Blair presiding. The case grew out of the refusal by Ford Motor Credit Company ("Ford Credit") to close with Towson Associates Limited Partnership ("Towson") (or more precisely, the provider of interim financing, Equibank N.A. ("Equibank")), under a loan commitment to make available take-out financing for a twenty-seven ¹ floor apartment and office building complex, provided certain terms and conditions were satisfied. Compliance by Towson with the terms and conditions was required to have been achieved by September 2, 1975. ²

The case was complicated by a number of issues, including (a) whether Towson met the completion requirement, (b) whether an assignment by Towson to Equibank of its interests under the take-out commitment with Ford Credit was absolute, and (c) whether rulings on the admissibility of evidence and the phraseology of instructions related to damages and their methods of calculation were correct.

After the taking of three weeks of testimony, Judge Blair on April 20, 1980 tragically and suddenly died. ³ Ford Credit, on the grounds of Judge Blair's death, moved for a mistrial, citing F.R.Civ.P. 63. The Rule, entitled "Disability of a Judge," provides for substitution of a new judge for the one disabled by death or other disability when the disability occurs "after a verdict is returned or findings of fact and conclusions of law are filed."

Judge Herbert F. Murray, who had taken Judge Blair's place, considered and denied the motion for mistrial, reasoning that it would be "inconceivable" to hold substitution over the objection of a party of a new judge before return of verdict absolutely forbidden in a civil action when Rule 25(a) of the Federal Rules of Criminal Procedure explicitly permits such a substitution in a criminal setting. ⁴ In effect, Judge Murray treated the question of whether to substitute a new judge and continue the trial as a matter committed to the new trial judge's discretion, and no doubt perceived force in the argument that the rule was literally silent as to what should happen in a civil case where disability occurs before a verdict is returned or findings of fact and conclusions of law are filed.

Judge Murray dealt with a number of civil cases arising in a non-jury trial setting which found substitution before filing of findings of fact and conclusions of law absolutely forbidden, purporting to distinguish them on the grounds that non-jury cases raise "more serious due process issues than if such replacement occurs during a jury trial." Arrow-Hart, Inc. v. Phillip Carey Co., 552 F.2d 711 (6th Cir. 1977); Brennan v. Grisso, 198 F.2d 532 (D.C.Cir.1952); Ten-O-Win Amusement Co. v. Casino Theatre, 2 F.R.D. 242 (N.D.Calif.1942); Burrill v. Shaughnessy, 9 Fed.R.Serv. 918 (N.D.N.Y.1946).

We conclude, for the following reasons, that retrial was mandated by the rule, and that consequently there must be a reversal and return of the case to the district court for a new trial:

1) The basis for a distinction of non-jury cases from jury cases does not appear to exist for Rule 63 does not differ in what it provides for both types of trials. On the contrary, it clearly calls for like treatment: "after a verdict is returned or findings of fact and conclusions of law are filed." ⁵ In addition to cases cited by Judge Murray, see: Bromberg v. Moul, 275 F.2d 574 (2d Cir. 1960); Havey v. Kropp, 458 F.2d 1054 (6th Cir. 1972); State ex rel. Lunsford v. Weber, 153 W.Va. 544, 547-48, 170 S.E.2d 671, 673 (1969); Girard Trust Bank v. Easton, 12 N.C.App. 153, 182 S.E.2d 645 (1971), cert. denied, 279 N.C. 393, 183 S.E.2d 245 (1971). ⁶

2) The supposition is unrealistic that the distinguished group of legal scholars who, as the Advisory Committee on the Civil Rules, prepared the Rules for approval and adoption by the United States Supreme Court meant, by their silence, to permit the possibility of substitution of a judge before verdict when Rule 63 entitled "Disability of a Judge" expressly deals only with substitution of a judge after return of verdict. Inherent in the ascription of such a sub silentio purpose would necessarily be establishment that there had been prior practice in which substitution of a judge after trial began but before return of verdict customarily had been allowed over the objection of one of the parties.

But the experience had all been the other way. Research has failed to turn up a single case of substitution before verdict where one of the parties refused to consent. Cf. Substitution of Judge in Criminal Case, 83 A.L.R.2d 1032, 1034, 1036 (1962) ("A substitution of judges during the introduction of evidence, over the objection of the accused, has been held to be error."); Coleshill v. Manchester Corp., (1928) 1 K.B. 785 (Scrutton, J.: "I doubt whether a judge has any jurisdiction to continue the hearing of a case in which witnesses have been called in court in the course of the trial before the jury and another judge...."). ⁷

3) Furthermore, we need not merely rationalize as to the intent of the Advisory Committee on the Civil Rules. The records of their proceedings make crystal clear their intentions. ⁸ After the Civil Rules were adopted in 1938, the Committee continued its existence to monitor their application and to consider possible revisions. On May 20, 1953 the Committee met, including as members continuously having served since its inception in 1935 the Chairman William D. Mitchell, the Reporter Charles E. Clark, ⁹ Armistead M. Dobie, ¹⁰ and Monte M. Lemann.

Responding to suggestions that death of a judge while a long-lasting trial was in progress should not require a substitute judge to start the trial all over again, Judge Clark, as reporter, recommended as an addition to the language of Rule 63 the following:

A judge so acting may receive in evidence a transcript of evidence theretofore taken in the case and may accept the testimony therein transcribed except so far as he shall find it necessary to hear witnesses whose credibility must be determined as a step in the adjudication.

"Reporter's Draft of Several Amendments, Federal Rules of Civil Procedure, May 11 1953," at p. 9 (Charles E. Clark Papers, Yale University Library). The recommendation was fully explored:

CHAIRMAN MITCHELL: (T)wo or three years ago ... (w)e came to the conclusion that under the existing rule, the only way a judge could take up a case which has been tried by another judge but he hasn't decided it, is by stipulation....

....

Here is a case where the trial judge died and you have had a long transcript of testimony taken. He is dead, and there is no law or rule that allows another judge to take over the case on a transcript made by the preceding judge who is now dead. The only way it can be done now is by stipulation. If your adversary won't consent to that, you have to start your case all over again before another judge.

....

MR. LEMANN: Apparently it never occurred to us that we ought to permit another judge to come in and act at all if the case had not reached the point of decision by the first judge.

CHAIRMAN MITCHELL: That is it.

....

MR. LEMANN: ... It didn't occur to anybody, and hadn't for fifteen years except the one guy, that it isn't enough.

I wouldn't change the rule just because one guy writes a letter in and says this might happen and counsel might not stipulate....

....

MR. TOLMAN: Yes. It is a problem, and I know that the Judicial Conference has discussed this rule several times.

MR. LEMANN: They never have recommended a change, though.

MR. TOLMAN: That is quite true.

....

CHAIRMAN MITCHELL: As I say, I have had a concrete case where the lawyers were very much distressed. They had gone through a long trial and a long record. The judge had died, and there was no relief under the statutes or rules which enabled a new judge to decide the case on the basis of the testimony taken by the dead judge.

I suggested they had better try getting a stipulation, and they succeeded in it.

....

CHAIRMAN MITCHELL: But what happens when the plaintiff has made out a case and has gone through a long trial and then the judge dies, and he asks the defendant to consent to have another judge decide it on the basis of the old record, and the other side says no?

....

MR. LEMANN: It breaks my heart by imagining a sufficiently hard case, but I don't think it is likely to happen. If I had one case in 15 or 20 years, it would have to be very hard to make me change the rule, I think.

JUDGE DRIVER:

It seems to me we almost have to limit it to cases in which all or substantially all the testimony had been received. Otherwise, we would be compelling the plaintiff to go on the record of witnesses, and the defendant would have flesh-and-blood witnesses in the court ready to testify. If I were the defendant, I wouldn't consent to that arrangement unless I had to.

....

MR. LEMANN: Then we would have to rewrite Rule 63, because...