Morrison v. Char

KOZINSKI, Circuit Judge,

dissenting:

I regret that I am unable to join the court’s opinion. As I read the record in this case, plaintiffs have presented a wholly new theory on appeal, one not presented or argued to the district court in opposition to the motion for summary judgment. Because I believe that the district judge correctly resolved the issue presented to him, I would affirm.

The record in this case is concededly not clear. There are, as the court points out, some inconsistencies between witnesses, as well as in what the same witnesses have said at different times. However, we do not sit as a district court; we may not comb through the record anew looking for a conceivable basis on which the party who suffered summary judgment might have prevailed. Our mission is much more limited: to determine whether the district court erred in resolving the questions presented to it. While we review these issues de novo, our authority ends there. As the Seventh Circuit noted:

It is a well-settled rule that a party opposing a summary judgment motion must inform the trial judge of the reasons, legal or factual, why summary judgment should not be entered. If it does not do so, and loses the motion, it cannot raise such reasons on appeal.

Liberies v. County of Cook, 709 F.2d 1122 , 1126 (7th Cir.1983) (emphasis added). See also Frank C. Bailey Enterprises, Inc. v. Cargill, Inc., 582 F.2d 333, 334 (5th Cir. 1978); Edward B. Marks Music Corp. v. Continental Record Co., 222 F.2d 488, 492 (2d Cir.), cert. denied, 350 U.S. 861 , 76 S.Ct. 101 , 100 L.Ed. 764 (1955).

Nothing in the papers presented by plaintiffs to the district court, or in their argument on the motion for summary judgment, put defendants and the court on notice as to the legal and factual theories that they advance on this appeal and that the court adopts today. Plaintiffs’ theory below was based entirely on Vernon Char’s participation in a meeting with members of the Hawaii group, Morrison, and Bowman. The district judge carefully, questioned plaintiffs’ counsel on this point at oral argument and plaintiffs’ counsel steadfastly adhered to this position:

THE COURT: All right. I noticed, you recall, that Mr. Char — pardon me— that Mr. Ventura said that the crux and the whole basis of your complaint here is that during — that—was the agreement itself, as drafted, which brought about the demise of the company and that the liability of Char for the damages resulting from the demise of the company arose out of the terms of the agreement. Now *758 is that your understanding of your position?

MR. BRIDGMAN [plaintiffs’ counsel]: That’s correct, Your Honor.

THE COURT: So that am I wrong in feeling that if there is any liability it must stem from what Char did at the time that the agreement was hammered out.

MR. BRIDGMAN: Essentially that’s correct, Your Honor, yes.

Tr. of Oral Argument at 21 (emphasis added). Again, a few pages later:

THE COURT: And you maintain that under those circumstances that that raises an issue of fact as to whether or not when Bowman and Morrison or Morrison/Bowman came to Char’s office that they were looking for counsel to represent the Nevada group?

MR. BRIDGMAN: That’s correct.

THE COURT: And that the proof of that fact is that you have the statement there that Bowman says that Char said that he was representing both sides, ...

MR. BRIDGMAN: Yes, Your Honor.

THE COURT: .. .all parties.

MR. BRIDGMAN: Yes, Your Honor.

THE COURT: That’s the factual context of your position?

MR. BRIDGMAN: That’s correct, Your Honor.

Id. at 29-30. At oral argument before us, counsel for appellants admitted, with commendable candor, that her colleague had argued a different theory before the district court than she was arguing on appeal.

Faced with the issue as framed by plaintiffs in opposing summary judgment, the district court concluded that during the meeting in question the Nevada group was represented by Bowman, who negotiated with Char, the representative of the Hawaii group. The district court also determined that Char’s promise that he would represent everybody’s interests was made after the meeting was over and could have had no effect on what had gone on before. Since plaintiffs’ counsel had based his case entirely on what happened during the meeting, see p. 754 supra, the district court ruled for defendant.

The court rejects appellees’ contention that appellants have changed theories on appeal by noting that “Char’s argument ignores pleadings and misquotes testimony.” At 756. This is harsh and, in my view, unwarranted criticism of appellees and their attorney. 1 The citations to the record on which the court relies simply are not persuasive. For example, the court notes that Char’s responsibility by virtue of his role in incorporating ASH was raised in the complaint and denied in the answer. At 756. I fail to see the relevance of this. We are reviewing a motion for summary judgment, not a motion to dismiss. If what is contained in pleadings could defeat a motion for summary judgment, there could never be summary judgment. The Federal Rules are clear: “[A]n adverse party may not rest upon the mere allegations or denials of his pleading, but his response ... must set forth specific facts showing that there is a genuine issue for trial.” Fed.R. Civ.P. 56(e).

The court next points to statements and evidence presented in support of defendants’ motion for summary judgment. At 756. What defendants argued, and the evidence they presented, is not, however, germane to whether plaintiffs presented evidence and arguments that would have defeated summary judgment. I find it telling that the court is unable to cite a single passage from plaintiffs’ memorandum in opposition to the motion for summary judgment or the materials presented in support thereof. In fact, the evidence presented by plaintiffs supports the district court’s decision. Excerpts from Bowman’s deposition, attached to plaintiffs’ memorandum opposing summary judgment, clearly disclose that Char’s alleged statement that he *759 would represent all the parties was made only after the parties had finished hammering out the terms of the agreement. Clerk’s Record 17, Ex. A. at 45.

The only portion of the record even remotely supporting the proposition that plaintiffs relied on Char’s incorporation of ASH as basis for liability is the passage from the transcript of the summary judgment hearing, quoted by the court at page 757 of the opinion. That passage must, however, be read in context. It is nothing more than an off-hand remark by counsel, entirely unsupported by argument or evidence. Moreover, it was as off-handedly withdrawn as it was offered. Just a few lines later, plaintiffs’ counsel agreed with the court that “if there is any liability it must stem from what Char did at the time that the agreement was hammered out.” Tr. at 21. I find the earlier passage, on which the court relies, an insufficient basis for reversing the district court’s considered grant of summary judgment.

I would not encourage litigants to sandbag their opponents and the district court in this fashion. I therefore respectfully dissent.

. While the court accuses Char of misquoting testimony, it gives no support for this very serious charge. Since the case is before us after the grant of summary judgment, there was no trial testimony; the court must therefore be referring to deposition testimony. However, I have been unable to find any instance where deposition testimony was misquoted.