Don Brown, Josef H. Miller and Allen L. McAlear v. Avemco Investment Corporation

KILKENNY, Circuit Judge,

dissenting:

The majority opinion completely devitalizes the positive provisions of Rule 51, FRCivP, providing among other things that no party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, and states distinctly the matter to which he objects and the grounds of his objection.

I.

The majority relies for reversal on the failure of the district court to give appellants' requested instructions numbers 4, 9 and 14. Strangely enough, the appellants do not claim error on the refusal of the court to give those instructions. To the contrary, the appellants claim error in the refusal of the court to give their requested instructions numbers 5 and 6, requests which have nothing whatsoever to do with the question of “acceleration,” upon which the majority focuses. Manifestly, we should not reverse on alleged issues which are not even presented to us for decision. Appellants present the issue of error on failure to give requested instructions in the following language:

“(2) Did the court err in refusing to give instructions numbered 5 and 6 tendered by the plaintiffs?” App. Brief, P. 1.

Rule 28(a)(2), FRAP, requires an appellant, among other things, to specify in the brief “A statement of the issues presented for review.” Simply stated, contentions *1381 which are not specified in the appellants’ brief should not be considered by the reviewing court. Palacios v. Government of Guam, 325 F.2d 543 (CA9 1963); United States v. Shingle, 91 F.2d 85, 87 (CA9 1937), cert. denied 302 U.S. 746 , 58 S.Ct. 264 , 82 L.Ed. 577 . An alleged error in refusing to give a requested instruction should be disregarded where it is not specified in the appellants’ brief. Muyres v. United States, 89 F.2d 783, 784 (CA9 1937).

Moreover, even as late as the date of filing their motion for a new trial, the appellants made no claim of error on the failure of the court to give instructions 4, 9 and 14. Instead, the appellants raised objections to the failure of the court to give instructions numbered 5 and 6. Clearly, the majority should confine itself to the scope of appellants’ contentions and not survey the wide open range in search of a stray maverick on which to ride to a reversal. To turn an appeal into a search for error no more promotes the ends of justice than to turn a trial into a donnybrook.

II.

The record before us presents a classic example of the judge conferring with the attorneys and informing them on the instructions he was going to give and those which he would not. Included among the requests for instructions were those pressed by the majority. The court advised counsel he would not give those requests. No objection or exception was then made by counsel for appellants. Instead, they proceeded to argue the case. After the arguments, the court instructed the jury in conformity with his previous announcements. At the close of the arguments, and in response to query from the court, appellants’ counsel excepted to the court’s instructions as follows:

“MR. JOYCE: Plaintiffs take exception to the Court’s refusal to give the instruction on the damages pursuant to Texas law instead of Montana law, on the ground that the Montana law applies. Plaintiffs take further exception to the Court’s instructions with reference to tender as defined by Texas law rather than Montana law.” [R.T., Vol. IV, p. 236.]

No mention was made of the failure of the court to give the requested instructions now utilized by the majority, but not argued by the appellants. The failure of appellants to object to the court’s omission to give their requested instructions and the giving of an instruction which modified the request number 14 makes it rather obvious appellants’ counsel was then satisfied with the instructions, as given.

This is not a case where the court failed to give counsel an opportunity to object. As above stated, the record shows that the court gave counsel the opportunity to object, that counsel did object, but that counsel did not object to the failure of the court to give appellants’ requested instructions 4, 9 and 14, or for that matter the failure to give requests 5 and 6. It gave an instruction which modified number 14, and evidently counsel at that time was satisfied with the modification and with the court’s overall instructions.

Under the provisions of Rule 51, FRCivP, we have held that the failure to make a timely objection and to distinctly point out the matter to which the objection is related precludes an appellant from raising that point on appeal. Standard Oil Co. of Calif, v. Perkins, 347 F.2d 379 (CA9 1965). The fundamental purpose of Rule 51, prohibiting the assignment of error by a party on the basis of failure or refusal by the trial court to give or fail to give an instruction unless he objects before the jury retires, is to give the trial judge an opportunity to correct the instructions. Seltzer v. Chesley, 512 F.2d 1030 (CA9 1975). In Cosper v. Southern Pacific Co., 298 F.2d 102, 104 (CA9 1961), the court said:

“The trial of a case is an adversary proceeding and we see no reason to relieve counsel from the requirement to make known his desire to object to the court’s *1382 instructions before the retirement of the jury. We, therefore, hold that counsel must indicate in some manner before the jury retires that he desires to make an objection to the instructions before he can successfully contend that the court has failed to comply with the provisions of Rule 51.”

The majority relies heavily on Stewart v. Ford Motor Co., 179 U.S.App.D.C. 396, 406 , 553 F.2d 130 , 140 (DC Cir. 1970), and Robinson v. Heilman, 563 F.2d 1304 (CA9 1977). I find both cases clearly distinguishable. In each of those cases, the court held that the purpose of Rule 51 had been fulfilled.

In Robinson , our circuit held Rule 51 inapplicable. The court there stated that no exception is required when it would not have produced any different result in the trial court because “a solid wall of circuit authority” then foreclosed the point. The trial court had correctly instructed the jury under the law existing at that time. The controlling law was changed after the instructions were given. No such “wall” is here in existence.

Our court has never gone as far as the D.C.Circuit in Stewart v. Ford Motor Co., supra, and held that Rule 51 amounts to a mere formality, and that if the party makes his position clear during the course of the trial, he can, by keeping silent, circumvent the positive provisions of the Rule. Here, as distinguished from Stewart v. Ford Motor Co., supra, appellants’ point on acceleration was limited to their attorney’s response to the appellee’s motion for a directed verdict at the close of the appellants’ case. My search of the record reveals no such argument at the close of all the testimony, nor when the court was consulting with the attorneys about the instructions. In Stewart, it was clear on the record that the denial of the request for instructions represented the trial judge’s final opinion, and that further objection by the plaintiffs would have been not only unavailing, but even wasteful of the court’s time. That is clearly not the situation in the instant case. Here, appellants pressed their acceleration point only in response to the appellee’s early motion for a directed verdict. The instructions were not mentioned or in any way involved at that time.

On the record before us, it was entirely possible that the court might revise its instructions so as to satisfy the appellants’ contentions. The majority argues that the court erroneously revised requested instruction number 14 by eliminating the language “ ‘[I]f it in good faith believe[s] that the prospect of payment or performance of the contract was impaired.’ ” but fails to point out that it gave an adequate instruction on good faith in the following language:

“Every contract or duty within the Uniform Commercial Code imposes an obligation of good faith in its performance or enforcement. Good faith means honest in fact in the conduct or transaction concerned.”

The Ninth Circuit case most closely on point on this subject is Richfield Oil Co. v. Karseal Corp., 271 F.2d 709, 718-22 (CA9 1959), cert. denied 361 U.S. 961 , 80 S.Ct. 590 , 4 L.Ed.2d 543 . There, the court on a record almost identical to ours, fully analyzed the background of Rule 51 and arrived at the following conclusion:

“Thus, although the court’s position was well known to Richfield’s counsel, when the time arrived to make objections, Rule 51 of the Rules of Civil Procedure was not complied with. The purpose of the Rule is to give the court a chance to correct an erroneous instruction on the law. Though viewed realistically, we might hazard a guess that it would have been a difficult task, even by stating distinctly the grounds of the objection, to have caused the court to change its previously announced position. Nevertheless, to preserve the question, on appeal, not only should the objection have been made but the grounds thereof should have been distinctly stated. [Citations omitted.]

“Accordingly, Richfield’s objection to the court’s instructions is not available to it on this appeal. But we have nevertheless considered the question as to whether giving the instruction was error.

*1383 “(b) It was error to so instruct but the error was not prejudicial.” At pp. 722-23. [Emphasis supplied.]

Despite the majority’s argument to the contrary, Richfield Oil is not dicta.

I will not attempt to analyze the long list of Ninth Circuit cases cited by the majority, practically all of which hold that there must be a compliance with Rule 51. For example, Wyler v. Fairchild Hiller Corp., 503 F.2d 506 (CA9 1974); and Sears v. Southern Pacific, 313 F.2d 498 (CA9 1963).

Needless to say, the instructions should be read as a whole. The necessity, extent, and character of jury instructions are issues left to the sound discretion of the trial court. United States v. McCall, 592 F.2d 1066, 1068-69 (CA9 1979); Wilson v. United States, 422 F.2d 1303, 1304 (CA9 1970). Clearly, the appellants received the full benefit of their requested instruction 14. Inasmuch as the court gave an instruction on acceleration and the appellants failed to object or except thereto and, additionally, did not assign as error the failure to give their own request on the same subject, I decline to discuss the majority’s arguments in this area.

Although our circuit has had several opportunities to extend the plain error doctrine to civil appeals, we have declined to do so. Monsa v. Central Insurance Co., 392 F.2d 49, 52-53 (CA9 1968); Hargrave v. Wellman, 276 F.2d 948, 950 (CA9 1960). In light of the facts that appellants failed to raise their objections at the proper time at trial and failed to raise the claims of error focused upon by the majority, those claims should not be heard. Here it appears, that the case was thoroughly tried by the attorneys and the issues of fact decided by a jury. 1 Although I might have decided the case the other way, I cannot say that there was a miscarriage of justice.

CONCLUSION

I would affirm the judgment of the lower court.

. The court instructed, in part, as follows:

“The principal issue involved in the Plaintiffs case is whether there was a conversion by the Defendant of the airplane. If the defendant had the legal right to take possession of the airplane on July 29, 1975, there was not conversion by the respossession (sic). Conversely, if it did not have the legal right to do so at that time, there was a conversion.

“Defendant contends that the debtor, RICHARD HERRIFORD, leased or sold the airplane to the Plaintiffs without its written consent as provided by the Security Agreement. Upon the happening of this event, if you find it to be true, the Defendant had the option to declare the full amount due to be paid.

“The Defendant had the duty to notify the debtor, RICHARD HERRIFORD, that it was exercising its option to declare the full amount due. It also had the duty to notify the Plaintiffs of the exercise of its option, if it knew that the airplane was owned by the Plaintiffs. The Plaintiffs contend the Defendant knew of their ownership prior to the call of the note, the Defendants deny that knowledge. This is a factual dispute you must resolve.” [R.T., Vol. IV, pp. 226-227.]

In the light of the neglect of the appellants to object or except to the above and to the failure to give their requested instructions, I would say that as a whole the court’s instructions fully covered the issues in the case.