# Affiliated Capital Corp. v. City of Houston, Gulf Coast Cable Television and James J. McConn

> Court of Appeals for the Fifth Circuit · July 9, 1986 · 793 F.2d 706

URL: https://www.frixlaw.com/law-library/cases/9475003

## Case

- **Full name:** AFFILIATED CAPITAL CORP., Plaintiff-Appellant, v. CITY OF HOUSTON, Et Al., Defendants, Gulf Coast Cable Television and James J. McConn, Defendants-Appellees
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** July 9, 1986
- **Citations:** 793 F.2d 706; 5 Fed. R. Serv. 3d 369; 55 U.S.L.W. 2078; 1986 U.S. App. LEXIS 27081
- **Precedential status:** Published
- **Opinion:** Dissent by Brown
- **Judges:** Garza, Higginbotham, Brown, Williams, Rubin, Johnson, Clark, Gee, Reavley, Politz, Jolly, Davis
- **Cited by:** 26 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

JOHN R. BROWN, Circuit Judge, with whom Judge WILLIAMS joins,
dissenting:
I concur in Judge Rubin’s dissent that Woods Exploration & Producing Co. Inc. v. Alcoa is the “established rule” of this Circuit and should not now be ingloriously overruled or watered down. Furthermore, even if the question is to be determined on a case-by-case basis, a consideration of the equities compels the allowance of post-judgment interest from the date on which judgment should have been entered by the District Court. To state it conversely: the equities in this case do not call for postponement of the calculation of interest until the Supreme Court’s denial of certiorari.
First, it is this en banc Court which made the error precipitating this problem. Under F.R.A.P. 37, in ordering reversal with obvious remand for money judgment, the Rule requires that our “mandate” shall contain instructions with respect to allowance of interest. Although I am the first to recognize that issuance of the mandate is essentially ministerial by the Clerk so that no judge was responsible for this mistake, the error was nevertheless ours. However it happened, this is hardly an equity against the ultimate victor.
There are, however, many equities favoring the ultimate victor. But for the erroneous ruling of the District Court, the plaintiff would have had the use of the money awarded by the jury’s verdict. And, the defendant would not have. Since assessment of interest reflects both the loss of use of money and an element of damages, it is hard to imagine a more equitable result in this case than to follow the lead of Woods. The “equity” done by the majority penalizes the victorious plaintiff for the District Court’s error, and gives the defendant a windfall. Application of Woods puts both parties in the position in which they would already be but for the District Court’s error.
The Court, under the guise of “equity” denies interest essentially because the case was close. Considering the functions of interest, it hardly seems significant, in equity or otherwise, that the case was close, involved difficult issues, or engendered a vigorous dissent. Moreover, I think it is *714 unwise and shortsighted to set a precedent establishing different qualitative levels of victory. A win, whether by four touchdowns or a last second field goal, is a win. Apparently the Court would have us distinguish between an appellate knockout and a split decision. How are we evenhandedly to apply this standard? Equity, flexible as it is, calls for evenhandedness in its application. Are we to deny interest anytime a member of the panel dissents? When an issue is worthy of en banc consideration? When there is a vigorous en banc dissent? I fear the Court has embarked upon a course replacing precedent grounded in equity with a vague standard incapable of practical application and unrelated to the functions of interest.
Finally, the Court’s conclusion that Affiliated Capital was not a “wronged plaintiff” because of its recovery of treble damages totally misses the point. The concept of a wronged plaintiff arose in the Ninth Circuit case of Turner v. Japan Lines, Ltd., 702 F.2d 752 (9th Cir.1983), which clearly describes a “wronged plaintiff” as a plaintiff who, though victorious, must bear the cost of loss of use of a money judgment due to an erroneous j.n.o.v. Id. at 756 . As a result of today’s decision, this is exactly the loss which must be borne by Affiliated Capital, a victorious plaintiff. Thus, not only is Affiliated Capital a “wronged plaintiff”, but the Court has perpetrated and perpetuated the wrong in the name of “equity.” I decline to concur in this inequitable use of equity.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9475003. Public record. Not legal advice.