Opposition Brief — Green v. Foley

No. 88-1347

—

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1988

GARY GREEN,

Petitioner,

v.

MAURICE P. FOLEY,

Respondent.

BRIEF IN OPPOSITION TO PETITION FOR A

WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT

Bruce Lawrence Adelson John Raymond Hartnett

BRINCEFIELD, HARTNETT BRINCEFIELD, HARTNETT

& ASSOCIATES, P.C. & ASSOCIATES, P.C.

526 King Street, Suite 423 526 King Street, Suite 423

Alexandria, VA 22314 Alexandria, VA 22314

(703) 836-2880 (703) 836-2880

Counsel of Record

March 20, 1989

(i)

QUESTIONS PRESENTED FOR REVIEW

Whether the Court of Appeals acted properly and

within its discretion by directing that summary judgment be

entered for Respondent based upon an uncontroverted record

which supported that ruling.

(ii)

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED FOR REVIEW .............. i

a ii

8 et. ili

STATUTES AND RULES INVOLVED ................. 3

RESPONDENT’S SUPPLEMENTAL STATEMENT OF

ee ee oe oh sk vewsecbesceseveeess 7

REASONS FOR DENIAL OF THE WRIT ............. 10

ere oi Oba 64sec 448s ska ce ceuieas 19

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7 + i _ - a) a 7 —— se wf = S aan = 7 Le ae ee = Te y

(iii)

TABLE OF AUTHORITIES

Cases: _

Byrd v. Blue Ridge Rural Electric Cooperative, Inc., 356 U.S.

yo, £ me eS a My 8 + | re 17

Florida Avocado Growers, Inc. v. Paul, 373 U.S. 132, 83 S. Ct.

Ree a ae ee ee ee Ce Sb hee kba beseaean es 17-18

Fountain v. Filson, 336 U.S. 681, 69 S. Ct. 754, 93 L. ed. 973

CY fia lee Iie GAG Sey bas aN ke Cee Ee ee 16

Globe Liquor v. San Roman, 332 U.S. 571, 68 S. Ct. 246, 92 L.

RBs eh Ss bs FA SN ics te ees 16-17

Layne & Bowler Corporation v. Western Well Works, 261 U.S.

367;-43 &. Cy. S22, 67 L.. o6. Fiz C983) oie iss: 11

NLRB v. Pittsburgh Steamship Co., 340 U.S. 498, 71 S. Ct. 453,

Le eo ERE gear nn Peneo rh 8. 11

Singleton v. Wulff, 428 U.S. 106, 96 S. Ct. 2868, 49 L. Ed. 2d

I ee a a es 18

Statutes and Rules:

eg en's oss eked Bae ee ch

i ee ros oh ee Rh ee 3,10,11,14

PA is. GU ID io ok ews x54 64d ae eee 3,4,9,14

I.0.P. 10.4 of the Rules of the Fourth Circuit Court of

go ens eh eae Ck eon eR 4,14

PO i Sees es ko ke hia keane hee oe cus acnewn 5,9

Va. Code Ann. § 8.3-603(1) (1950) ................ 4,5,4

Va. Code Ann. § 49-25 (1950) ......... ccc eee eee. 5,6

Va. Code Ann. § 49-26 (1950) ..........cccccceaes 6,11

Va. Code Ann. § 50-25(2)(a) (1950) .................. 7

Va. CGP PIR. 6 SO TOE CII) eo bn ee cece sannsens 7

2

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1988

GARY GREEN,

Petitioner,

Vv.

MAURICE P. FOLEY,

Respondent.

BRIEF IN OPPOSITION TO PETITION FOR

A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

The respondent, Maurice P. Foley, respectfully prays this

Court deny the Petition for Writ of Certiorari of Gary Green.

—

3

STATUTES AND RULES INVOLVED

1. 28 U.S.C. 2106: The Supreme Court or any other court

of appellate jurisdiction may affirm, modify, vacate, set aside

or reverse any judgment, decree, or order of a court lawfully

brought before it for review, and may remand the cause and

direct the entry of such appropriate judgment, decree, or

order, or require such further proceedings to be had as may

be just under the circumstances.

2. Rule 17.1 of the Rules of the Supreme Court of the

United States: A review on writ of certiorari is not a matter of

right, but of judicial discretion, and will be granted only when

there are special and important reasons therefor. The

following, while neither controlling nor fully measuring the

Court’s discretion, indicate the character of reasons that will

be considered.

(a) When a federal court of appeals has rendered a

decision in conflict with the decision of another federal court

of appeals on the same matter; or has decided a federal

question in a way in conflict with a state court of last resort;

or has so far departed from the accepted and usual course of

judicial proceedings, or so far sanctioned such a departure by

a lower court, as to call for an exercise of this Court’s power

of supervision.

3. Rule 10 (e) of the Federal Rules of Appellate

Procedure: CORRECTION OR MODIFICATION OF THE

RECORD. If any difference arises as to whether the record

truly discloses what occurred in the district court, the

difference shall be submitted to and settled by that court and

the record made to conform to the truth. If anything material

to either party is omitted from the record by error or accident

4

or is misstated therein, the parties by stipulation, or the

district court, either before or after the record is transmitted

to the court of appeals, or the court of appeals, on proper

suggestion or of its own initiative, may direct that the

omission or misstatement be corrected, and if necessary that a

supplemental record be certified and transmitted. All other

questions as to the form and content of the record shall be

presented to the court of appeals.

4. 1.0.P. 10.4 of the Rules of the Fourth Circuit Court of

Appeals: SUPPLEMENTAL RECORDS, MODIFICATION OR

CORRECTION. Disputes concerning the accuracy or

composition of the record on appeal should be resolved in the

trial court in the first instance, although the Court of Appeals

has the power, either on motion or of its own accord, to

require that the record be corrected or supplemented. It is

unnecessary to seek permission of the Court of Appeals to

supplement the record and the record may be supplemented

by the parties by stipulation or by order of the district court at

any time during the appellate process.

5. Rule 60(b)(3) of the Federal Rules of Civil Procedure:

RELIEF FROM JUDGMENT OR ORDER.

Mistakes; Inadvertence, Excusable Neglect; Newly Discovered

Evidence; Fraud, Etc. On motion and upon subject terms as

are just, the court may relieve a party or a party’s legal

representative from a final judgment, order, or proceeding for

the following reasons: . . . (3) fraud (whether heretofore

denominated intrinsic or extrinsic), misrepresentation, or

other misconduct of an adverse party;

6. Va. Code Ann. § 8.3-603(1) (1950): The liability of

any party is discharged to the extent of his payment or

satisfaction to the holder even though it is made with

5

knowledge of a claim of another person to the instrument

unless prior to such payment or satisfaction the person

making the claim either supplies indemnity deemed adequate

by the party seeking the discharge or enjoins payment or

satisfaction by order of a court of competent jurisdiction in an

action in which the adverse claimant and the holder are

parties. This subsection does not however, result in the

discharge of the liability

(a) of a party who in bad faith pays or satisfies a

holder who acquired the instrument by theft or who (unless

having the rights of a holder in due course) holds through one

who so acquired it; or

(b) of a party (other than an intermediary bank or a

payor bank which is not a depository bank) who pays or

satisfies the holder of an instrument which has been

restrictively indorsed in a manner not consistent with the

terms of such restrictive indorsement.

7. Va. Code Ann. § 50-25 (2)(a) (1950): A partner,

subject to the provisions of this chapter and to any agreement

between the partners, has an equal right with his partners to

possess specific partnership property for partnership

purposes; but he has no right to possess such property for any

other purpose without the consent of his partners.

8. Va. Code Ann. § 50-73.42 (1950): Limitations on

distribution. A partner may not receive a distribution from a

limited partnership to the extent that, after giving effect to the

distribution, all liabilities of the limited partnership, other

than liabilities to partners on account of their partnership

interests, exceed the fair value of their partnership assets.

9. Va. Code Ann. § 49-25 (1950): SURETY MAY

REQUIRE CREDITOR TO SUE. -- The surety, guarantor or

2g SETI Shay AT AY

6

endorser, or his committee or personal representative, of any

person bound by any contract may, if a right of action has

accrued thereon, require the creditor or his committee or

personal representative, by notice in writing, to institute suit

thereon, and if he be bound in a bond with a condition, or for

the performance of some collateral undertaking, he shall also

specify in such requirement the breach of the condition or

undertaking for which he requires suit to be brought. Such

written notice shall also notify the creditor, his committee or

personal representative, that failure to act will result in the

loss of the surety, guarantor or endorser, his committee or

personal representative as security for the debt in accordance

with § 49.26 of the Code of Virginia.

10. Va. Code Ann. § 49-26 (1950): EFFECT OF FAILURE

OF CREDITOR TO SUE. If such creditor, or his committee or

personal representative, shall not, within thirty days after such

requirement, institute suit against every party to such contract

who is resident in this State and not insolvent and prosecute

the same with due diligence to judgment and by execution, he

shall forfeit his right to demand of such surety, guarantor or

endorser or his estate, and of his cosureties and their estates,

the money due by any such contract for the payment of

money, or the damages sustained by any breach of the

collateral condition or undertaking specified as aforesaid; but

the conditions, rights and remedies against the principal

debtor shall remain unimpaired thereby.

7

RESPONDENT’S SUPPLEMENTATION OF THE

STATEMENT OF THE CASE

Respondent disagrees with Petitioner’s presentation of

the Statement of the Case in the following particulars:

1. Green’s claim that the funds deposited into the

partnership account “played no role in the purchase of the

ndtes*+s-unsupported by the record. It is also contrary to the

totality of testimony given at the Silverstein and Gunn

depositions, which were not made a part of the record by

. Green. Green now improperly attempts to supplement the

record by including in his Appendix misleading excerpts of

those depositions. Green’s claim that the cashier’s check was

obtained with funds debited directly from the personal

accounts of Zimpel and Silverstein is only half true. See

Petitioner’s Appendix B at 14a.

The facts supported by the uncontroverted record below,

as well as the Silverstein and Gunn depositions, demonstrate

that Gunn, the bank officer, was entirely unaware that Zimpel

and Silverstein had deposited the funds into the partnership

account and then returned those same funds to their personal

accounts prior to requesting that the personal accounts be

debited in order to purchase the cashier’s check. Silverstein’s

full account agrees with Zimpel’s in all relevant particulars.

2. The Zimpel, Silverstein and Gunn depositions were

all available to Green prior to oral argument in the Court of

Appeals. Green never relied upon the Silverstein and Gunn

depositions nor disputed the facts portrayed in the Zimpel

deposition.1 _ ;

'As the Court of Appeals recognized, the laundering of the funds

via the circuitous bank transactions had as its goal the concealment of the

fact, also recognized in Green’s own affidavit, that partnership funds had

been created by the deposit into the partnership account. A discharge

and extinguishment of the debt occurred under Virginia law since

partnership funds had been used to acquire the partnership debt. See

Petitioner’s Appendix B at 8a.

3. The “Green letter,” which detailed the conspiracy

between Green and Foley’s erstwhile partners, was produced

on July 2, 1987 just before the hearing on summary judgment.

The letter was accompanied by other production which

counsel for Green described to the panel at oral argument as

“voluminous.” 2

4. As recognized by the Court of Appeals, Foley

acted with dispatch to verify the “Green letter.” After his

Motion to Vacate pursuant to Fed.R.Civ.P. 59(e) was denied,

Foley undertook to depose Zimpel. It was the Zimpel

deposition which brought to light the implementation of the

“Green letter.” See Petitioner's Appendix B at 7a. The

circuitous bank transactions and the device of the cashier’s

check were used to conceal the fact that partnership funds had

discharged the debt under Virginia law. See Petitioner’s

Appendix B at 8a and 25a. Immediately after the Zimpel

deposition, Foley requested an extension of time from the

Court of Appeals and filed his Motion for Relief from Judgment

pursuant to Rule 60(b)(3).3

5. Green neglects to inform that Foley’s counsel

wrote to the Clerk of the Court of Appeals only after an

improper ex parte letter was sent by Green’s counsel directly

to the appellate panel one day after oral argument. The letter

of Green’s counsel was a rehash of his arguments the day

2Foley’s discovery requests had been hand-delivered to Green’s

counsel on June 3, 1987. Green’s production of the material was hardly

“early,” as he would have this Court believe. Indeed, Green’s counsel

admitted in the course of ss Zimpel deposition that the “Green letter”

— produced unwillingly, by mistake. See Petitioner’s Appendix B at

17a.

3Green’s opposition to Foley’s 60(b)(3) Motion did not dispute

but rather conceded the facts and the sequence of events borne out by

Zimpel’s deposition. Green argued to the District Court that the deposit

into the partnership account was a “mistake” and that the funds never

became partnership property. Green made the same argument, upon the

same facts, to the Court of Appeals. He specifically did not argue that

different funds were used and in fact, none were.

9

before. The portion of the Zimpel deposition transmitted by

Foley consisted of a one page excerpt in which Green’s

counsel admitted that the pivotal “Green letter” had been

produced by mistake. The excerpt contradicted a statement

made by Green’s counsel to the appellate panel at oral

argument that the incriminating letter had been produced

willingly. The one page excerpt played no role in the ruling of

the Fourth Circuit and is mentioned only in a footnote to the

opinion. See Petitioner’s Appendix B at 17a, n.6.

6. Green neglects to inform that the dispositive

material relied upon by the Court of Appeals was part of a

Joint Appendix and Agreed Designation of the Record. The

dispositive material came from the Zimpel deposition which

was indeed part of the District Court record, having been

submitted to that court in the course of Foley’s 60(b)(3)

Motion.4

7. It bears repeating that the depositions of Silverstein

and Gunn were available to both parties at least one (1)

month prior to oral argument and for the three (3) months

thereafter while the parties awaited the ruling of the Fourth

Circuit. Green was mever precluded from using that

“evidence.” Indeed, Fed.R.App.P. 10 (e) expressly authorizes

such supplementation of the record where necessary.

8. Green never wavered from the version of facts he

conceded in the District Court (after Foley filed his 60 (b) (3)

motion) and borne out by the material submitted by Foley.

There is only one version of the facts. The Court of Appeals

correctly applied the law of Virginia to those facts.

“Fed.R.Civ.P. 60(b)(3) contemplates post-judgment submission of

just such dispositive and fraudulently concealed information. There was

no improper supplementation of the record, as Green suggests.

10

REASONS FOR DENIAL OF THE WRIT

SUMMARY OF ARGUMENT

I. The present case does not satisfy the threshold

considerations, promulgated by this Court, for the granting of

certiorari. Sup. Ct. R. 17. There is no conflict of opinion

among the Circuit Courts of Appeal regarding Virginia

commercial law or Virginia partnership law, the dispositive

issues below. The principles involved are of importance

solely to the parties, not to the public at large. Furthermore,

Petitioner is improperly attempting to re-open and alter a

closed record in order to avoid an adverse judgment which

was clearly warranted by the facts and the applicable law of

Virginia.

Il. The actions of the Court of Appeals are wholly

consistent with prior decisions of this Court.

11

ARGUMENT

I. THE PRESENT CASE DOES NOT SATISFY

THE THRESHOLD REQUIREMENTS FOR

GRANTING CERTIORARI.

This Court has historically held that certiorari is granted

only:

. .. in cases involving principles the settlement of

which is of importance to the public as

distinguished from that of the parties, and in cases

where there is a real and embarrassing conflict of

opinion and authority between the circuit courts of

appeal. Layne & Bowler Corporation v. Western Well

Works, 261 U.S. 387, 393, 43 S. Ct. 422, 423, 67 L.

ed. 712, 714 (1923), cited with res in NLRB

v. Pittsburgh Steamship Co., 340 U.S. 498, 502, 71

S. Ct. 453, 456, 95 L. ed. 479, 482 (1951).

The Rules of the Supreme Court of the United States

provide, in pertinent part, that certiorari is appropriate only

where a federal court of appeals:

. . . has so far departed from the accepted and

usual course of judicial proceedings, . . . , to call

for an exercise of this Court’s power of

supervision. Sup. Ct. R. 17.1(a).

None of the above considerations is applicable here.

Since the present case involved questions peculiar to

Virginia commercial and partnership law (e.g. the Virginia

Notice Statute, Va. Code Ann. §§ 49-25, 49-26 (1950)) there

can be no conflict among the circuits. In addition, there is no

conflict or uncertainty on the question of the inherent power

of the Court of Appeals to reverse the judgment of the District

Court and remand with instructions to enter judgment. Such

power is expressly authorized by statute. 28 U.S.C. § 2106.

The instant case concerns no issues of public import. Rather,

it is a dispute concerning payment of a promissory Note.

12

Petitioner is now bound by the-record which was established

both by him and by Respondent.

Contrary to Petitioner’s assertions, there has been

neither abuse of discretion nor improper conduct by the Court

of Appeals. Green disingenuously alleges that the Court of

Appeals “improperly supplemented” the record by accepting a

“partial transcript” submitted by Respondent’s counsel. In

fact, Foley sent a letter to the Clerk of the Court of Appeals in

response to Green’s antecedant, ex parte correspondence to

the members of the appellate panel after oral argument. The

letter of Respondent’s counsel included one page of a

deposition transcript which contradicted assurances given by

Petitioner’s counsel to the panel at oral argument that the

“Green letter” had been produced willingly.5 There was no

impropriety in Respondent’s answer to Petitioner’s ex parte

communication to the panel or Respondent’s documenting, in

a one page attachment, Petitioner’s misrepresentation made

during oral argument. See Respondent’s Appendix B. Such

was the conclusion of the Court of Appeals. See Petitioner’s

Appendix B at 16a, note 6.

Green alleges that the Court of Appeals impermissibly

determined facts, and drew inferences from those facts.

Nothing could be further from the truth. The Court of

Appeals, in reaching its decision, noted that it was presented

with “a clear and uncontroverted record.” See Petitioner’s

Appendix B at 31a. In fact, the Court was scrupulously careful

to avoid ruling on matters where there was any factual

uncertainty. See Petitioner’s Appendix B at 15a n.5 and 33a.

Green directs this Court to his belated affidavit as

authority for the meritless proposition that facts exist which

might exonerate him. Respondent objects to the affidavit and

5The “Green letter” was the crucial document which revealed the

conspiracy involving Petitioner and Respondent’s two partners in Fairfax

Associates (See Respondent’s Appendix A).

13

hereby moves that it be stricken from the petition. Petitioner

has failed to inform this Court that his affidavit was not filed

in either court below on the merits prior to entry of judgment

(the affidavit opposed Foley’s successful motion for sanctions

filed after the Fourth Circuit opinion on the merits). The

affidavit is an untimely and misleading attempt to create

factual issues where there were none. An agreed designation

of the record (see Respondent’s Appendix D) and an

undisputed set of facts was submitted to the Court of

Appeals.6 Indeed, the applicable law of Virginia was argued

on that basis. See Petitioner’s Appendix B at 31a.

Green never varied from the account he presented to the

District Court in his Response to Foley’s 60 (b)(3) motion. In

opposing Foley’s Motion for Relief from Judgment in the trial

Court, Petitioner argued:

(Zimpel) took personal funds and deposited them

in the partnership account but withdrew them the

next day and purchased the cashier’s check in

Plaintiff's name . . . The deposit was a mistake

which was corrected . . . when the funds were

withdrawn. At the time the cashier (sic) check was

purchased, the funds were dZimpel’s and

Silverstein’s personal funds. See: Respondent’s

Appendix C.

Petitioner never disputed that Zimpel and Silverstein

withdrew the funds from their personal accounts and

deposited them in the Fairfax Associates Partnership Account.

®Both parties were in possession of the Silverstein deposition for

approximately two (2) months prior to oral argument in the Court of

Appeals and the Gunn deposition for one (1) month prior to oral

argument. In addition, oral argument took place approximately three (3)

months before the Court of Appeals entered its opinion. Had these

depositions truly represented new “evidence,” then was the time to

supplement the record. Indeed, Petitioner made no mention of this

“evidence” at oral argument or by ex-parte correspondence thereafter.

Petitioner first presented his current version of the facts only after

suffering a reversal at the appellate level.

14

Petitioner never disputed that the funds were next returned to

the personal accounts of Zimpel and Silverstein and then used

to purchase the cashier’s check in Green’s name. It is obvious

that Petitioner Green had ample opportunity to present his

present version of the facts, had they existed, to the Court of

Appeals.7

Petitioner’s protestations also ignore his right and duty

to supplement the appellate record pursuant to Fed.R.App.P.

10 (e) and 1.0.P. 10.4 (Supra). Although Petitioner’s counsel

took it upon himself to communicate -ex parte with the

appellate panel, he did not even mention this so called

“evidence.” Petitioner’s absolute failure to correct or

supplement when appropriate bespeaks desperation and the

invalidity of this current “last ditch” effort to avoid judgment

and opprobrium.8

In its opinion, the Court of Appeals ruled that Petitioner

had failed to disclose that the funds used to purchase the

promissory notes were partnership funds which, pursuant to

Virginia law, gave Respondent the affirmative defense of

payment. See Petitioner’s Appendix B at 25a. The Court ruled

7The dispute in the Court of Appeals was legal not factual. Foley

claimed, as a matter of Virginia law, that the deposited funds remained

partnership funds. Green claimed that they never became partnership

funds (his unconvincing “mistake” argument) or that they reverted to

personal funds prior to the purchase of the cashier’s check. The Court of

Appeals disagreed. The only “factual” dispute turned on Green’s claim

that the funds were deposited into the partnership account by “mistake.”

The uncontroverted record gave the lie to that subterfuge. See:

Petitioner’s Appendix B at 27a-29a. 2

®Petitioner has failed utterly to distinguish his circumstance from

that of any other party overturned on appeal. Petitioner has availed

himself of every opportunity for reconsideration of the adverse ruling.

After the Court of Appeals issued its opinion, Petitioner filed a Petition

for a Rehearing, Suggestion for Rehearing in Banc, and Motion to

Supplement the Appellate Record. All such requests were denied by the

Court of Appeals. Subsequently, Petitioner filed, with the Court of

Appeals, a Motion to Stay Mandate, which was similarly denied on

October 17, 1988. Finally, Petitioner filed an Application for Stay of the

Mandate with this Court which was denied by Chief Justice Rehnquist on

October 25, 1988.

15

that Green had misrepresented the source of these funds. See

Petitioner’s Appendix B at 30a. Petitioner’s conduct,

according to the Court of Appeals, precluded Respondent

Foley from presenting his meritorious defense of payment to

the District Court in a timely fashion. Jbid. All rulings were

properly based upon the uncontroverted record and the

applicable law of Virginia. No ruling was the product of a

choice between disputed facts.

Petitioner’s argument that the Court of Appeals violated

his constitutional right to be heard is preposterous. He was

twice heard on the merits: by the District Court (where he

opposed Foley’s 60(b)(3) Motion and by the Court of Appeals

(on brief and at oral argument). Ex parte, he attempted to

reinforce oral argument by letter to the appellate panel. That

he did not challenge the facts presented, in any proceeding,

pleading or motion below, demonstrates his admission of

them. His post-reversal attempts to revise the facts must be

viewed as untimely and meretricious. Respondent therefore

objects to all material contained in Petitioner’s Appendices

L-R as not part of the record on the merits below and moves

to strike the material from the petition.

16

Il. THE ACTIONS OF THE COURT OF APPEALS

ARE WHOLLY CONSISTENT WITH THE

OPINIONS OF THIS COURT.

Petitioner claims that the actions of the Court of Appeals

were improper and contrary to decisions of this Court.

However, each case relied upon by Petitioner can be

distinguished from the case at bar.

In Fountain v. Filson, 336 U.S. 681, 69 S. Ct. 754, 93 L.

ed. 973 (1949), this Court reversed the judgment of a Court of

Appeals which had reversed a summary judgment in the

District Court for Petitioner Fountain and remanded with

instructions to enter judgment for Respondent Filson.

However, Fountain had not presented any evidence, facts, or

law to the trial court. The action of the appellate court

deprived Fountain of the opportunity to create a record. This

Court held that the Court of Appeals entry of summary

judgment (given a record bereft of Fountain’s position, was

error). 336 U.S. at 683, 69 S. Ct. at 754-755, 93 L. ed. at

913.

In the present case, Green never disputed Foley’s

version of the facts but rather adopted it in his arguments to

the District Court and to- the Court of Appeals. The

adversarial process created an uncontroverted record. No

disputed facts emerged until after Petitioner received an

adverse ruling from the Court of Appeals.

Petitioner Green incorrectly claims that an appellate

court cannot enter a judgment n.o.v. in favor of a party who

was unsuccessful at trial. Globe Liquor v. San Roman, 332 U.S.

571, 68 S. Ct. 246, 92 L. ed. 179 (1948). However, in Globe

Liquor, this Court held it improper for an appellate Court to

enter judgment n.o.v. in favor of the losing party where that

party had failed to move for judgment n.o.v. at trial. 332 U.S.

at 574, 68 S. Ct. at 247, 92 L. ed. at 179. Clearly, the facts of

Globe Liquor are inapposite to the case at bar, where summary

judgment, not trial, determined the outcome in the lower

17

court. It cannot be doubted that an appellate court can direct

that summary judgment be entered in such a situation as in

the case at bar. 28 U.S.C. § 2106 (Supra). Furthermore, Foley

had moved for summary relief in the District Court, thereby

distinguishing the situation in Globe Liquor.

Equally inapposite is Petitioner’s reliance upon Byrd v.

Blue Ridge Rural Electric Cooperative, Inc., 356 U.S. 525, 78 S.

Ct. 893, 2 L. ed. 2d 953 (1958). In Byrd, the Court of Appeals

disagreed with the District Court’s construction of a state

statute. As a result, the Appeals Court reversed the judgment

of the District Court, and directed a judgment for respondent.

356 U.S. at 530, 78 S. Ct. at 897, 2 L. ed. 2d at 958. This

Court reversed, holding that petitioner was entitled to try the

issues involved under the Court of Appeals’ new statutory

interpretation. 356 U.S. at 532, 78 S. Ct. at 898, 2 L. ed. 2d

at 959.

In the case at bar, however, Green availed himself of the

opportunity to refute Foley’s claim. Petitioner argued the Jaw

of Virginia on the subject of payment and discharge. See

Petitioner’s Appendix B at 26a-27a. Although the Court of

Appeals was unpersuaded, it did not overturn any statutory

interpretation of prevailing law as in Byrd. On the contrary,

the uncontroverted record and prevailing Virginia law

properly led the Court of Appeals to reverse the ruling of the

District Court. /bid. Such action is unquestionably within the

purview of appellate authority. Petitioner was confronted with

no surprises on appeal and had every opportunity, by way of

brief and oral argument, to refute or rebut Respondent’s view

of the case.

Green has also directed this Court’s attention to Florida

Avocado Growers, Inc. v. Paul, 373 U.S. 132, 83 S. Ct. 1210,

10 L. ed. 2d 248 (1963). In Paul, both parties were uncertain

over the state of the record. Appellants argued that certain

depositions and exhibits were admitted by the District Court

while appellees assumed the opposite was true. 373 US. at

18

155, 83 S. Ct. at 1224, 10 L. ed. 2d at 264. Indeed, this Court

was unable to determine whether or not the materials in

question were admitted into evidence by the trial Court. /bid.

Clearly, such confusion about the record is distinguishable

from the case at bar. No confusion regarding the state of the

record ever existed at the appellate level or in the District

Court. The Court of Appeals was presented with a “clear and

uncontroverted record.” See Petitioner’s Appendix B at 31a.

It did not base its decision on any matter which was not

properly a part of that record. Therefore, Petitioner’s reliance

on Paul is also misplaced.

Finally, Petitioner argues that federal appellate courts

cannot consider an issue which was not decided by the trial

Court. Singleton v. Wulff, 428 U.S. 106, 96 S. Ct. 2868, 49 L.

Ed. 2 826 (1976). The validity of that principle cannot be

doubted. However, such conduct did not occur in the case at

bar. The Fourth Circuit decided and ruled upon only those

issues which had been decided by the trial court and which

were part of the record. It granted Foley the relief that he had

expressly requested in his brief.

Singleton also stands for the inapposite proposition that a

Court of Appeals should not consider the merits of a case

where the only issue properly before it is a Motion to Dismiss.

428 U.S. at 119-120, 96 S. Ct. at 2876-2877, 49 L. Ed. 2d at

836. In Singleton, no answer or other responsive pleading

_ addressed to the merits had been filed. The substantive issues

had been neither raised nor pleaded prior to the District

Court’s Order granting the Motion to Dismiss. Singleton has no

application to the case at bar since Foley had filed his Answer

many months before and the case had long been “at issue”

when the motions for summary judgment and relief from

judgment reached the Fourth Circuit.

Not one authority cited by Petitioner supports his

position. Each “authority” is factually distinguishable, legally

inapposite, or both.

19

CONCLUSION

The Court of Appeals acted properly and within its

discretion in the case at bar. There is no basis to support the

instant Petition. The Petition should be denied.

submitted,

Bruce Lawrence Adelson

BRINCEFIELD, HARTNETT NCEFIELD, HARTNETT

& ASSOCIATES & ASSOCIATES

526 King Street, Suite 423 526 King Street, Suite 423

Alexandria, Virginia 22314 Alexandria, Virginia 22314

(703) 836-2880 (703) 836-2880

- Counsel of Record

20

CERTIFICATE OF SERVICE

The undersigned hereby certifies that he has this day

served three copies of the foregoing Brief in opposition to

Petition for a Writ of Certiorari to the Fourth Circuit Court of

Appeals upon the person indicated below by depositing copies

of same in the United States mail, first class postage prepaid,

addressed as follows:

Philip L. Chabot, Jr.

GRAD, TOOTHMAN, LOGAN & CHABOT, P.C.

Suite 800

1990 M Street, N.W.

Washington, D.C. 20036

(202) 7375046

Counsel for Petitioner

26 King StreetSuite 423

Alexandria, Virginia 22314

(703) 8362880