# Opposition Brief — Green v. Foley

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1989
- **Citation:** 490 U.S. 1031

## Text

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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(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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0908%3A3. Public record. Not legal advice.