# Petition — Rosenfield v. New England Merchants National Bank

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1983
- **Citation:** 459 U.S. 1173

## Text

iC@ - Supreme Court, U.S.

A FILED
82-994 Nov 96 1982
No. CLERK
in the
Supreme Court
of the

United States

OCTOBER TERM, 1982

COLEMAN R. ROSENFIELD and
GLADYS ROSENFIELD,
Petitioners,

vs.

NEW ENGLAND MERCHANTS NATIONAL BANK
Respondent.

PETITION FOR WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEAL FOR
THE FIFTH CIRCUIT UNIT B

ALAN G. GREER

BERTHA CLAIRE LEE

FLOYD PEARSON STEWART
RICHMAN GREER & WEIL, P.A.

One Biscayne Tower

Twenty-Fifth Floor

Miami, Florida 33131-1868

Phone: (305) 377-0241

Attorneys for Petitioners

QUESTIONS PRESENTED FOR REVIEW

DOES THE FAILURE OR REFUSAL OF
THE COURT OF APPEALS TO RULE ON
AN ISSUE PROPERLY RAISED, BRIEFED
AND ARGUED ON APPEAL, WHERE SAID
ISSUE IS DISPOSITIVE OF THE CASE
OR A SIGNIFICANT PORTION OF IT,
CONSTITUTE DENIAL OF ACCESS TO
THE COURTS AND THUS DENIAL OF
DUE PROCESS OF LAW AS
GUARANTEED BY THE FIFTH
AMENDMENT TO THE CONSTITUTION
OF THE UNITED STATES. (PETITIONERS
RESPECTFULLY BELIEVE THIS TO BE
A CASE OF FIRST IMPRESSION FOR THIS
COURT.)

IN A JURY TRIAL DID THE CONDUCT
OF THE DISTRICT COURT BELOW, IN
ADMITTEDLY TRYING TO “PROTECT”
RESPONDENT AGAINST PETITIONER,
IN ADMITTEDLY DECIDING THE
CREDIBILITY OF THE WITNESSES, IN
EXCLUSING MATERIAL AND RELEVANT
EVIDENCE AND IN DIRECTING A
VERDICT, CONSTITUTE CLEAR AND
UNAMBIGUOUS BIAS AND PREJUDICE
SUCH AS TO DENY PETITIONERS’ DUE
PROCESS OF LAW AS GUARANTEED BY
THE FIFTH AMENDMENT TO THE
CONSTITUTION OF THE UNITED STATES.

RULE 28.1 LISTING

As to Petitioners, the following are the real parties
in interest and any related companies: Coleman R.
Rosenfield, Gladys Rosenfield, Mama Tino, Inc.

TABLE OF CONTENTS

Page
QUESTIONS PRESENTED FOR REVIEW ..... i
TABLE OF AUTHORITIES ................... vi
eee I kin coneieenkatedessossaies 1
Ri | rere Ter enr ren err 1

CONSTITUTIONAL PROVISIONS INVOLVED. 2

UNITED STATES STATUTES INVOLVED ..... 3
STATEMENT OF THE CASE ................. 3
A. PROCEEDINGS BELOW ............. 3
B. STATEMENT OF FACTS ............. 5

REASONS WHY THE WRIT SHOULD BE
UREN RENEE 5540 040d Ce PREL Ven hecae esi e ers 9

PETITIONERS WERE DENIED ACCESS TO
THE COURTS AND THUS DUE PROCESS
OF LAW UNDER THE FIFTH AMENDMENT
AS A RESULT OF THE COURT OF APPEALS
FAILURE AND REFUSAL TO RULE ON
AN ISSUE PROPERLY RAISED AND
BRIEFED ON APPEAL................... 10

TABLE OF CONTENTS (Continued)

Page

II.

PETITIONERS’ COUNTERCLAIM WAS NOT
BARRED BY THIS APPLICABLE STATUTE
OF LIMITATIONS IN THAT IT AROSE OUT
OF THE SAME FACT SITUATION AS
RESPONDENT’S CLAIMS................

Il.

THE TRIAL COURT’S OPEN DISPLAY OF
BIAS AND PREJUDICE IN THE CONDUCT
OF THE TRIAL DENIED PETITIONERS’
DUE PROCESS OF LAW AS GUARANTEED
BY THE FIFTH AMEND AND REQUIRES
REVERSAL OF THE DIRECTED VERDICT
ST a ane eer er ener er ar eer yo

IV.

THE DISTRICT COURT AND COURT OF
APPEALS RULINGS THAT PETITIONER
ROSENFIELD’S TESTIMONY WAS NOT
BELIEVABLE BECAUSE IT WAS
SELFSERVING CONSTITUTED A DENIAL
OF DUE PROCESS OF THE LAW AS
GUARANTEED BY THE UNITED STATES
CONSTITUTION IN THAT THE SAME
STANDARDS WERE NOT APPLIED TO
RFSPONDENT’S TESTIMONY WHICH WAS
EQUALLY SELFSERVING. ..............

iv

14

16

19

TABLE OF CONTENTS (Continued)
Page
V.

THE DISTRICT COURT AS A RESULT OF
ITS BIAS IMPROPERLY EXCLUDED FROM
EVIDENCE DEPOSITION TESTIMONY OF
A MATERIAL WITNESS. ................ 22

VI.

THE DISTRICT COURT'S DIRECTION OF A
VERDICT IN FAVOR OF RESPONDENT WAS
FATALLY TAINTED BY ITS APPARENT
BIAS, ITS IMPROPER DETERMINATION
OF WITNESS CREDIBILITY AND ITS
IMPROPER EXCLUSION OF EVIDENCE... 25

SPORT oc nets ncngncceccsenecccccenas 26

TABLE OF AUTHORITIES
Cases Page

Adams General Contractors, Inc v.
Department of Housing and Urban Development,
501 F.2d 176 (5th Cir. 1974) ................. 10

Azada v. Carson,
252 F.Supp. 988 (D. Hawaii 1966)............ 15

Baker v. Simmons Co.,
342 F.2d 991 (5th Cir.) cert. denied
88 S.Ct. 49, 382 U.S. 820 (1965) .............. 18

Chauffeurs, etc. v. Jefferson Trucking Co., Inc.,
473 F.Supp. 1255 (S.D. Ind.) affirmed
628 F.2d 1023 (7th Cir.) cert. denied
Ee 15

Cherney v. Moody,
413 So.2d 866 (1st Fla. DCA 1982)........... 16

Commonwealth Coatings Corp. v.
Continental Casualty Co. of Puerto Rico,
89 S.Ct. 337, 393 U.S. 145 (1969) ............. 18

Cross v. State of Georgia,
661 F.2d 102 (Sth Cir. 1978) ................. 17

vi

TABLE OF AUTHORITIES (Continued)

Empire Life Ins. Co. v. Valdak Corp.,

468 F.2d 330 (5th Cir. 1972) ................

Erie Lackawanna R.R. Co. v. United States,

439 F.2d 194 (Ct. Claims 1971) .............

Glazer v. Glazer,
374 F.2d 390, 400 (5th Cir.) cert. denied

389 U.S. 831, 88 S.Ct. 100 (1968) ............

Hernas v. City of Hickory Hills,

507 F.Supp. 103 (N.D. Ill. 1981).............

Leahy v. United States,
272 F.2d 487 (9th Cir.) cert. dismissed

81 S.Ct. 465, 364 U.S. 945 (1961)............

Molnar v. Gulfcoast Transit Co.,

871 F.2d 639 (5th Cir. 1967) ................

Nalley v. M’Clements,

295 F.Supp. 1357 (D. Del. 1969).............

National Labor Relations Bd. v. Phelps,

136 F.2d 562 (5th Cir. 1943) ................

Rosenberg v. Baum,

153 F.2d 10 (10th Cir. 1946) ................

United States v. Generes,

405 U.S. 93, 106, 92 S.Ct. 827, 834 (1972) .....

vii

Page

TABLE OF AUTHORITIES (Continued)

Page
United States v. Southern California Edison Co.,
299 F.Supp. 268 (S.D. Cal. 1964) ............. 15
United States v. State of Florida,
482 F.2d 205 (5th Cir. 1973) ................. 12
United States Constitution
Article III of the Constitution of the United
| er Teer re eee eee re 12
Fifth Amendment to the Constitution of the
PR ee ee 13, 18, 21
REE Cem i Peererrrerr rire reer Tey. 1
28 U.S.C. §1291, Judiciary Act ............ 3, 9, 12, 13
TS UG. GGG i ekc eh vcdessadeeceseeeneoes 3
Other Authorities
Pee, BAGG P. BO os in ke ccsvacncvenvaisates 10, 11
Rule 401, Federal Rules of Evidence ............ 22
Rule 402, Federal Rules of Evidence ............ 22

53 C.J.S. Limitations of Actions §106 Set Off,
Counterclaim and Cross Demand ............... 15

viii

Petitioners COLEMAN R. ROSENFIELD
(hereinafter “Rosenfield”) and GLADYS ROSENFIELD
(hereinafter “Mrs. Rosenfield” and collectively “Petitioners
Rosenfield”) pray that this Court issue a writ of certiorari
to review the judgments of the United States Court of
Appeals for the Fifth Circuit Unit B which affirmed the
directed verdict in favor of Respondent NEW ENGLAND
MERCHANTS NATIONAL BANK (hereinafter
“NEMNB”) and which expressly refused to rule on the
propriety of the dismissal by way of Summary Judgment
of Petitioners’ Counterclaim even though it was an
issue properly raised on appeal and briefed by both
parties.

OPINION BELOW

The opinion of the court of appeals, reported at
—___._ F.2d ____ (5th Cir., Unit B, 1982) is printed in the
Appendix to this Petition (A.2).

JURISDICTION

The court of appeals filed its opinion and entered
its judgment on July 1, 1982. A timely petition for
renearing which raised, among other things, the court
of appeals’ failure to rule on the issue of the summary
judgment disposition of the Petitioners’ counterclaim
was denied, without opinion, on August 30, 1982.

The jurisdiction of this Court is invoked under 28
U.S.C. §1254(a) (1976).

CONSTITUTIONAL PROVISIONS INVOLVED

The Fifth Amendment to the Constitution of the
United States provides, in part, as follows:

No person shall be . . . deprived of life, liberty,
or property without due process of law; . . .

UNITED STATES STATUTES INVOLVED
28 U.S.C. §1291, Judiciary Act
STATEMENT OF THE CASE
A. PROCEEDINGS BELOW

Respondent NEMNB brought suit in the United
States District Court for the District of Massachusetts
against Petitioners in July 1974 based on alleged
guarantees. The complaint was filed over four years
after the occurrence of the facts which give rise to the
claim. The case was subsequently transferred to the
United States District for the Southern District of
Florida based on forum non-convenience pursuant to
28 U.S.C. §1401(a).

Petitioners raised various defenses including
conditional delivery and filed a counterclaim alleging
fraudulent inducement relative to the execution of the
alleged guarantees.

On March 26, 1976 the trial court granted
Respondent's motion for summary judgment as to the
counterclaim on the basis that Petitioners’ counterclaim
for fraud was barred by the applicable statute of
limitations even though it arose out of the same factual
situation which gave rise to Respondent NEMNB's
claims on the alleged guarantees which were not barred
by any statute of limitations.

Thereafter a jury trial was held on February 14,
1977. At the close of the case, but before the jury
returned a verdict, the trial court directed a verdict in

favor of Respondent NEMNB and against both Petitioners
by order dated March 9, 1977. From that directed
verdict a timely appeal was taken to the United States
Court of Appeals for the Fifth Circuit, Unit B.

In its opinion entered on July 1, 1982, the court of
appeals affirmed the trial court’s directed verdict but
expressly failed and refused to rule on the issue of the
summary judgment which dismissed Petitioners’
Counterclaim even though that issue was clearly raised
on appeal and briefed by both sides.’ (A. 13). In so doing
the court of appeals stated in its Opinion that:

This counterclaim was dismissed prior to
trial on statute of limitation grounds and is
not involved in this appeal. (Emphasis added).

(A. 13).

Thereafter Petitioners filed a timely petition for
rehearing in which they, among other things, pointed
out that the court of appeals had improperly failed to
rule on the validity of the summary judgment dismissing
to Petitioners’ Counterclaim. (A. 38). The court of appeals
denied the petition for rehearing on August 30, 1982
without opinion and again refused to address the vital
issue of Petitioners’ counterclaim. (A. 43).

From the foregoing rulings the following Petition
for Certiorari is taken.

‘See, excerpts from Appellants’ and Appellee’s briefs reprinted
in the Appendix to this Petition.

B. STATEMENT OF THE FACTS

In 1968 Petitioner Coleman Rosenfield was a lawyer
and an officer of a franchise business known as Mama
Tino’s Inc. That company promoted franchised Italian
restaurants. In 1969 and 1970 Mama Tino’s borrowed
money from Respondent NEMNB for business purposes.
Thereafter the business experienced difficulties and a
$2,500,000.00 public offering it had anticipated did not
materialize.

With this background Petitioner Rosenfield and
the President of Mama Tino’s, a Mr. Fiorentino, sought
an extension of the company’s loans from Respondent
NEMNB. Respondent would only extend the loans if
both the Petitioners and Mr. and Mrs. Fiorentino executed
personal guarantees for the company’s indebtedness.

Petitioner Rosenfield claimed that the guarantees
were signed and delivered to NEMNB on the express
condition that the bank would lend the company an
additional $50,000.00 as well as extend the existing
loans. Rosenfield testified that on the basis of NEMNB’s
unequivocal promise of additional funding, the guarantees
were executed and conditionally delivered in February,
1970.

Thereafter, the additional $50,000 loan was not
forthcoming, which materially contributed to the necessity
for the company to file for bankruptcy in May, 1970.

There was deposition testimony from a Mr. Carl
Schaeffer that at or just before the bankruptcy a senior
officer of Respondent NEMNB had stated that the
bank had committed to make an additional $50,000 loan

to Mama Tino’s and then decided to renege on that
additional loan. Mr. Schaeffer was an attorney for a
third party bank which had dealings with Mama Tino’s.
He had been personally involved in the negotiations to
try and save the company prior to the bankruptcy. (R.
670-671).

Mr. Schaeffer's deposition testimony was proferred
into evidence by the Petitioners. It was excluded by
the trial court on the basis that Mr. Schaeffer could not
personally testify that Respondent NEMNB’s offer of
an additional loan had been made at or before the date
of the execution of the guarantees. (A. 19; T. 55).

Respondent NEMNB was represented by attorney,
J. J. Simons, in the bankruptcy proceeding. Attorney
Simons and Respondent Rosenfield had a conversation
which was extremely relevant to this case; however,
they disagree as to what was said. Respondent Rosenfield
testified that Mr. Simons, the attorney for Respondent
NEMNB, told him that NEMNB would not enforce the
guarantees of Petitioners. (T. 122-123). Mr. Simons testified
that he had said that he, Mr. Simons, would not proceed
against the Rosenfields on their guarantees but “believe[sf’
he told Petitioner Rosenfield that Respondent NEMNB
was going to sue. (T. 178).

Thereafter, Respondent NEMNB waited over four
years to file the present action. The expiration of this
period allowed the claims Petitioners had against
Respondent to expire based on the running of the
relevant statute of limitations.

JUDICIAL CONDUCT DURING
AND BEFORE TRIAL

During the course of the pre-trial conference, held
just before the trial, the trial judge stated “Probably
we shouldn't have the jury that sat on the last case.” (T.
47). That jury, which was still part of the venire panel
at the time of this trial, had just rendered a defendant's
verdict in a guarantee case strikingly similar to the
present case.

Throughout the pre-trial conference the judge
indicated his readiness to direct a verdict or grant
summary judgment in favor of the Respondent (T. 43,
44, 45) but refrained from doing so because of his lack
of faith in the court of appeals (T. 68).

At the trial itself the judge openly stated that he
thought Petitioner Rosenfield, who he pointed out was
a lawyer, was lying’ (‘. 116, 124, 182). At one point at
the close of Petitioner Rosenfield’s direct testimony
the judge stated he was going to direct a verdict because
Petitioners were bringing in “extraneous information”
and Petitioner Rosenfield was “volunteering information”
(T. 127). Counsel for Respondent, in whose favor such a
directed verdict would have run, had to beg the judge
not to do so pointing out it would constitute reversible
error. (T. 127-128)

Following this a truly remarkable exchange occurred
in which the judge candidly admitted he had been

*The district court stated: “I don’t believe a word this witness
is testifying to” and “I think he has been lying from the minute he
got on the stand.” (T. 132)

trying to protect the Respondent NEMNB. It was as
follows:

Mr. Cohn (Respondent NEMNB’s counsel): I'm
not sure it is so obvious to the jury, Your
Honor. If I recall, none of them ever had any
dealings with banks.

The Court: I am going to let you go ahead. J
have been trying to protect you, Mr. Cohn.
But you go ahead. (Emphasis added) (T. 306).

At the close of the testimony the judge directed a
verdict in favor of Respondent stating that he, rather
than the jury, had determined the credibility of the
witnesses and which witnesses were to be believed. (T.
316).

During the course of the trial Petitioners moved
the trial judge to recuse himself when it became apparent
that he had abandoned any pretense of impartiality in
the conduct of the trial. The judge denied that motion.
(T. 171).

*The district court's exact quote is:

Ordinarily it is up to the jury to make a determination of
credibility of witnesses. / make that determination myself.
(T. 316)

(Emphasis added).

REASONS WHY THE WRIT
SHOULD BE GRANTED

The Constitution of the United States and its statutes
guarantee an individual the right to a fair and impartial
trial. Additionally, the individual is guaranteed the
right of appeal to the court of appeals. 29 U.S.C. §1291.
This right necessarily requires that the court of appeals
rule on all issues that are dispositive of the merits of
the controversy if properly raised on appeal.

In the present case both of these rights were
denied Petitioners. The trial judge’s conduct clearly
demonstrated his bias against Petitioners and towards
Respondent NEMNB. It would appear from the record
that this bias caused the trial judge to exclude relevant
testimony in the form of Mr. Schaeffer's deposition
which had it been admitted, would have given rise to a
jury issue. Additionally this bias would appear to have
caused the trial judge’s determination of the credibility
of the witnesses, especially as between Respondent's
lawyer Mr. Simon and Petitioner Rosenfield relative to
whether or not Respondent had agreed and promised
to not pursue the guarantees. This was clearly a very
material issue which should have gone to the jury.

Had the trial judge not acted in a biased manner
he would have admitted evidence whose admittance is
required by law and not ruled on the credibility of
witnesses all of which would have created jury issues
which in turn would have prevented a directed verdict
in favor of Respondent.

The court of appeals’ opinion expressly approves
the trial judge’s flagrant bias against Rosenfield. (A.

23) Further, contrary to the very law cited in the opinion
the appellate court also makes prohibited credibility
choices. (A. 18)

Further, the Petitioners were entitled as a matter
of right under the Constitution of the United States,
its statutes and the case law to have their appeal heard
and ruled on as to the trial court’s grant of summary
judgment in favor of Respondent based on the expiration
of the statute of limitations relative to Petitioners’
Counterclaim. The court of appeals’ failure to rule on
this issue constituted a denial of this right. (Petitioners
respectfully believe this issue to be one of first impression
for this Court.)

I.

PETITIONERS WERE DENIED ACCESS TO
THE COURTS AND THUS DUE PROCESS
OF LAW UNDER THE FIFTH AMENDMENT
AS A RESULT OF THE COURT OF APPEALS
FAILURE AND REFUSAL TO RULE ON
AN ISSUE PROPERLY RAISED AND
BRIEFED ON APPEAL.

The trial court below, ruling that Petitioners’
counterclaim, which sounded in fraud, was barred by
the applicable statute of limitations, granted a summary
judgment in favor of Respondent NEMNB as to that
counterclaim (A. 28-29). That summary judgment order
did not dispose of all the claims between all the parties
and thus was not appealable at the time it was entered.
Fed.R.Civ.P. 54(b); Adams General Contractors, Inc. v.
Department of Housing and Urban Development, 501
F.2d 176 (5th Cir. 1974).

10

The summary judgment became appealable at the
close of the case below when the trial court entered its
order of directed verdict as to all remaining issues
between the parties. Fed.R.Civ.P. 54(b).

The granting of that summary judgment was duly
raised on appeal and briefed as an issue on appeal by
Appellants Rosenfield before the court of appeals below
(A. 30). The Respondent NEMNB in turn replied to the
summary judgment issue and addressed it in its brief
(A. 24). This issue was thereafter orally argued before
the court of appeals.

Following all of this the court of appeals in its
decision held that:

The Rosenfields also counterclaimed, seeking
damages from the bank for refusing to lend
Mama Tino an additional $50,000 for working
capital. This counterclaim was dismissed prior
to trial on statute of limitations grounds and
is not involved in this appeal.

(Emphasis added). (A. 13).

The error of the foregoing and the court's failure
to rule on the issue was pointed out to the court of
appeals in Petitioners/Appellants’ petition for panel
rehearing (A. 38). That petition was denied by the
court of appeals without opinion or any other ruling as
to the summary judgment issue on August 30, 1982 (A.
43).

Petitioners believe that this case presents an issue
of first impression for this Court. After diligent research

11

Petitioners have been unable to find any case in which
this Court has ruled on the propriety of a court of
appeals failing or refusing to rule either directly or
indirectly on an issue properly raised on appeal.

The Fifth Amendment to the United States
Constitution guarantees due process of law. Pursuant
to that amendment and Article III of the Constitution
of the United States Congress created the various
courts of appeal and made them the only court in which
there was an appeal by right from the final decisions of
the district courts. 28 U.S.C. §1291.

Therefore, the court of appeals below was the only
court to which the Petitioners had the right to appeal
the district court’s dismissal of their counterclaim by
means of summary judgment. It is implicit from the
right of appeal that the court of appeals has a absolute
duty to rule on all issues properly raised on appeal.

The case law tends to imply such a duty on the
part of the courts of appeal but does not expressly so
state in relations to civil cases. For example the United
States Fifth Circuit Court of Appeals has stated that:

{Olur function is, of course, to assay the asserted
errors of the judge ...

Molnar v. Gulfcoast Transit Co., 371 F.2d 639 (5th Cir.
1967). See also, United States v. State of Florida, 482
F.2d 205 (5th Cir. 1973); Empire Life Ins. Co. v. Valdak
Corp., 468 F.2d 330 (5th Cir. 1972).

In a criminal setting the issue has been somewhat
more directly addressed by the Ninth Circuit which

12

stated that a criminal appeal imposes upon the appellate
court the duty of determining the questions which are
raised on appeal. Leahy v. United States, 272 F.2d 487
fon Cir.) cert. dismissed 81 S.Ct. 465, 364 U.S. 945
1961).

None of these decisions, nor any other case which
Petitioners have been able to find after diligent research,
rule directly on the issue of an appellate court’s having
failed or refused to rule on an issue properly raised on
appeal.

The court of appeals’ failure below to rule on an
issue which was clearly and properly presented before
it denied Petitioners access to the courts of appeal as
provided for under 28 U.S.C. §1291 and thus constituted
a denial of due process of law as guaranteed under
Amendment Five to the Constitution of the United
States.

This denial should be addressed by this Court
since it raises issues which are far wider than this case
alone such as an appeals court’s ability to “duck” difficult
or unpopular issues by simply not ruling on them. In
the present case the court of appeals, either by mistake
or intent, “ducked” the issue by stating in its opinion
that “This counterclaim ... is not involved in this
appeal.” (A. 13). This Court cannot allow such a denial
of justice to go uncorrected.

13

il.

PETITIONERS’ COUNTERCLAIM WAS NOT
BARRED BY THIS APPLICABLE STATUTE
OF LIMITATIONS IN THAT IT AROSE OUT
OF THE SAME FACT SITUATION AS
RESPONDENT'S CLAIMS.

Petitioners’ based their counterclaim on an
agreement by Respondent NEMNB to provide an
additional $50,000 in funding to Petitioners’ company,
Mama Tino Inc., in return for Petitioners’ guarantees
of the company’s obligations to the Respondent bank.
Petitioners alleged in that Counterclaim that they were
fraudulently induced by Respondent NEMNB to give
their guarantees to the bank in that the bank had no
intention of going through with the additional funding
at the time it induced Petitioners to sign the guarantees
in return for the additional funding for the company.
Thus, the counterclaim arises out of the exact same
factual situation which formed the basis for Respondent's
NEMNB claims against Petitioners Rosenfield based on
the guarantees.

Respondent carefully waited over four years to
file its claims against Petitioners in the case below.
This was done after Petitioner Rosenfield testified he
was told by Respondent’s attorney, Mr. Simons, that
the Respondent would not bring suit on the guarantees
and that attorney admitted the occurrence of such a
conversation. The only difference in the two versions
of the story is that the attorney, Mr. Simons, testified

14

that he said he, Mr. Simons, would not bring suit rather
than his client the Respondent would not bring suit.‘

Thereafter, Respondent NEMNB carefully waited
over four years before bringing the present action.
During that four year period, and in reliance on the
representation that no suit would be brought by
Respondent, Petitioners allowed the applicable statute
of limitations governing claims of fraud to expire.

The old and extremely harsh common law rule was
generally that compulsory counterclaims ordinarily barred
by a statute of limitation were not revived by the filing
of a claim arising out of the same factual situation. For
the history and application of this rule see generally 53
C.J.S. Limitations of Actions §106 Set Off, Counterclaim
and Cross Demand.

The more modern rule which is being adopted
around the country is that such a counterclaim is not
barred. Rather the running of the statute is tolled by
the filing of the main claim. Hernas v. City of Hickory
Hills, 507 F.Supp. 103 (N.D. Ill. 1981); Chauffeurs, ete.
v. Jefferson Trucking Co., Inc., 473 F.Supp. 1255 (S.D.
Ind.) affirmed 628 F.2d 1023 (7th Cir.) cert. denied 101
S.Ct. 942 (1981); Nalley v. M'Clements, 295 F.Supp.
1357 (D. Del. 1969); Azada v. Carson, 252 F.Supp. 988
(D. Hawaii 1966); United States v. Southern California
Edison Co., 229 F.Supp. 268 (S.D. Cal. 1964); cf. Erie
Lackwanna R.R. Co. v. United States, 439 F.2d 194 (Ct.
Claims 1971).

‘This clearly raised an issue of credibility which should have
been resolved by the jury relative to Petitioners’ defenses of
estoppel and abandonment and their counterclaim.

15

Florida has joined in adopting the rule that
compulsory counterclaims are not barred by the applicable
statute of limitations but that rather such statute is
tolled by the filing of the main claim. Cherney u Moody,
413 So.2d 866 (1st Fla. DCA 1982). That case was certified
to the Florida Supreme Court.

In the present case the actions of Respondent and
its attorney in lulling Petitioners into inaction over a
period of in excess of four years while their claims ran
is particularly egregious. They demonstrate the exact
reason why the modern rule as set forth above should
be followed. To do otherwise would allow potential
plaintiffs to take unconscionable advantage of the passage
of time when they know that claims against them are
governed by statutes of limitation which are of a shorter
duration than those governing their own claims.

THE TRIAL COURT'S OPEN DISPLAY OF
BIAS AND PREJUDICE IN THE CONDUCT
OF THE TRIAL DENIED PETITIONERS’
DUE PROCESS OF LAW AS GUARANTEED
BY THE FIFTH AMEND AND REQUIRES
REVERSAL OF THE DIRECTED VERDICT
BELOW.

As outlined in the facts above the trial court
apparently harbored hostility toward Petitioner Rosenfield
because he was an attorney seeking to avoid the effects
of a guarantee which he had signed.

Prior to the start of trial the district court sought
to exclude jurors who had sat on a prior case from

16

hearing the present case. That prior jury had ruled in
favor of the defendants in another guarantee case and
the trial court was not about to let that happen again.
The trial court had clearly prejudged the case and was
prepared to direct a verdict before the close of the
evidence. The judge was dissuaded from doing so only
as a result of the pleading of Respondent's attorney at
trial who was clearly sfraid of reversible error.

Further, the trial judge admitted in open court
that he had taken it upon himself to judge the credibility
of the witnesses when such a determination was the
responsibility of the jury stating:

Ordinarily it is up to the jury to make a
determination of credibility of witnesses. J make
that determination myself.

(T.316) (emphasis added).

Finally, in what can only be considered as a truly
remarkable admission by a sitting district judge in the
middle of a jury trial the trial court stated to Respondent's
NEMNB trial counsel that:

I have been trying to protect you, Mr. Cohn.
(Emphasis added). (T. 306).

There can be no clearer statement of prejudice or
bias on the part of a trial court since it is clearly not
proper for the trial |» » to try and “protect” either
side. Rather he is re..4 ed to be neutral as between
the parties. Cross v. State of Georgia, 581 F.2d 102 (5th
Cir. 1978). A fair trial by an unbiased and nonpartisan

17

court is the essence of the adjudicatory process. Baker
v. Simmons Co., 342 F.2d 991 (5th Cir.) cert. denied 86
S.Ct. 49, 382 U.S. 820 (1965); National Labor Relations
Bd. v, Phelps, 136 F.2d 562 (5th Cir. 1943). In fact, even
the appearance of bias must be avoided. Commonwealth
Coatings Corp. vu Continental Casualty Co. of Puerto
Rico, 89 S.Ct. 337, 393 U.S. 145 (1969).

The appellate court’s approval of the conduct of
the trial court below in prejudging the case and then
acting on that prejudgment to control the admission of
evidence, to determine the credibility of witnesses and
to direct a verdict in favor of Respondent NEMNB
constituted a deprivation of Petitioners’ property without
due process of law in violation of the Fifth Amendment
of the United States Constitution. Rosenberg v. Baum,
153 F.2d 10 (10th Cir. 1946).

The court of appeals below ruled that there was
no legal prejudice to Petitioners because the district
court properly directed a verdict in favor of Respondent
NEMNB. This, however, ignores the factor of the district
court having controlled the flow of evidence into the
record by excluding pertinent deposition testimony
and improperly ruling on the credibility of the witnesses
as is more fully discussed below. Such actions were
clearly controlled by the court's apparent bias and
prejudice. Thus, they fatally taint the trial court's direction
of a verdict in favor of Respondent and must be reversed.

18

IV.

THE DISTRICT COURT AND COURT OF
APPEALS RULINGS THAT PETITIONER
ROSENFIELD’S TESTIMONY WAS NOT
BELIEVABLE BECAUSE IT WAS
SELFSERVING CONSTITUTED A DENIAL
OF DUE PROCESS OF THE LAW AS
GUARANTEED BY THE UNITED STATES
CONSTITUTION IN THAT THE SAME
STANDARDS WERE NOT APPLIED TO
RESPONDENT’S TESTIMONY WHICH WAS
EQUALLY SELFSERVING.

The district court justified its failure to give credit
to Petitioner Rosenfield’s testimony to the fact that it
was “selfserving” because he was trying to avoid the
effect of the guarantees. On the other hand, it
characterizes the testimony of Respondent’s employees
who procured the guarantees, who were seeking to
enforce them and who made the false representations
as being unimpeachable. That testimony was equally
as selfserving as Petitioners.

The court of appeals’ opinion adopts this line of
reasoning. On one hand the opinion rejects Rosenfield’s
“self-serving” statements and the testimony tending to
corroborate them while on the other accepts the bank
employees’ self-serving statements because they
“corroborated” each other. (A. 19-20)

This is especially true when corroborating testimony
was excluded. As discussed below, it was improper to
exclude Shaeffer’s corroborating deposition testimony
on the basis that the bank’s statement made to him in

19

May about a $50,000.00 loan to the corporation could
not possibly corroborate Rosenfield’s statement that a
commitment to fund the additional $50,000.00 in the
future had been made to him by the bank in February.

What is actually involved here is a question of
credibility which is solely within the province of the
jury to decide Glazer v. Glazer, 374 F.2d 390, 400 (5th
Cir.) cert. denied 389 U.S. 831, 88 S.Ct. 100 (1968). In
fact the district court admitted it was making credibility
decisions as between the witnesses (T. 316). Thus, in
the present case the district court clearly made improper
and prohibited decisions as to credibility.

The court of appeals seeks to justify such actions
by finding that Petitioner’s testimony was so self-serving
and unsupported that it was incredible. In a ping so the
court of appeals relies on United States v. Generes, 405
US. 93, 106, 92 S.Ct. 827, 834 (1972). However, the test
for such incredible testimony as set forth in United
States v. Generes requires that no jury could believe
the testimony.

Can it be said, as a matter of law, that no jury
could believe that, based on the testimony of this case,
when Petitioner's Rosenfield executed the guarantee
he believed that the bank had promised to lend his
company an additional $50,000.00 as needed?®

‘Certainly the district court felt there was some possibility of
the jury's believing Petitioners’ testimony since it refused to
allow the case to go the jury stating:

“Just exactly what I feared would happen has happened.
There has been no attempt to present the case on the

20

Equally important is the district court and the
court of appeals application of a double standard as to
what constitutes “selfserving” testimony as between
Petitioners and Respondent. If Petitioner Rosenfield’s
testimony is to be viewed as selfserving because he is
trying to avoid the effect of the guarantees then
Respondent's NEMNB testimony is equally “selfserving”
because they are trying to enforce those same guarantees.
What we have here is a classic case of witness credibility
which must be decided by the jury.

This application of a double standard constitutes a
denial of due process of law guaranteed by the Fifth
Amendment to the Constitution of the United States.

(Footnote 5 Continued)

facts. But there ias been attempts to throw sand in the
eyes of the jury from the very start of this case. I let a lot
of evidence in about surmise and all the prejudicial thing
that have come in.

(T. 312)

“I concluded fairly early in the trial, and certainly after I
heard all of the testimony, that if the jury had brought in
a verdict which supported Mr. Rosenfield, I could not, in
good conscience, permit that verdict to stand.”

(T. 316-317)

21

V.

THE DISTRICT COURT AS A RESULT OF
ITS BIAS IMPROPERLY EXCLUDED FROM
EVIDENCE DEPOSITION TESTIMONY OF
A MATERIAL WITNESS.

Part of Petitioners’ defense was that Respondent
had agreed to provide the company, Mama Tino Inc.,
with an additional $50,000 loan in return for the subject
guarantees. At trial Petitioners sought to introduce
the deposition testimony of Carl Schaeffer, an attorney
for a third party bank which had also lent money to the
company and which had been in negotiation with
Respondent relative to the company. Mr. Schaeffer
would have testified that a vice-president of the
Respondent had admitted in conversation, after the
date of the guarantees, that Respondent intended to
make such a $50,000 loan and later reneged on that
agreement. Such testimony was relevant to corroborate
the fact that a $50,000 loan was in fact an issue between
the parties. The exclusion by the district court was
upheld by the court of appeals because the subject
conversation occurred some three months after the
date of the guarantees. This ignores the fact that the
$50,000.00 was to be funded on an as needed basis in
the future after the guarantees were signed.

Rule 402 of the Federal Rules of Evidence provides
that all relevant evidence is generally admissible. Rule
401 of the Federal Rules of Evidence sets forth the
definition of relevant evidence:

“Relevant evidence” means evidence having
any tendency to make the existence of any

22

fact that is of consequence to the determination
of the action more or less probable than it
would be without the evidence. (Emphasis
added).

The trial judge excluded the deposition testimony
of Mr. Carl Schaeffer, an attorney for Butler’s Bank, on
the grounds that:

[There is nothing in the deposition that indicates
that this promise of $50,000 was made at or

prior to the time the guarantee was given (T.
55).

In excluding Mr. Schaeffer's testimony on this ground,
the district court and the court of appeals virtually
ignored the definition of relevant evidence as set forth
above.

Mr. Schaeffer would have testified that Mr. MacAlear,
one of the bank’s vice-presidents, stated to him that
the bank agreed to make $50,000 in working capital
available to the bankrupt corporation, Mama Tino, Inc.
(R. 670-671).

Under questioning Mr. Schaeffer testified as follows:

Q: So, you have, strictly from your own
memory as apart from a written record, a
recollection that Mr. MacAlear committed New
England Merchants National Bank to make an
unsecured loan unconditionally for $50,000 to
Mama Tino?

A: That is absolutely right. (R. 670-671).

23

This testimony directly and unequivocally supports
what the Defendants have been contending throughout
this litigation; to-wit that there was an agreement to
lend an additional $50,000 in return for the subject
guarantees.

Mr. Schaeffer would have further testified that
Mr. MacAlear told him that after the promise had been
made, the bank decided to renege on it (R. 664).

The fact that these conversations took place
subsequent to the execution of the guarantees is
immaterial in that they nevertheless has a tendency to
show that the $50,000 loan commitment was, in fact,
made. The issue of whether that commitment was made
at the time of the guarantees or later was a fact issue
for the jury to decide. Moreover, Mr. Schaeffer's testimony
would have directly conflicted with that of the bank’s
representatives who denied that the bank had ever
made such a commitment under any circumstances
thus raising the issue of the bank’s credibility which
the court of appeals found to be unimpeachable (T. 197).

Also Mr. Schaeffer’s testimony would have further
corroborated the fact that the $50,000 loan would have
helped to salvage Mama Tino’s situation.

In addition, the testimony of Mr. Schaeffer was
from a witness who was not only impartial, but might
well have been expected to be adverse to the Defendants.
Mr. Schaeffer represented Butler’s Bank, a major creditor
of Mama Tino and an institution which had lost substantial
sums of money as a result of the Mama Tino bankruptcy.
He certainly had no reason, therefore, to be favorably
disposed toward the Defendants. Clearly, Mr. Schaeffer

24

would have been perhaps the only truly disinterested
witness in the trial. His testimony lent considerable
credence and support to that of Rosenfield while, at
the same time, reflected adversely on the believability
and credibility of the bank’s officer.

In excluding the testimony of Mr. Schaeffer the
court ruled, in effect, that such testimony had no tendency
to make the existence of any fact more or less probable
than it would be without such testimony. For the reasons
discussed herein, the exclusion of this testimony was
clear error.

VI.

THE DISTRICT COURT'S DIRECTION OF A
VERDICT IN FAVOR OF RESPONDENT WAS
FATALLY TAINTED BY ITS APPARENT
BIAS, ITS IMPROPER DETERMINATION
OF WITNESS CREDIBILITY AND ITS
IMPROPER EXCLUSION OF EVIDENCE.

As is more fully discussed above the district court
improperly made determinations of witness credibility,
and excluded relevant testimony. Such determinations
were or are arguably the result of the district court's
apparent bias and prejudice against Petitioner Rosenfield
also discussed above.

Even without reference to why it was done had
those credibility choices not been made by district
court and/or the evidence in question not been excluded
the direction of a verdict in favor of Respondent would
have been improper. Therefore, the decision below must
be reversed.

25

CONCLUSION

This is a case of first impression as to the court of
appeal’s failure or refusal to rule on an issue properly
raised on appeal. It should be made clear to all the
courts that they have a Constitutional and statutory
duty to rule on all issues properly raised before them.
The failure to do so constitutes a denial of access to the
courts in violation of the due process of law requirements
of the Fifth Amendment to the Constitution of the
United States.

Further, the district court’s obvious bias and
prejudice below which resulted in improper exclusion
of evidence, improper determination of credibility of
witnesses and the direction of a verdict also constitute
a denial of due process of the law guaranteed by the
Fifth Amendment to the Constitution of the United
States.

For these reasons certiorari should be granted.
Respectfully submitted,

FLOYD PEARSON STEWART
RICHMAN GREER
& WEIL, P.A.
One Biscayne Tower
Twenty-Fifth Floor
Miami, Florida 33131-1868
Phone: (305) 377-0241

Df
By: Zs
ALAN G. GREER

BERTHA CLAIRE LEE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0025%3A1. Public record. Not legal advice.