Appendix — Rosenfield v. New England Merchants National Bank

APPENDIX

TABLE OF CONTENTS

Page

Opinion of the Court of Appeals, July 1,1982...App. 2

Order of the District Court Granting Respondent's

Motion for Summary Judgment as to

Petitioners’ Counterclaim, March 26, 1976 ...App. 28

Relevant portions of Appellants/Petitioners’

Rosenfields Brief on Appeal to the Court of

OS Se eee App. 30

Relevant portions of Appellee/Respondent

NEMNB Brief on Appeal to the Court of

RS ON eee App. 24

Relevant portions of Appellants/Petitioners’

Rosenfields Reply Brief on Appeal to the

Court of Appeal below ................55. App. 35

Relevant portions of Appellant/Petitioners’

Rosenfields Petition for Panel Rehearing on

Appeal to the Court of Appeals below ...... App. 38

Order of Court of Appeals, August 30, 1982

Denying Petition for Rehearing ........... App. 43

App. 1

NEW ENGLAND MERCHANTS NATIONAL BANK,

Plaintiff-Appellee,

Vv.

Coleman R. ROSENFIELD, and Gladys Rosenfield,

Defendants-Appellants.

No. 77-1627.

United States Court of Appeals,

Fifth Circuit.*

Unit B

July 1, 1982.

Diversity action was brought against guarantors

of several defaulted promissory notes. The United States

District Court for the Southern District of Florida, at

Fort Lauderdale, Gus J. Solomon, J., sitting by

designation, rendered judgment against guarantors,

and they appealed. The Court of Appeals, Tjoflat, Circuit

Judge, held that: (1) Massachusetts law applied; (2) any

release of other guarantors did not release defendant

guarantors; (3) defendant guarantor’s self-serving

testimony did not provide probative evidence supporting

condition delivery and cancellation defenses; and (4)

consideration was necessary for statement that guarantors

would not be sued to be enforceable.

Affirmed.

*Former Fifth Circuit Case, Section 9(1) of Public Law

96-452 — October 14, 1980.

App. 2

1. Federal Courts—409

Rule of decision in a diversity case is a matter of

state law selected under the conflicts of law principles of

the state where the district court sits.

2. Federal Courts—157

Where diversity case is transferred to another for

convenience of parties and witnesses, in the interests of

justice, transferee court must apply the conflicts of law

principles of the transferor state unless venue in the

transferor state was improper. 28 U.S. C.A. §1404(a).

3. Guaranty—2

To determine validity of contract of guaranty,

Massachusetts courts look first to the substantive law

the parties select, if any, and ordinarily respect such a

selection unless intolerable conflict with Massachusetts

policy would result.

4. Guaranty—2

Massachusetts law provided the rule of decision

in suit against guarantors of promissory notes where the

guaranties contained no choice of law provision but

incorporated by reference the terms of notes guaranteed,

which provided that Massachusetts law should govern,

and where, in any event, lender accepted the guaranties

in Massachusetts and acted upon them there by renewing

notes of corporation, which operated business in Florida,

and where Massachusetts law governed the underlying

notes.

App. 3

5. Release—2&(3)

Rule of Massachusetts contract law that release of

one potentially liable party releases all is inoperative

where the parties in writing evidence a contrary intent.

6. Guaranty—49

Even if provision of employment agreement with

one guarantor whereby lender agreed not to call upon

him and wife to pay off borrower's debts was equivalent

of a release, such did not release other guarantors

under Massachusetts law where the guaranties

themselves provided that lender could release any of

them without releasing the others and no Massachusetts

public policy required a different result.

7. Guaranty—78(1)

If guaranties of corporation’s promissory notes

were delivered to lender subject to condition that lender

lend an additional amount, failure to make that loan

would bar recovery in suits on the contracts of guaranty.

8. Guaranty—6

Fact that lender conditioned acceptance of guaranty

on receipt of guarantors’ financial statements was of

no significance to the effectiveness of the guaranties,

as the condition was for the sole benefit of the lender,

which was therefore free to waive it.

App. 4

9. Federal Courts—416

Sufficiency of evidence in a diversity case is a

federal question.

10. Federal Civil Procedure—2127

Federal Courts—798

In determining whether to grant a directed verdict,

court must consider all the evidence, not just the evidence

that supports nonmovant’s case, in the light most favorable

to the nonmovant, and if the facts and inferences presented

at trial so strongly favor the movant that a reasonable

jury could not arrive at a verdict against it, court must

direct a verdict, and the same test governs the court

on appeal.

11. Evidence—588

While neither trial nor appellate court may make

credibility choices, neither court is required to accept,

as credible, unsupported, self-serving testimony that flies

in the teeth of unimpeachable contradictory evidence

and universal experience.

12. Guaranty—91

In suit against guarantors of defaulted promissory

notes, trial court was entitled to conclude that lender

had never promised to lend borrower additional money

for working capital as a condition of effectiveness of

stockholders’ guaranties, despite guarantor’s self-serving

testimony that guarantees were so conditioned.

App. 5

13. Guaranty—91

Contention of guarantor that lender had promised

to release guarantors the moment borrower sued third

party was not supported by probative evidence,

notwithstanding guarantor’s self-serving testimony that

lender had made such a promise in conversation with

another guarantor, who denied that such a conversation

had occurred.

14. Guaranty—49

Assuming that lender stated that it would not

bring suit against guarantors, such was no defense to

suit on guaranties in absence of consideration for the

claimed discharge.

15. Federal Courts—906

Where trial court properly directed a verdict,

prejudice to the jury arising from the court’s alleged

conduct during trial was irrelevant.

Appeal from the United States District Court for

the Southern District of Florida.

Before GODBOLD, Chief Judge, TJOFLAT and

THOMAS A. CLARK, Circuit Judges.

TJOFLAT, Circuit Judge:

New England Merchants National Bank of Boston,

Massachusetts (New England Merchants), brought this

App. 6

diversity action against Coleman and Gladys Rosenfield,

the guarantors of several defaulted promissory notes

given the bank by a bankrupt restaurant chain, Mama

Tino, Inc. The amount due on the notes, $371,196, was

not in dispute, but the Rosenfields denied they were

liable to the bank as guarantors. The case was tried to

a jury, and at the close of all the evidence the court

directed a verdict in favor of the bank. In this appeal,

the Rosenfields argue on several grounds that they are

entitled to judgment as a matter of law or, alternatively,

a new trial. None of their argumenis has merit, and we

therefore affirm.

I.

In 1968, Nicholas and Pauline Fiorentino and Coleman

and Gladys Rosenfield, decided to establish a chain of

Italian restaurants. They lacked sufficient capital to

fund the enterprise, so they persuaded several investors,

including Jessup & Lamont, a New York brokerage

firm, to join them. This group formed Mama Tino, Inc.,

and the Fiorentinos and the Rosenfields collectively

purchased the controlling stock interest in the

corporation.’ Mama Tino’s board of directors’ elected

Coleman Rosenfield chairman of the board and treasurer

of the company and Nicholas Fiorentino president and

'The record does not indicate precisely what percentage of

the issued and outstanding shares of Mama Tino, Inc., each of the

Fiorentinos and Rosenfields owned.

*The record does not indicate the size of Mama Tino’s board

of directors or identify any of the directors other than Coleman

Rosenfield, Nicholas Fiorentino and an unnamed representative

of Jessup & Lamont.

App. 7

chief executive officer. Jessup & Lamont became Mama

Tino’s financial advisor.

Mama Tino started its restaurant chain in South Florida

with eight restaurants.’ To obtain the funds necessary

to construct these restaurants and to provide working

capital, Mama Tino borrowed nearly one million dollars

from Butlers Bank Limited of Nassau, Bahamas (Butlers

Bank), and New England Merchants. This borrowing

took place during various stages of restaurant construction

and involved a series of promissory notes, some secured

by restaurant properties and some unsecured. Mama

Tino gave New England Merchants three of the unsecured

notes: a $100,000 note due February 2, 1970; a $50,000

note due February 9, 1970; and a $50,000 note due

March 9, 1970. Coleman Rosenfield executed each note

as chairman of the board.

It soon became apparent that Mama Tino was

undercapitalized. To cure this problem, its board of

directors asked Jessup & Lamont to arrange a public

stock offering. When, after considerable effort, Jessup

& Lamont was unable to bring a stock issue to market,

Mama Tino was forced to look elsewhere for help.

Coleman Rosenfield and Nicholas Fiorentino

contacted Constantinos Philips, assistant vice-president

of New England Merchants, and asked that the bank

renew Mama Tino’s $100,000 note due February 2,

1970, and its $50,000 note due February 9, 1970; “discount”

‘Mama Tino apparently operated its restaurants through wholly-

owned subsidiary corporations. This fact is irrelevant to this

appeal; therefore, we will treat Mama Tino as the owner and

operator of each restaurant.

App. 8

two of Mama Tino’s outstanding secured loans;‘ and

lend $50,000 to Mama Tino for working capital. On

February 2, 1970, Philips wrote Nicholas Fiorentino

stating that the bank would discount the two secured

loans and would renew the two notes if the Fiorentinos

and the Rosenfields guaranteed ail of Mama Tino’s

indebtedness to the bank; the bank, however, would

not lend Mama Tino the additional $50,000 it requested.

Philips also stated that each guarantor would have to

file a personal financial statement with the bank. Nicholas

Fiorentino and Coleman Rosenfield discussed this letter

and decided to proceed in accordance with its tenor. On

February 6, 1970, Coleman Rosenfield, as chairman of

Mama Tino’s board of directors, signed a thirty-five

day $150,000 promissory note, dated February 2, 1970,

payable to New England Merchants, and on February

8, Nicholas Fiorentino hand delivered the note and the

required guaranties to the bank in Boston. On February

10, the bank marked paid the Mama Tino notes due

February 2 and 9, 1970, and entered the new $150,000

note on its ledger. At this time, Nicholas Fiorentino

gave the bank his personal financial statement, but the

other guarantors did not.

Mama Tino was unable to obtain from any source

the working capital it needed, and it developed a negative

cash flow. It did not pay the unsecured notes due New

England Merchants in March 1970, and in April Philips

went to Florida to evaluate Mama Tino’s financial

condition. At an April 9 meeting of Mama Tino’s board

‘The record does not identify the obligee of these loans, the

terms thereof, or what “discount” meant.

App. 9

of directors,’ Philips learned that the company was

technically insolvent and that additional operating funds

were not available. Philips repeated to the board what

he had written Nicholas Fiorentino on February 2:

New England Merchants would make no more loans to

the company. Philips also asked the Rosenfields and

Mrs. Fiorentino for the financial statements they had

neglected to furnish the bank. Mrs. Fiorentino immediately

complied, signing her husband’s financial statement.

But the Rosenfields refused to provide their financial

statements until they discussed the matter with their

attorney, and, in the end, they never submitted their

statements to the bank. Coleman Rosenfield told Philips

that his guaranty might not be enforceable, though he

did not explain why. Philips consequently had Rosenfield

reexecute his guaranty on the spot.

Mama Tino’s board of directors thereafter met

several times to discuss the company’s financial troubles.

By April 21, 1970, the board members concluded that

unless they immediately raised $50,000 in working capital,

the company was headed for bankruptcy. In May, Coleman

Rosenfield proposed that Mama Tino raise the $50,000

by selling its surplus real estate and by instituting a

damage suit against Jessup & Lamont for failing to

‘The minutes of the April 9, 1970, meeting of the board of

directors of Mama Tino were not offered in evidence; nor were the

minutes of any other board meeting. Several witnesses testified

to what transpired at these meetings, however, after referring to

the written minutes, on both direct and cross-examination, to

refresh their recollections. As a result, there was no material

dispute in the evidence as to what took place at any of these board

meetings.

App. 10

perfect a public stock offering.’ The real estate was not

sold, however, and Mama Tino, on June 3, 1970,

commenced proceedings in the Southern District of

Florida for an arrangement under Chapter XI of the

Bankruptcy Act, 11 U.S.C. §701 et seq. (1976). On the

same day Mama Tino brought a damages action against

Jessup & Lamont in Florida state court. The case was

soon dismissed, however, because the court lacked

personal jurisdiction over Jessup & Lamont.

To protect its financial interest in Mama Tino and

to proceed against the Rosenfields and Fiorentinos as

the guarantors of Mama Tino’s debts, New England

Merchants employed a Florida attorney, J. J. Simons.

Simons appeared for the bank in the Chapter XI

arrangement proceedings, but he refused to sue the

guarantors, and so informed them, because the bank

had been referred to him by Coleman Rosenfield. New

England Merchants thus dealt with the guarantors

directly. On June 18, 1970, it contacted Nicholas Fiorentino

and offered to refrain from suing him and his wife on

the guaranties if he would sue Jessup & Lamont and

apply the proceeds of any recovery to Mama Tino’s

indebtedness to the bank.’ Fiorentino did not respond

to this offer, however, so the bank withdrew it. Some

time prior to September 22, 1970, New England Merchants

‘The record does not indicate the legal theory under which

Coleman Rosenfield would have had Mama Tino proceed against

Jessup & Lamont.

"The record does not explain the legal basis of any claim

Fiorentino, or Mama Tino, may have had against Jessup & Lamont.

We assume that the bank was referring to Jessup & Lamont’s

failure to bring a Mama Tino stock issue to market. See note 6,

supra, and accompanying text.

App. 11

obtained from the bankruptcy court various assets of

Mama Tino, including several restaurants, in which the

bank held a security interest.’ The bank then employed

Nicholas Fiorentino to aid it in liquidating some of

these assets and to operate the restaurants the bank

had acquired. As part of this employment arrangement,

the bank agreed not to sue Fiorentino or his wife on

their guaranties.

New England Merchants did not proceed against

the Rosenfields until May 1974, when it demanded that

they pay off the balance due on Mama Tino’s loans. The

Rosenfields refused to pay, and the bank brought this

suit in the United States District Court for the District

of Massachusetts. The Rosenfields promptly moved for

a change of venue pursuant to 28 U.S.C. §1404(a) (1976);

the motion was granted, and the case was transferred

to the Southern District of Florida.

The Rosenfields raised four defenses to New England

Merchants’ claim that they were liable, as guarantors,

for Mama Tino’s $371,196 indebtedness to the bank.

First, they contended that the guaranties they had

executed in favor of the bank had been delivered

conditionally: the guaranties were not to take effect

unless and until the bank loaned Mama Tino an additional

$50,000 for working capital and the Rosenfields and the

Fiorentinos gave the bank their financial statements;

since neither of these conditions was fulfilled, the

guaranties were void. Second, the Rosenfields contended

that the bank orally promised to cancel their guaranties

if they would cause Mama Tino to sue Jessup & Lamont;

*The record contains no additional explanation as to what

these assets were or where they were located.

App. 12

the guaranties were thereafter cancelled on June 3,

1970, when Mama Tino sued Jessup & Lamont. Third,

the Rosenfields contended that the statement of the

bank’s attorney, J. J. Simons, that he would not bring

suit against the guarantors, released the Rosenfields

from any liability to the bank on their guaranties.

Fourth, the Rosenfields contended that the bank released

them as guarantors when it employed Nicholas Fiorentino

to look after some of Mama Tino’s assets and agreed

not to sue the Fiorentinos on their guaranties. 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.

The case was tried to a jury. At the close of al! the

evidence, the bank moved for a directed verdict on all

issues, and its motion was granted. The district court

entered judgment for $371,196, and the Rosenfields

took this appeal.

II.

{1, 2] Our first task is to decide what substantive

law to apply in this case. The rule of decision in a

diversity case is a matter of state law selected under

the conflicts of iaw principles of the state where the

district court sits. Klaxon Co. v. Stentor Elec. Mfg. Co.,

313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). Where,

as here, the case is transferred to another district

pursuant to 28 U.S.C. §1404(a) (1976), the transferee

court must apply the conflicts principles of the transferor

state unless venue in the transferor state was improper.

Van Dusen v. Barrack, 376 U.S. 612, 639, 84 S.Ct. 805,

App. 13

821, 11 L.Ed.2d 945 (1964). In this case, the District of

Massachusetts was a proper venue; therefore,

Massachusetts conflicts rules control.

[3] To determine the validity of a contract,

Massachusetts courts look first to the substantive law

the parties select, if any, and they ordinarily respect

such selection unless an intolerable conflict with

Massachusetts policy would result. Warren Bros. Co. v.

Cardi Corp., 471 F.2d 1304, 1307 n.3 (1st Cir. 1973);

Massengale v. Transitron Electronic Corp., 385 F.2d 83,

86-87 (1st Cir. 1967). Where the parties do not specify

the applicable substantive law, Massachusetts courts

adhere to the conflicts rule that a contract of guaranty

is governed by the laws of the state where the contract

was received and acted upon by the guarantee’s extension

of credit. Milliken v. Pratt, 125 Mass. 374, 376 (1878),

cited in Reporter’s Note, Restatement (Second) of Conflict

of Laws §194 (1971). There is some doubt, however,

whether the Massachusetts courts would follow this

rule today. In Choate, Hall & Stewart v. SCA Services,

Inc., 378 Mass. 535, N.E.2d 1045 (1979), the Massachusetts

Supreme Judicial Court indicated that it soon might

depart from traditional conflicts rules for contracts

and adopt those set forth in the Restatement (Second)

of Conflicts of Laws. Section 194 of the Restatement

(Second) of Conflicts of Laws provides that the “validity

of a contract of [guaranty] and the rights created thereby

are determined, in the absence of an effective choice of

law by the parties, by the law governing the principal

obligation which the contract ... was intended to

secure. . . .” Fortunately, we need not speculate whether

the Supreme Judicial Court would, on the facts before

us, reject the traditional conflicts rule and opt for the

Restatement rule because, as we shall point out, both

App. 14

would require us to apply Massachusetts substantive

law.

[4] With these Massachusetts conflicts principles

in mind, we determine the state to which we must look,

in this case, for the substantive rule of decision. We

first examine the guaranties in question to determine

whether the parties chose the governing law. The

guaranties contain no choice of law provision. They

incorporate by reference, however, the terms of the

Mama Tino notes the Rosenfields guaranteed. These

notes provide that Massachusetts law should govern.

Whether this means that the parties agreed that

Massachusetts law governs the enforceability of these

guaranties is an open question, but one we need not

decide. For the application of either the rule as set

forth in Milliken v. Pratt, 125 Mass. at 376, or the

Restatement rule requires us to follow Massachusetts

law. The former does so because the bank accepted the

guaranties in Massachusetts and acted upon them there

by renewing two of Mama Tino’s notes. The latter does

so because Massachusetts law governs the underlying

notes. In sum, whether we view the case as one in

which the parties stipulated in the guaranties the choice

of law or one in which they did not, Massachusetts

provides the rule of decision. We now consider the four

defenses the Rosenfields interposed in resisting the

bank’s claim for payment.

III.

A.

The Rosenfields contend that as a matter of law

they were released from their guaranties on September

App. 15

22, 1970, when New England Merchants, as part of its

employment agreement with Nicholas Fiorentino, agreed

not to call upon the Fiorentinos to pay off Mama Tino’s

debts. This forbearance by the bank, the Rosenfields

conclude, amounted to an outright release of the

Fiorentinos and, by operation of law, a release of them

as well.’ The Rosenfields cite Hale v. Spaulding, 145

Mass. 482, 14 N.E. 534 (1938), and Matheson v. O'Kane,

211 Mass. 91, 97 N.E. 638 (1912) in support of their

position. The bank counters that these decisions do not

support the Rosenfields because it did not release the

Fiorentinos, but merely entered into a covenant not to

sue which under Massachusetts law is not the equivalent

of a release.

[5,6] It is not necessary for us to decide whether

the bank released the Fiorentinos on September 22,

1970, or merely agreed not to bring suit against them,

because the rule that the release of one releases all is

inoperative where the parties in writing evidence a

contrary intent. Hale v. Spaulding, 145 Mass. at 483, 14

N.E. at 535. In this case, an intention that a release of

one of the guarantors not release the others was evidenced

in the guaranties themselves. The Rosenfields, the

Fiorentinos and the bank therein agreed that the “release

of any person or persons . . . may be effected without

notice to and without releasing the undersigned.”

*Until 1963 Massachusetts followed the rule that the release

of one potentially liable party releases all, absent the showing of a

contrary intention by the parties, whether the claim sounded in

tort or contract. Thereafter, Mass.Gen.Law Ch. 231B §4 foreclosed

application of the rule in tort-claim contexts. See Hayden v. Ford

Motor Company, 278 F.Supp. 267 (D.Mass.1967). The rule remains

applicable to contract cases, however, and we thus apply it here.

App. 16

(Emphasis added.) In short, the Rosenfields agreed that

the bank’s release of the Fiorentinos would not operate

to release them. The Massachusetts courts uniformly

accept the arms-length agreements of contracting parties

unless to do so would be contrary to public policy. See

Massengale v. Transitron Electronic Corp., 385 F.2d at

86-87. The Rosenfields point to no Massachusetts policy

that would require us to depart from this rule, and we

therefore reject their argument that they were released

from guaranty liability on September 22, 1970.

B.

The Rosenfields contend that the district court

erred in directing a verdict in favor of New England

Merchants because the evidence raised jury issues as

to three of their affirmative defenses: (1) their guaranties

were delivered to the bank subject to the conditions

that the bank lend Mama Tino $50,000 for working

capital and that the Rosenfields provide the bank with

their financial statements; (2) their guaranties were

cancelled when, as the bank requested, Mama Tino

brought suit against Jessup & Lamont; and (3) the

statements and conduct of attorney J. J. Simons released

the Rosenfields from liability under their guaranties.

We first determine whether any of these defenses is

legally sufficient, and, if so, whether the district court

was correct in taking it from the jury.

i.

[7, 8] Under Massachusetts law, if the Rosenfields’

guaranties were delivered to New England Merchants

subject to the condition that the bank lend Mama Tino

App. 17

$50,000, the bank's failure to make that loan would bar

its recovery in its suit on the contracts of guaranty.”

See Tilo Roofing Co. v. Pellerin, 331 Mass. 743, 745-46,

122 N.E.2d 460, 462 (1954); Southeastern Bank & Trust Co.

v. Pappas, ___. Mass.App. __, 413 N.E.2d 1142 (1980).

The availability of this defense depends, of course, on

whether a jury could properly have found that the

bank promised to lend Mama Tino $50,000 for working

capital in exchange for the Rosenfields’ guaranties.

[9-11] The sufficiency of evidence is a federal

question. Boeing Co. v. Shipman, 411 F.2d 365, 368 (5th

Cir. 1969) (en banc). In determining whether to grant a

directed verdict, the court must consider all the evidence,

not just the evidence that supports the non-movant’s

case, in the light most favorable to the non-movant.

This test also governs this court on appeal. Jacobs v.

Deaton, Inc., 654 F.2d 385, 386 (1981). While neither we

nor the trial judge may make credibility choices, Glazer

v. Glazer, 374 F.2d 390, 400 (5th Cir. 1967), cert. denied,

389 U.S. 831, 88 S.Ct. 100, 19 L.Ed.2d 90 (1968), neither

court is required to accept, as credible, unsupported

self-serving testimony that flies in the teeth of

unimpeachable contradictory evidence and universal

experience, Ralston Purina Co. v. Hobson, 554 F.2d

725, 728-29 (5th Cir. 1977). See United States u Generes,

405 U.S. 93, 106, 92 S.Ct. 827, 834, 31 L.Ed.2d 62 (1972)

(directed verdict or judgment n. o. v. appropriate where

the self-serving testimony of the non-moving party

“The second condition the Rosenfields allege, that the bank

conditioned its acceptance of the guaranties on receipt of the

Rosenfields’ and the Fiorentinos’ financial statements, is of no

significance. That condition was for the sole benefit of New England

Merchants, which was therefore free to waive it. The Rosenfields

plainly cannot use it to defeat the bank's claim.

App. 18

“does not bear the light of analysis”). If the facts and

inferences presented at trial so strongly favor the movant

that a reasonable jury could not arrive at a verdict

against it, the court must direct a verdict. Boeing Co. v.

Shipman, 411 F.2d at 374. Applying this test to the

facts before us, we conclude that a reasonable jury

could not have found that the guaranties were conditioned

as the Rosenfields contend.

[12] The Rosenfields’ sole evidence in support of

their argument that the guaranties were conditioned

on a $50,000 bank loan is Coleman Rosenfield’s self-

serving testimony that before he executed his guaranty

in February 1970 and, once again, before he re-executed

it in April, New England Merchants said that the guaranty

would not take effect until it loaned Mama Tino $50,000."

The record is replete with evidence that renders

Coleman Rosenfield’s testimony unworthy of any credit.

First, Nicholas Fiorentino testified that the guaranties

were not conditioned on a new $50,000 loan to Mama

Tino, but on the renewal of the outstanding notes.

"The Rosenfields tried to bolster this testimony with the

deposition testimony of Carl Shaeffer, an attorney for Butlers

Bank. Shaeffer testified that as of May 5, 1970, New England

Merchants had refused to lend $50,000 to Mama Tino and that

during May he had several conversations with an officer of New

England Merchants who first told him that New England Merchants

would make such a loan and later that it would not. What New

England Merchants’ officers might have said in May about a

possible loan to Mama Tino obviously had no bearing on whether

in the preceding February or April the bank promised to make a

$50,000 loan in exchange for the guaranties in issue, and the

district court correctly refused to admit Shaeffer’s testimony into

evidence. See Fed.R.Evid. 401 and 402.

App. 19

Secondly, New England Merchants’ officers, principally

Constantinos Philips, said the bank never agreed to

lend Mama Tino the additional $50,000 it needed for

working capital, and their testimony was corroborated

by other, unimpeached, evidence: Philips’ February 2,

1970, letter to Nicholas Fiorentino, which was

communicated to Rosenfield, stating that the bank “must

hold up any further financing until we can grasp a

better understanding of exactly what is and will be

happening. . . . However, as discussed, before we can

renew the notes which are due. . . in the amounts of

$50,000 and $100,000 respectively, I must ask for the

guaranties of yourself, Mrs. Fiorentino, Cole and Mrs.

Rosenfield”; the undisputed statement of Philips at the

April 9, 1970, meeting of Mama Tino’s board of directors,

with Coleman Rosenfield present, that the bank would

not lend the company another $50,000 for working capital;

and testimony concerning the April 21, 1970, board

meeting where the major subject of discussion was whether

Mama Tino would be able to raise an additional $50,000

in funds, and Coleman Rosenfield said nothing to suggest

that New England Merchants had committed itself to

making a $50,000 loan —in fact, he said that no further

bank loans could be negotiated. Finally, there was evidence

presented to the effect that Rosenfield, unable to secure

additional financing, planned to raise the $50,000 by

selling the company’s surplus real estate and by suing

Jessup & Lamont for failing to market a new stock

issue, and he pursued this objective to the end. In the

face of all this evidence, the district court was entitled

to conclude that New England Merchants never promised

to lend Mama Tino another $50,000 for working capital.

The court therefore took appropriate action in not

submitting the Rosenfields’ conditional-delivery defense

to the jury.

App. 20

[13] The Rosenfields contend that even if the

guaranties they signed were valid and otherwise

enforceable, they were cancelled by operation of law

when Mama Tino sued Jessup & Lamont in Florida

state court on June 3, 1970. The guaranties were cancelled,

they say, because the bank promised to release the

guarantors the moment Mama Tino sued Jessup &

Lamont for failing to bring a new stock issue to market.

This defense, like the conditional-delivery defense, is

supported only by Coleman Rosenfield’s self-serving

testimony.

Rosenfield says, simply and boldly, that prior to

June 3, 1970, Constantinos Philips told Nicholas Fiorentino

that New England Merchants would cancel the guaranties

if Mama Tino sued Jessup & Lamont. However, Rosenfield

was not a party to this claimed conversation and

Fiorentino denies that he had any conversations with

the bank regarding a release of its claims against him

before June 3. Fiorentino recalled that he continually

attempted to negotiate his release after that date, but

he insisted that he was not released prior to September

22, 1970, when he and his wife signed the releases

described in Part III A, supra, and that release had

nothing whatsoever to do with a suit against Jessup &

Lamont.

In an attempt to bolster his claim, Rosenfield

introduced a memorandum containing a relevant internal

communication between officers of New England

Merchants, dated June 18, 1970. That memorandum

corroborated what the bank’s officers told the jury

about their conversation with Fiorentino concerning a

possible suit against Jessup & Lamont and effectively

destroyed Rosenfield’s claim that the conversation

App. 21

occurred prior to June 3. The memorandum reads in

pertinent part:

[Vincent Palumbo] and I [R. T. McAlear] called

Nick Fiorentino [today]. . . . Cole Rosenfield

has taken a three week junket to Mexico and

Nick is furious as he feels he has been left

holding the bag. Aside from that we told Nick

that the bank was going to begin legal action

against [Mama Tino,] Nick. and Coleman, as we

had to protect our position. We have agreed

with Nick that if he will file suit against Jessup

& Lamont and the proceeds be applied against

the guarantee, we would not follow up on our

suits against him. This is not in writing anywhere

but is an agreement between the bank and

Nick Fiorentino ... .

Nicholas Fiorentino never accepted the bank’s offer;

nor did he file suit against Jessup & Lamont. There

was no probative evidence to support the Rosenfields’

cancellation defense.

iii.

The Rosenfields contend that attorney Simons’

statement to Coleman Rosenfield that he would not

bring suit against the guarantors in behalf of New

England Merchants, constituted an abandonment by

the bank of the guaranties in issue. The bank’s four-

year delay in instituting this suit is said to be strong

evidence of the bank's intention not to hold the Rosenfields

accountable.

App. 22

[14] For sake of argument, we assume that Simons

made the alleged statement and that the statement is

the bank’s. The Rosenfields nevertheless have no defense.

They gave no consideration to the bank for the claimed

discharge, and consideration was necessary for Simons’

statement to be enforceable at law. Sloan v. Burrows,

357 Mass. 412, 258 N.E.2d 303, 304 (1970); Marcellino v.

Carma, Inc., 3 Mass.App. 722, 324 N.E.2d 629 (1975).

IV.

[15] The Rosenfields’ final claim is that the district

court should have granted their motion for a mistrial.

As grounds for that motion, the Rosenfields referred

to the court’s facial expressions and its statements to

Coleman Rosenfield while on the witness stand, and to

the court’s obvious disbelief of Rosenfield’s testimony,

all of which allegedly prejudiced the plaintiffs’ case

before the jury. Because the court properly directed a

verdict, prejudice to the jury is irrelevant. The judgment

of the district court is

AFFIRMED.

App. 23

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 77-1627

NEW ENGLAND MERCHANTS NATIONAL BANK,

Appellee,

Vv.

COLEMAN R. ROSENFIELD and

GLADYS ROSENFIELD,

Appellants.

ON APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF FLORIDA.

Brief of Appelle, New England Merchants National Bank.

Roger B. Sherman,

Hochberg & Schultz, P.C.,

One Boston Place,

Boston, Massachusetts 02108.

(617) 742-5040

App. 24

Ill. THE COURT CORRECTLY DENIED

ROSENFIELD’S MOTION FOR SUMMARY

JUDGMENT ON THE ISSUE OF ESTOPPEL

Rosenfield asserts that the Trial Court erred in

not granting their motion for summary judgment on

the issue of estoppel. See Rosenfields’ brief at 22-24.

The Bank has already briefed the issue of estoppel and

the related one of fraud and demonstrated that the

Bank was entitled to a directed verdict on these issues.

It would serve no purpose to reiterate those facts and

arguments. Because the Court properly directed a verdict

for the Bank on Rosenfield’s defenses of estoppel and

fraud, it a fortiori acted judiciously in denying Rosenfield’s

motion for summary judgment.

IV. THE COURT DID NOT ERR IN GRANTING

THE BANK’S MOTION FOR SUMMARY

JUDGMENT ON ROSENFIELD’S

COUNTERCLAIM

Rosenfield filed a counterclaim alleging that he

had been fraudulenuy induced to execute his guaranty

(R. 126-27). The Court found the counterclaim barred

by the applicable statute of limitations and hence granted

summary judgment to the Bank on that issue (R. 388).

Rosenfield assigns this ruling as error and essentially

asserts that the Bank should be estopped from raising

the statute of limitations as a defense. See Rosenfields’

Brief at 24-27.

As previously mentioned, the issues of estoppel

and fraud have already been fully briefed and it would

serve no purpose to reiterate those arguments here

except to state that Rosenfield as a practicing attorney

App. 25

and sophisticated businessman would or should have

been aware of the universally short limitation period

for fraud, see Fla. Stat. §95.11 (three years); M.G.L. c.

260 §2A (two years), and of the consequences of failing

to file his action within that period. Having sat on his

rights, Rosenfield is now attempting to excuse his own

lack of diligence because of the conduct of the Bank.

This Court should follow the trial judge in rejecting

such a vacuous argument.

V. THE COURT DID NOT ABUSE ITS

DISCRETION IN EXCLUDING THE

TESTIMONY OF CARL SCHAEFFER

Rosenfield attempted to introduce as evidence the

deposition of Carl Schaeffer an attorney for Butler's

Bank, which was a large creditor of Mama Tino. The

Trial Court excluded the testimony on the grounds

that the evidence was irrelevant and prejudicial (T. 55).

Rosenfield assigns the exclusion as error. See Rosenfields’

Brief at 27-29. The Bank submits that the Court acted

well within its discretion in excluding the testimony.

The focal point of Rosenfield’s case, whether

articulated as conditional delivery, failure of consideration

or fraud, was his claim that prior to and contemporaneous

with the execution of the guaranty, the Bank made

certain representations about providing additional

financing to Mama Tino, which representations caused

Rosenfield to execute the guaranty. At best, the testimony

of Carl Schaeffer indicated that in May of 1970, just

prior to the filing of Mama Tino’s bankruptcy, the Bank

App. 26

in response to prompting by Schaeffer, on behalf of

Butler’s Bank, agreed to make an unsecured loan to

Mama Tino for $50,000.00 (Dep. 17-18). The Bank submits

that this evidence simply does not meet the test of

relevancy.

App. 27

[FILED MAR 26 1976]

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NUMBER FL-75-63-CIV-JE

NEW ENGLAND MERCHANTS NATIONAL BANK,

Plaintiff

vs.

COLEMAN ROSENFIELD AND

GLADYS ROSENFIELD,

Defendants

ORDER

THIS CAUSE is before the Court on

1. Plaintiff's Motion for Summary Judgment

2. Defendants’ Motion for Summary Judgment

3. Plaintiff's Motion for Summary Judgment on

Counterclaim

Upon consideration of the record in the cause, it is

ORDERED and ADJUDGED that

1. Plaintiff's Motion for Summary Judgment is DENIED.

2. Defendants’ Motion for Summary Judgment is

DENIED.

App. 28

3. Plaintiff's Motion for Summary Judgment on the

Counterclaim is GRANTED. The limitations period

on an action for fraud is three years in Florida (F.S.

§95.11) and two years in Massachusetts (M.G.L.A.

c. 260, §2). It is apparent from the face of the

counterclaim that it was not brought within either

limitations period & that running of time was not

tolled.

As authorized by FRCP Rule 56(d), Cases Not Fully

Adjudicated on Motion, this Court finds that the defense

of failure of consideration is not available to Defendants

for the reasons stated in Plaintiff's memoranda. Further,

since Defendants have admitted the execution and

genuineness of the documents sued upon, there are

disputed issues of fact only as to defendants’ remaining

defenses: estoppel and discarge or reasonable belief

that plaintiffs discharged defendants from liability on

the guaranties.

DONE and ORDERED at Miami, Southern District

of Florida, this 26 day of March, 1976.

/s| Joe Eaton

United States District Judge

cc: Wasserman & Salter

Frates, Floyd, Pearson, Stewart, Proenza & Richman

App. 29

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Case No. 77-1627

NEW ENGLAND MERCHANTS NATIONAL BANK,

Appellee,

Vs.

COLEMAN R. ROSENFIELD and

GLADYS ROSENFIELD,

Appellants.

BRIEF OF APPELLANTS

COLEMAN R. ROSENFIELD

AND GLADYS ROSENFIELD

APPEAL FROM THE UNITED STATES DISTRICT

COURT SOUTHERN DISTRICT OF FLORIDA

ALAN G. GREER

GARY D. FOX

FLOYD PEARSON STEWART

RICHMAN GREER & WEIL, P.A.

One Biscayne Tower

Twenty-Fifth Floor

Miami, FL 33131

Telephone: (305) 377-0241

App. 30

POINT III

ALTERNATIVELY TO POINT II ABOVE, THE

TRIAL COURT ERRED IN GRANTING

PLAINTIFF’S MOTION FOR SUMMARY

JUDGMENT ON THE DEFENDANTS’

COUNTERCLAIM.

The Defendants filed a counterclaim against the

Plaintiff in which they sought affirmative relief on the

grounds that they had been fraudulently induced to

execute the guaranties at issue here (R-126-127). The

Counterclaim arose out of precisely the same set of

facts upon which the present action was instituted and

therefore constituted a compulsory counterclaim within

the meaning of Rule 13(a) of the Federal Rules of Civil

Procedure.

In its order of March 26, 1976, the trial court held

that said counterclaim was barred by the applicable

statute of limitation (R-388).

In American Pipe and Construction Co. v. Utah,

414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974), the

United States Supreme Court reiterated the policy

considerations underlying statutes of limitation:

[S]tatutory limitation periods are designed to

promote justice by preventing surprises through

the revival of claims that have been allowed to

slumber until evidence has been lost, memories

have faded, and witnesses have disappeared.

The theory is that even if one has a just claim

it is unjust not to put the adversary on notice to

App. 31

defend within the period of limitation and that

the right to be free of stale claims in time

comes to prevail over the right to prosecute

them.

414 US. at 554. Stated alternatively, statutes of limitations

are designed to protect citizens from stale and vexatious

claims, McDonald v. United States, 315 F.2d 796 (6th

Cir. 1963), and to compel parties to institute actions

within a reasonable time so as to prevent fraud and

other types of deceitful conduct. Dedmon u Falls Products,

Inc., 299 F.2d 173 (5th Cir. 1962).

Each and every one of the above-mentioned policy

considerations was contravened when the trial court

barred the Defendants’ counterclaim. First, the Plaintiff

was in no way “surprised” by the assertion of the

counterclaim because it filed the initial action. Secondly,

the questions of lost evidence, fading memories and

disappearance of witnesses have no relevance here

because the evidence, memories and witnesses to be

offered in support ui the counterclaim would be virtually

identical with that offered in support of the main

complaint. Moreover, the passage of time was the result

of the Plaintiff's conduct not that of the Defendants.

Similarly, the general policy against stale litigation

is inapplicable because, as stated supra, the complaint

and counterclaim arose out of identically the same set

of facts. The counterclaim, in other words, was no more

or less “stale” than the complaint.

Lastly, the order barring the counterclaim had the

effect of rewarding a party (the Plaintiff) whose conduct

was precisely that which statutes of limitations are

App. 32

supposed to penalize. The above-cited authorities condemn

those parties who have slept on their rights and lulled

others into a false sense of security. The Plaintiff in

this case fits directly within that class of litigant.

On or about March 21, 1970 the Board of Directors

of Mama Tino, Inc., the principal debtor, informed the

Plaintiff that the corporation had elected to file a petition

under Chapter XI of the Bankruptcy Act (R-8). At this

point, it became evident to all concerned that Mama

Tino would be unable to meet the terms of the Plaintiff's

notes. The Plaintiff's cause of action against the Defendant

guarantors, therefore, accrued at that point.

Nevertheless, the Plaintiff did not make a demand

for payment from the Defendants until May 10, 1974

(R-5), shortly before the filing of this action. Thus,

there was a time differential of approximately four (4)

years and two (2) months between the filing of the

Chapter XI petition and the first demand for payment.

It can hardly be considered coincidental that Florida

had a four (4) year statute of limitations on fraud actions.

Fla. Stat, §94.11(3)5). Instead, it would appear as though

the Plaintiff took special pains to avoid making its

demands on the Defendants and filing suit until the

four year statutory period had elapsed. In fact, from

the statements of Mr. Simons, the Plaintiff's lawyer, to

the Defendant Rosenfield, that the Plaintiff had no

intention of attempting to enforce the guaranties (T-122),

one might reasonably infer that the Plaintiff intentionally

misled the Defendants into believing that no action

would be taken, therby relieving the Defendants of the

necessity of filing an action based on fraud for the

reasons discussed under Point I, supra.

App. 33

Recognizing that situations arise in which it would

be unfair to invoke the statute of limitation to bar a

party's claim, the United States Supreme Court, in

Burnett v. New York Central R. R. Co., 380 U.S. 424

(1965), stated that:

This policy of repose, designed to protect

Defendants, is frequently outweighed, however,

where interests of justice require vindication

of the Plaintiff's rights.

380 U.S. at 428 (emphasis added). In the present case,

the Defendants respectfully submit that the interests

of justice requiring vindication of the Defendants rights

far outweigh the policy of “repose”. For reasons discussed

supra, virtually every rationale underlying statutes of

limitation mandate that the Defendants be permitted

to maintain their counterclaim. By the same token, to

allow the Bank to be rewarded for its own reprehensible

conduct would violate all of the aforementioned policy

considerations and constitute a substantial injustice to

the Defendants.

POINT IV

THE TRIAL COURT ERRED IN EXCLUDING

THE TESTIMONY OF A WITNESS WHICH

WAS RELEVANT AND CORROBORATED

THE TESTIMONY OF THE DEFENDANT.

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:

App. 34

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Case No, 77-1627

NEW ENGLAND MERCHANTS NATIONAL BANK,

Appellee,

vs.

COLEMAN R. ROSENFIELD, and

GLADYS ROSENFIELD,

Appellants.

ON APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF FLORIDA

REPLY BRIEF OF APPELLANTS.

ALAN G. GREER, ESQUIRE

GARY D. FOX, ESQUIRE

FLOYD PEARSON STEWART

RICHMAN GREER & WEIL, P.A.

One Biscayne Tower

Twenty-fifth Floor

Miami, Florida 33131

Telephone: (305) 377-0241

App. 35

III. THE COURT ERRED IN DENYING

DEFENDANTS’ MOTION FOR SUMMARY

JUDGMENT ON THE ISSUE OF ESTOPPEL.

As discussed above under C and in Defendants’

principal brief at pages 22-24 the trial court did err in

failing to grant Defendant's Motion for Summary

Judgment relative to estoppel. Since that point has

been thoroughly briefed already, it will not be expanded

on here.

IV. THE TRIAL COURT ERRED IN GRANTING

THE BANK’S MOTION FOR SUMMARY

JUDGMENT ON THE ROSENFIELDS’

COUNTERCLAIM.

This issue has been thoroughly briefed in Defendants’

principle brief and will not be reargued here. Defendants

will only point out to the Court that to allow a Plaintiff

such as the Bank to wait over four years to file an

action until the statute of limitations on fraud claims

against itself had run is unconscionable. The Defendants

in this case would never have filed any affirmative

action against the Bank had the Bank not pursued its

claimed guarantees. Therefore, it is specious to say

that the Defendants could have filed first. Such a filing

would have itself insured that the Bank would in turn

raise the guarantees as a counterclaim to any such

affirmative actions on Defendants’ part.

V. THE TRIAL COURT ERRED IN EXCLUDING

THE TESTIMONY OF CARL SHAEFFER.

It has been the position of the Defendants throughout

the course of this litigation that the Bank promised to

App. 36

make the bankrupt Mama Tino’s a $50,000 loan in

exchange for the Defendants’ guarantees. Bank officials

vehemently denied that it had ever made an agreement

to lend the bankrupt an additional $50,000. Thus,

App. 37

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

UNIT B

CASE NO. 77-1627

NEW ENGLAND MERCHANTS NATIONAL BANK,

Appellee,

vs.

COLEMAN R. ROSENFIELD and

GLADYS ROSENFIELD,

Appellants.

PETITION FOR PANEL REHEARING

OF APPELLANTS

COLEMAN R. ROSENFIELD

AND GLADYS ROSENFIELD

APPEAL FROM THE UNITED STATES DISTRICT

COURT SOUTHERN DISTRICT OF FLORIDA

ALAN G. GREER

GARY D. FOX

FLOYD PEARSON STEWART

RICHMAN GREER & WEIL, P.A.

One Biscayne Tower

Twenty-Fifth Floor

Miami, Florida 33131-1868

Telephone: (305) 377-0241

App. 38

PETITION FOR PANEL REHEARING

On July 1, 1982 this Court affirmed the judgment

of the United States District Court for the Southern

District of Florida, Gus J. Solomon, Jr., sitting by

designation in favor of the NEW ENGLAND

MERCHANTS NATIONAL BANK (hereinafter “New

England”).

The Defendants-Appellants GLADYS and

COLEMAN ROSENFIELD (hereinafter “Rosenfield”)

petition the panel for rehearing on the grounds that

the Court’s opinion:

(1) Fails to rule on Defendants-Appellants’ Points

II and III on Appeal concerning their

counterclaim and in fact erroneously states at

page 15345 that these points are “not involved

in this appeal.”

(2) Fails to rule on Defendants-Appellants’ Point

V on Appeal relative to recusal of the trial

judge.

(3) Fails to consider the prejudicial effect of the

trial court’s improper and prejudicial conduct

on the entire trial, the trial record and the

evidence.

(4) Contains critical errors of law concerning the

admissibility of evidence.

(5) Improperly determines the credibility of

witnesses.

App. 39

(6) Misconstrues the legal effect of Defendants-

Appellants’ reliance on the statements of the

attorney for New England that no suit would

be brought against them.

1. Failure to Rule on Points II and III of Appeal.

This Court’s opinion erroneously states at page

15345 that the Defendants-Appellants’ Counterclaim

“is not involved in this appeal.” Points II and III from

Defendants-Appellants’ Brief on Appeal and relevant

to the dismissal of their counterclaim are attached in

reverse order to this Petition as Appendix A. This

clearly demonstrates that Defendants-Appellants did

raise as an issue on appeal the trial court’s dismissal of

their counterclaim as being barred by the applicable

statute of limitations. Defendants-Appellants are entitled

to have these points ruled on by this Court and not

have them summarily and erroneously passed over as

not being involved in the appeal.

In relation to this issue the facts are uncontested

that the lawyer for New England told Defendants-

Appellants that he would not bring a suit against them

and this Court assumed, as a matter of law, that such a

statement was ew England’s statement.' Defendants-

Appellants relied on this statement and took no

affirmative actions to protect their claims against New

England. Thereafter, New England waited over four

years until after the applicable statute of limitations

had run to bring the present action.

‘See page 15349 part iii and point [14] of this Court's opinion.

App. 40

Defendants-Appellants contended on appeal that

based on New England’s having lulled them into non-

action by their lawyer's statement New England should

be estopped from bringing the present action (Point II

on Appeal) or in the alternative, their counterclaim

should not have been barred by the applicable statute

of limitations (Point III on Appeal). Appendix A taken

from Defendants-Appellants’ brief fully addresses these

issues.

Most recently in an opinion dated May 12, 1982

the Florida Courts have ruled that a defendant's

counterclaim is not barred by the statute of limitations

when it is based on the underlying facts and transactions

upon which the plaintiff's claims are also based. Cherney

v. Moody, 413 So.2d 866 (Fla. lst DCA 1982). This

decision has been certified to the Florida Supreme

Court.

Based on the foregoing it is clear that the Defendants-

Appellants’ counterclaim should not be barred by the

applicable statute of limitations or in the alternative

New England should be estopped from pursuing its claims.

2.3. Failure to Rule on Point V of the Appeal

Concerning Recusal and the Effect of the Judge’s

Biased Conduct Below.

Any litigant is entitled to a fair and impartial trial

which is free from bias and prejudice or the appearance

of such. This is the basic tenant of our entire judicial

system. Defendants-Appellants did not receive such a

trial in the present case. The Court passes over this

issue in its opinion. The Court did not address or rule

App. 41

on the issue of whether or not the trial judge should

have recused himself which issue is raised in Point V of

the Defendants-Appellants’ brief.

It is clear on the face of the record that the trial

judge was not impartial. In fact it is equally apparent

that the trial judge sought to control the outcome of

the case so that Defendants-Appellants would lose.

This is demonstrated by the trial court’s own admission

in open court to New England’s trial counsel that:

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).

App. 42

[FILED AUG 30 1982]

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT*

UNIT B

NO. 77-1627

NEW ENGLAND MERCHANTS NATIONAL BANK,

Plaintiff-Appellee,

versus

COLEMAN R. ROSENFIELD and

GLADYS ROSENFIELD,

Defendants-A ppellants.

Appeal from the United States District Court

for the Southern District of Florida

ON PETITIONS FOR REHEARING

( )

Before GODBOLD, Chief Judge, TJOFLAT and CLARK,

Circuit Judges.

PER CURIAM:

IT IS ORDERED that the petitions for rehearing

filed in the above entitled and numbered cause be and

the same are hereby denied.

ENTERED FOR THE COURT:

[illegible]

United States Circuit Judge

App. 43