# Opposition Brief — Alley v. Gubser Development Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_2388%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1986 - **Citation:** 479 U.S. 961 ## Text Supreme Court, U.S. ™ BILED (2) OCT gg 1986 No. 86-314 JOSEPH F. SPANIOL, JR. iv RESPONDENTS’ BRIEF IN OPPOSITION WW. 1 Sees ee tee CAS 2 ARGUMENT: REASONS FOR DENYING THE ES ES et 3 I. The Issue Raised Is Squarely Governed By This Court’s Decision In Donovan v. Penn Shipping Co. Which Was Correctly Applied rn en Se 4 II. There Is No Conflict Among the Circuit Courts Regarding The Effect Of Acceptance Ea 6 Neen nncneeetenannenneienenterintn 11 TABLE OF AUTHORITIES Page CasFs Aaro v. Daewoo International (America) Corp., FO a ROO CECE CI, BO iret. 7 Alley v. Gubser Development Co., 785 F.2d 849 Es Re. Sat ae os Rarer arenes rer eRe eee 1 Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. = iA ek etelipicest notre atl Et* fal oe gerne cede Gar ea 8 Arkansas Valley Land & Cattle Co. v. Mann, 130 re I sciatic aya aie sas sie CWE 6 Arnold v. Eastern Air Lines, Inc., 681 F.2d 186 (4th Cir. 1982), cert. denied, 460 U.S. 1102 (1983) 10 Baltezore v. Concordia Parish Sheriff’s Dept., 767 F.2d 202 (5th Cir. 1985), cert. denied, 106 FE er NEE eel arte a = RS eo PO 7 Blunt v. Little, 3 Mason, 102 (1822) cece 5 Call Carl, Inc. v. BP Oil Corp., 554 F.2d 623 (4th Cir.), cert. denied, 434 U.S. 923 (1977) 0. 6, 7, 10 Chesbrough v. Woodworth, 244 U.S. 72 (1917) .............. § Consumers Power Co. v. Curtiss-Wright Corp., Tour on 4000 (3d Cir. 1986) 2. 5 Dimick v. Schiedt, 293 U.S. 474 (1935) —W.......... 6 Donovan v. Penn Shipping Co., 429 U.S. 648 LL ge Nee ee © ee ee Douglass v. Hustler Magazine, Inc., 769 F.2d 1128 (7th Cir. 1985), cert. denied, 106 S. Ct. on Ee a RR ER IRA RBI eat URE DE Wee ke 5 Fiacco v. City of Rensselaer, New York, 783 F.2d 319 (2d Cir. 1986) 5) G.M. Brod & Co. v. U.S. Home Corp., 759 F.2d 1526 (11th Cir. 1985) TABLE OF AUTHORITIES—Continued Page Kennon v. Gilmer, 131 U.S. 22 (1889) nce escssssssesssee me 9 Koenigsberger v. Richmond Silver Mining Co., Se er > ei a 5, 9 Lewis v. Wilson, 151 U.S. 581 (1894) nn ccseceseesee 9 Northern Pacific Railroad Co. v. Herbert, 116 cm at a Na ae 6 Ohio-Sealy Mattress Manufacturing Co. v. Sealy, Inc., 585 F.2d 821 (7th Cir. 1978), cert. denied, ee By 2 Rei Sapien ea ame Oiecnsere a es ae ee er rN 7 Richards v. Allstate Insurance Co., 693 F.2d 502 8 5 Ae) MERE OM eects Mb Ra ol i eee Fa 5 United Staies v. American Railway Express Co., OR Re cei a ean 10 Woodworth v. Chesbrough, 244 U.S. 79 (1917) ......... 4,5, 8,9 999 v. CI.T. Corp., 776 F.2d 866 (9th Cir. 1985) 5 STATUTES Magnuson-Moss Warranty Act, 15 U.S.C. §§ 2301-2312 (1982) _................. ETE ot en NOI A 2, 3, 8, 9 OtrHER AUTHORITIES FO ee cA ect taesneecace creep maacanabiaemgieiclgtntades 9 Note, Appealability of Judgments Entered Pur- suant to Remittiturs in Federal Courts, 1975 Duke L.J. 1150 00... PO ER ARN 9 No. 86-314 ty. Vv In The Supreme Court of the United States October Term, 1986 ray Vv BARBARA ANN ALLEY and W. H. ALLEY, Petitioners, vV. GUBSER DEVELOPMENT COMPANY, NATIONAL GYPSUM COMPANY, and WEYERHAEUSER COMPANY, Respondents. ra Vv ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT ft). Vv RESPONDENTS’ BRIEF IN OPPOSITION Respondents Gubser Development Company and Nat- ional Gypsum Company respectfully request this Court to deny the petition for writ of certiorari of Barbara Ann Alley and W. H. Alley seeking review of the decision of the Tenth Circuit Court of Appeals that the petitioners’ acceptance of the remittitur ordered by the district court precluded any appeal by the petitioners. That opinion is reported at 785 F.2d 849 (10th Cir. 1986). 2 STATEMENT OF THE CASE Respondents disagree with petitioners’ Statement of the Case in several respects and adopt instead the Tenth Circuit’s discussion of Facts, Trial, Motions For Directed Verdict, and Post-Trial Motions in the opinion below which is included in Appendix B filed by the petitioners. There are, in addition, certain inaccuracies and omissions in petitioners’ Statement of the Case which are particular- ly relevant to the determination of whether the petition for writ of certiorari should be granted. Petitioners, who were the plaintiffs in the trial court, assert that the district court dismissed their claim for attorneys’ fees under the Magnuson-Moss Warranty Act prior to trial. Pet. 8. On the contrary, a verdict was di- rected against the plaintiffs on this claim after the close of their case, based on the district court’s finding that no evidence of property damage or direct damage had been presented. App. B at 14; R. Vol. XXII at 1450. Furthermore, the plaintiffs have neglected to men- tion that the remittitur of punitive damages ordered by the district court was an alternative offered as a means for the plaintiffs to avoid the new trial which otherwise would have been ordered. The district ccurt made clear in its order that should the plaintiffs choose to reject the remittitur of punitive damages, ‘‘a new trial will be or- dered on all issues, because a trial on the issue of punitive damages alone would create undue confusion.’’ App. A at 17-18 (emphasis added). The plaintiffs chose to accept the remittitur and obtain the benefits of the remitted judgment rather than relitigating in a new trial issues which they felt had been incorrectly decided by the dis- trict court. App. B at 21, 33. The Tenth Circuit explained that because the district court’s remittitur order ‘‘em- braced all issues considered in the case,’’ the plaintiffs’ acceptance of the remitted judgment waived their right to appeal any of those issues, including the remittitur it- self, the Magnuson-Moss Warranty Act claim, and the denial of prejudgment interest. App. B at 30-33. 1°) ARGUMENT: REASONS FOR DENYING THE WRIT The Tenth Cireuit Court of Appeals held that the plaintiffs could not appeal various rulings made by the district court because they had accepted the district court’s remittitur order. The decision was based on the partic- ular facts involved and on binding precedent from this Court. Far from presenting a case which necessitates an exercise of this Court’s power of supervision over courts of appeals, the Tenth Cireuit’s decision was required by this Court’s holding in Donovan v. Peun Shipping Co., 429 U.S. 648 (1977). Moreover, claimed conflicts among the varions courts of appeals which have addressed this ques- tion arise entirely from the differing types of fact sit- uations which their opinions have considered. The de- cision below simply does not present important legal prin- ciples which warrant the exercise of this Court’s juris- diction en writ of certiorari. + I. The Issue Raised Is Squarely Governed By This Court’s Decision In Donovan v. Penn Shipping Co. Which Was Correctly Applied By The Tenth Circuit. It is an established precept of federal procedural law that ‘‘a plaintiff in federal court ... may not appeal from a remittitur order he has aecepted.’’ Donovan v. Penn Shipping Co., 429 U.S. 648, 650 (1977). This unequivocal authority was recognized by the Tenth Cireuit and cor- rectly apnlied in its decision in this ease. App. B at 31-33. Although the plaintiffs are attempting to carve out ex- ceptions to this procedural rule, the Donovan decision admits no such tinkering. The preclusion of appeals by plaintiffs who have accepted a remittitur applies without distinction to all issues encompassed by the remittitur order. It is clear beyond cavil that the plaintiffs’ acceptance ‘‘under protest”’ of the remittitur of punitive damages has no legal significance and did not reserve their right to appeal. Donovan, 429 U.S. at 649. Moreover, the prohibi- tion against appeals by a plaintiff after acceptance of a remittitur is equally applicable to attempted cross appeals as direct appeals. Although the Donovan opinion ad- dressed an attempted direct appeal by a plaintiff, the de- cision expressly reaffirms previous Supreme Court au- thority on remittitur practice including at least one case in which a cross appeal was barred. Donovan, 429 U.S. at 649-50. For example, in Woodworth v. Chesbrough, 244 U.S. 79 (1917), a plaintiff who had accepted a remittitur in the lower court attempted to prosecute a ‘‘cross writ of error’’ after the defendant appealed. This Court, reason- *s ~t ing that the plaintiff should not be permitted to retract his consent to the remittitur and yet appeal the judgment which was entered only because of that consent, held that the cross writ must be dismissed. 244 U.S. at 82. The Donovan reaffirmation of Woodworth v. Chesbrough makes it crystal clear that the general procedural rule applies to cross appeals by accepting plaintiffs as well as direct appeals. Donovan, 423 U.S. at 649-50. Additionally, the circuit courts of appeals which have considered this question subsequent to the Donovan decision have uni- formly agreed that no cross appeals can be permitted. See Fiacco v. City of Rensselaer, New York, 783 F.2d 319, 333 (2d Cir. 1986); Consumers Power Co. v. Curtiss-Wright Corp., 780 F.2d 1093, 1099-1100 (3d Cir. 1986); Douglass v. Hustler Magazine, Inc., 769 F.2d 1128, 1145 (7th Cir. 1985), cert. denied, 106 S. Ct. 1489 (1986); 999 v. CLI.T. Corp., 776 F.2d 866, 873 (9th Cir. 1985); G.M. Brod & Co. v. U.S. Home Corp., 759 F.2d 1526, 1541 (11th Cir. 1985) ; Richards v. Allstate Insurance Co., 693 F.2d 502, 506 (5th Cir. 1982). Thus, the plaintiffs’ argument that the pro- hibition against direct appeals does not extend to cross appeals simply does not hold water.' Similarly, the plaintiffs’ futile attack on the general practice of remittitur comes over one hundred and sixty years too late. The propriety of remittitur was officially recognized by Justice Story in Blunt v. Little, 3 Mason, ' Respondents note that plaintiffs have based their argu- ment on the erroneous assertion that at one time neither plain- tiffs nor defendants could appeal after a remittitur had been accepted. Previous decisions of this court indicate that defen- dants’ appeals have always been heard. Chesbrough v. Wood- worth, 244 U.S. 72 (1917); Koenigsberger v. Richmond Silver Mining Co., 158 U.S. 41 (1895). \ 102, 107 (1822) and the use of this device to remedy gross- ly excessive damages awards has been reaffirmed in de- cision after decision, culminating with the Donovan opin- ion in 1977. See Donovan v. Penn Shipping Co., 429 U.S. 648 (1977) and cases cited therein; Northern Pacific Rail- road Co. v. Herbert, 116 U.S. 642, 647 (1886); Arkansas Valley Land & Cattle Co. v. Mann, 130 U.S. 69, 73 (1889). See also Dimick v. Schiedt, 293 U.S. 474, 482-85 (1935). Given this solid history, the plaintiffs’ assertion that re- mittitur practice is based on ‘‘shaky precedents,’’ Pet. 19, is utterly mystifying. Accordingly, the decision of the court below that the plaintiffs’ attempted appeals would not be heard was mandated by the unwavering decisions on the issue from this Court. The granting of the petition for writ of cer- tiorari would not enlarge the body of legal knowledge as the issue raised has previously been decided. II. There Is No Conflict Among The Circuit Courts Regarding The Effect Of Acceptance Of A Remittitur Order. Plaintiffs contend that this Court should grant the petition for writ of certiorari because of the existence of a conflict among the circuit courts regarding appeals from accepted remittitur orders. Essentially, plaintiffs point to Call Carl, Inc. v. BP Oil Corp., 554 F.2d 623 (4th Cir.), cert. denied, 434 U.S. 923 (1977), and argue that this and other circuit court decisions have permitted an appeal by a plaintiff who has accepted a remittitur. How- ever, Call Carl and the other decisions cited by plaintiffs are clearly distinguishable from the instant case and do not establish a conflict among the circuits. ama at el lll a DAE eS tales aan ~] Each of the circuit court decisions cited by the plain- tiffs involves a factual situation in which the district court ordered a new trial solely on the issue of damages unless the plaintiffs consented to a remittitur of the jury verdict. See Call Carl, Inc. v. BP Oil Corp., 554 F.2d 623, 625 (4th Cir.), cert. denied, 434 U.S. 923 (1977); Balte- zore v. Concordia Parish Sheriff’s Dept., 767 F.2d 202, 208 (5th Cir. 1985), cert. denied, 106 S. Ct. 817 (1986); Aaro v. Daewoo International (America) Corp., 755 F.2d 1398, 1406 (11th Cir. 1985); G.M. Brod & Co. v. U.S. Home Corp., 759 F.2d 1526, 1541 (11th Cir. 1985). See also Ohio- Sealy Mattress Manufacturing Co. v. Sealy, Inc., 585 F.2d 821 (7th Cir. 1978), cert. denied, 440 U.S. 930 (1979) (Plaintiff allowed to appeal ruling on equitable relief en- tered after a remitted jury verdict on damages had been accepted in order to avoid a new trial solely on the dam- ages claim). In these cases, if the plaintiffs had rejected the remittitur and forced a new trial, they still would not have had the opportunity to relitigate the other issues ihey were appealing because the scope of the new trial would have been strictly limited to the amount of damages available on the claims on which the previous jury had decided in their favor. Claims which had been dismissed by the district court or on which directed verdicts had been entered could not be addressed in the second trial. Thus, the plaintiffs’ acceptance of the remittitur was un- derstandably not construed as their consent to the pre- vious resolutions of separate issues and a waiver of their right to appeal those issues. Aaro, Inc. v. Daewoo Inter- national (America) Corp., 755 F.2d at 1401. The facts presented in the instant case differ on this crucial point from the cases relied upon by the plaintiffs. Here, the district court’s remittitur order specifically re- quired a new trial on all issues considered in the case because a new trial on punitive damages only would have been too confusing. App. A at 17-18. If the plaintiffs had chosen to reject the remittitur, both the Magnuson-Moss Warranty Act claim and the issue of prejudgment inter- est would have been presented again to the district court for decision. New evidence on each of these issues could have been offered and additional arguments made to the ecourt.2, In choosing the remittitur to avoid a new trial which would have included these issues, the plaintiffs took the benefit of the remitted judgment and gave up their right to appeal. This distinction among the various cireuit court de- cisions is clearly supported by the rationale of Donovan and other Supreme Court decisions. This rationale was first discussed in Woodworth v. Chesbrough, 244 US. 79 (1917), one of the cases reaffirmed in the Donovan opinion. In that case, this Court characterized the ac- ceptance of a remittitur as the condition through which the district court’s final judgment was obtained. 244 U.S. at 82. A rejection of the remittitur by the plaintiff on the other hand would necessarily have foreed a new trial and it is well established that ‘‘[a]n order granting a new trial is interlocutory in nature and therefore not im- mediately appealable.’? Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 34 (1980). Only the plaintiff’s accept- 2 As noted in Respondents’ Statement of the Case, it was the district court’s finding that no evidence of property or direct damage had been presented which led to the directed verdict against the plaintiffs on their Magnuson-Moss Warranty Act claim. a an Tg a OOM eB 9 ance of the remittitur creates a judgment and an appeal- able order. Woodworth v. Chesbrough, 244 U.S. at 82. A plaintiff’s attempt to contest the remittitur order on ap- peal after acceptance is seen as a withdrawal of consent to the remittitur, thus vitiating the judgment itself and returning the proceedings in the lower court to an unap- pealable status. /d. See also Note, Appealab’lity of Judg- ments Entered Pursuant to Remittiturs in Federal Courts, 1975 Duke L..J. 1150, 1155-57; Kennon v. Gilmer, 131 U.S. 22, 29-30 (1889); Lewis v. Wilson, 151 U.S. 551, 554-55 (1894); Koenigsherger v. Richmond Silver Mining Co., 158 U.S. 41, 52 (1895). The district court’s remittitur order in this case re- quired a new trial on all issues. The plaintiffs’ accept- ance of the remittitur, therefore, must be viewed as their consent to the judgment as entered on all issues.2 These issues include the district court’s directed verdict against the plaintiffs on their Magnuson-Moss Warranty Act claim because of the lack of evidence of property or direct damage, as well as the court’s ruling that prejudgment interest would not be added to the judgment because of the plaintiffs’ previous failnre to request it as required by Colorado law. An attempt to appeal the district court’s decision on any of those issues is, therefore, a withdrawal of consent to the remittitur which invalidates the judg- ment itself and precludes any appeal. The Tenth Circuit decision correctly recognized that the rationale of Dono- 7 Contrary to plaintiffs’ assertions, a new trial does not nec- essarily include relitigation of all issues. See Pet. 15. Rule 59 of the Federal Rules of Civil Procedure expressly permits a fed- eral district judge to grant a new trial on all or any part of the issues previously considered. 10 van and its predecessors prohibited the plaintiffs’ ap- peals because of the all-inclusive scope of the remittitur order. The theory espoused by the plaintiffs, that separate and distinct controversies can be appealed after accept- ance of a remittitur, is addressed only in Call Car¥, Inc. v. BP Oil Corp., 554 F.2d 623 (4th Cir.), cert. denied, 434 U.S. 923 (1977). But, as explained above, that decision considered a ease in which a new trial had been ordered on damages only unless the plaintiff accepted a remittitur. Moreover, recent case law from the Fourth Cir- cuit has apparently invalidated the decision in Call Carl. In Arnold v. Eastern Air Lines, Inc., 681 F.2d 186, 205 (4th Cir. 1982), cert. denied, 460 U.S. 1102 (1983), the court of appeals held that a plaintiff who had accepted a remittitur could not challenge the district court’s de- cisions or rulings which had preceded the jury verdict. The Arnold court reasoned that allowing such a cross appeal of an earlier ruling, such as a ruling on a motion for directed verdict, would permit direct circumvention ‘‘of the Donovan prohibition against remitting-plaintiff appellate challenges.’’ 681 F.2d at 205 n.19. The court held that, in such a situation, the remitting plaintiff ‘‘is limited as appellee to defending .. . the judgment as en- tered and may not seek to enlarge her rights under it.’’ Id. at 205. A contrary result would permit plaintiffs to attempt to enlarge their rights under the remitted judg- ment in spite of the long-standing prohibition against such a practice. See United States v. American Railway Ex- press Co., 265 U.S. 425, 435 (1924). Thus, the continuing viaibity of Call Carl even within the Fourth Cireuit is subject to considerable doubt. A grant of certiorari to } \ 11 review an alleged conflict based on mere factual distine- tions and in which the petitioners’ leading case has been effectively overruled would be an exercise in futility. >) CONCLUSION The previous Supreme Court authority on the ques- tion raised by the plaintiffs has provided adequate guid- ance to the courts of appeals in determining the correct result in the individual cases which have been presented to them. The differences in the cirenit court decisions stem from the different types of factual situations in- volved. Properly rejected by the court of appeals in this case, the plaintiffs’ theory does not merit this Court’s consideration. Respectfully submitted, Hueu Q. GottscHaLK (Counsel of Record) ANNE J. CASTLE Houtuanp & Harr 55) 17th Street Suite 2900 Denver, Colorado 80202 (303) 295-8000 Counsel for Respondents Gubser Development Company and National Gypsum Company --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_2388%3A3. Public record. Not legal advice.