Opposition Brief — Cochran v. Cincinnati Insurance Co (No. 06-1528)

H

TLE EN Ma TR

® FILED

JUN 1 8 2007

No. 06-1528 .

“SUPREME COURT. US.

IN THE

Supreme Court of the United States

MATTHEW LEATH COCHRAN, FOREIGN AUTO PARTS OF

MOBILE, INC., and PROFESSIONAL ENGINE SERVICE, INC.,

Petitioners,

Vv.

THE CINCINNATI INSURANCE COMPANY,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES CouRT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF IN OPPOSITION

MICHAEL B. Beers

WILLIAM F. Pattry*

ANGELA TAYLOR BAKER

BEERS, ANDERSON, JACKSON,

PaTTY, VAN HEEsT & FAwaL, P.C.

P.O. Box 1988

Montgomery, Alabama 36102

(334) 834-5311

* Counsel of Record Counsel for Respondent

209257 ce

COUNSEL PRESS

(800) 274-3321 * (800) 359-6859

i

PARTIES TO THE PROCEEDINGS AND

STATEMENT PURSUANT TO RULE 29.6

There are no additional parties to the above styled action

other than Petitioners, Foreign Auto Parts of Mobile, Inc.,

Professional Engine Service, Inc. and the Respondent, The

Cincinnati Insurance Company.

The Cincinnati Financial Corporation is the parent

corporation of The Cincinnati Insurance Company. No

publicly held corporation owns 10% or more of The

Cincinnati Financial Corporation’s stock.

il

TABLE OF CONTENTS

Parties to the Proceedings and Statement Pursuant to

ORS ne

ek kev cece sence nencns

eee

Bm. emeerrnenit OF US FACS 2. ees

Reasons for Denying the Petition ...............

A. The Decision of the Court of Appeals is Not

in Conflict With Decisions of Other Courts of

ELE RPE TEES CERT

B. Petitioners Have Failed to Assert that there is

a Conflict Amongst the Courts of Appeal

regarding the Exclusion of Evidence of the

Alleged Prior Bad Acts of Deese .........

Dee ewe eeeebens

Page

13

it

19

28

til

TABLE OF CITED AUTHORITIES

Page

Cases:

Alabama Nursing Home Ass'n v. Harris,

617 F.2d 385 (Sth Cir. 1980) ..... PEER 14

Blasland, Bouck & Lee, Inc. v. City of North Miami,

ea P20 TSO CLA. BIZ) vn. vv iv keine 17, 27

Cave v. Singletary,

84 F.3d 1350 (11th Cir. 1996) ............ 14, 15, 17

Commerical Union Ins. Co. v. Sepco Corp.,

PES Fae ae CLA GE. BO) onc ccc cccince 14

DirecTV v. Leto,

RGF F.3G OE (306 Cot, BB) oo ok cv cskw ines 14

Dudley ex rel. Estate of Patton v. Penn-America Ins.,

FAS 30 BGs Cae Ce, BOOED kn ie cs iwc cess 17

General Elec. Co. v. Joiner,

Jan Une. 190, 148: S. CX. SIZ CIDST) occ cccns 26

Hubbard v. United States,

ee A ee AE ok ss Vek ba ce 13

In re Rasbury, :

WO FSG IDR CLG Cat. TGRG) ov cc iw cinaweces R¥¢.ae

Lee v. Dallas County Bd. of Educ.,

DTG LECT COU BPTRD ob cc caeaweuccns 22

iv

Cited Authorities

Medley v. Westpoint Stevens, Inc.,

162 F.R.D. 697 (M.D. Ala. 1995) ..

Old Chief v. United States,

519 U.S. 172, 117 S. Ct. 644 (1997)

Omar v. Harvey,

479 F.3d 1 (C.A.D.C. 2007) .......

O’Neal v. Kennamer,

958 F.2d 1044 (11th Cir.) .........

Spring Co. v. Edgar,

hI a Cy |

Tran v. Toyota Motor Co.,

420 F.3d 1310 (11th Cir. 2005) ....

United States v. Abel,

469 U.S. 45, 105 S. Ct. 465 (1984) .

United States v. Board of Educ.,

717 F.2d 378 (7th Cir. 1983) ......

United States v. Cancilliere,

69 F.3d 1116 (11th Cir. 1995) .....

United States v. Jernigan,

341 F.3d 1273 (11th Cir. 2003) ....

United States v. Veltmann,

6 F.3d 1483 (11th Cir. 1993) ......

Page

Cited Authorities

Page

Rules:

Federal Rule of Civil Procedure 59(e) ........... 22

Federal Rule of Evidence 401... ww. cece ees 27

Federal Rule of Evidence 403 .............: 24, 27, 28

Federal Rule of Evidence 404(b) ............... ye ae |

Federal Rule of Evidence 608(b) ............... i

United States Supreme Court Rule 10 ........... 13, 28

]

STATEMENT OF THE CASE

A. Procedural History

In 1999, The Cincinnati Insurance Company (Respondent)

filed a declaratory judgment action which sought to void the

policies of insurance issued to Foreign Auto Parts of Mobile,

Inc. and Professional Engine Service, Inc. (Petitioners) based

on the arson and misrepresentation of Matthew Cochran

(Cochran) [R1]. The case proceeded and in November of 1999,

Cochran filed the first counterclaim against Respondent for

breach of contract [R17].

In June of 2000, the proceedings were stayed pending the

conclusion of Cochran’s criminal trial for second degree arson

regarding the fire at issue [R23]. The stay was lifted in December

of 2001 [R27], the case proceeded. Respondent amended its

complaint to add Petitioners as defendants [R47]. Summary

judgment was granted in favor of Respondent in May of 2002

[R31, R.32, R 34, R35 and R37).

Pursuant to the District Court’s request in December of

2002, Respondent filed a status report detailing the pending

summary judgment claims [R66, R67 and R68] and Petitioners

responded [R69]. A series of motions were filed by Petitioners

[R70, R71, R73 and R78] which were all denied by the District

Court; however, the Court allowed Petitioners to again file an

amended answer or counterclaim [R84]. For the third time

discovery was reopened and new deadlines were set [R84].

Petitioners again amended the counterclaims which alleged

breach of contract, bad faith, misrepresentation, conspiracy and

spoliation of evidence [R87].-After various filings, the District

Court granted, in part, and denied, in part, Respondent’s motion

for summary judgment [R90, R91 and R116) and dismissed the

counterclaims of misrepresentation and spoliation of evidence

[R116].

On December 2, 2003, the District Court set the matter for

a pretrial conference and a trial date of March 2, 2004 [R119].

2

The parties filed a jointly prepared proposed pretrial report on

January 23, 2004 [R120]. Shortly thereafter, Respondent filed

a motion to strike various triable issues set forth by Petitioners

in the proposed pretrial order [R121]. Respondent argued

various triable issues were not previously pled and were not the

subject of discovery in the matter. Although Cochran pled guilty

to 3™ degree arson, his conviction was not set aside until January

30, 2004, in light of a Rule 32 motion filed by the State of

Alabama [R123, P. 9-11].'

On February 2, 2004, a pretrial conference was held

[February 2, 2004 Minute Order] wherein Judge Hand required

documentation as to the status of the criminal case and also

allowed Petitioners to once again amend, for the third time,

their counterclaims for clarification, in particular the allegations

of conspiracy due to the contents of Petitioners’ proposed pretrial

order previously submitted [R122]. The case was stayed once

again [R122]. In February of 2004, Petitioners amended their

counterclaims which alleged new facts to support the same

theories of conspiracy but it also included a newly pled

counterclaim of malicious prosecution [R124]. The attorneys

representing Respondent’s at that time had no choice but to

withdraw as counsel since the new allegations claimed the

attorneys were part of conspiracy to deny insurance coverage

[R135 and R136].

On March 3, 2004, the District Court referred the matter to

a magistrate judge for the entry of a scheduling order for

1. The basis of the Rule 32 motion was an affidavit provided by

the previous prosecutor, George Hardesty, Jr. and information/documents

provided to him by Cochran’s attorney regarding Respondent’s cause

and origin expert, Harold Deese [R123, P.7-8]. Contrary to the assertion

of Petitioners, Hardesty’s affidavit is void of any affirmative statement

that Hardesty definitely would not have tried the case at all had he

known about the allegations of Deese’s claimed unethical activities.

The affidavit does state that had the information been known to him at

the time it “would have very likely influenced” his “decision to prosecute

the case and/or to call Harold Deese as a witness.” [R123, P. 7-8].

3

discovery solely on the new factual issues raised in the amended

counterclaims filed by Petitioners [R138]. By order of August

4, 2004, the District Court denied Petitioners’ new motion for

leave to amend their counterclaims to add co-conspirator

defendants and new RICO claims [R 172 and R179]. On August

23, 2004, yet another scheduling order was entered.” * [R184].

On September 29, 2004, Respondent filed a motion to clarify

[R194] the District Court’s order of February 9, 2004 [R122]

wherein Respondent questioned whether the newly added

malicious prosecution counterclaim fell within the scope of the

court’s previous order which allowed for the amendment to the

counterclaims on a limited basis [R194]. The purpose of court’s

order [R122] was to allow Petitioners the opportunity to clarify

the allegations contained in the proposed pretrial order [R120]

which was filed on January 23, 2004, particularly the conspiracy

allegations, by amending their counterclaims. Petitioners filed

a response in opposition based on the timeliness of the motion

to clarify [R210].

2. The discovery process was protracted and highly contentious.

Petitioners filed discovery requests and motions compelling discovery

that flatly were extremely unreasonable, untimely, contrary to the District

Court’s Orders staying discovery and that failed to comply with the

FRCP. (R181; R184; R192; R193]. For example, Petitioners sought to

compel depositions of Respondent’s CEO before actually noticing it.

For another example, Petitioners filed a motion to compel discovery

when discovery was stayed. In these instances and others, Respondents

and non-parties had to seek court assistance to stop Petitioners’ discovery

abuses.

3. Due to the abuses in the discovery process by Petitioners, on

November 29, 2004, the District Court affirmed its prior order imposing

monetary sanctions against Petitioners’ counsel [R215 and R247].

Petitioners’ counsel was also sanctioned in the U.S. District Court,

Northern District of Florida, Panama City Div., Case. No. 5:05cv93/

RV/MD regarding Petitioners’ issuance and attempted enforcement of

an invalid and patently unreasonable non-party subpoena to Harold

Deese. Petitioners’ counsel appealed the sanctions but this Court recently

denied said Writ; specifically Case No. 06-1310.

4

On October 18, 2004, the District Court granted the motion

to clarify by finding that: (1) Petitioners only attempted to object

on the grounds that the motion to clarify was untimely;

(2) Petitioners’ “slight of hand” inclusion of the malicious

prosecution claim in the amended counterclaim was outside the

scope of what the court allowed in its previous order; and

(3) that at the time of the filing of the proposed pretrial order on

January 23, 2004, Matthew Cochran’s criminal conviction had

not yet be overturned so a malicious prosecution claim would

not have been ripe for adjudication. The court struck the

malicious prosecution claim [R216]. Petitioners requested the

District Court to reconsider said order, or in the alternative,

motion for leave to again amend the counterclaim [R226] which

was denied [R228].

On March 1, 2005, Petitioners filed a Motion /n Limine

seeking to preclude any reference to the criminal investigation

of Matthew Cochran [R 273].* Petitioners claimed evidence

regarding any criminal investigation would “greatly protract the

trial proceedings and be nothing more than a side show” for

Respondent and would cause undue delay and waste of time.

[R273]. The District Court granted, in part, Petitioners’ motion

insofar as it sought to preclude any reference to the fact that a

criminal investigation was undertaken. Petitioners’ motion was

denied, in part, insofar as it sought to preclude testimony

regarding evidence gathered during the course of the

investigation that was relevant to the issues in this case, including

whether the fire was caused by arson. [R274].

On March 7, 2005, the District Court granted Respondent’s

Motion In Limine [R240] precluding mention of the Spread

_ Lounge fire, Deese’s alleged altering of fire scenes/evidence

and Attorney Richardson’s knowledge of the Spread Lounge

4. Petitioners’ Wnit insinuates that an adversary ruling was made

against them in denying their ability to present evidence regarding the

outcome of the state criminal prosecution of Cochran. [Writ, p. 6]. The

record is clear that the District Court granted Petitioners’ own motion

to exclude any mention of the criminal prosecution. {R274]

5

fire [R276]. Only after the entry of the court’s order, Petitioners

filed an objection [R281] to Respondent’s motion limine

regarding alleged prior bad acts of Harold Deese [R240].

On March 9, 2005, Petitioners filed a motion to amend/

correct [R282] the proposed pretrial order [R252] to include

alleged newly discovered evidence and witnesses regarding

allegations of Harold Deese altering fire scenes/evidence. The

District Court, on April 15, 2005, entered an order which

affirmed its prior order on the Spread Lounge fire [R276],

granting Respondent’s motion in limine [R286] regarding the

1991 Chickasaw fire and denied Cochrans’ motion to amend/

correct [R282] the proposed pretrial order [R297]. In October

of 2005, the District Court ruled that Matthew Cochran was not

a proper counterclaim plaintiff and that Cochran could not

maintain any alleged counterclaims against CIC. The order did

not affect the claims pled by Petitioners [R337]. :

B. Statement of the Facts

The entirety of this brief could be consumed by corrections

to all of the misstatements and mischaracterizations of facts

contained in Petitioners’ Writ. Portions of the Statement of the

Case are correct but Petitioners take liberty with the facts and

twists the actual facts into sinister allegations with self-serving

commentary. Therefore, Respondent presents the following:

Respondent issued two fire insurance policies to Foreign

Auto Parts of Mobile, Inc., providing coverage for the building,

business personal property and loss of business income and a

third policy to Professional Engine Service, Inc., regarding

coverage for contents [R297, P. 2]. Matthew L. Cochran, the

owner and officer of the two corporations, is not a named insured -

on the policies of insurance involved in this suit [R297, P. 3].

On November 11, 1998, a fire occurred at the location of

713 Holcombe Avenue, the site for Foreign Auto and

Professional Engine. Both businesses are located under the same

roof and the fire caused significant damage and loss to the

6

structure and the personal property located within the building

[R297, P. 2-3].° The Court, in denying Petitioners’ Motion for

New Trial, concisely summarized the evidence before the jury:

The critical factor in this case is the overwhelming

evidence that defendant Cochran set the fire that

damaged his businesses. The Court will not

regurgitate details by now long familiar, but suffice

it to say that an army of lay and law enforcement

witnesses laid to bare Cochran’s motive to commit

arson, his intention and planning to do so, and his

conduct - starkly inconsistent with innocence - on

the night of November 11, 1998. Cochran did not

aid his cause by offering flimsy explanations and

bald denials of the wealth of evidence against him,

nor by claiming to have witnessed a sudden burst of

flame that even his own expert could not accept.

His effort to turn the case into a battle of experts

foundered on its own inherent implausibilities and

could not in any event erase the mountain of

damming evidence presented by disinterested

witnesses.

[R366, P. 8-9].

The Jury had before it evidence of very serious and severe

financial problems of the business as outlined by accountants -

one hired by Cincinnati and one by Cochran [R383, P. 693: 9-

23; R383, P.725:20 through P. 727:15; R385, P. 1038: 19-25;

P. 1039: 1-8; P. 1041: 9-12; P. 1042: 2-17]. During the time of

financial difficulty, Cochran told an employee that if business

did not improve there would need to be a fire that would appear

electrical with mainly smoke damage so that he would still have

5. Prior to any determination of the cause of the fire, Respondent

paid unto Cochran expenses incurred by him for the clean up of the

property, security for the premises and payroll [R383, P. 719: 3-7] and

also paid two mortgage holders for fire damage [R383, P. 761: 16-25;

P. 717: 1-15}.

7

the business but be able to get new inventory because the existing

inventory was obsolete and Cochran could not sell it [R381, P.

249: 7-12]. Cochran inquired if this person knew someone to

possibly burn the building (R381, P. 248:20-24]. Shortly

thereafter, the fire occurred [R380, P. 196: 17-21}.

Cochran testified that he was dropped off at his office by

an employee on the night of the fire to get his wallet, that he

was alone in the building at the time fire and that he actually

retrieved his wallet. [R380, P. 202: 10-18; R380, P. 203: 10-25;

P. 204: 1-7; R383, P. 729: 7-14; R383, P. 730: 11-23; R383,

P. 729: 25; P. 730: 1-3, 20-22; R383, P. 732:1; R383, P. 735: 5-

10; R383, P. 736: 1-10]. As Cochran entered the room where

the fire originated, he slapped the light switch and immediately

observed sparks below or behind a desk. [R383, P. 735: 5-10; .

R383, P. 735: 19-25; P. 736: 1-10]. This spark allegedly

developed into a flame that quickly climbed the wall behind

the computer desk [R383, P. 737: 10-13]. Cochran claimed it

was an electrical fire which spread rapidly, which according to

his own expert, could not occur in an electrical fire [R383, P.

727: 18-22 and R386, P. 1376: 20-25; 1377: 1-11]. Cochran

also claimed he neither noticed anything-suspicious nor did he

smell smoke the entire time he was walking inside the building

[R383, P. 733: 14-22; P. 738: 5-8]. Testimony from Cincinnati’s

experts indicated, based upon the soot built up on the light

switch, that the switch had not been turned on at the time of the

fire, contrary to Mr. Cochran’s testimony. [R382, P. 477: 17-

25; P. 478: 1-12].

Evidence also shows that there were large quantities of

accelerant in the form of medium petroleum distillates in the

building that were readily available for someone to use to set

the fire [R380, P. 224: 22-25; P. 225: 1-14]. Cincinnati’s experts

and the Assistant State Fire Marshal, Hansen. of the City of

Mobile Fire Department, opined that the fire had multiple points

of origin and was intentionally set by using medium petroleum

distillates [R381, P. 326:17-23; P. 327:15-18; R382, P. 490:

7-24).

8

Additionally, Leonard Burroughs, a lay witness, who did

not know Cochran, unsuspectedly came upon Cochran just when

the fire became involved. [R380, P.125: 14-18]. Burroughs drove

past Foreign Auto, saw black smoke and rolling flames in the

building of Foreign Auto and turned back around at the

intersection to see if the business was actually on fire [R380,

P. 118:15-20; 119:17-20; R380, P. 121:7-9]. Burroughs then

saw Cochran coming toward him from a side street [R380,

P. 120:7-10; R380, P.125:14-18]. Cochran would have had to

exit the rear of his building (which he says he did — meaning he

had to run through the building, pass a wall that was on fire to

the rear of the building — rather than going out the front door

which was a closer more direct path and walked through some

woods behind several other businesses) in order to come out in

the area of this side street [R383, P. 740: 21-25; P. 741: 1-13].

Burroughs asked Cochran if he knew the building was on fire

and if he had called the fire department and Cochran indicated

“yes” to both questions [R380, P. 121:17-19]. Burroughs

testified that Cochran was sweating and was shocked to see

him [R380, P. 122:18-21]. Burroughs observed Cochran walk

about a block down the street away from the burning building

and get into a truck that drove off away from the fire [R380,

P. 121:19-23]. Although Cochran claimed that he ran from the

building and down the street, Burroughs observed Cochran

walking the entire time [R380, P. 121:11-14; R383, P. 742:

4-7].

Burroughs flagged down a police officer and advised what

he observed and the police officer followed the truck Cochran

was riding in as a passenger [R380, P. 123:21-25; P. 124:4-8].

The police officer turned on his lights to stop the truck [R380,

P. 146:5-7]. The driver made two quick evasive maneuvers in

order to avoid the police officer [R380, P. 146:8-20)]. This was

not only observed by the police officer but also testified to by

driver who indicated that he turned down a street to see if the

police were really after him (R380, P. 207: 25; P. 208: 1-7]. The

truck was searched by the police and two cell phones were found

9

[R380, P. 148:22-25]. The cell phones belonged to Cochran and

his business [R380, P. 205: 7-14]. Cochran was carrying one of

the cell phones that night [R383, P. 745: 3-4]. Neither cell phone

was used to call the police or the fire department [R383, P. 744:

21-25; P. 745: 1-7]. Even though the sole reason he went back

to the office was to get his wallet, Cochran did not have his

wallet when the police searched him [R380, P. 175: 1-9; R383,

P. 735: 5-10].

The Mobile County Fire Department responded to the fire

and commenced an investigation the same night. (R238, PP.7-

8, Ff 44, 50). The subsequent investigation by Fire Marshal

Hansen determined multiple points of origin for the fire in the

room of origin [R381, P.294:1-4, 15-22]. Test samples of

carpeting taken by Hansen and previously taken by Fire Marshal

Emmanuel Cook were tested by the Alabama Department of

Forensic Sciences which tested positive for accelerant [R381,

P. 396:21-23; P. 397:16-20; P. 398:6-9, 23-25; P. 399:10-12,

25; P. 400:3-8]. Hansen officially concluded the fire was

intentionally set using an accelerant and not accidental. [R381,

P. 326:17-23; P. 327:15-18].

Cincinnati hired a cause and origin expert, Harold Deese,

who likewise found multiple points of origin [R382, P. 443:

15-25; P. 444: 1-9]. Deese determined, like Fire Marshal Hansen,

that the burn patterns and multiple points of origin indicated

the fire was intentionally set [R382, P. 490: 7-24]. Based upon

their experience in investigating fires, both Hansen and Deese

opined that this fire was incendiary rather than an electrical fire

[R381, P. 326:17-23; P. 327:15-18; R382, P. 490: 7-24].

However, because Cochran interjected or attempted to interject

a possible electrical cause, an electrical engineer, Owen Posey,

was hired to investigate whether there was an electrical cause

to the fire [R382, P. 608:25; P. 609:1-21]. Owen Posey

determined that none of the electrical wiring, outlets, or

equipment showed an electrical cause [R382, P. 626:1-8].

10

There was testimony that Cincinnati thoroughly investigated

this claim and advanced payments pending its ultimate decision.

Cincinnati rendered a decision once the claim was thoroughly

investigated and all possible issues were properly considered

[R383, P. 765: 18-25; P. 766: 1-6; P. 767: 8-17]. The claim file

contained all the investigative and claim adjustment

documentation compiled by Cincinnati over the course of the

claim [R383, P. 753: 1-25; P. 754: 1-25; P. 755: 1-25; P. 756:

1-6].

Days after the fire, after various fire investigators, including

Deese and Posey, had been to examine the scene and left, the

Petitioners claim that Cochran and his best friend, while alone

in the building, found a cord they believed showed the presence

of an electrical short [R380, P. 1066:10-18; R385, P. 1201:

1-25; P. 1202: 1-25; P. 1203: 1-14]. The allegedly discovered

cord was given to Petitioners’ experts who claimed it showed

evidence of an electrical short and could have been the cause of

the fire. Cochran and his best friend did not turn this cord

into the police or the fire department [R386, P. 1276:

1-25]. Petitioners’ expert, Eleanor Posey (who was retained

many years after the fire) also claimed that the cord showed

evidence of shorting [R386, P. 1373: 18-23; 1377:1-3]. However,

Mrs. Posey testified that the fire could not have occurred as

described in previous statements and testimony of Mr. Cochran

[R386, P. 1375:16-21]. Electrical fires would not bum as rapidly

as Mr. Cochran had indicated but rather would burn slowly

[R386, P. 1376:20-25; 1377:1-11]. Mrs. Posey instead gave

testimony that the arcing could have been going on for weeks,

and contrary to Mr. Cochran’s testimony, the fire could have

actually been burning for up to an hour unnoticed by Cochran

[R386, P.1378:24-25; 1379:1-4, 17-21]. Mrs. Posey testified it

was possible that Cochran did not see the smoldering fire in the

room of origin because the smoke was so heavy [R386,

P. 1381:18-24]. This theory contradicts Mr. Cochran’s trial

testimony because he testified he did not see flames nor sniell

smoke when he entered the room [R383, P. 733: 14-22; P. 738:

11

5-8]. The Jury could easily find that Mrs. Posey’s testimony

was unbelievable and would defy common sense.

Testimony from Assistant Fire Marshal Hansen indicated

the location where this wire supposedly shorted and caused the

fire was really not in a point of origin [R381, P. 336:5-14;

P. 371:17-25; P. 372:1-18]. Hansen testified there were separate,

non-communicating areas of origin which was indicative of

an intentional fire [R381, P. 294:21-25; 295:1822]. On cross-

examination, Hansen was presented with various attacks on

Owen Posey’s electrical investigation as well as whether the

scene had been spoiled [R381, P. 285:1-10]. Hansen testified

he could render his opinion based upon the scene he found and

the evidence collected. Hansen believed Owen Posey to be a

credible, reliable source of information and expert with accurate

determinations [R381, P. 283:7-25; P. 284:1-6 and 285:1-10].

Cochran also attacked Cincinnati’s experts as well as the

investigation by Cincinnati. This included presenting multiple

theories such as the test results of Ms. Waters® showing medium

petroleum distillates did not really show medium petroleum

distillates [R382, P. 603: 9-18]. If the Jury did not buy that theory,

Petitioners proffered the alternative theory that there were

medium petroleum distillates all throughout the room due to

tracking [R385, P. 1152: 19-25; P. 1153: 1-3; P. 1160: 24-25;

P. 1161: 1-2].

Additionally, Petitioners also attempted to claim evidence

was destroyed or altered’ by Cincinnati, Deese or Posey

6. Ms. Waters is a separate and independent forensic scientist with

Analytical Forensic Associates who tested the samples taken by Deese

which were submitted for independent analysis.

7. Petitioners claimed the fire scene was altered when certain

electrical cords (inspected and discounted by Petitioners’ experts as the

cause of the fire) were removed by Deese to keep as evidence [R385, P.

1 193:13-25; P. 1194:1-10]. Cochran had full knowledge of the removal

of said items [R385, P. 1197:21-25; P. 1198:1-4]. Petitioners claimed

(Cont'd)

12

[R383, P. 814: 22-25; P. 815: 1-25; P. 816: 1-2].° The Jury

obviously properly rejected these claims seeing through the

hyperbolic, half truths, mis-characterizations, gamesmanship

and rabbit trails.

Petitioners’ Writ, under the section entitled “Evidence

Excluded by the District Court” claims Petitioners proposed to

offer certain evidence at trial regarding the actions and

determinations of City of Mobile Fire Investigator Cook and

Assistant Fire Marshall Dean but were denied the opportunity

by the District Court. [Petitioners’ Writ, p. 9]. This assertion is

patently false and is not an issue properly before this Court.

Petitioners failed to call Cook and Dean as witnesses at the trial

of this matter and then tried to “call foul” in their Motion for

New Trial before the District Court regarding alleged favorable

testimony of Cook [R 358]. The District Court rejected

Petitioners’ argument. given they had known of Cook’s

involvement for years, they had every right to call Cook as a

witness but elected not to do so. [R 366]. Any assertion regarding

said issue should be precluded from consideration.

(Cont'd)

diagram symbols used in different reports were not consistent in meaning

(R382, P. 502:19-25; P. 503:1-10]. No expert claimed that Respondent

or anyone on Respondent’s behalf spiked the fire scene with medium

petroleum distillates [R301, P. 25; Ex. B, P. 234). Further only Cochran

was present, according to him, when the fire began (R383, P. 731:14-

25; P. 732:1-16}.

8. This included Petitioners claiming, during their closing

argument, that an electrical receptacle on the north wall which has an

“N” tag and is shown in different pictures was destroyed by Respondent

{R387, P.1477:22-25; P. 1478:1-2, 6-7]. During her deposition testimony

Eleanor Posey, Petitioners’ expert, admitted she was in possession of

the north wall receptacle, or at least its remains. Eleanor Posey testified

she had been in possession of it for years and took possession of it from

Petitioners’ counsel, Stephen Tunstall [R361, Ex. 1, P.380-385 and

Ex. 2]. This truth did not prevent Petitioners from arguing in their closing

that Respondent destroyed the receptacle for some nefarious purpose

[R387, P. 1477:11-25; P. 1478:1-9].

13

REASONS FOR DENYING THE PETITION |

Rule 10 of the Supreme Court provides that a “review. of a

writ of certiorari is not a matter of right, but of judicial discretion.

A petition for writ of certiorari will be granted only for

compelling reasons.” /d. Further, Rule 10 states that a “petition

for writ of certiorari is rarely granted when the asserted error

consists of erroneous factual findings or the misapplication of

properly stated rule of law. /d. A review of a writ “will be granted

only where there are special and important reasons therefore.”

Omar v. Harvey, 479 F.3d 1, 7 (C.A.D.C. 2007). Justice

Renquist, in a dissenting opinion, admitted “{a] high degree of

selectivity is thereby enjoined upon [the Supreme Court] in

exercising [its] certiorari jurisdiction” and “Rule 10 embodies

the standards by which we decide to grant review.” Hubbard v.

United States, 514 U.S. 695, 720 (1995).

Contrary to Petitioners’ assertions the decision affirmed by

the Court of Appeals in this case is not in conflict with decisions

of other Court of Appeals regarding these issues. This writ

amounts in substance to an argument by Petitioners that the

trial court and the Court of Appeals misapplied proper

evidentiary and procedural rulings. There exists no novel issue

of law involving this case. While omitting relevant and

prejudicial undisputed facts, Petitioners attempt to sensationally

create a grand conspiracy (among the insurance company, the

police, the fire officials, defense attorneys, experts and possibly

judges) through the entirety of their undisputed facts and

argument to erroneously lead this Court to grant their writ. The

issues raised in the Writ are not of monumental importance to

the masses which would trigger discretionary review by this

Court. Petitioners are simply attempting to unseal the fate handed

down by the jury and affirmed by the District Court and the

Court of Appeals.

However, a review of the material, undisputed facts and

law demonstrate that no such conflict or novel, important legal

issue exists. The Eleventh Circuit, pursuant to the deference

14

standard, affirmed the District Court’s striking of the malicious

prosecution claim and under the abuse of discretion standard

found that the exclusion of irrelevant evidence was not erroneous

and declined to disturb the District Court’s proper findings.

There is nothing unreasonable, or even, unusual about the ruling

of the District Court and the concurrence by the Court of

Appeals. Lastly, the decision reached by the District Court and

affirmed by the Court of Appeals in this matter is not one that

has a broad implications or significance to the majority to invoke

review by this Court.

A. The Decision of the Court of Appeals is Not in Conflict

With Decisions of Other Courts of Appeal

The questions presented by Petitioners in its Writ assert

two claims regarding the proper striking of the malicious

prosecution claim; specifically, (1) deference should not be given

to the district court’s order striking the claim because the

authoring judge was not the judge interpreting the prior order

along with a contention that post hoc additions not originally

included were made in interpreting the order, and (2) the timing

in which the malicious prosecution claim was struck was

improper.

Contrary to Petitioner’s assertions, the decision of the Court

of Appeals regarding the procedural issue is not in conflict with

other courts of appeal. Respondent agrees with the cases cited

in the Writ which supports the general rule that deference is

accorded a district court’s interpretation of its own order which

is supported by the Second, Third, Fifth, Seventh and Eleventh

Circuits (United States v. Spallone, 399 F.3d 415 (2" Cir. 2005),

DirecTV v. Leto, 467 F.3d 842 (3 Cir. 2006), Alabama Nursing

Home Ass'n v. Harris, 617 F.2d 385 (5" Cir. 1980), United States

v. Board of Educ. , 717 F.2d 378 (7" Cir. 1983), Cave v. Singletary

84 F.3d 1350 (11' Cir. 1996) and Commercial Union Ins. Co. v.

Sepco Corp., 918 F.2d 920 (11" Cir. 1990)). Respondent;

however, disagrees with Petitioners’ use of a dissenting opinion

and general quotes taken out of context from other courts of

15

appeal cases in an attempt to invoke this Court’s review under

the guise that other courts of appeal have rendered inconsistent

rulings.

In this matter, it was not possible for the authoring judge

(Judge Hand) to interpret his own order since the case had been

re-assigned to another district judge; specifically, Judge Butler.

It is the contention of Respondent that re-assignment of the case

to another district judge is not sufficient basis to exclude the

deference review standard. While Spallone does hold that

“substantial deference” is given to the authoring judge in

interpreting his own orders, Spallone nor any other case cited

by Petitioners support the proposition that no deference is given

to another judge’s interpretation of a prior order entered by the

issuing court. /d. “Court orders are constructed like other written

instruments, except that the determining factor is not the intent

of the parties, but that of the issuing court.” Spallone at 399

F.3d 424. Court orders “must ordinarily be interpreted by

examination of only the ‘four corners’ of the document.”

Spallone, 399 F.3d at 424. Further, deference is afforded a district

court’s interpretation of an order when said interpretation is

reasonable. Cave, 84 F.3d 1354. The District Court properly

struck .the claim for malicious prosecution.

To resolve the dispute regarding the newly added factual

allegations of conspiracy to the proposed pretrial order filed on

January 23, 2004, the District Court allowed Petitioners limited

leave to amend the counterclaims so as to clarify the nature of

the allegations in connection with the counterclaim for

conspiracy [R122]. Specifically, the District Court’s order stated:

[I]n light of the factual allegations made by

[Petitioners] in the proposed pretrial order

(Doc.120), in particular factual allegations in

connection with [Petitioners’] counterclaim for

conspiracy, the Court hereby GRANTS to

[Petitioners] LEAVE TO AMEND their

16

counterclaims (Doc. 87) so as to clarify the specific

nature of their allegations.

[R122] (original emphasis). The key word used in Judge Hand’s

order is “clarify.” Respondent asserts the word “clarify” means

to free from confusion, to make understandable. Petitioners

attempted to amend their counterclaim outside the scope of the

District Court’s Order which was a limited leave to amend [R

122]. Said Order was not an opportunity to add new claims to

the existing counterclaim; Petitioners were simply allowed to

“clarify the specific nature of their allegations.” Id. Judge Butler,

in reviewing all matters related to the order at issue, first found

that Petitioners’ only objection presented was of timeliness

[R210] regarding Respondent’s Motion to Clarify [R194]. Judge

Butler rejected the timeliness argument as Petitioners cited a

non-existent Local Rule and two FRCP rules which were not

applicable to the issue presented by Respondent. [R 216, pgs.

1- 2, Petitioners’ Writ, App. B]. Judge Butler further noted that

Petitioners’ objection “did not claim that Judge Hand intended

to grant leave to add a malicious prosecution claim.”

[R216, p. 2, FN1; Petitioners’ Writ, App. B]. Lastly, Judge Butler

found that the District Court granted leave to amend to clarify

the specific nature of the factual allegations in the proposed

pretrial order and

{g]ranting permission to clarify factual allegations

is not equivalent to granting permission to add

counterclaims. Moreover, [the District Court’s] order

contemplated that the amendments would be based

on the proposed pretrial order which makes no

mention of malicious prosecution. While there is

some overlap between the allegations related to the

conspiracy claim and the late-added malicious claim,

a key element of malicious prosecution (termination

of the underlying action in factor of the party seeking

recovery) could not have occurred until after the

proposed order was filed on January 23, 2004.

17

[R216, p. 2, FN1; Petitioners’ Writ, App. B]. It was clearly within

the purview of the District Court to strike the purported claim

as the addition was not a clarification but an amendment. Further,

at the time the proposed pretrial order was jointly filed by the

parties, a claim for malicious prosecution was not ripe for

adjudication.’ Judge Butler’s review of Judge Hand’s prior order

was not a cursory review nor was it a departure of the accepted

and usual course of judicial proceedings. Judge Butler’s

interpretation of Judge Hand’s order did not change the intent

of or rewrite Judge Hand’s prior order nor did it add post hoc

language which was not originally included in Judge Hand’s

order. While a district court is not permitted to add provisions

to an order that were not there originally, deference will be

provided to a district court’s reasonably interpretation of a prior

order. Cave, 84 F3d. 1354 and Dudley ex rel. Estate of Patton v.

Penn-America Ins., 313 F3d 662 (2 Cir. 2002).

The striking of the malicious prosecution-counterclaim was

not arbitrary but a reasonable interpretation of Judge Hand’s

order. In exercising its discretion, there are “usually a range of

choices” a district court “may make and still be affirmed; there

is not only one right choice for the court to make.” Blasland,

Bouck & Lee, Inc. v. City of North Miami, 283 F.3d 1286, 1298.

(11" Cir. 2002) (see also In re Rasbury, 24 F.3d 159, 168 (11"

Cir. 1994)). Respondent contends that in reviewing the language

of Judge Butler’s order, it is apparent the District Court took

into consideration not only the wording and context of Judge

Hand’s prior order, but also the reasoning which supported the

limited leave to amend the counterclaims to clarify the specific

9. It is irrelevant that Cochran’s criminal case was dismissed three

days prior to the pretrial conference. Cochran’s criminal conviction had

not been set aside on January 23, 2004, when the parties filed their

jointly prepared proposed pretrial order with the District Court. [R120].

Even if Petitioners’ factual allegations contained in the proposed pretrial

order included allegations of malicious prosecution, said claims were

not ripe for adjudication and due to be stricken. [R123, p.13]. Further,

Petitioners’ subsequent Motion for Leave to Amend to add various

counterclaims was denied. [R172].

18

nature of the allegations, the motion to clarify and the motion

to strike. After three scheduling orders, discovery cutoffs and

trial settings [R15, R28 and R84], a review of the procedural

history of the issues involved and the arguments made, the

District Court, within its discretion, properly struck the newly

added malicious prosecution claim as such claim exceeded the

scope of District Court’s order. After the passing of numerous

procedural events and Respondent’s objection to Petitioners

additional factual allegations in the jointly filed Pretrial Report

which were not previously plead, the District Court allowed

Petitioners leave to clarify the nature of their claims; specifically

the conspiracy claims. Petitioners, in the opinion of the District

Court, tried to take such limited leave to clarify as an unbridled

license to add completely new claims to the case which had

been pending for approximately six years in which numerous

deadlines to amend had already expired. As the procedural

history of the case demonstrates, Petitioners had ample time to

amend their counterclaims and assert all valid claims. The

District Court’s order was not an opportunity to reopen the case

to claims never plead before at such late stage in the lawsuit.

Respondent contends the District Court had the discretionary

right to maintain control of this case and to rein in Petitioners’

behavior in light of the various discovery abuses'® so as to move

this case to a conclusion in the interests of judicial economy.

Based on the foregoing, the Court of Appeals properly

afforded deference to the District Court’s reasonable

interpretation of the order striking of the malicious prosecution

claim and found no erroneous departure from the accepted and

usual course of judicial proceedings.

Petitioners also claim it was improper for the District Court

to strike the malicious prosecution claim that was filed 8 months

earlier with no objection posed by Respondent. The District

Court found that Petitioners had exceeded the authority of the

Court’s prior order by adding the malicious prosecution claim

and commented that ‘this sleight of hand went undetected for a

10. See footnotes 2 and 3 above.

19

period of months, and now [petitioners] allege it is too late for

the Court to do anything about it.” [Petitioners’ Writ, App. B].

The District Court found that Respondent’s failure to bring the

discrepancy to the Court’s attention sooner was unimportant

and understandable:

The attorneys who had represented [respondent]

since the beginning of this lengthy litigation were

forced to withdraw when [petitioners] named them

as conspirators in the February 2004 counterclaims.

Since [respondent’s] current counsel was not

involved in the Pretrial Conference before Judge

Hand, the discrepancy would not have been readily

apparent to them. Moreover, [respondent’s] counsel

have not been sitting idly by these past few months,

given the activity in this case.

[Petitioners’ Writ, App. B]. Lastly, the District Court held that

it had the inherent authority to enforce its own orders. Said ruling

is consistent with the case law presented above that a District

Court’s interpretation of its own order will not be disturb unless

said interpretations was not reasonable. The decision rendered

by the District Court and affirmed by the Court of Appeals should

stand undisturbed.

B. Petitioners Have Failed to Assert that there is a Conflict

Amongst the Courts of Appeal regarding the Exclusion

of Evidence of the Alleged Prior Bad Acts of Deese

First and foremost, Petitioners have failed to assert a valid

ground to trigger this Court’s review of the evidentiary ruling

of the District Court and the affirmation by the Court of Appeals.

Further, Petitioners’ Writ is void of any legal analysis to establish

a conflict amongst the other circuits on this issue or any other

basis articulated in Supreme Court Rule 10.

Petitioners have also failed to establish that the District

Court erred in precluding evidence of Harold Deese allegedly

tampering with the Spread Lounge and Chickasaw, AL fire

20

scenes in 1986 and 1991, respectively. Additionally, Petitioners

failed to establish that the District Court improperly excluded

evidence related to Attorney John Richardson’s supposed

knowledge concerning Deese’s alleged illicit activity in 1986.

Since the District Court clearly acted within the bounds and

scope of the Federal Rules of Evidence and applicable case law,

the Court of Appeals, pursuant to an abuse of discretion standard,

affirmed the District Court’s ruling. This Court should uphold

the evidentiary rulings with respect to this issue.

On November 4, 2004, Respondent filed a motion in limine

with respect to the 1984 Spread Lounge fire [R240]. Respondent

sought to preclude alleged evidence that Deese tampered with

the fire scene; whether Attorney Richardson knew whether

Deese tampered with the scene; and, whether Richardson

directed Deese to tamper with the fire in this case on appeal.

The Petitioners failed to file a response to Respondent’s motion.

On March 7, 2005, the District Court, after giving

Petitioners approximately four months to file a response, entered

an order granting, in part, Respondent’s motion as related to

either Deese or Richardson’s involvement in the Spread Lounge

fire [R276]. However, it stopped short of precluding the

admissibility of evidence proving Richardson directed Deese

to tamper with the fire scene. It stated such evidence was

admissible, if such evidence exists [R276, p. 2].'! The District

Court noted that no response had been filed to Respondent’s

. Motion in Limine.

On March 10, 2005, Petitioners filed an objection to

Respondent’s Motion in Limine Regarding Expert Harold Deese

Previously Altering a Fire Scene. [R281]. However, since the

District Court had already ruled on the Motion in Limine , the

objection was actually a Motion to Reconsider. In the motion,

Petitioners argued against precluding evidence related to the

Spread Lounge fire and how Deese tampered with the fire scene

11. Cochran failed to present any evidence at trial that Richardson

directed Deese to tamper with the fire scene as none existed.

21

[R281, P. 1-4; 5-17]. Additionally, Petitioners included new

evidence of the second fire in Chickasaw, AL with fresh

allegations of Deese’s alleged illicit activity and Attorney

Richardson’s alleged involvement in same [R281, P. 4-5].

Once again, on March 9, 2005, Petitioners filed a Motion

to Amend the Pretrial Order; this time, to include new witnesses

and evidence related to the Chickasaw, AL fire [R282]. Said

relief was sought after having already filed three amended

counterclaims, four separate discovery disclosures, the first

pretrial order and after the actual discovery cutoff had passed.

On March 23, 2005, Respondent filed a motion in limine

with respect to the Chickasaw, AL fire; responded to Petitioners’

Motion to Reconsider; and, Objected to Petitioners’ Motion to

Amend the Pretrial Order to include newly discovered evidence

[R286]. Respondent noted the Court already ruled on the

inadmissibility of the Spread Lounge fire; that the evidence

supporting the belief that Deese altered the 1991 Chickasaw

fire scene was unsubstantiated and that the fire itself was not

temporally related to the instant action; finally, that Petitioners’

motion to amend was untimely and failed to provide any

authority to substantiate the sought after relief.

Respondent filed a response to the Motion in Limine

regarding the Chickasaw, AL fire [R289]. Petitioners essentially

adopted by reference their Motion to Reconsider previously filed

[/d.]. Additionally, Petitioners attached as an exhibit the

complaint for declaratory judgement related to the 1991

Chickasaw, AL fire [R289, Ex. A]. Neither party to that

complaint were parties to this action.

On April 14, 2005, the District Court entered an order

[R296]. The Court stated that because Petitioners raised a FRE

404(b) argument with respect to the Spread Lounge fire it would

reconsider its ruling. However, the Court found that Petitioners

failed to meet the 404(b) prior bad act admissibility standard

set forth in U.S. v. Cancilliere, 69 F.3d 1116, 1124 (11" Cir.

1995). Similarly, the Court found that Petitioners failed to meet

22

the Cancilliere standard with respect to the Chickasaw, AL fire.

Hence, the District Court affirmed its prior ruling on the

inadmissibility of the Spread Lounge fire and granted

Respondent’s Motion in Limine with respect to the Chickasaw,

AL fire.

As raised in opposition to the appeal below, the first issue

is whether Petitioners have a right to raise the issue on appeal

whether the District Court erred in precluding evidence of the

Spread Lounge fire after they had not timely raised an objection

to Respondent’s Motion in Limine. [R240]. “[W]Je note that as

a general rule, the failure of a litigant to make timely objections

to alleged errors in the proceedings or to rulings by the court

waives those objections for purposes of appeal unless the error

is so ‘fundamental as to result in a miscarriage of justice’.”

Lee v. Dallas County Bd. of Edu., 578 F.2d 1177, 1179

(5" Cir. 1978).

Based on the District Court’s April 14, 2005 Order [R296],

the only issue that survived the District Court’s March 7, 2005

Order [R276] was whether the District Court should have

allowed evidence of the Spread Lounge fire based upon the

exceptions listed in FRE 404(b). Moreover, said issue was

treated as a Motion to Reconsider, as the Court noted that an

Order had been entered with respect to the inadmissibility of

the Spread Lounge fire, but had not considered same under the

404(b) exceptions. Nonetheless, the Court affirmed its prior

ruling upon consideration of the merits [R296]. Petitioners now

bring this issue on appeal with respect to the admissibility of

evidence related to the Spread Lounge fire.

The rulings by the District Court and the Court of Appeals

regarding the Spread Lounge fire should be upheld. Medley v.

Westpoint Stevens, Inc., 162 F.R.D. 697 (M.D. Ala. 1995) sets

forth the applicable law regarding a Motion to Reconsider:

A motion to reconsider is properly brought to correct

a clear error in the court’s interpretation of either

the facts or law. Rule 59(e) Fed. R. Civ. P. It should

a3

be used in order to prevent manifest injustice,

however, it is an extreme measure, and substantial

discretion rests with the court in granting such a

motion. E.g., O’Neal v. Kennamer, 958 F.2d 1044,

1047 (11" Cir.). (“The decision to alter or amend a

judgment is committed to the sound discretion of

the district court’).

Id. at 698.

The District Court has an enormous amount of discretion

as to whether it should vacate a prior ruling. This Circuit has

elaborated on one of the practical purposes of the abuse of

discretion standard:

Inherent in this [abuse of discretion] standard is the

firm recognition that there are difficult evidentiary

rulings that turn on matters uniquely within the

purview of the district court, which has first-hand

access to documentary evidence and is physically

proximate to testifying witnesses and the jury.

Tran v. Toyota Motor Co., 420 F.3d 1310, 1315 (11" Cir. 2005).

(Citing United States v. Jernigan, 341 F.3d 1273, 1285 (11"

Cir. 2003). Here, the record clearly reflects that this Court should

defer to the District Court’s ruling.

The District Court, citing United States v. Veltmann, 6 F.3d

1483, 1498 (11"" Cir. 1993) stated “{e]xtrinsic evidence that a

witness committed crimes, wrongs, or other acts in the past is

not admissible to prove that he acted similarly on a subsequent

occasion.” The District Court conceded that evidence of a

witness’s other crimes or wrongs may be admitted for other

purposes under FRE 404(b) but set out its analysis of why

Petitioners’ argument failed. Petitioners claimed the purpose of

the evidence was to prove knowledge and absence of mistake.

The District Court first found that Petitioners failed to identify

the alleged knowledge “that should be imputed to [respondent]

or the issue to which that knowledge is relevant.” [R296, p. 2;

24

Petitioners’ Writ, App. E]. The District Court also opined that

Petitioners simply listed various actions of Deese allegedly done

during his investigation to support their absence of mistake

argument; however, Petitioners failed to explain “why the

specifics of the prior acts make it more likely that specific actions

in this case were not due to mistake.” [R296, pgs. 23; Petitioners’

Writ, App. E]. Lastly, in further examining the potential

admissibility under 404(b), the District Court found that the

alleged evidence of prior wrongs was disputed and that the .

“prejudicial effect of such evidence far outweighs its probative

value.” [R296, p. 3; Petitioners’ Writ, App. E]. After careful

consideration, the District Court properly excluded the evidence

as it failed to meet the exceptions stated in FRE 403 under

Cancilliere and lacked any impeachment value under FRE

608(b).

Said decision was not based simply on the predicate that

Deese’s alleged illicit investigation would have to result in a

criminal conviction in order to be admissible, as presented in

Petitioners’ argument.'? To the contrary, the District Court had

ample reason to preclude evidence of the Spread Lounge fire.

First, Deese was neither arrested nor convicted as a result of his

investigation of the Spread Lounge fire. In fact, the investigating

officer admitted that he never had probable cause to even arrest

Deese [R240, P. 3]. Moreover, the investigator was ordered to

cease his investigation of Deese and was removed entirely from

the investigation by his own supervisors [R240, P. 3]. There

was no evidence to suggest this was done by Respondent,

Attorney Richardson and/or Deese.

12. In their appeal to the Eleventh Circuit, Petitioners included

new facts to support their argument, namely that Attorney Richardson

shut down Maddox’s investigation to protect Deese from prosecution

and Petitioners have included said insinuation in their Writ before the

Court [Petitioners’ Writ, p. 8). This fact was of first impression before

the Court of Appeals and should be precluded from consideration in

this matter. Moreover, said theory lacks any supporting evidence, is

merely speculation, and amounts to an accusation of obstruction of

justice. There is nothing in the record to support this libelous statement.

25

Further, the allegations made against Deese with respect to

the Spread Lounge fire vastly differ from the allegations made

in the instant appeal. There, one investigator suspected Deese

of possibly spiking a fire scene with gasoline to give the scene

the false appearance of arson (the government’s fire investigators

had actually ruled the fire an arson based on evidence collected

prior to Deese’s arrival at the scene) [R240, P. 3]. Here, Deese

was never accused of such conduct. Additionally, Deese has

vigorously maintained that he neither removed any evidence

from Petitioners’ shop nor mislabeled the points of origin [R382,

P. 538:23 through P. 540:14; P. 556:23-25; P. 557:5]. The 1986

allegation was never substantiated and Petitioners failed to

substantiate any alleged impropriety on the part of Deese at the

trial of this matter [R240, P. 3].

There is also no causal connection between Respondent

and the Spread Lounge fire. Respondent was simply never a

party connected to the Spread Lounge fire and there is no

evidence that Respondent was even aware of Deese’s

involvement in same [R240, P. 4-5]. Further, the Spread Lounge

fire took place in 1986, approximately twelve years prior the

fire in the instant appeal took place [R240, P. 4]. Finally, the

Spread Lounge fire was labeled arson prior to Deese’s

involvement, which begs the question of how he could be

suspected of impropriety in the first place [R240, P. 5].

The relationship between the Spread Lounge fire and the

instant action was completely remote in both scope and time,

the District Court properly precluded evidence of same. The

Court of Appeals concurred with the ruling of the District Court

hence this Court should affirm the lower court’s ruling on this

matter.

The second issue is whether the District Court erred in

precluding the evidence related to the Chickasaw, AL fire. Again,

Respondent states that the District Court’s ruling is due to be

affirmed. The District Court went through a reasoned analysis

why Petitioners’ objection to Respondent’s Motion in Limine

26

lacked merit. Namely, their objection and reasons to include

the evidence did not meet the Cancilliere standard. Petitioners

failed to state specifically how Deese’s alleged prior bad acts

related to his actions in the instant action prove absence of

mistake, and attempted to offer completely inadmissible proof

of coincidence because Deese has ruled arson in, “70-80% [sic]

of the fire scenes he investigate[d]....” [R296, p. 3], which

essentially and inappropriately states that Deese rubber-stamps

fire scenes.

However, the District Court did not stop its analysis with

the first part of the test in Cancilliere. The District Court

continued in its analysis under the remaining two prongs and

determined the evidence was inadmissible under any part of

the test. While Petitioners argue the District Court failed to note

their objection to the preclusion of the evidence in light of its

breach of contract, bad faith and conspiracy claims, Respondent

notes that the insurance company at issue in the Chickasaw fire

was The Hartford Insurance Company, who was not a party to

this action R286, P. 6]. Petitioners presented no evidence that

Respondent had knowledge of these accusations against Deese.

Moreover, Petitioners failed to produced any evidence of

either probable cause, an investigation, or the arrest and

conviction of Deese for any alleged illegal activity as related to

the aforementioned fire. There was simply a disagreement of

information provided by Deese to the Chickasaw, AL arson

investigator. [R286, P. 3-4]. There is no evidence showing that

Deese either altered or spiked the fire scene, and Deese

vigorously opposes such false innuendos [R286, P. 3, 5].

The Court of Appeals noted in its opinion that it had

“carefully studied the voluminous record on this issue in this

appeal.” [Petitioners’ Writ, App. A]. General Elec. Co. v. Joiner,

522 U.S. 136, 118 S. Ct. 512 (1997) sets forth the proper standard

of review with respect to evidentiary rulings: “We have held

that abuse of discretion is the proper standard of review of a

district court’s evidentiary rulings.” Jd. at 141, 118 S. Ct. at

27

517. (Citing Old Chief v. United States, 519 U.S. 172, 174 n. 1,

117 S. Ct. 644, 647 n. 1 (1997); United States v. Abel, 469 U.S.

45, 54, 105 S. Ct. 465, 470 (1984). Additionally, the Court noted

the grounds mandating the reversal of a District Court’s

evidentiary rulings: “[c]ases arise where it is very much a matter

of discretion with the court whether to receive or exclude the

- evidence; but the appellate court will not reverse in such a case,

unless the ruling is manifestly erroneous.” Id. at 142, 118 S. Ct.

at 517. (Citing Spring Co. v. Edgar, 99 U.S. 645, 658 (1879)).

It is plainly evident the District Court’s rulings were not

manifestly erroneous. Its rulings were grounded in sound

reasoning and logic under the Federal Rules of Evidence and

applicable case law. Petitioners propounded no meritorious

argument why the District Court’s rulings should be reversed,

as the court set forth several grounds underlying why the

evidence was precluded from the record. “When a district court

has discretion, there are usually a range of choices it may make

and still be affirmed; there is not only one right choice for the

court to make.” Blasland, Bouck & Lee, Inc. v. City of North

Miami, 283 F.3d 1286,1298 (11 Cir. 2002). See also In re

Rasbury, 24 F.3d 159, 168 (11" Cir. 1994). The District Court

provided several sound reasons why the evidence related to the

Spread Lounge and Chickasaw, AL fires were due to be

precluded. The rulings were not manifestly erroneous. Thus,

this Court should adopt and affirm the District Court’s

determination that the evidence was properly due to be precluded

and the Court of Appeals subsequent concurrence.

Petitioners claim that in affirming the exclusion of the

evidence, the Court of Appeals rubber-stamped the District

Court’s ruling by providing

no analysis, failed to address any 404(b) issues and

simply concluded that the evidence ‘was not relevant

under Fed.R.Civ.Evid. 401 in the present case, would

unduly prejudice [Respondent] under Fed.R.Evid.

28

403, and failed to meet the exceptions stated in

Fed.R.Evid. 403.’

[Writ, p. 28]. Petitioners; however, have failed to provide any

legal citations to support their contention that because the Court

of Appeals affirmed the lower court’s ruling without any detailed

analysis or lengthy discussion that said affirmation is an

erroneous conclusion of law.

CONCLUSION

Petitioners have wholly failed to submit any evidence and/

or case law to satisfy the requisite criteria to trigger this Court’s

granting review of the Writ of Certiorari. Petitioners have failed

to demonstrate inconsistent decisions amongst the Court of

Appeals as to the procedural issue presented and absolutely no

legal basis to support this Court’s review under Supreme Court

Rule 10 as to the evidentiary issue presented. Based upon the

foregoing, Petitioners’ Writ of Certiorari is due to be denied.

Respectfully submitted,

MicHaAeL B. Beers

WitutaM F. Partry*

ANGELA TAYLOR BAKER

Beers, ANDERSON, JACKSON,

Party, VAN Heest & Fawat, P.C.

P.O. Box 1988

Montgomery, Alabama 36102

(334) 834-5311

Counsel for Respondent

* Counsel of Record