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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2007

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0483%3A2. Public record. Not legal advice.