Opposition Brief — Stuart v. Winter

Supreme Court, U.S

FILED

FEB 41 1993

DEFOE CLERK

No. 92-1206

IN THE

Supreme Court of the United States

OCTOBER TERM, 1992

ROBERT O. STUART,

Petitioner,

V.

WALTER WINTER, GOLDEN ENTERPRISES, INC.,

GOLDEN ENTERPRISES, INTERNATIONAL, INC.,

and WINTER (WALTER W.) INVESTMENTS, INC.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE ELEVENTH CIRCUIT

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

MICHAEL H. KAHN SIDNEY O. SMITH, JR.

KAHN & KAHN, PA. (Counsel of Record)

482 N. Harbor City Boulevard

Melbourne, Florida 32935 DONNA r. BERGESON

(407) 242-2564 ALSTON & BIRD

One Atlantic Center

1201 West Peachtree Street

Atlanta, Georgia 30309-3424

(404) 881-7000

Attorneys for Respondents

i

QUESTIONS PRESENTED FOR REVIEW

1. Whether the Erie doctrine is applicable where there is no

conflict between federal and state law?

2. Whether a district court’s determination in a bench trial

that no partnership existed is an appropriate issue to review by

certiorari pursuant to Supreme Court Rule 10?

3. Whether a district court’s rulings on the admission of evi-

dence at a bench trial are appropriate issues to review by certio-

rari pursuant to Supreme Court Rule 10?

ii

TABLE OF CONTENTS

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Questions Presented For Review.............ccccecescccccccscees

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I.

Il.

IV.

A.

B.

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SUMMARY OF THE ARGUMENT .............

ARGUMENT AND CITATIONS OF

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A.

This Case Does Not Warrant

Discretionary Review Under Supreme

CARE TINS: BD sis nsacnvasccsayetsacssenesnisasenss

The Ene Doctrine Is Inapplicable To This

Case Because There Is No Conflict

Between Federal And State Law.............

The Ruling Of The Trial Court That No

Partnership Was Formed Is Amply

Supported by the Evidence....................

The Trial Court Correctly Ruled On The

Admission of Evidence, But if There Was

Error, It was Harmless Error .................

1. Testimony From Respondent’s Patent

Counsel Was Never Admitted ...........

2. Two Patent Histories Were Correctly

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ill

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TABLE OF AUTHORITIES

Page

CASES

Amadeo v. Zant,

SE ENED sicccasccerssssnesscscssccasses 10

Byrd v. Blue Ridge Elec. Coop., Inc.,

BE EE BED ccenncenccnsscvessesrscneseces 8

City of Carrollton Branch of the NAACP v. Stallings,

829 F.2d 1547 (11th Cir. 1987), cert. denied,

Se I ED cones cocseccdeuscevenessnncsess 1]

Ene R.R. v. Tompkins,

ED csc sccscsscanatessersssesseseecs 6, 7,8

Gulf States Utils. Co. v. Ecodyne Corp.,

Se ee PE Cte GE, BIDE) vc csccccccncsccscces 12

Guaranty Trust Co. v. York,

EINES a cscccncsnscocsecesscctesccnnace 8

Hanna v. Plumer,

P,P CRMODD on cccccescsessscccsnccdsccecess 8

In re Zeits,

31 N.E.2d 209 (Ind. Ct. App. 1941)........... 9

J.M. Schultz Seed Co. v. Robertson,

451 N.E.2d 62 (Ind. Ct. App. 1983)........... 10

Kennan v. Dow Chem. Co.,

717 F. Supp. 799 (M.D. Fla. 1989)............. 14

Knowles v. C. I. T- Corp.,

346 So. 2d 1042 (Fla. Dist. Ct. App. 1977).. 8

McComb v. McCormack,

Boe Rimes AEP Cte GAP. 1947) qn. .cccsccccccccsess 13

Meek v. Metropolitan Dade County,

908 F.2d 1540 (11th Cir. 1990), cert. denied,

Se i ite BE CRE Pes ccscntcccscassenccensctens 11

iV

Musgrave v. Madonna,

341 N.E.2d 789 (Ind. Ct. App. 1976) .........

Perry v. State Farm Fire & Casualty Co.,

734 F.2d 1441 (11th Cir. 1984), cert. denied,

yt. ee). ere

Seaboard Air Line Ry. v. Parker,

62 So. 589 (Fla. 1913) ........cccccccceeseeeeeeee.

Solomon v. Liberty County, Fla.,

899 F.2d 1012 (11th Cir. 1990), cert. denied,

TOE Be IN vrs cn vicsresasiccsnses.

Southern Stone Co. Inc. v. Singer,

665 F.2d 698 (Sth Cir. Unit B Jan. 1982) ....

Swift v. Tyson,

4 WE 1 CIDER) cana ccncscscesececcsscevesvenss.

Uhrig v. Redding,

8 So.2d 4 (Fla. 1942) ......cccccccceceeeeeeeeeees

United States v. Koziy,

728 F.2d 1314 (11th Cir. 1984) cert. denied,

GP Gites ee CRUD crccsekccscecancescescscsense:

United States v. United States Gypsum Co.,

333 U.S. 364 (1948) ......cccceeeeeeseeeeeeeeeeees

Zenith Radio Corp. v. Hazeltine Research, Inc.,

Se SA Be CRD eabinisvccccnstehectenteneniees

12

14

10

10

Vv

Page

STATUTES AND REGULATIONS

Federal

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Pe ie i DE ah cise cccuvecivecvbecusigudutieseents 5, 8, 10

RENEE We RE SNES hedanainitesabisdeseansscisenerieunsaiin y i Ae

Rule 3.06(C)(4) of the Local Rules for the Middle

RAE OE POUNDED Svbbxcdceckocectaees sekesbedsanenes 14

United States Supreme Court Rule 10................ 5, 6, 15

United States Supreme Court Rule 15................ 2

State

la. Stat. Ann. § 90.507 (West) ..............0....cc eee 13

Fla. Stat. Ann § 620.585 (West) ...................c0008 8,9

Ind. Code Ann. § 23-4-1-6 (Burns) .................... 8,9

Ind. Code Ann. § 23-4-1-18 (Burns) ................... 9

MISCELLANEOUS

Charles A. Wright & Arthur R. Miller,

Federal Practice and Procedure,

IE Ucn aaens biuhednanneecn sicasautaan’ 10

Charles W. Ehrhardt,

Florida Evidence,

TU NEE sac sieuds idundvachudsnatnngannsuuscecte 13

Unif. Partnership Act § 18(a)...............csccceeceeeeeees 9

L

STATEMENT OF THE CASE

A. Course of Proceedings.

Petitioner filed his Complaint against Respondents Walter

Winter (“Winter”) and Golden Enterprises, Inc. (“Golden”) on

July 28, 1989, alleging breach of an oral partnership agreement

and requesting the district court to grant an accounting and

impose a constructive trust. (R1-1). Petitioner moved for Sum-

mary Judgment on December 8, 1989. (R2-37). On February 2,

1990, the district court denied Petitioner’s Motion for Summary

Judgment. (R3-61). Petitioner filed a Motion to Amend its Com-

plaint to Join Additional Parties on April 4, 1990 (R4-86) which

was granted. (R4-106). Petitioner thereupon filed an Amended

Complaint on April 30, 1990 (R4-122), which was answered by

Respondents, who asserted affirmative defenses and counter-

claims. (R7-180). On April 25, 1990, the district court entered a

preliminary injunction which allowed the conduct of normal busi-

ness activities, but otherwise maintained the status quo by pre-

serving the assets of Golden pending decision of whether a

partnership was formed between the parties. (R4-119). On

April 30, 1990, a Stipulation and Joint Motion was filed which was

granted by the court on May 2, 1990, in which all parties requested

the district court to separate the issue of the existence, terms,

respective rights, duties and contributions of the alleged partners

(denominated “Partnership Issues”) for purposes of discovery

and trial from all other issues, including affirmative defenses

yalthough the statute of frauds was later tried by consent).

(R5-124; RS-N).

From February 14, 1991, through February 22, 1991, a bench

trial was held before the Honorable Richard B. Kellam, Senior

Judge sitting by designation, solely on the issue of whether a

partnership existed between Robert O. Stuart (“Petitioner”) and

the Respondents. (R12-R22). On June 12, 1991, the district court

entered its Opinion and Order (Petition, A4-A27) which found,

inter alia, that no partnership was ever formed between Stuart and

either Winter or Golden. On July 8, 1991, the district court

entered a Final Judgment with regard to the Partnership Issues

which stated that Respondents never formed a partnership or

2

agreed to form a partnership with Stuart at any time for any

purpose. (Petition A3). Therefore, the preliminary injunction

entered to preserve the assets of Golden pending trial on the

Partnership Issues was dissolved. (Petition A3).

On June 26, 1991, Petitioner filed a Notice of Appeal.

(R11-294). Jurisdiction in the Court of Appeals was founded upon

28 U.S.C. §§ 1291 and 1292(a). The Court of Appeals affirmed the

decision of the district court on October 20, 1992, without opinion

(Petit:on A1), pursuant to 11th Cir. Rule 36-1, which allows for an

affirmance without opinion where “an opinion would have no

precedential value.”

B. Statement of Facts.

Pursuant to Supreme Court Rule 15.1, Respondents assert

that the majority of facts set out in the Petition have been mis-

stated, because they were disbelieved by the district court.

Respondents set out hereafter its statement of facts, the gist of

which is set out and adopted in the district court’s Opinion and

Order. (Petition, A4-A27).

Winter has been involved with technical aspects of and mar-

keting in the telephone industry since the 1970’s. (R19-p.309;

R20-pp.145-156). Winter formed Golden Enterprises, Inc. in

1974. (R19-p.243). Traditionally, Golden has held Board Meetings

in June of each year. Winter took minutes, typed them up soon

after each Board meeting and made them available for review by

Board members. Furthermore, the minutes of each previous

meeting were reviewed at the following annual Board Meeting.

(R20-pp.161-162, 167-169; R21-pp.237, 285-286, 289-290). Winter

and Golden have developed a series of devices which were

designed to improve the tone of service of telephone operators.

(R20-pp.145-155).

In 1982, Golden employed Dr. Kathleen Thomas as a con-

sultant to review an instructional program developed by Golden.

(R20-pp.116-119, 156-158). In reviewing the program,

Dr. Thomas became acutely aware of the tedium, fatigue and

3

repetitive nature of the telephone operator’s job.

(R20-pp.119-121). In April or May of 1983, Dr. Thomas told

Winter that one way of truly improving the tone of service of a

telephone operator while reducing the stress, fatigue and tedium

of the operator’s job would be to record the operator’s voice and

automate the greeting phrase portion of the call.

(R20-pp.120-122, 158-159). Winter reported her suggestion to the

Board of Directors of Golden at its annual meeting on June 1,

1983 and tasked an engineer employed by Golden, Steve Gothard,

to ascertain whether Dr. Thomas’ suggestion was technologically

feasible. (Def. Ex. 24; R20-p.160; R21-pp.211-212). In the sum-

mer and early fall of 1983, Golden pursued the development of

the new device which was later named the Personalized Response

System (“PRS”). (R21-pp.213-214).

Petitioner, Robert Stuart, had worked for Indiana Bell since

1962 in a variety of different jobs. (R13-pp.223-224). In 1983,

Petitioner was a Division Manager for Indiana Bell in charge of

operator services. (R13-p.226). By January, 1984, Golden had

developed a PRS prototype; therefore, Dr. Thomas wrote Peti-

tioner, now an AT&T employee, on January 20, 1984 and recom-

mended the use of the PRS as one way of improving operator tone

of service. (Def. Ex. 8; R20-pp.125-126). In late January or early

February, 1984, Winter and Dr. Thomas met with Petitioner in

Indianapolis. At a dinner meeting, Winter and Thomas presented

in detailed fashion the PRS concept to Petitioner and one of his

staff members at AT&T, Ms. Cheri Erwin (‘‘Erwin’’).

(R20-pp.49-57, 122-124; R21-pp.216-217). After the meeting,

Petitioner gave Erwin the job of working with Winter, on behalf of

AT&T, to help develop the PRS device. (R20-pp.57-58;

R21-pp.217-218).

On April 18, 1984, Golden applied for a patent on the PRS.

In the early summer, 1984, AT&T’s interest in the PRS acceler-

ated. In July, 1984, Petitioner wrote to Mr. William McGowan, an

AT&T division manager, and mentioned that AT&T might be

interested in becoming Golden’s partner in joint development of

4

the PRS product. (Def. Ex. 16; R15-pp.249-251). Petitioner testi-

fied that Winter was interested in having AT&T as a partner

because of Golden’s lack of funds. Winter also believed that the

prospect of marketing the PRS would be greatly enhanced with

AT&T as Golden’s partner. (R15-pp.228, 251).

After AT&T evinced interest in the PRS, Petitioner began to

pressure Winter to give him stock in Golden or to form a partner-

ship with Winter and/or Golden. (R21-pp.235-236). However,

Petitioner testified that he was only interested in being a stock-

holder or partner if the PRS achieved success. (R16-pp.35, 42-43,

51; R22-p.52). Winter told Petitioner that Golden had minority

shareholders, that each shareholder was a member of the Board

and had one vote, and that the Board would have to approve

Petitioner’s request for stock or any partnership. (R16-pp.55-56;

R20-pp.169-170). On June 30, 1984, at Golden’s annual Board

Meeting, Winter formally conveyed Petitioner’s request for stock

to the other board members. The Board refused Petitioner’s

request for stock. (Def. Ex. 25; R21-pp.237-240). Winter told

Petitioner of their refusal soon thereafter. (R21-p.239).

On August 15, 1984, AT&T convened a committee to study

the PRS, which held monthly meetings. (R21-pp.248-249). How-

ever, after several trials, AT&T rejected industry-wide implemen-

tation of the PRS on January 27, 1986. (Def. Ex. 44;

R15-pp.252-256; R21-pp.272-273). Petitioner continued to press

Winter for Golden’s stock even after AT&T rejected the PRS.

Winter reported Petitioner’s demands to his fellow board mem-

bers at the Board of Directors’ Meeting on June 14, 1986. As

before, the Board rejected Petitioner's demands. (Def. Ex. 27;

R21-pp.285-288). Thereafter, Petitioner wrote. Winter on

August 6, 1986, offering three different partnership proposals. In

the letter, Petitioner requested Winter accept one of the proposals

in writing by August 25, 1986, which Winter never did.

(R16-pp.101-102; Def. Ex. 14). The first of two patents with

respect to the PRS device was issued on November 18, 1986, with

Walter Winter, John Drew and Steve Gothard, all Golden employ-

ees, named as inventors. (See generally Pl. Ex. 16).

5

Il.

SUMMARY OF THE ARGUMENT

Respondents respectfully assert that this case does not fit

within the parameters of Supreme Court Rule 10 which authorizes

discretionary review. This case does not involve an issue where

there is a conflict among the circuits, does not involve a federal

question nor does it involve a departure by the district court (or

the Eleventh Circuit Court of Appeals) from the accepted and

usual course of judicial proceedings. Rather, this case involves a

garden variety factual dispute. The recitation of the “facts” by

Petitioner throughout his submission is nothing more than a repe-

tition of the allegations claimed by Petitioner throughout the trial

which were rejected by the district court. This case was deemed to

have such little “precedential value” that, pursuant to local rule,

the Eleventh Circuit affirmed the district court per curiam without

opinion.

The only issue submitted to the district court for determina-

tion was whether a partnership was created between Petitioner

and Respondents. In the Pretrial Stipulation, the parties stipu-

lated that Indiana law governed the issue, and the question was

posed to the district court without a jury. Under Indiana law, the

question of the existence of a partnership is one of fact. The trial

court heard the evidence and concluded that no partnership was

formed between the parties.

Federal Rule of Civil Procedure 52(a) sets forth the standard

of review for civil actions tried without a jury. Rule 52(a) man-

dates that findings of fact not be set aside unless clearly erroneous.

Contrary to being erroneous, evidentiary support for the court’s

ruling is plentiful. In the five and one-half day bench trial, the

district court had ample opportunity to judge the credibility of the

witnesses and determine the weight to be given to the sharply

conflicting evidence presented by both sides. The judge believed

Respondents’ witnesses, and found Petitioner’s witnesses to be

collectively and individually incredible.

6

Respondents do not believe the Evie doctrine is applicable or

even relevant to the instant case. There is no conflict between

federal and state law which would bring the Erie doctrine in issue.

Petitioner’s argument on the Erie doctrine is a poorly disguised

effort to transform the credibility rulings of the district court into

a package more likely to be accepted by this Court on a petition

for writ of certiorari.

Finally, Petitioner’s assertions of error in the admission of

~ evidence by the trial judge are groundless. The assignment of

error in the “admission” of Wands’ testimony is curious since the

testimony was not admitted, and the exclusion of patent histories

due to Petitioner’s failure to list them on the pretrial order was

within the district court’s discretion. No abuse of discretion

occurred in the judge’s evidentiary rulings, and such rulings are

not of a nature worthy of review by this Court on a writ of

certiorari.

Ill.

ARGUMENT AND CITATIONS OF AUTHORITY

A. This Case Does Not Warrant Discretionary Review Under

Supreme Court Rule 10.

Under Supreme Court Rule 10, a petition for certiorari will

only be granted when there are “special and important reasons.”

While not exclusive, this Court’s rules indicate examples of when

the court will exercise its discretion and issue a writ of certiorari.

This case does not fit within any of those examples. The case on

review does not involve an issue where there is a conflict among

the circuits, does not involve a federal question, nor does it involve

a departure by the district court (or the Eleventh Circuit Court of

Appeals) from the accepted and usual course of judicial proceed-

ings. Rather, this case consists of a garden variety swearing con-

test. The district judge was required to determine the credibility of

the witnesses, and he did so. The facts were resolved by the district

court contrary to Petitioner’s wishes, and now the Petitioner asks

this court to review those factual rulings de novo.

7

In Petitioner’s direct appeal, Petitioner asked the Eleventh

Circuit to review the factual determinations of the district judge de

novo, but the Eleventh Circuit Court of Appeals properly refused.

The Eleventh Circuit affirmed per curiam without opinion in

accordance with its local rule 36-1. Eleventh Circuit Rule 36-1

provides as follows:

11th Cir. R. 36-1 Affirmance Without Opinion. When the

court determines that any of the following circumstances exist:

(a) judgment of the district court is based on findings of

fact that are not clearly erroneous;

(b) the evidence in support of a jury verdict is sufficient;

(c) the order of an administrative agency is supported by

substantial evidence on the record as a whole;

(d) summary judgment, directed verdict, or judgment on

the pleadings is supported by the record;

(€) judgment has been entered without an error of law;

and an opinion would have no precedential value, the judg-

ment or order may be affirmed or enforced without opinion.

The only circumstances possibly applicable to the present

case are (a) or (e). The district court and the Eleventh Circuit

both correctly viewed this case as resolving a credibility issue. The

credibility of the parties was determined by the district judge and

the Eleventh Circuit correctly decided not to revisit his rulings.

This is certainly not a case appropriate for discretionary review by

way of certiorari to the United States Supreme Court.

B. The Erie Doctrine Is Inapplicable To This Case Because

There Is No Conflict Between Federal And State Law.

Petitioner misapplies the Erie doctrine, Erie R.R. v.

Tompkins, 304 U.S. 64 (1938), because, as he admits, there is no

conflict between federal and state law in the case on review.

Petition for Writ of Certiorari, p.14. The actual issue, which the

Petitioner seems only dimly to have grasped, has nothing to do

8

with the Erie doctrine. The question is whether in a bench trial

involving multitudinous factual findings based on credibility,

Fed.R.Civ.P. 52(a) applies, which it clearly does.

All the cases cited in the Petitioner’s brief relative to the Erie

doctrine concern conflicts between federal and state laws which

have been deemed by this Court either to be procedural or sub-

stantive and are a part of a body of law which rejected the early

holding of this Court in Swift v. Tyson, 41 U.S. 1 (1842). Hanna v.

Plumer, 380 U.S. 460 (1965); Byrd v. Blue Ridge Elec. Coop., Inc.,

356 U.S. 525 (1958); Guaranty Trust Co. v. York, 326 U.S. 99

(1945). However, since Petitioner has admitted that in the instant

case there is no conflict between Federal Rule of Civil Procedure

52(a) and any state law (Petition for Writ of Certiorari, p.14) the

issues raised by the Petitioner concerning the Erie doctrine,

including a revisitation of Hanna v. Plummer, have nothing what-

soever to do with this case.

C. The Ruling of the Trial Court That No Partnership Was

Formed Is Amply Supported By the Evidence.

There was only one issue for determination by the district

court: whether a partnership was formed between Petitioner and

Respondents. Petitioner alleged a partnership was formed;

Respondents asserted no partnership was created between the

parties. The burden of proof was with the Petitioner to prove by a

preponderance of the evidence the existence of a partnership.

Knowles v. C. I. T: Corp., 346 So. 2d 1042, 1043 (Fla. Dist. Ct. App.

1977). After a five and one-half day trial, the experienced trial

judge found that Petitioner had not carried his burden and ruled

that no partnership was formed between the parties. This ruling is

clearly supported by the evidence.

Since there is no written document establishing a partner-

ship, Petitioner had the burden of establishing a valid oral part-

nership with the Respondents. Under either Indiana or Florida

law, a partnership is defined as requiring (1) an association of two

or more persons; (2) to carry on a business; (3) for profit; (4) as co-

9

owners. Ind. Code § 23-4-1-6; Fla. Stat. Ann. § 620.585. Four

important facts, as found by the district judge in his Opinion and

Order (Petition A4-A28), support the determination that no part-

nership was formed between the parties:

1. There was no evidence of sharing costs of the alleged

partnership. (Petition A21).

2. The PRS (Petitioner’s alleged contribution to the part-

nership) was not the concept, design or product of Petitioner.

(Petition A3, Petition A21).

3. Petitioner contended only one partnership was formed

and that it was formed in June 1983 (Petition A18); yet, a

letter written by Petitioner to Respondents over three years

later on August 6, 1986, discussed the purported partnership

in such a prospective and speculative fashion so as to

impeach Petitioner’s claims. The court concluded the letter

“hardly suggests that there is already a viable partnership.”

(Petition A25).

4. The district court found as a fact that any assistance

which Petitioner provided Respondents in the development

of the PRS was pursuant to Petitioner’s official position with

his employer, AT&T, to improve customer service. (Peti-

tion A21).

In the Pretrial Stipulation filed in the proceedings below, the

parties agreed that Indiana law would govern the issue of the

existence of a partnership. (R9-235).! Indices of partnership that

are recognized by the law of Indiana following the Uniform Part-

nership Act include: 1) receipt of profits from the business, Jn re

Zeits, 31 N.E.2d 209 (Ind. Ct. App. 1941); and 2) contribution to

losses, Unif. Partnership Act § 18(a); Ind. Code Ann. 23-4-1-18

! Regardless of the stipulation that Indiana law applies, (R9-235), Plain-

tiff at times also argues that Florida law applies. This distinction is immate-

trial because both Indiana and Florida have adopted the Uniform

Partnership Act and the operative definition of a partnership is the same

under either law. Ind. Code Ann. § 23-4-1-6 (Burns); Fla. St. Ann. § 620.585

(West).

10

(Burns). When seen in the light of these tests as regards to the

existence of a partnership relation, Petitioner’s case falls far short.

Petitioner did not share in the profits of Golden (R16-p.32), nor

did he share in any losses. (R16-p.32). Since a partnership agree-

ment can commence only by the voluntary contract of the part-

ners, Indiana law has unequivocally held that the question of the

existence of a partnership is one of fact. J.M. Schultz Seed Co. v.

Robertson, 451 N.E.2d 62, 64 (Ind. Ct. App. 1983); Musgrave v.

Madonna, 341 N.E.2d 789, 790 (Ind. Ct. App. 1976).

The standard of review for a case tried to a district court

without a jury is set out in Fed. R. Civ. P. 52(a):

[f]indings of fact, whether based on oral or

documentary evidence, shall not be set aside

unless clearly erroneous, and due regard shall

be given to the opportunity of the trial court to

judge of the credibility of the witnesses.

The clearly erroneous standard of review was first addressed

in the case of United States v. United States Gypsum Co., 333 U.S.

364 (1948). In that case, this Court stated that, “[a] finding is

‘clearly erroneous’ when although there is evidence to support it,

the reviewing court on the entire evidence is left with the definite

and firm conviction that a mistake has been committed.” Jd. at

395. Pursuant to the clearly erroneous standard of review, the

district court’s findings of fact are presumptively correct.

Charles A. Wright & Arthur R. Miller, Federal Practice and Pro-

cedure 2585 (1971).

This Court recently reaffirmed the clearly erroneous stan-

dard of review and explained that it is a deferential one, stating

that “[i]f the district court’s account of the evidence is plausible in

light of the record viewed in its entirety, the court of appeals may

not reverse it even though convinced that had it been sitting as the

trier of fact, it would have weighed the evidence differently.”

Amadeo v. Zant, 486 U.S. 214, 223 (1988); see also United States v.

United States Gypsum Co., 333 U.S. 364; Zenith Radio Corp. v.

Hazeltine Research, Inc., 395 U.S. 100, 123 (1969).

11

After examining the contributions that Petitioner claims he

made to the purported partnership, the district court ruled that

“[a]ny assistance which Petitioner gave [with regard to the PRS]

was as an employee of Indiana [Bell] and AT&T”. (Petition A21).

The trier of fact further found that

[t}here is little doubt that Petitioner expressed

his approval of PRS and wanted it developed

for the benefit of AT&T. It was a part of his

Official position with the telephone companies

to improve the customer service. AT&T was

indeed interested for it assigned employees to

work with Winter on the project and appointed

a committee to attend demonstrations to

determine whether or not it would be of value

to the Company.

(Petition A21). The district court concluded that, “Stuart proba-

bly saw that PRS had possibilities and no doubt would like to have

had some share in it, but the court is fully satisfied from the weight

of the evidence that neither Winter nor Golden entered into any

partnership with Stuart in June of 1983, or at any other time.”

(Petition A21). These findings and conclusions of the district court

are consistent with the evidence, and ought not be disturbed.

It is not sufficient merely to allege, without support, as Peti-

tioner does, that the issue of the existence of a partnership is a

question of law rather than one of fact. (Petitioner Brief, p.19). To

pull the district court’s findings out from under the aegis of

Rule 52(a), Petitioner must specify to this Court the erroneous

theory of law under which the district court allegedly was operat-

ing, not just barely assert that he disagrees with the court’s conclu-

sions. E.g., Meek v. Metropolitan Dade County, 908 F.2d 1540, 1544

(1ith Cir. 1990), cert. denied, 111 S. Ct. 1108 (1991); City of

Carrollton Branch of the NAACP v. Stallings, 829 F.2d 1547, 1554

(11th Cir. 1987), cert. denied, 485 U.S. 936 (1988); Solomon v.

Liberty County, Fla., 899 F.2d 1012, 1018 (11th Cir. 1990), cert.

denied, 111 S. Ct. 670 (1991).

12

Petitioner misreads Uhrig v. Redding, 8 So.2d 4 (Fla. 1942), in

making his tortured analysis. Uhrig v. Redding stands for the well-

recognized proposition that once the facts are found, the conclu-

sion of whether those facts are sufficient to establish the claim is

one of law. “The question to be determined is one of law — ie.,

whether the facts as found by the Chancellor and herein recited

show that a partnership existed.” Jd. at 5. Stated differently, the

existence of a partnership is based upon a series of factual findings

which become a conclusion of law when taken in the aggregate.

For example, if the district court found, as fact, that Petitioner and

Respondents had (1) joined together (2) to carry on a business

(3) for profit (4) as co-owners, it would be an error of law to

conclude that no partnership existed. Here, the district court con-

cluded that no such association was formed. Rather, the court

found as a fact that while Petitioner assisted Respondents, such

assistance was not in pursuit of a business as co-owners for profit,

but was rather pursuant to Petitioner’s official position with his

employer to improve customer service for AT&T. (Petition A21).

Uhrig v. Redding does not stand for the proposition that an appel-

late court can make a de novo review of the credibility determina-

tions and factual findings made by the district court.

D. The Trial Court Correctly Ruled On The Admission Of

Evidence, But If There Was Error, It Was Harmless Error.

Petitioner alleges error by the district judge in ruling on the

admissibility of two items of evidence: witness testimony and two

patent histories. In a nonjury trial, the judge is granted considera-

ble latitude in the admission or exclusion of evidence. Gulf States

Utils. Co. v. Ecodyne Corp., 635 F.2d 517 (Sth Cir. 1981). The

admissibility of evidence is within the sound discretion of the

district court, and, even if error is found, it must rise above the

threshold of harmless error. Perry v. State Farm, 734 F.2d 1441,

1446 (11th Cir. 1984) cert. denied, 469 U.S. 1108 (1985). The above

standard applies in considering both of the items of evidence

complained of by Petitioner, which are discussed more fully

below.

13

1. Testimony From Respondent’s Patent Counsel Was Never

Admitted.

Petitioner contends it was error to permit Respondents’ pat-

ent counsel to testify because defense counsel also asserted the

attorney-client privilege to certain discovery requests. Question-

ing by Respondents of Golden’s patent counsel, Charles Wands, at

trial was entirely proper. An examination of the questions posed

to Wands by the Respondents and his answers clearly show that

nothing was elicited which violated the attorney/client privilege. It

is axiomatic that the attorney/client privilege is not waived merely

by an attorney taking the stand and testifying; waiver occurs only

when the substance of a privileged communication is revealed.

Charles W. Ehrhardt, Florida Evidence § 507.1 (1992); Fla. Stat.

Ann. § 90.507 (West); see, e.g. Seaboard Air Line Ry. v. Parker, 62

So. 589, 590 (Fla. 1913).

More to the point, however, the testimony of Wands was

never admitted. At trial, the court allowed the evidence to be put

in the record, but withheld ruling on whether to consider the

evidence. (R21-pp.180, 185, 189). Ultimately, the district judge

never admitted the evidence, and Wands’ testimony was not cited

in the Court’s Opinion and Order. (Petition A4-A27). McComb v.

McCormack, 159 F.2d 219, 227 (Sth Cir. 1947) (admission of testi-

mony of Petitioner’s managing executive was not prejudicial error

since it was tried by the court without a jury and clear from the

court’s findings and opinions that he gave it no weight in his

decision).

2. Two Patent Histories Were Correctly Excluded.

Petitioner raises the issue that it was prejudicial error for the

trial court to refuse to admit in evidence patent histories of the

PRS which he tendered during the cross-examination of Wands.

This argument is both factually and legally flawed. From a factual

standpoint, and as noted above, none of the testimony of Wands

was ever admitted due to Petitioner’s objection. Since these docu-

ments were tendered by Petitioner during that testimony, and the

testimony was never admitted, no proper foundation has been laid

14

for admission of the documents. Southern Stone Co. Inc. v. Singer,

665 F.2d 698, 703 (Sth Cir. Unit B Jan. 1982) (no foundation was

laid for admission of document because it was hearsay and attor-

ney didn’t take stand or otherwise lay foundation for hearsay

exception).

Moreover, the documents were excluded by the district court

because they were not listed on Petitioner’s pretrial exhibit list, as

mandated by Rule 3.06(C)(4) of the Local Rules for the Middle

District of Florida. Trial courts are responsible for the orderly

administration of their cases, and if a party ignores the local rules

on identifying witnesses and documents in their pretrial submis-

sions, they do so at their peril. United States v. Koziy, 728 F.2d 1314,

1320-21 (11th Cir.) cert. denied, 469 U.S. 835 (1984) (district court

did not abuse discretion in excluding testimony from witnesses not

disclosed as trial witnesses by deadline required by the court);

Kennan v. Dow Chem. Co., 717 F. Supp. 799, 801 (M.D. Fla. 1989)

(court granted the defendant’s motion to exclude any evidence

not specifically listed by the plaintiff in the pretrial stipulation).

Further, in order for error to be reversible error, it must

affect a substantial right, and the party asserting error has the

burden of demonstrating this fact. Perry v. State Farm, 734 F.2d at

1446. In this case, Petitioner has not demonstrated that admission

of the patent histories would have changed the court’s mind on

whether a partnership existed. As such, even assuming, arguendo,

there was error, it did not affect the outcome of the case.

IV.

CONCLUSION

The only issue submitted to the district court was whether a

partnership was formed between Petitioner and Respondents.

The district court found implausible and unbelievable Petitioner’s

claim that a partnership existed and found Petitioner was not

entitled to an accounting or the imposition of a constructive trust.

15

The court found that Petitioner did not originate the PRS

concept, did not contribute the PRS concept to any alleged part-

nership, and that whatever Petitioner did in furtherance of the

development of the PRS he did as an AT&T employee. (Peti-

tion A21). These are factual findings which are supported by the

evidence. The district court heard the evidence, observed the

demeanor of witnesses and resolved the disputed issues. Applying

the clearly erroneous standard to the factual issues and the abuse

of discretion standard to the evidentiary issues, the Eleventh Cir-

cuit Court of Appeals affirmed the comprehensive and well-writ-

ten Opinion and Order of the district court, without opinion since

“an opinion would have no precedential value.” Eleventh Circuit

Rule 36-1. Similarly, this case does not involve any “special and

important reasons” which would require review on writ of certio-

rari under Supreme Court Rule 10. Accordingly, the petition for a

writ of certiorari should be denied.

Respectfully submitted this 11th day of February, 1993.

Michael H. Kahn Sidney O. Smith, Jr.

KAHN & KAHN, PA. (Counsel of Record)

482 N. Harbor City Boulevard

Melbourne, Florida 32935 Donna P. Bergeson

(407) 242-2564 ALSTON & BIRD

One Atlantic Center

1201 West Peachtree Street

Atlanta, Georgia 30309-3424

(404) 881-7000

Attorneys for Respondents