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Franki Foundation Co. v. Alger-Rau & Associates Inc.


decided: March 27, 1975.



Van Dusen, Gibbons and Hunter, Circuit Judges.

Author: Van Dusen


VAN DUSEN, Circuit Judge.

This appeal challenges a December 10, 1973, district court judgment in favor of plaintiff and against defendant in the amount of $24,837.00 ($21,979.65, with interest), together with costs, which was entered on the basis of answers by the jury to two of five special questions*fn1 submitted to the jury by the trial judge. The judge had made clear to the jury that if the jurors found that there had been substantial performance of the plaintiff's obligations under the contract described in Question 1, the jury should then determine the amount of the unpaid balance as described in Question 2. The judge then proceeded to charge concerning Question 3, as follows:

"Now, the third question about which I have instructed you is did Alger-Rau incur expense to complete the contract or incur additional expense in the performance of its own contract resulting from increased costs which flowed directly from the failure of Franki Foundation to perform its contract on time? Answer yes or no.

"This is the question about whether or not Alger-Rau had proven by the fair preponderance of the evidence that they are or are not entitled to the $38,000 which they're claiming.

"Now, if you would decide that they were entitled to the $38,000 which they are claiming, then you would have to go to question 4, which is what amount."

(N.T. 32)

When the jury returned its verdict, the transcript reveals that the following took place:

"THE COURT: Ladies and gentlemen of the jury, have you reached a verdict?

"THE FOREMAN: We have, your Honor.

"THE COURT: Would you transmit the verdict to the clerk?

"Now, ladies and gentlemen of the jury, you have answered question one as yes.

"You have answered question two as $21,979.65 plus interest, and that is what you intend the verdict to be in favor of the plaintiff for $21,979.65. Is that correct?

"THE FOREMAN: Yes, your Honor.

"THE COURT: And so say you all?

"(Whereupon, the jurors indicated affirmatively.)

"THE COURT: Now, ladies and gentlemen of the jury, that is the way that the Court will record the verdict. We will charge the interest, as I told you before, and will mold the verdict in accordance with those directions.

"Now, you are requested to report to the jury assignment room at nine o'clock Monday morning. It was a pleasure to have you in this courtroom.

"(Whereupon, at 11:51 o'clock a.m., the court was recessed.)"

(N.T. 2-3)

After the jury had been discharged, the defendant filed a motion for new trial and a motion for judgment n.o.v. on December 13, 1973. On December 14, 1973, the defendant filed a supplemental motion for new trial and the plaintiff filed its reply to such motions on December 20, 1973. On March 24, 1974, counsel for defendant filed a motion to withdraw his appearance, alleging the defendant had expressed dissatisfaction with his services and repeatedly refused to pay a substantial outstanding bill "representing a considerable amount of time and effort on the part of counsel." On April 8, 1974, counsel presently retained by defendant wrote a letter to the court, which concluded:

"I would respectfully ask the Court to consider these motions [filed by trial counsel] as presented, without any additional memorandum from or oral argument on behalf of defendant, and that the Court enter such order as the Court feels to be appropriate."

The above April 8 letter states that the post-trial motions "describe in some detail the matters relied upon by defendant in support of the motions." On April 15, 1974, the district court entered an order reciting the foregoing developments and containing this language, inter alia :

"It further appearing that at the time set for argument in the above proceeding, Counsel failed to appear, to present a Brief to the Court, or to otherwise prosecute the Motion for Judgment N.O.V. and Motion for a New Trial, IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that the Motions for a New Trial and for Judgment N.O.V. be and the same are hereby denied."

On May 15, 1974, defendant filed notice of appeal.

After careful consideration of the problem presented by the foregoing record, as well as F.R. Civ. P. 49 and Iacurci v. Lummus Co., 387 U.S. 86, 18 L. Ed. 2d 581, 87 S. Ct. 1423 (1967), we have decided that the above-mentioned judgment of the district court must be vacated and the case remanded with directions to the district court to grant defendant a new trial, at least on the issues covered by interrogatories 3-5.*fn2

Iacurci involved a wrongful death action in which petitioner, whose husband had been killed while using a "skip hoist," claimed that the hoist had been negligently designed by respondent. This question was submitted to the jury in the form of a special interrogatory, with the provision that if the jury found negligent design, it was to "indicate which, if any," of five proposed findings it had made in reaching its conclusion. The jury returned a special verdict for petitioner, but answered only one of the five subsections of the interrogatory, failing to answer the other four. The trial judge denied respondent's post-trial motions, and respondent appealed. The Court of Appeals interpreted the jury's failure to answer the four subsections as meaning that respondent's "negligence had not been established in those other respects," Iacurci v. Lummus Company, 340 F.2d 868, 870-71 (2d Cir. 1965), and, having found insufficient evidence to support the jury's finding of negligence as stated in the fifth subsection, reversed and directed the district court to enter judgment for the respondent.

The Supreme Court did not share the same confidence as to the meaning of the unanswered interrogatories and declared that the Court of Appeals should have remanded the case "to the Trial Judge, who was in the best position to pass upon the question of a new trial in light of the evidence, his charge to the jury, and the jury's verdict and interrogatory answers." Iacurci v. Lummus Co., 387 U.S. at 88.

As relates to the instant case, we are not unmindful of the fact that the failure of the jury to answer Question 3*fn3 had been presented to the district court before entry of its April 15, 1974, order quoted above. However, since the post-trial motions did not cite Iacurci, we have no way of knowing whether the trial judge's attention was directed to the possibility that Question 3 might not have been answered because the jurors were "unable to agree on [the issue]" presented by that question, in which event the defendant would have been entitled to a new trial, as plaintiff concedes. 387 U.S. at 87-88. Alternatively, the jury might not have answered Question 3 because it had assumed that its answer to Question 1 had obviated the need to answer Question 3, even though the trial judge had instructed the jury to answer "each of the questions" (N.T. 35; see also N.T. 20, 28-30, 32 & 43 - Doc. 53 in W.D. Pa. Civil No. 73-103).

These possible explanations for the unanswered interrogatories 3 and 4 are particularly worthy of consideration since Question 3, as written, did not conform to the charge of the trial court: the key words "on time"*fn4 found at the end of the question as read to the jury during the charge are missing from the written interrogatory as taken to the jury deliberating room (N.T. 32 and 51a). Thus, Question 3 may not have been properly framed for the jury to adequately determine the factual issues essential to the judgment. Cf. Kornicki v. Calmar Steamship Corporation, 460 F.2d 1134, 1139 (3d Cir. 1972).

For the trial judge to have entered judgment on the verdict, he apparently first either (a) supplied his own answer to Question 3, or (b) assumed that the jurors answered Question 3 in the negative,*fn5 due to either its omissions or the belief that the need to answer this question had been eliminated by the jury's answer to Question 1. Iacurci indicates that either course would have been improper, 387 U.S. at 87-88. See also Union Pacific Railroad Co. v. Bridal Veil Lumber Co., 219 F.2d 825, 831-32 (9th Cir. 1955), cert. denied, 350 U.S. 981, 100 L. Ed. 849, 76 S. Ct. 466 (1956).

Plaintiff-appellee claims that while Iacurci may govern "the ordinary case," the facts of the instant appeal present a special situation, viz., by abandoning its post-trial motions appellant has waived its right to seek relief in this court.*fn6 Thus, appellee argues that a failure to prosecute post-trial motions has the same effect upon a subsequent appeal as a failure to raise certain issues in motions actually filed. In respect to the latter, the rule has evolved that, absent exceptional circumstances, an issue not raised in the district court will not be heard on appeal. Bethlehem Mines Corp. v. United Mine Wkrs. of Amer., 494 F.2d 726, 735 (3d Cir. 1974); Kappel v. United States, 437 F.2d 1222, 1224 (3d Cir.), cert. denied, 404 U.S. 830, 30 L. Ed. 2d 59, 92 S. Ct. 71 (1971). But this rule is only a rule of practice and may be relaxed whenever the public interest or justice so warrants. O'Neill v. United States, 411 F.2d 139, 143-44 (3d Cir. 1969).

Furthermore, the rationale underlying this rule is not necessarily applicable to an instance wherein a party merely fails to brief and argue its post-trial motions. This is so because the objective of these motions is to call to the trial court's attention an alleged mistake in the judgment and effect a ruling thereon, which "might entirely obviate the need of an appeal." Welch & Corr Construction Corp. v. Wheeler, 470 F.2d 140, 141 (1st Cir. 1972). In the case now before this court, appellant's post-trial motions served this purpose by detailing objections to the court's judgment, including the failure of the jury to answer Question 3,*fn7 notwithstanding the fact that appellant failed to completely prosecute the motions. Thus, this issue of the failure to answer Question 3 is not raised for the first time on appeal. The trial judge was aware of these objections at the time he denied appellant's motions,*fn8 and he could have ruled otherwise. While a court is not obliged to examine grounds for post-trial motions which are advanced in detail therein, but neither briefed nor argued, courts have at times done so. See, e.g., Solar Fuel Co. v. United Mine Wkrs. of Amer., 346 F. Supp. 789, 798 (W.D. Pa. 1972), aff'd, 481 F.2d 1399 (3d Cir. 1973), cert. denied, 416 U.S. 909, 94 S. Ct. 1617, 40 L. Ed. 2d 114 (1974). Cf. Clay v. Southern Railway Co., 284 F.2d 152, 154 (5th Cir. 1960); Lebeck v. William A. Jarvis, Inc., 250 F.2d 285, 289-90 (3d Cir. 1957).

Appellee's contention that appellant has waived its right to appeal through abandonment presupposes the prosecution of post-trial motions to be a prerequisite to an appeal. While appellate courts have favored the use of post-trial motions to assure the efficient operation of the judicial process and to provide "the district court an opportunity to assist [reviewing courts] by furnishing its views, if it has something relevant to contribute," Welch & Corr Construction Corp. v. Wheeler, supra at 141, the right to appeal is not conditioned upon the filing and prosecution of post-trial motions. In fact, there are many instances in which the filing of such motions would be an unnecessary and/or futile task. Id.

Finally, we have concluded that a remand of the case to the district court for determination by it of the grant of a new trial on the issues covered by interrogatories 3-5 would not be appropriate on the facts in this record, because the new trial motion has already been affirmatively called to the attention of the district court as noted above. In 5A Moore's Federal Practice, para. 49.03[4], at page 2217, the author says:

"If the jury fails to find on an issue actually submitted to it, since the right to jury trial thereon has not been waived, a new trial, at least as to such issue, is necessary . . .."

In the Bridal Veil Lumber Co. case, supra, which was cited with approval in Iacurci, supra at 88,*fn9 the court said at pp. 831-32:

"It was error in the face of the unanswered question for the trial court to thereafter 'go it alone' and dispose of the case. In view of this, the judgment must be reversed for a new trial. To do other than send the case back for a new trial when decision on a vital issue by the jury is missing would deprive the parties of the jury trial to which they are entitled constitutionally."*fn10

The district court judgment will be vacated and the case remanded for further proceedings consistent with this opinion.*fn11

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