Pines Properties, Inc. v. American Marine Bank , 156 F. App'x 237 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_______________________ FILED
U.S. COURT OF APPEALS
Nos. 04-12441 ELEVENTH CIRCUIT
November 29, 2005
04-13704
THOMAS K. KAHN
04-14150 CLERK
_______________________
D.C. Docket No. 00-08041-CV-KLR
PINES PROPERTIES, INC.,
a Florida Corporation,
Plaintiff-Counter
Defendant-Appellant,
versus
AMERICAN MARINE BANK,
a Washington Corporation,
Defendant
Counter- Claimant
Third-Party Plaintiff
Appellee,
FIRST MIAMI SECURITIES, INC.,
a Florida Corporation,
Third-Party Defendant.
______________________
Appeals from the United States District Court
For the Southern District of Florida
______________________
(November 29, 2005)
Before BARKETT and MARCUS, Circuit Judges, and GEORGE*, District Judge.
PER CURIAM:
Pines Properties, Inc., (“Pines”) appeals from a final judgment entered for
American Marine Bank (“American Marine”) on a jury verdict against Pines. The
trial came after the Circuit’s remand to resolve whether the term “credit facility,”
as used in the initial pledge agreement securing American Marine’s credit to
Eurowest Trading (“Eurowest”), contemplated a continuing credit relationship for
future loans and collateral, or was limited to the initial advance. Pines Properties
v. American Marine Bank, 48 Fed. Appx. 739 (11th Cir. 2002) (Pines I). The
ambiguity raised an issue of fact as to Pines’ breach of contract claim and
suretyship defense that its pledge was released by American Marine’s alteration of
the terms of the initial pledge agreement. Id. at 17-18, 25-27. Pines I sets forth
the factual background of this case, and this opinion discusses only the facts
relevant to this appeal.
Pines’ first assignment of error is that the district court abused its discretion
in granting American Marine’s motion to strike Pines’ proffered expert witness,
*
Honorable Lloyd D. George, United States District Judge for the District of Nevada,
sitting by designation.
2
Thomas Rossin.1 The district court ruled that Rossin’s testimony was irrelevant
and unnecessary since “what matters is the intent of the parties themselves.” R424
at 10. As the district court concluded, Rossin’s opinions went generally to
whether the loan had been mismanaged, an affirmative defense that previously had
been rejected on appeal.
Pines argues, however, that in its response to American Marine’s motion to
strike, it also identified statements Rossin made in his deposition about whether
the ambiguous term “credit facility” establishes a continuing commercial
guarantee. R410 at 7. In particular, Rossin testified that “[w]hether it would
apply to distributions after [the first pledge], I just don’t know. It’s not clear from
the pledge agreement that it does.” R410, Exhibit 5 at 72. As the district court
determined, however, the ambiguity of the term “credit facility” was the very
reason for remand, and Rossin’s opinion that he did not know whether it applied to
future distributions was unnecessary and irrelevant to the parties’ intent.
Pines also argues that, in its response to the motion to strike, it indicated
that Rossin had testified in deposition, and would have testified at trial, that the
pledge agreements “are not continuing, they don’t specify what the loan is that
1
American Marine’s motion to strike (DE 406) is missing from the district court files
transmitted to the Court. The positions taken in that document, however, have been adequately
represented in the related trial court briefing, district court rulings, and briefing on appeal.
3
they are being pledged for, they do not have the normal language in them that an
agreement of this type would normally include.” R410 at 8. However, a full
reading of that portion of Rossin’s deposition testimony supports the district
court’s discretion to exclude it.
After Rossin stated why he thought the pledge agreements were not
continuing, he was asked to identify the language that he had stated such
agreements should normally include. R410, Exhibit 5 at 84. Rossin did not offer
any specific language, but responded “[l]anguage in any number of the documents
that bank has used in connection with this loan and I guess with their normal loan
practice . . . .” Id. At that point, Rossin was asked if he had been retained to give
such an opinion, and he responded, “No.” Rossin was then asked if he intended to
testify at trial regarding what he was just saying, and he responded, “[n]o, I’m
going to give testimony as to the banking practices, not legal.” Id. Finally, when
Rossin was asked if he was going to “giv[e] an opinion as to how the pledge
agreement should have been drafted,” he responded that “I think I might testify
whether I thought it was a reasonable document.” Id.
Rossin’s statement that he was not retained to testify on the language
normally included in continuing loan agreements, standing alone, supports the
district court’s decision not to allow Rossin to testify. Rossin’s other nebulous
4
references to testifying only to “banking practices, not legal,” and possibly the
“reasonableness” of the pledge agreement, are no more helpful in clarifying the
relevance of his opinions.2 Finally, Rossin never testified about how the term
“credit facility” was used in the banking industry, or what terminology would
normally be used in the industry to designate a continuing loan agreement. The
district court did not abuse its discretion in excluding Rossin as an expert witness.
Pines’ second assignment of error is that the district court abused its
discretion in denying Pines’ motion to amend the complaint to add the affirmative
defense that American Marine failed to notify Pines of American Marine’s
intended disposition of Eurowest collateral. The district court ruled that Pines’
motion was “untimely, as it had ample opportunity to raise the issue of reasonable
notification before it offered this current motion.” R391 at 7.
The determination of whether to grant leave to amend the complaint after
responsive pleadings have been filed is within the sound discretion of the trial
court. Hester v. Int’l Union of Operating Eng’rs, AFL-CIO, 941 F.2d 1574, 1578
(11th Cir. 1991). Leave to amend should be freely given when justice so requires.
Fed.R.Civ.P. 15(a). Although generally, the mere passage of time, without more,
2
During oral arguments, appellant’s counsel admitted that portions of Rossin’s deposition
testimony were “mushy.” We do not know why the statements we are dealing with should not
enjoy that same distinction.
5
is an insufficient reason to deny leave to amend a complaint, undue delay may
clearly support such a denial. Id. at 1578-79 (citing Foman v. Davis, 371 U.S.
178, 182 (1962)).
In Hester, this Court found deficient appellant’s claimed breach of a union’s
duty of fair representation. The case was then stayed pending the disposition of a
writ of certiorari before the United States Supreme Court, and two years later, this
Court issued a decision on remand essentially reaffirming its previous finding.
Appellant filed a Rule 15(a) motion to amend the deficient claim four and one-half
months later. The district court denied the motion as untimely, and this Court
affirmed, determining that appellant had notice of the deficient claim two years
earlier and ample opportunity to amend (even though the case was stayed and on
appeal for much of that time), but had not acted promptly enough in filing to
amend. 941 F.2d at 1578-79.
Similarly, in this case, Pines was aware of the facts upon which its lack-of-
notice claim was based early on in the litigation, and had several opportunities to
raise the issue. American Marine’s representative testified in deposition on
September 26, 2000, four months before American Marine filed its motion for
summary judgment, that American Marine was disposing of, and intended to
further dispose of, recovered Eurowest collateral through a private third party.
6
Pines was also put on notice of the sale of Eurowest collateral on October 24,
2001, when American Marine claimed in its opposition to Pines’ first Rule 60(b)
motion that it had liquidated Eurowest collateral.3
However, Pines did not argue that it was entitled to relief from judgment
based on lack of notice of the sale of collateral until its appeal of the district
court’s denial of its second Rule 60(b) motion. This Court rejected that argument
because Pines had not raised the issue before the district court. See Pines
Properties v. American Marine Bank, 61 Fed. Appx. 669 (11th Cir. 2003) (Pines
II).4 In its discussion, this Court also noted that “even if Pines had no opportunity
to raise the issue before summary judgment, it certainly could have during the
Rule 60(b) proceedings.” Pines II at 7. Pines filed its first Rule 60(b) motion in
September 2001, and its second Rule 60(b) motion (labeled a supplement to its
original Rule 60(b) motion) in December 2001. Therefore, the Rule 60(b)
3
Pines maintains that American Marine’s counsel claimed to be uninformed about the
disposal of collateral even after it included this information in its opposition. However, this did
not mean that Pines was not informed by American Marine’s opposition of the disposal of
collateral.
4
The appeal in Pines II was filed while Pines I was pending before this Court.
7
proceedings began to run seventeen months before Pines filed its motion to
amend.5
Pines argues that the district court failed to identify how American Marine
was prejudiced by the motion to amend. This Court, however, has held that
“[p]rejudice and undue delay are inherent in an amendment asserted after the close
of discovery and after dispositive motions have been filed, briefed, and decided.”
Campbell v. Emory Clinic, 166 F.3d 1157, 1162 (11th Cir. 1999). Here, Pines
filed its motion to amend in February 2003. Discovery closed in December 2000,
twenty-six months earlier, and American Marine’s motion for summary judgment
was granted in March 2001, twenty-three months earlier. Furthermore, in Hester,
this Court noted that the need for prompt action to amend the complaint was
apparent from the district court’s entry of scheduling and pretrial orders during the
course of the case. 941 F.2d at 1579 n.4. We find no less need to promptly raise,
during summary judgment or related Rule 60(b) proceedings, a claim of which a
party is aware.
5
There is a certain irony in Pines’ argument that it moved to amend only nineteen days
after this Court declined in Pines II to address the issue of notice, since that very decision speaks
of Pines’ failure to present the district court with the notice issue over a year earlier, during the
proceedings on the Rule 60(b) motions.
8
Finally, there is no abuse of discretion in denying an amendment where a
party is aware of facts supporting an alternative theory, but delays until after the
original theory is rejected before seeking to amend. See Freeman v. Continental
Gin Co., 381 F.2d 459, 469 (5th Cir. 1967). Indeed, “[a] busy district court need
not allow itself to be imposed upon by the presentation of theories seriatim.” Id.In this case, Pines waited for over three months after the district court reopened
the case on remand in November 2002--until the Pines II disposition of the notice
and commercial reasonableness issues--before filing to amend. Pines should have
known that it had little chance of success on appeal of its notice claim, since it had
not raised that claim in the district court. Therefore, the timing of the motion to
amend strongly supports the inference that Pines waited for the disposition of its
commercial reasonableness claim before deciding to file.
Given that Pines had numerous and early opportunities to raise the notice
issue, yet postponed filing the motion to amend until after discovery closed,
dispositive motions were decided, and alternative theories rejected, we find no
abuse of discretion in the district court’s denial of Pines’ motion to amend as
untimely.
In its next issue on appeal, Pines contends that the district court abused its
discretion in permitting American Marine to call Michael Weisser as a witness for
9
the sole purpose of impeaching him, which Pines argues is prescribed by the
construction of Federal Rule of Evidence 607. We need not reach the merits of
this issue because Pines did not preserve the issue on appeal.
During trial, American Marine called Weisser to the stand without
objection. When American Marine impeached Weisser with questions about his
disbarment, Pines objected on relevance grounds. Pines maintains that the
relevance objection preserved the Rule 607 issue because the objection contended
that the cross-examination was solely for impeachment, and was not otherwise
relevant. The objection made at trial, however, was more limited than that. It
was: “Objection, Your Honor. Wholly irrelevant. We made these arguments in
papers before.” R552-20. The relevance objection was thus narrowed to what was
contained in the “arguments in papers before.”
Pines concedes that the reference to “arguments in paper” refers to the
arguments Pines made in its motion in limine. R411. But that motion was based
exclusively on Federal Rules of Evidence 402, 403 and 608(b) (a party cannot
impeach a witness’s credibility with extrinsic evidence). Pines neither referred to
Rule 607 in the motion, nor articulated the argument it now makes on appeal.
Therefore, Pines’ failure to object on the basis of Rule 607 at trial precludes it
10
from raising on appeal the issue of calling Weisser for the purpose of impeaching
him. See Judd v. Rodman, 105 F.3d 1339, 1342 (11th Cir. 1997).
We devote limited time to Pines’ remaining issues. Pines argues that the
district court erred in applying Washington’s pre-judgment interest rate. However,
Pines did not oppose the request for that rate in American Marine’s motion for
summary judgment, and did not raise the issue on appeal in Pines I, in which we
remanded for trial on limited issues. This Court has held that “[u]nder the law of
the case doctrine, a legal decision made at one stage of the litigation, unchallenged
in a subsequent appeal when the opportunity existed, becomes the law of the case
for future stages of the same litigation, and the parties are deemed to have waived
the right to challenge that decision at a later time.” United States v. Escobar-
Urrego, 110 F.3d 1556, 1560 (11th Cir. 1997).6 Therefore, the district court’s
application of Washington’s prejudgment interest rate will not be disturbed.
Pines argues that the district court erred in confining the trial on remand to
the first pledge agreement. The issues remanded in Pines I were expressly
identified to the first pledge agreement. Regarding the district court’s award of
6
Bailey v. Chattem, Inc., 838 F.2d 149 (6th Cir. 1988), cited by Pines, does not persuade
this Court otherwise. In Bailey, the district court had not spoken on the issue of post-judgment
interest before the appellant’s failure to request that the appellate court amend its initial mandate
to provide for post-judgment interest. Id. at 150-51.
11
costs in connection with the entry of the two prejudgment writs of garnishment,
American Marine established a basis for its belief that Pines “w[ould] not have in
[its] possession, after execution is issued, tangible or intangible property . . . on
which a levy can be made sufficient to satisfy [its] claims,” as required by Fla.
Stat. Ann. § 77.031(2). Morever, the district court did not abuse its discretion in
taxing the $8,183.77 portion of the garnishment bond premium paid by American
Marine attributable to time after Pines’ posting of the supersedeas bond in Pines I.
Pines waived its right to object to the taxation because it did not raise its objection
in its original opposition to the motion to tax costs. Finally, since Pines’ argument
regarding the award of attorney’s fees to appellee/garnishee First Miami
Securities, Inc. is contingent on a reversal of the underlying judgment, it is no
longer pertinent.
AFFIRMED.
12