Carter v. Fenner

REVISED, April 8, 1998
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-31006
NICOLE MARIE CARTER, as Administratrix of and the
Estate of Vergil Braud; JACQUELINE ESTEEN, individually
and as tutrix of the minor child Tahara Braud; CHRISTY FRANCIS,
Plaintiffs-Appellants,
and
TAHARA BRAUD,
Appellant,
versus
KEVIN FENNER; JOEL TALLANT; CITY OF NEW ORLEANS,
Defendants-Appellees.
NICOLE MARIE CARTER, Administratrix of and the Estate of
Vergil Braud,
Plaintiffs,
versus
KEVIN FENNER; et al.,
Defendants,
KEVIN FENNER; JOEL TALLANT; CITY OF NEW ORLEANS,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Louisiana
March 6, 1998
Before EMILIO M. GARZA, STEWART, and DENNIS, Circuit Judges.
CARL E. STEWART, Circuit Judge:
This appeal asks us to determine whether (1) a consent judgment entered into between
plaintiff-appellant Nicole Marie Carter and defendant-appellee City of New Orleans was properly
vacated by the district court pursuant to Federal Rule of Civil Procedure 60(b); (2) the district court
should have set aside the jury verdict in the underlying wrongful death action and granted a judgment
as a matter of law and/or a new trial; and (3) the district court erred in admitting certain testimony
at trial. Addressing each contention in turn below, we AFFIRM the district court.
The writ ten consent judgment in question was confected at the culmination of pretrial
settlement negotiations between the parties—purportedly settling the wrongful death claim which
Carter brought on behalf of her son for $1,000,000 plus interest from the date of judicial demand.
Shortly thereafter, the City challenged the validity of the consent judgment. The district court
recalled, vacated, and set aside the consent judgment pursuant to Rule 60(b)(1), finding that the
consent judgment could not stand due to mistake and inadvertence on the part of both parties to the
agreement. Because we find that the consent judgment was void as a matter of Louisiana law, we
AFFIRM the judgment of the district court pursuant to Rule 60(b)(4). In addition, finding that Carter
did not present evidence sufficient to show that the jury’s verdict is inconsistent with the applicable
law, we AFFIRM. Finally, we conclude that the district court made no error in admitting evidence
at trial to warrant granting Carter’s request for judgment as a matter of law or a new trial.
I.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On October 5, 1992, New Orleans police officer Kevin Fenner shot and killed Vergil Braud.1
Carter subsequently brought suit on behalf of her minor son, Vergil Carter and the Estate of Vergil
Braud. The defendants in the suit were Fenner; the City of New Orleans (“City”); Arnesta Taylor,
the City Police Chief; and Joel Tallant, Fenner’s companion police officer.2 Trial of the case was set
1
The circumstances surrounding the shooting are a matter of great dispute between the parties.
Fenner testified at trial that he shot Braud to protect his partner, Joel Tallant, and that Braud was
actually pulling Tallant’s gun out of its holster at the time Fenner shot him. Fenner offered further
testimony that Braud’s behavior was of a combative and threatening nature such that Fenner believed
himself and/or Tallant to be in danger. Carter’s brief, on the other hand, maintains that witnesses at
trial testified that Fenner beat Braud on the head while his hands were placed on the top of the police
car and otherwise used excessive force on the decedent. Carter further suggests that Braud did not
pose a threat to the officers at the time of his shooting.
2
A companion suit was also filed in relation to the October 5 shooting incident. Except for Taylor,
the defendants to the companion suit were the same as those named in the primary action. The
2
for May 2, 1994—which also happened to be inauguration day for Mayor-Elect Marc H. Morial and
other recently elected city officials. Prior to the trial date, the parties entered negotiations toward
settlement. As the result of a meeting held on April 29, 1994 between Carter’s attorney and then
Mayor Sidney J. Barthelemy, an agreement was reached which was later incorporated into a written
consent judgment between the parties. Acting just three days prior to the end of his tenure in office,
Barthelemy authorized former City Attorney Kathy Torregano to settle the case.3 The resulting
consent judgment was signed by Carter’s attorney— Sonje Wilkerson—and Torregano. Receiving
notification of the consent judgment that same day, the court canceled the jury trial. The consent
judgment was presented to the court on May 2, 1994 and filed on that date as well.
On April 5, 1994—after his election, but prior to his taking the oath of office—Morial had
requested in writing that Barthelemy not bind the City to any large monetary or policy contracts in
the waning days of Barthelemy’s administration.4 Thus, the City decided to contest the agreement
when new City Attorney Avis M. Russell brought the consent judgment to Morial’s attention.
Shortly after the consent judgment had been signed and entered by the district court judge, the
City—acting under its new administration—chose not to appeal the judgment, but instead moved to
have the consent judgment set aside pursuant to Rule 60(b).
plaintiffs, in addition to Carter, included Jacqueline Esteen (the mother of Vergil Braud), in her
individual capacity and as tutrix of Tahara Braud (Vergil Braud’s minor sister), and Christy Francis
(major sister of Vergil Braud). These two suits were consolidated for trial. On May 13, 1997,
Esteen, Tahara Braud, and Francis—as appellants in this action—filed a notice with this court
pursuant to Fed.R.App.P. 28(i) adopting all portions of Carter’s brief relating to the trial on the
merits, but not those relating to the consent judgment. Thus, our determination of the issues that
stem from the trial on the merits apply to Est een, Tahara Braud, and Francis’ claims as well as to
Carter’s.
3
In his testimony before the trial court, Barthelemy acknowledged instructing Torregano to settle
the case for $1,000,000. He did not, however, recall discussing interest attached to the $1,000,000
figure. Barthelemy allowed that he did not personally prepare the judgment, but that the City Hall
attorneys did so.
4
The record includes two letters dated April 5, 1994 from Mayor-Elect Morial to Barthelemy. The
letters referenced two possible commercial contract negotiations between the City and other entities
and requested that all contracts be placed on hold pending the arrival of the new administration.
Claiming to have previously requested the same, Morial reiterated that the City should not sign any
new contracts between April 5 and May 2, 1994.
3
The Morial administration argued in its pleadings to annul the judgment that the written
request to Barthelemy amounted to a “contract” between the two administrations and that the consent
agreement and subsequent judgment for Carter was tantamount to a “breach” of such contract.5
Further, the City argued that pursuant to Rule 60(b)(1), the consent judgment between Carter and
the City suffered from “mistakes” or “inadvertence” and lacked the requisite “meeting of the minds”
in the following respects: (1) it calls for “interest from the date of judicial demand,” a factor which
would increase the settlement sum to Carter by about 20%; (2) it fails to address all of the parties,
namely defendant Taylor;6 and (3) it directs payment to Carter in her role as mother of Vergil Carter
in an attempt to discharge a debt owed to her minor child contrary to Louisiana law. The City also
argued that the settlement was void pursuant to Rule 60(b)(4) because the plaintiff failed to comply
with Louisiana’s requirements for establishing a valid tutorship for the child, and in failing to obtain
prior state court approval of the minor’s settlement.
After an evidentiary hearing, the district court granted the City relief from the consent
judgment based on the aforementioned mistake and inadvertence. Alternatively, the district court
held that the consent judgment was void under Rule 60(b)(4) for want of compliance with the
Louisiana Code of Civil Procedure Article 4271 et al.
After the consent judgment was set aside, Carter sought an appeal in this court pursuant to
28 U.S.C. § 1291 as construed by the collateral order doctrine.7 Finding that the order granting the
City’s Rule 60(b) motion did not meet the requirements of the doctrine, this court dismissed Carter’s
5
In his testimony, Barthelemy denied having entered into any such agreement with Morial that
would have prevented him from making binding agreements without Morial’s express authorization.
6
The judgment recites that upon satisfaction of the judgment, the suit would be dismissed as to
defendants “City of New Orleans, Kevin Fenner and Joel Tallant” without mention of releasing
Taylor, who was also a named defendant in the suit.
7
Under the collateral order doctrine, this court has jurisdiction to consider appeals of non-final
judgments “that are conclusive, that resolve important questions completely separate from the merits,
and that would render such important questions effectively unreviewable on appeal from final
judgment in the underlying action.” Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867,
114 S.Ct. 1992, 1995-96 (1994).
4
appeal. The underlying wrongful death claim proceeded to a trial on the merits in July 1996, resulting
in a jury verdict in favor of the defendants. On August 27, 1996, the district court entered judgment
in favor of defendants, dismissing plaintiffs’ complaint with prejudice and costs. On behalf of her
minor son—Vergil Carter, Carter timely brings this appeal from the judgment of the district court that
set aside the consent judgment and the jury’s verdict in the trial on the merits.
II.
STANDARD OF REVIEW
Carter disputes the City’s assertion that Rule 60(b)(1), (4) and (6) afford bases for relief from
the consent judgment. Before we can reach the question regarding whether the consent judgment is
voidable under the discretionary prongs of Rule 60(b)(1), we must answer the threshold question
whether the consent judgment is void as a matter of law under the nondiscretionary prong of Rule
60(b)(4).
This court is not often confronted with Rule 60(b)(4) review of a final judgment and has
considered the application of Rule 60(b)(4) in the consent judgment context only in the rarest and
most tangential of circumstances. See United States v. 119.67 Acres of Land, 663 F.2d 1328, 1331
(5th Cir. 1981) (Unit A) (interpreting a Rule 60(b) motion to set aside a consent judgment as one for
relief under 60(b)(4) because “[a] judgment is not void simply because it is erroneous, but only where
the rendering co urt lacked subject matter jurisdiction or acted in a manner inconsistent with due
process of law”). We therefore look not only to our own precedent, but to the l aw of our sister
circuits in determining our standard of review. Such sources indicate that we review the district
court’s ruling on a Rule 60(b)(4) motion de novo. See, e.g., Wilmer v. Board of County Comm'rs,
69 F.3d 406, 409 (10th Cir. 1995). This circuit has stated:
Typically, “[m]otions under Rule 60(b) are directed to the sound
discretion of the district court, and its denial of relief upon such
motion will be set aside on appeal only for abuse of that discretion.”
Seven Elves v. Eskenazi, 635 F.2d 396, 402 (5th Cir. 1981). When,
however, the motion is based on a void judgment under rule 60(b)(4),
the district court has no discretion, the judgment is either void or it is
not.
5
Recreational Properties, Inc. V. Southwest Mortgage Services Corp., 804 F.2d 311, 313-14 (5th Cir.
1986). Unlike motions pursuant to other subsections of Rule 60(b), Rule 60(b)(4) motions leave no
margin for consideration of the district court’s discretion as the judgments themselves are by
definition either legal nullities or not. The Seventh Circuit has explained that when the motion is
pursuant to Rule 60(b)(4), however, the review is plenary and courts have little leeway as it is a per
se abuse of discretion for a district court to deny a motion to vacate a void judgment. United States
v. Indoor Cultivation Equipment From High Tech Indoor Garden Supply, 55 F.3d 1311, 1317 (7th
Cir. 1995). A judgment is void for purposes of Rule 60(b)(4) if the court that rendered it entered an
order outside its legal powers. Id. at 1316; In the Matter of Edwards, 962 F.2d 641, 644 (7th Cir.
1992) . The Ninth Circuit’s approach is also instructive: “We review de novo . . . . a district court’s
ruling upon a Rule 60(b)(4) mo tion to set aside a judgment as void, because the question of the
validity of a judgment is a legal one.” Export Group v. Reef Industries, Inc., 54 F.3d 1466, 1469 (9th
Cir. 1995).
III.
RULE 60(B)(4) RELIEF
Because there is a paucity of case law construing Rule 60(b)(4) in our circuit, we find it useful
to first consider the language and purpose of the rule. Rule 60(b) states in relevant part:
On motion and upon such terms as are just, the court may relieve a
party or a party’s legal representative from a final judgment, order, or
proceeding for the following reasons: (1) mistake, inadvertence,
surprise, or excusable neglect; (2) newly discovered evidence. . . . (3)
fraud . . . misrepresentation, or other misconduct of an adverse party;
(4) the judgment is void; (5) the judgment has been satisfied, released,
or discharged. . . .or (6) any other reason justifying relief from
operation of the judgment. . . .
Most circuits have interpreted Rule 60(b) quite narrowly, affording relief from final judgments only
in the most specific circumstances. See VTA, Inc. v. Airco, 597 F.2d 220, 225 (10th Cir. 1979).
These courts have noted that to succeed on a Rule 60(b) motion, a movant first “ ‘must show that
his motion is timely, that he has a meritorious defense to the action, and that the opposing party
would not be unfairly prejudiced by having the judgment set aside.’ ” National Credit Union Admin.
6
Bd. v. Gray, 1 F.3d 262, 264 (4th Cir. 1993) (quoting Park Corp. v. Lexington Ins. Co., 812 F.2d
894, 896 (4th Cir. 1987)). A fourth threshold showing, “exceptional circumstances,” is sometimes
noted. See, e.g., Werner v. Carbo, 731 F.2d 204, 207 (4th Cir. 1984).
Suggesting that the City does not present sufficient grounds to have the district court set aside
the consent judgment, Carter appears to invoke these threshold considerations. In the instant matter,
Carter suggests that the City’s Rule 60(b) motion is a thinly veiled attempt to use Rule 60(b) as a
substitute for a timely appeal which the City simply allowed to lapse. While the City did not file a
notice of appeal within thirty days after entry of judgment provided for in Federal Rule of Appellate
Procedure 4(a), its motion pursuant to Rule 60(b) was timely. As the City notes, its Rule 60(b)
motion was filed less than four months after entry of the judgment—well within the one year time
frame prescribed by Rule 60. By failing to pursue an appeal, the City limited itself to one avenue of
relief to contest the judgment. We are not convinced, however, that the City’s use of the Rule 60(b)
motion instead of an appeal indicates a questionable motive as Carter suggests. Further, pursuant to
the even more expansive time limitations for filing a motion pursuant to Rule 60(b)(4), it is clear that
the City’s motion was not stale.
Though Carter’s argument is itself without merit, we will address the important timeliness
considerations associated with motions brought pursuant to Rule 60(b). The First Circuit has
recognized:
Rule 60(b)(6) may not be used as a back-door substitute for an
omitted appeal, and, in all but the most exceptional circumstances, a
party’s neglect to prosecute a [timely] appeal will bar relief under the
rule.
Hoult v. Hoult, 57 F.3d 1, 3 (1st Cir. 1995) (quoting Cotto v. United States, 993 F.2d 274, 277 (1st
Cir. 1993)). Motions brought pursuant to Rule 60(b)(4), however, constitute such exceptional
circumstances as to relieve litigants from the normal standards of timeliness associated with the rule.
While Rule 60(b)(1) motions must be brought within one year, we have held that motions brought
pursuant to subsection (4) of the rule have no set time limit. This court has explained that “ ‘[t]here
is no time limit on an attack on a judgment as void. The one-year limit applicable to some Rule 60(b)
7
motions is expressly inapplicable, and even the requirement that the motion be made within a
“reasonable time,” which seems literally to apply to motions under Rule 60(b)(4), cannot be enforced
with regard to this class of motion.’ ” New York Life Insurance Company v. Brown, 84 F.3d 137,
142-43 (5th Cir. 1996) (quoting Briley v. Hidalgo, 981 F.2d 246, 249 (5th Cir.1993)). Other courts
have noted simply that “[u]nlike its counterparts, Rule 60(b)(4), which provides relief from void
judgments, ‘is not subject to any time limitation.’ ” Orner v. Shalala, 30 F.3d 1307, 1310 (10th Cir.
1994) (quoting V.T.A., Inc., 597 F.2d at 224 n. 9 and accompanying text). While failing to prescribe
concrete time limitations, the courts have established that the normal temporal considerations do not
apply in the Rule 60(b)(4) context.
Under Rule 60(b)(4), this court will generally look toward two factors to determine voidness.
The New York Life court stated that “ ‘[a] judgment “is void only if the court that rendered it lacked
jurisdiction of the subject matter, or of the parties, or it acted in a manner inconsistent with due
process of law.” ’ ” Id. at 143 (quoting Williams v. New Orleans Public Serv., Inc., 728 F.2d 730,
735 (5th Cir. 1984)). The City, however, did not allege such jurisdictional defects or constitutional
deficiencies in its motion, but instead insisted that Carter’s own procedural failures rendered the
judgment void. Some circuits have noted that a judgment is void if the rendering court was powerless
to enter it. VTA, Inc., 597 F.2d at 224. While such holdings most obviously allude to a jurisdictional
defect, they allow enough room to capture within their reach situations where the parties’ failure to
follow relevant law or procedure in securing the judgment will undermine its ultimate validity. Such
instances fit into the slightly less restrictive definition offered by the Seventh Circuit when it declared
that “[a] void judgment is one which, from its inception, was a complete nullity and witho legal
ut
effect.” United States v. Zima, 766 F.2d 1153, 1159 (7th Cir. 1985).
While relief under Rule 60(b) is considered an extraordinary remedy, this court has held that
the rule should be construed in order to do substantial justice. See, e.g., Greater Baton Rouge Gold
Ass’n v. Recreation & Park Comm’n., 507 F.2d 227, 228-29 (5th Cir. 1975). We have counseled
in the past, however, that “[t]he desire for a judicial process that is predictable mandates caution in
8
reopening judgments.” Bailey v. Ryan Stevedoring Company, Inc., 894 F.2d 157, 160 (5th Cir.
1990) (quoting Fackelman v. Bell, 564 F.2d 734 (5th Cir.1977)) (internal citation omitted). The First
Circuit has also explained that “[i]n the interests of finality, the concept of void judgments is narrowly
construed.” United States v. Boch Oldsmobile, Inc., 909 F.2d 657, 661 (1st Cir. 1990) (quoting
United States v. Berenguer, 821 F.2d 16, 22 (1st Cir. 1987)). The district court in the instant matter
provided a related admonition when it further noted that such hesitance to reopen final judgments is
“especially so in cases where a suit is terminated prior to adjudication on the merits.” See Seven
Elves, Inc., 635 F.2d at 403. As the Eleventh Circuit has articulated, the provisions of Rule 60(b)
must be carefully interpreted to preserve the delicate balance between the sanctity of final judgments
and the “incessant command of the court’s conscience that justice be done in light of all the facts.”
Griffin v. Swim-Tech Corporation, 722 F.2d 677, 680 (11th Cir. 1984).
IV.
LOUISIANA LAW REGARDING COMPROMISE OR SETTLEMENT OF A MINOR’S CLAIM
As noted above, the underlying wrongful death suit that is the basis for this litigation resulted
in a consent judgment, the proceeds from which are to benefit the five year old son of the deceased.
It is axiomatic under Louisiana law that a person compromising or settling the claim of a minor child
shall follow certain explicit rules. In cases where such protections are not observed, “[t]he courts of
Louisiana have been most protective of the minor’s interests in the area surrounding settlement of
claims, and have not hesitated to nullify any settlement or compromise that was not judicially
approved.” Leonard Oppenheim, The Basic Elements of Tutorship in Louisiana, 44 Tul.L.Rev. 452,
493 (1970).
We thus find it prudent to examine the requirements set forth by Louisiana law for settlement
of a minor’s claim to determine whether such procedures were properly met. The Louisiana Code
of Civil Procedure details the manner in which the claims of a minor may be compromised or settled.
The statute imposes upon parental administrators the duties and obligations of legally-appointed
tutors. Article 4265 allows that “with the approval of the court as provided in Article 4271, a tutor
9
may compromise an action or right of action by or against the minor, or extend, renew, or in any way
modify the terms of an obligation owed by or to the minor.” Article 4271, in relevant part, further
prescribes:
The tutor shall file a petition setting forth the subject matter to be
determined affecting the minor’s interest, with his recommendations
and the reasons therefor, and with a written concurrence by the
undertutor. If the court approved the reco mmendations, it shall
render a judgment of homologation. . . .
The statutory requirements for compromising and settling the claims of a minor are rigorous
because of “the general policy of our law to protect all minors from the possible consequences of
immaturity[.]” Johnson v. Ford Motor Company, 707 F.2d 189, 194 (5th Cir. 1983) (quoting State
in Interest of Dino, 359 So.2d 586, 593 (La. 1978) (footnote omitted), cert. denied, 439 U.S. 1047,
99 S.Ct. 722, 58 L.Ed.2d 706 (1978)).
Carter urges this court that at the time the consent judgment was confected, the necessary
tutorship proceedings regarding the claims of her minor son had occurred. Indeed, the record
indicates that on October 8, 1992, Carter filed a Petition for Small Tutorship of Vergil Carter in
Louisiana State Court, Orleans Parish. Such petition was approved by order of the court on October
8, 1992, and Carter was properly appointed tutor of her minor son pursuant to the court’s Letter of
Tutorship signed on October 9, 1992. Carter clearly completed the first step required by Louisiana
law to settle the claim of her minor son. As the Johnson court admonished, however, “the tutorship
arrangement is not in itself sufficient protection of the unemancipated minor’s interests. The
Louisiana Courts must, under Article 4271, maintain a careful oversight of the interests of the minors
brought before them by parents or tutors.” Id. at 194.
Carter failed to follow the remaining statutory requirements for compromising the claim of
her son. Namely, she did not seek the prior judicial approval necessary for settling a minor’s claim.
Thus, the state court was not allowed to exercise its oversight of the minor’s interests prior to the
confection of the consent judgment. Such a failure is fatal in this context because of the affirmative
judicial obligation to review a tutor’s requests regarding the protected interests of the minor. The
10
“courts [are] the final preventative from unrestrained and unwise compromise of the minor’s
interests.” Id. at 194 (citing Oppenheim). Such keen judicial examination is meant to offer protection
from both self-interested tutors seeking to augment their own personal wealth and well-meaning
tutors who may be unaware of the potential pitfalls associated with a particular settlement.
Ultimately, the statute and the jurisprudence elevate the protection of the delicate interests of the
minor over all other considerations. This court has found:
For adults functioning on behalf of minors there remains a continuing
duty to act in the best interests of the child-- “as a prudent
administrator,” La.Code.Civ.Proc. art. 4262--and to seek and obtain
prior court approval under 4271 before compromising those interests.
Compromises entered into absent these protections are of no legal
effect. . . . ‘the courts of Louisiana have been most protective of the
minor’s interest in the area of settlement of claims and have not
hesitated to nullify any settlement or compromise that was not
judicially approved.’
Id. (emphasis added).
The Achilles’ heel of the appellant’s situation lies in her failure to obtain state court approval
of the settlement agreement prior to confecting the federal consent judgment with the City. As the
Johnson court makes clear, establishing tutrix status with regard to the minor does not in and of itself
meet the explicit statutory requirements for compromise and settlement of such claims. Because
Carter did not obtain the required judicial approval of the settlement agreement from the state court
in which she filed her Petition for Small Tutorship, the consent judgment is necessarily of no legal
effect.
Citing Southern Shipbuilding Corp v. Richardson, 372 So.2d 1188 (La. 1979), Carter
suggests that the failure t o obtain court approval does not disturb the validity of the agreement
because no monies have yet been disbursed with relation to the settlement. She further urges that
Louisiana case law supports the proposi tion that the tutor or tutrix may petition for state court
approval of a minor settlement on a timely basis after settlement has been reached and prior to
satisfaction of the settlement terms. See In re Tutorship of Ingraham, 565 So.2d 1012 (La.App. 1st
Cir. 1990); Succession of Helmers, 637 So.2d 1302 (La.App. 4th Cir. 1994). We find that Carter
11
has misunderstood the proposition for which these cases stand. Southern Shipbuilding, the case
which best supports Carter’s argument, suggests that tutor qualification may be obtained at the same
time that court approval is sought after a “tentative settlement has been agreed upon.” 372 So.2d
at 1190. The consent judgment in question, however, is not a tentative settlement. Despite the fact
that no funds have been dispersed to Carter by the City, the judgment was finalized in federal court
before the agreement was approved in any form, by the state court. Noting that she has
merely confected an agreement in her role as tutrix, Carter suggests that the appropriate remedy in
the case is not to invalidate the settlement agreement, but to allow the plaintiff to seek approval of
the minor settlement, if state law applies. She further urges that there is no Louisiana law mandating
that court approval under article 4271 be obtained at the time the settlement is reached. Carter is
correct in her observation that article 4272 requires a tutor to obtain court approval before receiving
money on behalf of a minor. Article 4272 provides:
In approving any proposal by which money will be paid to the minor,
the court may order that the money be paid directly into the registry
of the court for the minor’s account, to be withdrawn only upon
approval of the court and to be invested direct ly in an investment
approved by the court.
Carter apparently understands this article as requiring approval only in relation to the disbursement
of funds; however, the case law which she brings to our attention does not support her contention.
We therefore disagree with such interpret ation. A belated request for state court permission to
disburse funds of the minor will not cure an earlier failure to obtain permission to compromise the
minor’s claim itself. Without such prior approval, the statutory directive requiring judicial oversight
of minor settlements would be rendered meaningless. In order to ensure that minor’s claims are
carefully scrutinized, Louisiana courts and the Fifth Circuit have found the statutory scheme to
compel prior approval of a settlement or compromise of such claims.
As previously mentioned, the Johnson court noted the duty of tutors to seek and obtain prior
court approval before compromising a minor’s interests. In Succession of Helmers, 637 So.2d 1302,
1308 (La.App. 4th Cir. 1994), the court noted that “even if [the appellant] was appointed tutor Court
12
approval was required before [the appellant] could act for the minors to sign the satisfaction of
judgment.” In Snowden v. Huey P. Long Mem orial Hospital, 581 So.2d 287 (La.App. 3rd Cir.
1991), the court set forth the procedure governing settlement of minor claims. “In approving a
minor’s settlement, a court must not only grant authority to compromise to the party properly
representing the minor, but must also determine whether the terms of the proposed compromise are
in the best interests of the minor.” Id. at 289-90 (footnote and citation omitted). The implication of
such language is clear—the court must have some meaningful exercise of authority over proposed
compromises and settlements. Obtaining post hoc judicial approval of a consent judgment as Carter
planned would tear away at the usefulness and underlying concerns of article 4271 itself. As one
commentator observed, “[w]hen tutors attempt to compromise the claims or modify the obligations
of their wards without receiving prior judicial approval, their actions are absolute nullities . . . .”
Oppenheim at 493.
Because the consent judgment in this case is void, we affirm the district court’s decision to
set it aside.
V.
THE TRIAL
Having vacated the consent judgment, we now turn to Carter’s arguments which stem from
the trial on the merits. She avers that the jury’s verdict is inconsistent with the law applicable in this
case and that this court should grant a judgment in her favor as a matter of law. She urges that 1)
the jury’s decision should be reversed and/or a new trial granted because the evidence presented at
trial shows that Fenner and Tallant were objectively unreasonable in their use of force against Braud;
2) the trial judge committed reversible error in permitting testimony regarding Braud’s alleged prior
violent behavior in the home; and 3) the trial judge erred in allowing a coroner testifying as an expert
witness to testify regarding the behavior of a person who is under the influence of alcohol. We
consider each of these claims separately.
VI.
13
STANDARD OF REVIEW
Under Boeing Co. v. Shipman, 411 F.2d 365, 368-70 (5th Cir. 1969) (en banc), this court
must uphold the jury’s verdict against Carter unless the evidence, viewed in the light most favorable
to the City, required a reasonable jury to find in Carter’s favor. Crest Ridge Construction Group, Inc.
v. Newcourt Inc., 78 F.3d 146, 150 (5th Cir. 1996). “The aim of the Court on review is to determine
whether a rationale jury could reach the conclusion that the jury actually reached.” Woodall v. City
of El Paso, 49 F.3d 1120, 1124 (5th Cir. 1995) (citing Fields v. J.C. Penney Co., 968 F.2d 533, 536
(5th Cir. 1992)). This court has recognized:
If the facts and reasonable inferences therefrom point so strongly and
overwhelmingly in favor of the moving party that reasonable persons
could not arrive at a contrary verdict, viewing the facts in the light
most favorable to the party against whom the motion is made, and
giving that party the advantage of fair and reasonable inferences which
the evidence justifies, then a motion for judgment as a matter of law
should be granted.
Id. (citing Hamilton v. Grocers Supply Co., Inc., 986 F.2d 97 (5th Cir. 1993)). Finally, a motion for
a new trial based on evidentiary grounds should not be granted unless, at a minimum, the verdict is
against the great weight of the evidence, not merely against the preponderance of the evidence.
Dawson v. Wal-Mart Stores, Inc., 978 F.2d 205, 208 (5th Cir. 1992) (citing Conway v. Chemical
Leaman Tank Lines, Inc., 610 F.2d 360, 363 (5th Cir. 1980)).
VII.
THE JURY’S VERDICT REGARDING EXCESSIVE FORCE
Carter argues that the evidence presented at trial “overwhelmingly” indicates that Fenner
violated Braud’s constitutional rights under 42 U.S.C. § 1983 so as to require this court to conclude
that no reasonable jury could have found in favor of the defendants. She argues that the jury’s verdict
that the defendants were objectively reasonable in shooting Braud is incorrect and should be set aside
by this court. Carter further observes that the jury’s verdict is also inconsistent with applicable law
in this case, which provides that an officer is objectively reasonable in using excessive force where
a suspect threatens the officer with a weapon or creates a belief that the suspect will assault the
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officer or others with a deadly weapon. Stroik v. Ponseti, 35 F.3d 155, 158 (5th Cir. 1994). Carter
argues that Braud was unarmed and thus presented no threat to the officers and that the evidence
illustrates that he was fleeing from the officers at the time of the shooting. The City counters by
reminding us of the trial judge’s observations:
. . . the Court finds that sufficient evidence exists to support the jury’s
verdict. Both sides presented contradictory eyewitness testimony, and
the outcome hinged on this credibility question. The testimony of
Tallant and Fenner supported a verdict for the defendants. The jury
was entitled to believe these witnesses and disbelieve others. See
Boyle v. Pool Offshore Co., 893 F.2d 713, 717 (5th Cir. 1990) (the
credibility of witnesses is for the jury to determine). Thus the Court
is unable to conclude that no reasonable jury could have found as this
jury did.
The City identifies the elements necessary to prove an excessive force claim under § 1983 as
1) a significant injury,8 which 2) resulted directly and only from the use of force that was clearly
excessive to the need, and the excessiveness of which was 3) objectively unreasonable. Johnson v.
Morel, 876 F.2d 477, 480 (5th Cir. 1989) (en banc). Not ing that the second element requires a
showing that the force used was not only excessive, but clearly more than the force needed to subdue
the threat, the City argues that Carter failed to bring evidence to prove these elements were met.
Thomas v. Frederick, 766 F. Supp. 540, 554 (W.D. La. 1991). The City advances that in order to
determine the objective reasonableness of the use of force in a particular situation, the trier of fact
must judge from the perspective of a reasonable officer on the scene. Graham v. Connor, 450 U.S.
386, 396-97, 109 S.Ct. 1865, 1872, 104 L.Ed.2d 443 (1989).
We find that in view of the conflicting evidence, Carter has failed to prove that the elements
of an excessive force claim were met. The jury heard evidence sufficient to allow it to conclude that
the officers were objectively reasonable in shooting Braud. The testimony of both officers indicates
that they were informed by the police dispatcher that the suspect, known as “Vergil,” was possibly
armed and was possibly selling drugs. Fenner testified that upon arriving at the scene and performing
8
This requirement has been deleted. See Hudson v. McMillan, 503 U.S. 1, 112 S.Ct. 995, 117
L.Ed.2d 156 (1992); Knight v. Caldwell, 970 F.2d 1430 (5th Cir. 1992).
15
the initial patdown frisk, he found a black film canister on Braud’s person which appeared to contain
marijuana. Fenner suggested that it was at this point (once the officers had probable cause and were
preparing to arrest Braud) that Braud began to fight with the officers and resist their attempts to
handcuff him. Fenner further testified that because of Braud’s behavior, the officers did not have an
opportunity to conduct a complete search for weapons. The accounts of various witnesses differ
markedly as t o the particulars of the ensuing struggle and whether they saw Braud reaching for
Tallant’s weapon at the time Fenner shot him. The testimony indicates, however, that the witnesses
all agreed that a struggle did occur and that it was violent enough to carry Tallant and Braud to the
ground, where the struggle continued.
Carter’s witnesses offered a range of testimony as to the events that occurred just prior to the
shooting. Some testified that Braud was resisting arrest at the time of the shooting, while others
suggested he was running away from the officers. Still other witnesses were unclear as to what
Braud was doing at the time Fenner shot him. The coroner, Dr. Paul McGarry, testified that he found
bruises and contusions in Braud’s brain tissue during his autopsy—evidence that Carter contends is
illustrative of excessive force. The City maintains that the evidence of bruises indicates that there had
been a struggle, and the other physical evidence presented at trial supports the officers’ testimony that
Fenner fired at Braud in self-defense and to protect his partner’s safety.9
Considering the evidence in the light most favorable to the defendants, we do not find that
Carter directed us to evidence which requires us to conclude that no reasonable jury could have found
in favor of the defendants. She failed to prove the elements required for an excessive force claim
pursuant to § 1983 and thus her Rule 50(b) motion to set aside a jury verdict and render judgment
as matter of law must be denied. Further, because the jury verdict was not against the great weight
of evidence, we cannot find that Carter is entitled to a new trial.
VIII.
9
The physical evidence admitted at trial indicated that Braud was shot once in the chest at a
downward angle consistent with a position on the ground, and that his blood alcohol concentration
was .18.
16
THE TESTIMONY REGARDING BRAUD’S BEHAVIOR IN THE HOME
Carter exhorts us to conclude that the trial judge erred in admitting the testimony of Tahara
Braud and Esteen addressing the issue of violence displayed in the home by Vergil Braud. Carter
argues that such testimony was admitted over her objections, and was nonprobative and therefore
irrelevant. Noting that “[t]he violence in the home to which the witnesses testified had no bearing
on the police officer’s decision to restrain Vergil Braud by inflicting him with a fatal gun shot
wound[,]” Carter contends that this information was completely unrelated to what occurred at the
scene of the shooting. She allows that even if the evidence was relevant, it should have been excluded
because its prejudice to the plaintiffs greatly outweighed its probative value. The City points out that
the admissibility of such testimony was the subject of a motion in limine filed by plaintiffs and ruled
upon prior to trial. The City contends that the trial court permitted only very limited and general
testimony to be introduced to the effect that Braud had engaged in violent behavior in the home, but
did not permit detailed questioning of such incidents.
We find that the court’s ruling on the admissibility of this evidence struck an appropriate
balance between the probative value of such evidence and its possible prejudicial effect. Further,
because of Carter’s attempt to present testimony regarding Braud’s lack of resistance and passivity,
the City was entitled to bring limited rebuttal evidence of Braud’s violent behavior, solely in order
to support its contention that he did resist arrest.
IX.
THE CORONER’S EXPERT TESTIMONY
Arguing that the coroner was not qualified to offer an opinion on the behavior of people (and,
specifically, Vergil Braud) under the influence of alcohol, Carter urges that the adm ission of such
testimony was an abuse of the trial judge’s discretion. We find that Carter’s position is untenable.
The plaintiffs presented Dr. McGarry as a coroner and an expert in forensic pathology whose
qualifications included a degree in medicine. On cross-examination, testimony was elicited from
17
McGarry regarding Braud’s blood alcohol level at the time of death and the general effect of alcohol
on a person’s behavior. Such testimony was allowed because these topics fall well within the
expertise of a medical doctor as well as McGarry’s extensive experience in dealing with persons
acting under the influence of alcohol.
While Carter complains that such testimony was mere speculation, we find that it goes to the
heart of the disput ed question whether Braud’s behavior was so combative and threatening as to
support the officer’s perception that he was about to inflict bodily harm upon one of them.
Carter’s argument that the admission of this testimony warrants the court’s setting aside the verdict
or granting a new trial is thus without merit.
X.
CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s decision, finding that the district
court 1) properly set aside the consent judgment pursuant to Rule 60(b)(4), 2) properly refused to
disturb the jury’s verdict, and 3) made no error in admitting evidence so as to warrant plaintiff’s
motion for a new trial.
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