Brill v. Cochran

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-31229
Summary Calendar
DONALD KENT BRILL;
CONNIE NORMAN BRILL;
Plaintiffs-Appellants,
v.
ROY COCHRAN;
BRANDI & SUZETTE TRUCKING, INC.;
CANAL INSURANCE COMPANY;
XYZ INSURANCE COMPANY;
Defendants-Appellees,
Appeal from the United States District Court
for the Western District of Louisiana
(96-CV-680)
July 1, 1999
Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.
PER CURIAM:*
The appellants seek review of the district court’s order
denying their motion for relief from judgment and refusing to
permit post-trial discovery. Finding the district court did not
abuse its discretion and that this is a frivolous appeal, we
dismiss.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
I.
On March 18, 1995, an 18-wheeler driven by Roy Cochran,
owned by Brandi & Suzette Trucking, Inc., and insured by Canal
Insurance Co. (“Canal”), collided with the rear of Donald Kent
‘Brill’s pickup truck. Alleging substantial injuries from the
accident, Donald and his wife, Connie Brill, filed suit in
Louisiana state court. The action was removed to the Western
District of Louisiana based on diversity of citizenship.
Following removal, the parties engaged in discovery, and
the defendants deposed the Brills. Following the depositions, the
defendants hired an investigator to perform surveillance of
Donald’s activities. He was videotaped fishing, driving, walking
without his brace or a noticeable limp, painting a house, and
carrying two ladders at once without difficulty. After the
surveillance, the Brills were deposed again. Under oath, Donald
testified that he was able to leave his home only rarely, had not
worked, and had not fished. Connie’s testimony corroborated her
husband’s story. As the videotape clearly showed, these statements
were potentially perjurious.
Following the second round of depositions, the Brills’
original counsel withdrew from the litigation after viewing the
videotape surveillance. The Brills associated new counsel; he was
aware of the deposition testimony and the videotape surveillance.
The defendants counterclaimed alleging fraud. Although settlement
discussions were initiated, the defendants refused to settle the
claims because of the fraud involved and the substantial costs
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incurred investigating the Brills’ claim.
The Brills’ new attorney fought to preserve the lawsuit,
filing a motion to bifurcate and a motion in limine. The district
court agreed to bifurcate the trial of the Brills’ original claim
and the defendants’ fraud counterclaim. The Brills’ motion in
limine, however, was denied. Through production of the videotape,
the defendants would have been permitted to impeach the credibility
of the Brills in the trial of their claim for damages. Moreover,
if the alleged charges of fraud were substantiated at trial, the
district court warned that the matter would be referred to the
United States Attorney for investigation.
At a pretrial conference, the Brills’ counsel informed
the court that he intended to dismiss the claim with prejudice and
withdraw as counsel. The motion was granted, and the district
court dismissed the counterclaim due to the jurisdictionally
deficient amount in controversy.
II.
Donald was indicted for insurance fraud in January 1998.
After the indictment, the Brills’ new counsel filed a motion for
relief from judgment pursuant to Fed. R. Civ. P. 60(b) and a motion
for leave to depose the Brills’ former attorneys, a representative
of Canal, and the Louisiana Commissioner of Insurance. The Brills
alleged, without supporting affidavits, that fraud and their
attorney’s mistake prevented the pursuit of their original claim.
Specifically, the Brills charged that Canal’s corporate counsel had
engaged in improper discussions with the Louisiana Commissioner of
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Insurance designed to ensure Donald’s indictment and, following
these discussions, that defense counsel used unethical threats to
prevent the Brills’ attorney from pursuing their claim. The Brills
also claimed that they had only agreed to dismiss their original
claim without prejudice. The defendants filed opposing motions,
submitting the Brills’ depositions and the surveillance videotape
as supporting documentation. The district court denied the motion
for relief from judgment and the motion for post-trial discovery.
III.
A motion for relief from judgment under Rule 60(b) is
committed to the sound discretion of the trial court. See Edwards
v. City of Houston, 78 F.3d 983, 995 (5th Cir. 1998) (en banc). An
abuse of discretion should be found only when no reasonable man,
confronted with the proffered evidence, would have agreed with the
district court’s disposition of the motion. See Smith v. Widman
Trucking & Excavating, Inc., 627 F.2d 792, 795-96 (7th Cir. 1980).
Moreover, a district court’s denial of a Rule 60(b)(3) motion
should be reversed only when the movant has produced clear and
convincing evidence in support of the motion. See Stipelcovich v.
Sand Dollar Marine, Inc., 805 F.2d 599, 604 n.5 (5th Cir. 1986).
Similarly, a district court’s determination not to grant post-trial
discovery will be reversed only for an abuse of discretion.1 See
United States v. Altech, Inc., 929 F.2d 1089, 1091 (5th Cir. 1991).
There was no abuse of discretion by the district court.
1
Liberally construed, the Brills’ notice of appeal encompasses both
the denial of their Rule 60(b) motion and their motion for post-trial discovery.
See United States v. Knowles, 29 F.3d 947, 949 (5th Cir. 1994).
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The Brills’ mere allegations are insufficient to support a finding
that the motion to dismiss with prejudice was actually a mistake by
their attorney. See Widman Trucking, 627 F.2d at 796-97
(discussing importance of affidavits supplied by movant in support
of Rule 60(b) motion). Moreover, Brills’ counsel of record was not
beset by unethical threats by defense counsel. The fraudulent
conduct of his clients placed him in a truly precarious ethical
position. That the Brills dismissed their claim with prejudice in
an effort to avoid prosecution by the State of Louisiana or the
United States Attorney represented a reasonable strategy. That the
Brills now claim the dismissal was supposed to be without prejudice
is not surprising considering their spurious conduct throughout the
course of the litigation. 2 Their allegations, unsupported by the
readily available affidavit of their attorney of record when the
motion to dismiss was filed, were properly dismissed by the
district court. Under the circumstances, the district court did
not abuse its discretion in denying the post-trial relief sought by
the appellants. Moreover, appellant’s arguments tax the credulity
and patience of this court and have wasted valuable judicial
resources.
The appeal is DISMISSED as frivolous.
2
Even if the cause had been dismissed without prejudice, the Brills
would have had only 18 days, at most, to refile their claims under the applicable
Louisiana prescription statute. See La. Civ. Code arts. 3462, 3463, 3492. The
Brills filed their Rule 60(b) motion nearly one year after the entry of their
motion to dismiss -- well outside the prescription period for refiling a new
claim.
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