Bernard Litman v. Massachusetts Mutual Life Insurance Company

825 F.2d 1506, 56 U.S.L.W. 2153, 1987 U.S. App. LEXIS 11631

• Court: Court of Appeals for the Eleventh Circuit
• Decided: August 31, 1987
• Docket: 85-5939
• Status: Published

Opinions

HILL, Circuit Judge,

concurring dubi-tante:

I concur in the judgment. While I take no specific issue with the reasons for the judgment given in the opinion, I fear that we may not yet have addressed, directly, important considerations.

Much of Judge Fay’s splendid opinion points out that those who have lost in the court of appeals may not properly seek to reverse that result in the district court when the mandate appears there. It would seem that this goes without saying, but I certainly take no issue with the majority for saying it again. That, however, is not the problem before us in this case. We do not have a loser in this court seeking to have the district court reverse this court’s judgment. What we have here is one who has won in this court undertaking to forego the fruits of its victory. The question is whether or not a litigant who is the beneficiary of this court’s judgment may elect to forego implementation of its victory in the district court and, if so, how and under what circumstances it should be allowed to do so. Of course, not all mandates of the appellate court are required to be carried out by the district court. If we reverse and remand a case to the district court for a new trial, it is no offense to the dignity and authority of this court that the parties settle the case so that the ordered new trial does not take place. Absoluta sententia expositore non indiget.

I apprehend that the problem addressed in this case is the result of shortsightedness on the part of parties and their counsel, asking for relief on appeal even though careful analysis would demonstrate that the relief would be more harmful than helpful. Further, I apprehend that this problem can develop when somewhat overenthusiastic appellate judges find in an appeal relief the judge feels appropriate for a party who has not requested it, but orders it granted, anyway.¹ In each of these scenarios, the party apparently prevailing usually finds it is more damaged by the relief when relief is granted on less than all of the issues presented in the appeal.

That is obviously the case here. Had Massachusetts Mutual obtained all of the relief it sought in the appeal, it would be quite content that the mandate be strictly enforced. While it sought the elimination of all damages awarded against it, it obtained the elimination of the only award which Mr. Litman may have been disappointed with, and a new trial has been ordered as to only that one. Thus, having received only partial relief, Massachusetts Mutual is potentially in a worse position than it would have been in had it chosen not to appeal at all.

I believe that our procedures ought to afford a litigant with some relief under these circumstances. Our opinion and judgment should tell the successful party that it has been granted the right to the relief, and that party ought to have some procedure available through which it can waive that right. The nearest thing we have seems to be the right to petition this court for rehearing and, as Judge Fay points out, Massachusetts Mutual did not ask us to vacate any of the relief it had apparently won.

There must be a time limit on the period in which a litigant can seek to waive its relief, and the lack of such a limit is my major concern here. Inasmuch as I am convinced that a litigant such as Massachusetts Mutual ought not have an opportunity, unlimited by time and procedure, to avail itself of the benefits of the judgment or to forego them, the judgment in this case must be correct. Massachusetts Mutual may not pursue the litigation as long as it deems it expedient to do so and then forego the benefits of our mandate when its interest seem thereby served. This would allow a litigant such as Massachusetts Mutual to put its adversary and the district court through preparation for and commencement of the retrial we have ordered, only to tell the district court and its opponent to undo all that had been done if the jurors selected did not suit.

In short, litigants ought not seek relief they really do not want and judges ought not grant relief not sought. Should parties prevail in a limited way to their displeasure, they ought to move promptly for relief. Ultimately, rules should be established for the waiver of benefits obtained by our judgment, requiring that it be done promptly and for good reason. I concur in the judgment.

1 . This is not what happened in this case. The record makes it clear that Massachusetts Mutual argued for and sought the vacation of the punitive damages, the reassessment of which now looms threateningly on the horizon.