Brill v. Cochran

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 1, 1999
• Docket: 98-31229
• Status: Unpublished

Opinion

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

2 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

3 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).

4 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.