Intl Paper Co v. Frame

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 6, 2003
• Docket: 02-41569
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS May 6, 2003

Charles R. Fulbruge III FOR THE FIFTH CIRCUIT Clerk

No. 02-41569 Summary Calendar

INTERNATIONAL PAPER CO.,

Plaintiff-Counter Defendant-Appellee,

versus

RICHARD N. FRAME; et al.,

Defendants,

RICHARD N. FRAME,

Defendant-Counter Claimant-Appellant.

Appeal from the United States District Court for the Eastern District of Texas USDC No. 2:98-CV-36-TJW

Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM:*

Defendant Richard N. Frame appeals the district court’s denial

of three Rule 60(b) motions he filed two days before the one-year

anniversary of the district court’s entry of judgment against him

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. and his co-defendants in a case brought by International Paper Co.

(IP). We affirm.

IP brought suit in federal court based on diversity

jurisdiction, asserting claims against Frame, B.A. Kennedy, and

Julie Ann Kennedy for civil conspiracy, fraud, and theft in

violation of the Texas Theft Liability Act. IP also alleged breach

of fiduciary duty against Frame and breach of contract against the

Kennedys. The defendants asserted various counterclaims against

IP.

Frame was employed as a scaler at IP’s Domino, Texas paper

mill. As a scaler, he was responsible for weighing trucks carrying

shipments of wood as they entered and exited the mill. As part of

his job he received “driver’s tickets” from the truck drivers that

described the type of wood delivered, the hauling company, the

truck license tag, and the date of delivery. IP asserted that

Frame had forged over 1500 driver’s tickets between 1995 and 1997,

allowing the Kennedys, whose names were on the tickets, to receive

payment for nonexistent loads of wood.

After a ten-day trial, the jury found for IP, holding Frame

liable for $500,001 and the Kennedys liable for $250,001 each. The

district court also awarded attorneys’ fees and costs against them.

The defendants appealed the judgment and the attorneys’ fees award.

We dismissed the appeal of the judgment because the defendants

filed their notice of appeal more than thirty days after the

2 district court denied defendant Frame’s Rule 59 motion.1 After

concluding the defendants did file the notice of appeal within

thirty days of the order awarding attorneys’ fees, we vacated the

attorneys’ fees award because it erroneously included litigation

expenses not allowable under Texas law.2

Almost one year after the date of the district court’s

judgment, Frame, acting pro se, filed three Rule 60(b) motions.3

In his motions he urged that IP committed fraud upon the court by

proffering the expert testimony of John Randy Hall, submitting a

fraudulent document into evidence, and concealing from the court

the “Real Party in Interest.” Finding no evidence of fraud, the

district court denied the motions, and Frame now appeals.

Frame first argues that the district court should have

excluded Hall, a CPA and Certified Fraud Examiner, from testifying

because Hall was unqualified. He alleges no fraud committed by IP

attorneys or Hall in the course of trial proceedings, other than

they “knew or should have known that Hall’s testimony did not meet

1 International Paper Co. v. Frame, No. 01-41094 (5th Cir. Apr. 8, 2003). 2 Id. 3 FED. CIV. P. 60(b) (“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 ... for the following reasons: ... (3) fraud ..., misrepresentation, or other misconduct of an adverse party ....”).

3 the standard of Rule 702.”4 Frame also asserts that Hall and IP’s

attorneys had a questionable billing arrangement, speculating that

the attorneys paid Hall in increments of less than $10,000 so that

IRS reporting requirements would not be triggered.

Rule 60(b) motions “are directed to the sound discretion of

the district court .... It is not enough that the granting of

relief might have been permissible, or even warranted[;] the denial

must have been so unwarranted as to constitute an abuse of

discretion.”5 Frame did not file a motion to strike Hall’s

testimony, object to his qualifications at trial, or appeal the

testimony to this court. A rule 60(b) motion is not a vehicle to

attack an expert’s qualifications after the fact.6 Further, Frame

has cited no evidence of IP and Hall’s alleged scheme to hide their

payment transactions from the IRS other than IP’s billing records

that it gave the district court in support of its motion for

attorneys’ fees and costs, which show payment increments from IP to

Hall of below $10,000. Nor has he shown how this alleged tax fraud

4 Frame argues that Hall’s testimony did not meet the requirements of Rule 702 because he did not apply generally accepted auditing standards (GAAS) or generally accepted accounting principles (GAAP) to the financial data he reviewed in the case. 5 Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 402 (5th Cir. 1981). 6 Id. (“[T]he Rule 60(b) motion is not to be used as a substitute for appeal.”).

4 prevented him from fully and fairly presenting his case.7 We

conclude the district court did not abuse its discretion in

rejecting this motion.

Frame also objects that IP employee Randy Cofield created and

submitted a fraudulent exhibit to the court with the knowledge of

IP attorneys. The document is a computer record that Cofield said

he used to compare with exterior videos to determine that truck

loads of wood were not received into the mill. Frame argues that

the document submitted at his civil trial must have been fraudulent

because the document Cofield used during Frame’s criminal trial8 to

showcase the data for the jury contained an outbound weight and a

weigh-out time for each truck, while the document Cofield used

during the civil trial contained only weigh-in information.

Frame did not object to entry of this document at trial,

although all facts necessary for Frame to object to the document’s

authenticity were available to him at that time. Instead, Frame

stipulated to the document’s admissibility. Frame’s Rule 60(b)

motion was an attempt to appeal the entry of the document into

evidence. We find no abuse of discretion in the district court’s

denial of that motion.

7 Gov’t Fin. Servs. One Ltd. P’ship v. Peyton Place, 62 F.3d 767, 772 (5th Cir. 1995) (“A party making a Rule 60(b)(3) motion must ‘establish by clear and convincing evidence (1) that the adverse party engaged in fraud or other misconduct and (2) that this misconduct prevented the moving party from fully and fairly presenting his case.’”). 8 Frame was acquitted of the criminal charges.

5 Finally, Frame urges that on November 25, 1998 IP’s insurance

company agreed to pay IP $1.3 million for the loss occasioned by

Frame’s alleged actions, and thereafter IP was no longer a real

party in interest and could not continue its suit against Frame.

Frame set forth the same argument in his motion to dismiss or alter

judgment, which he filed soon after the district court entered

judgment against him. The district court denied that motion and

Frame did not timely appeal it. Frame does not argue that IP did

not disclose the settlement to him prior to trial; rather, he

asserts that IP’s attorneys committed fraud by filing a successful

motion in limine to prevent the jury from hearing about the

settlement agreement. This is not an issue appropriate to a Rule

60(b) motion, and the district court did not abuse its discretion

in concluding that IP and its attorneys did not commit fraud upon

the court by pursuing IP’s case against Frame after settling with

its insurance company or by filing the motion in limine.

AFFIRMED.