Technical Development Corp. v. United States

202 Ct. Cl. 237, 179 U.S.P.Q. (BNA) 180, 1973 U.S. Ct. Cl. LEXIS 72, 1973 WL 21347
CourtUnited States Court of Claims
DecidedJune 20, 1973
DocketNo. 174-64
StatusPublished
Cited by8 cases

This text of 202 Ct. Cl. 237 (Technical Development Corp. v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Technical Development Corp. v. United States, 202 Ct. Cl. 237, 179 U.S.P.Q. (BNA) 180, 1973 U.S. Ct. Cl. LEXIS 72, 1973 WL 21347 (cc 1973).

Opinions

Pek Cttkiam:

This case comes before the court from its Trial Division on exceptions of the parties to a recommended decision filed October 1, 1971, by Trial Commissioner James [241]*241F. Davis, pursuant to Rule 134(h). The court has considered the case on the briefs and oral argument of counsel and, agreeing with the commissioner’s decision, adopts the same as the basis for its judgment in the case. Some additional observations, however, are in order, particularly as they relate to a procedural problem arising after the filing of the commissioner’s opinion.

Following the filing of the commissioner’s opinion in this case, the plaintiffs, on January 5,1972, filed a motion to refer the case back to the commissioner in order to offer further evidence on the question of the defendant’s license defense which was deemed crucial by the commissioner. The court denied this motion without prejudice and ruled that the plaintiffs could renew their contentions with respect to the motion as part of their exceptions to the commissioner’s recommended decision. Both parties spent a considerable portion of their arguments addressing the problems of whether the defendant’s license defense had been fairly tried, and whether new evidence should 'be heard on the matter. Since the problem lies at the threshold of any examination of the merits of the case, it is necessary for the court to make a brief, preliminary statement concerning the events leading up to the filing of the commissioner’s decision, and the court’s conclusions with respect to the plaintiffs’ allegations that they must be allowed to present additional evidence if the matter is to receive a fair hearing. The events, as described, are either agreed to by the parties or otherwise supported by the overwhelming evidence before the court.

The defendant never affirmatively pleaded or otherwise raised its license defense before the start of the trial, but instead raised the possibility of presenting proof with respect to such a defense only after the trial had already commenced. Following the disclosure of the possible license defense, there were discussions and correspondence between the parties and the commissioner concerning the scheduling of separate trial proceedings to focus specifically on such a defense. Six months after the regular trial sessions were concluded, the defendant submitted a voluminous package of documents apparently meant, in large part, to be the basis of its license defense, [242]*242thereby avoiding the necessity of a separate trial. The documents were admitted into evidence by a stipulation between the parties as to their authenticity, and thereafter the proofs were closed.

The first brief and recommended findings of fact presented to the commissioner after the closing of proof were filed by the plaintiffs. 'In their brief, the plaintiffs recognized the intent of the defendant to rely oil the stipulated documents as the basis for its license defense, and went on to state at pages 120-21:

* * * Plaintiffs are unable to effectively anticipate the position Defendant may take, if any, and the reason therefor and hence, must necessarily reserve the right to include their own appropriate response in a Eeply Brief * * *

With their right to reply effectively reserved, the plaintiffs received the defendant’s brief and recommended findings of fact filed before the commissioner in which the defendant itemized, in detail, the grounds for its license defense. The plaintiffs responded in their reply brief with an exhaustive attempt to refute, on the merits, each of the defendant’s license allegations. This response was prefaced by the following statement at page '18 of the reply brief:

It is submitted that, in view of the full opportunity granted Defendant to call any and all witnesses desired, ■and at any place it might have specified, and its failure to do so, the evidence should be construed to prove nothing beyond that strictly contained within the documents, and that extended inferences be proscribed.
If, 'however, there should be any doubt as to the validity of Plaintiffs’ position, based on such a strict construction of the evidence, Plaintiffs would in no way object to the reopening of the proofs, so that each side could introduce such additional testimony and documents as might 'bear on an incontrovertible proof of the facts of the case.

At this point, the plaintiffs had or should have had a clear understanding of the thrust of the defendant’s license defense, and were apparently content to rest on the arguments contained in their reply brief. Their prefatory statement [243]*243that should there “be any doubt as to the validity of Plaintiffs’ position * * * Plaintiffs would in no way object to the reopening of the proofs” does not constitute a request to be allowed to present new evidence, much less a demand for such an opportunity. 'It instead appears to be an attempt by the plaintiffs to preserve their right to present contradictory affirmative evidence, but only if the commissioner should reach the conclusions being pressed by the defendant. Such a position is untenable, and incompatible with the principle of certainty in judicial determinations and that once fair opportunity is provided for presentations of evidence and argument, litigation should have an end.

The facts make it clear that the license defense was effectively tried with mutual consent of the parties, and, therefore, despite the fact that the defense was not affirmatively pleaded [a procedure preferred by the court (Rule 37(a)], Rule 39 (b) allows the court to treat the pleadings as though amended in order to conform to the proof. See United States Fid. & Guar. Co. v. United States, 389 F. 2d 697, 698-99 (10th Cir. 1968), in which Fed. R. Civ. P. 15(b) [the parallel to Court of Claims Rule 39 (b) ] was used to reach the following conclusion:

* * * Where no objection is made to evidence on the ground it is outside the issues of the case, the issue raised is nevertheless before the trial court for determination, [cites omitted], and the pleadings should be regarded as amended in order to conform to the proof. [Citations omitted.]

The cases cited by the plaintiffs, Armstrong Cork Co. v. Lyons, 366 F. 2d 206 (8th Cir. 1966), and Freitag v. Strand of Atlantic City, Inc., 205 F. 2d 778 (3rd Cir. 1953), are cases in which the circuit courts reversed decisions below which were based upon issues neither pleaded by the parties nor tried with their consent. This is clearly not the situation presented by the case at hand, where it is clear from the briefs before the commissioner that both parties presented their positions on the license issue, on the merits, expecting the commissioner to reach a conclusion on the merits. The conclusions the commissioner reached were not word for [244]*244word repetitions of the theories presented by the defendant, but they were closely enough related to those theories to be predictable to the parties concerned. Since the plaintiffs are not alleging that the additional evidence which they wish to present is “new” in the sense that it was unavailable at the time of the trial, there appears to be no compelling reason for the court to remand the case to the commissioner in order to hear more evidence on a matter already closed to proof.

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Cite This Page — Counsel Stack

Bluebook (online)
202 Ct. Cl. 237, 179 U.S.P.Q. (BNA) 180, 1973 U.S. Ct. Cl. LEXIS 72, 1973 WL 21347, Counsel Stack Legal Research, https://law.counselstack.com/opinion/technical-development-corp-v-united-states-cc-1973.