DELESDERNIER v. PORTERIE

RANDALL, Circuit Judge:

This case involves a suit for malpractice arising out of defendants' representation of plaintiff in a protracted litigation of land claims. The malpractice litigation itself has gone through two full trials and plaintiff now seeks reversal and a third trial. For the reasons stated below, we affirm.

In March of 1957, plaintiff Gloria Delesdernier employed defendant Louis Porterie and his law firm, then known as Duke, Porterie & Davidson, to represent her in connection with her claims to various properties located in Plaquemines Parish, Louisiana. This litigation continued under Porterie's direction for over fifteen years. Delesdernier assisted in the preparation of her case; in order to facilitate the work on the litigation, she was given a key to Porterie's office and the case file was kept in a special place where she could work on the file after hours.

A trial date was finally set for October 16, 1972. Porterie consistently made it clear that he wanted Delesdernier to settle the case instead of going to trial, but Delesdernier refused. Finally, Porterie informed Delesdernier in a letter, dated August 11, 1972, that he refused to proceed any further on her behalf and that he was resigning from the case. The trial date being only two months off, Delesdernier picked up the case files from Porterie's office using the key she had been given and began representing herself in the litigation. Porterie thereafter wrote a letter to the plaintiff on August 17, 1972, accusing her of illegally removing the files from his office. On August 13, 1973, Delesdernier filed the present suit against Porterie, his partners Claude Duke, John Hantel, and Eric Lundin, and their malpractice insurer, St. Paul Fire & Marine Casualty Company, claiming defamation, breach of contract, malpractice, and negligent infliction of emotional distress. Among other things, Delesdernier claimed that she suffered severe mental anguish as a result of her attorney's withdrawal from her case because he had represented her for fifteen years, and then had left her without counsel only two months away from trial with certain interrogatories and requests for admissions still to be answered.

Trial was scheduled for February 14, 1977, before then District Judge (now Circuit Judge) Alvin B. Rubin. Before trial commenced, the judge called the attorneys and plaintiff into his chambers. He informed them that he had some concern about his ability to act as a trier of fact if the parties elected to try the case without a jury:

. . . . .

The judge explained that he was an acquaintance of both Porterie and Duke but was not "social friends" with either. He proceeded to give a detailed account of the circumstances in which he met both men and how he was acquainted with them. He explained further:

Delesdernier did not wish to waive her right to a jury, and as neither side objected to Judge Rubin as a trial judge, he presided at the trial. After a three day trial, the jury returned a verdict of $25,000 for negligent infliction of mental anguish. The jury also determined that the defendants had not defamed Delesdernier. The breach of contract issue was dismissed without prejudice at the close of plaintiff's case.

After the trial, Delesdernier moved for a new trial on the issue of defamation. The court denied this motion. It also denied defendants' motion for a judgment N.O.V. on the negligence issue. However, the court granted defendants' motion for a remittitur and in the alternative for a new trial; specifically, it ordered Delesdernier to accept an award of $10,000 or face a new trial. Delesdernier refused the award, and a new trial was ordered. The court's remittitur order was made in a minute entry and did not discuss which issues would be retried if the remittitur were refused.

Subsequently, Judge Rubin was appointed to this court. Judge Robert Collins became the presiding judge assigned to replace him. Judge Collins ruled that the second trial would be limited to the issue of negligence, and that the issue of defamation would be excluded. On September 22, 1979, the case was reassigned to Judge Peter Beer, who presided at the second trial, held on June 9 and 10, 1980. In the second trial, the jury found for Delesdernier on the negligence issue, but awarded her only $1,500. Delesdernier then brought the present appeal, claiming that errors were committed by the district judges in both her trials.

Disqualification Issues

Delesdernier's first point on appeal is that Judge Rubin should have disqualified himself from the first trial under the judicial disqualification provisions of 28 U.S.C. § 455(a):

Delesdernier's argument is based on Judge Rubin's claim that he would have to recuse himself if the parties asked him to act as a trier of fact in a bench trial. He did this because he believed that his degree of acquaintanceship with defendants Porterie and Duke might have some weight in assessing the credibility of their testimony. However, argues Delesdernier, when Judge Rubin considered whether to grant a remittitur and a new trial in the alternative, he was required to weigh the credibility of the witnesses in any event; this is because a motion for a new trial requires the judge to decide if the verdict is against the great weight of the evidence.1

Defendants argue in reply that even if this is so, Delesdernier has raised this argument for the first time on this appeal, whereas Judge Rubin's disclosures were made prior to the first trial. Delesdernier should have raised the argument concerning the possibility that Judge Rubin would have to weigh evidence at that point. After all, a motion for a new trial by the losing party is hardly an unforseeable event in a jury trial — indeed it is usually offered as a matter of course by any counsel with more than limited experience. In any case, a motion for disqualification was not raised even after defendants did move for a new trial. Defendants thus insist that the lack of timeliness of the motion prevents our consideration of it now.

In order to decide to what extent a motion for disqualification under § 455(a)2 must be timely made, a preliminary discussion of the history of the statute and related provisions is necessary. Prior to 1974, there were two relevant provisions concerning disqualification of federal judges. These were 28 U.S.C. § 144 and an earlier version of 28 U.S.C. § 455 (amended 1974):

Section 144 contains an explicit requirement of timeliness. The earlier version of § 455 does not. In 1974, Congress amended § 455 with a view to stiffening the conflict of interest provisions for the federal judiciary. Act of December 5, 1974, Pub.L. 93-512, § 1, 88 Stat. 1609, as amended by Act of Nov. 6, 1978, Pub.L. 95-598, Title II, § 214(a), (b), 92 Stat. 2661. The present version of § 455 now provides, in pertinent part:

The new version of § 455 followed for the most part the language of Canon 3 C of the ABA Code of Judicial Conduct. See H.R.Rep.No.93-1453, 93d Cong., 2d Sess. 4-5, reprinted in [1974] U.S.Code Cong. & Ad.News 6351, 6353-54. The new § 455 also adopted some of the language from § 144, and this circuit has held that "substantively the two statutes are quite similar, if not identical." Phillips v. Joint Legislative Committee, 637 F.2d 1014, 1019 & n.6 (5th Cir. 1981); see Davis v. Board of School Commissioners of Mobile County, 517 F.2d 1044 (5th Cir. 1975), cert. denied, 425 U.S. 944, 96 S.Ct. 1685, 48 L.Ed.2d 188 (1976) (Section 144 and new section 455 are to be construed in pari materia and same substantive test of bias would be applied.).

Two things about the 1974 version of § 455 are worthy of note. The first is that the statute now contains a waiver provision for situations falling within the general provisions of § 455(a) if full disclosure is made, but waiver is not possible if the situation falls within one of the specific categories listed in § 455(b). The second point is that even after the 1974 amendment, § 455 still contains no explicit procedural requirements.

The legislative history of the 1974 amendment reveals that the Justice Department suggested that the new statute should include some explicit limitation of time similar to § 144 "to prevent applications of disqualification from being filed near the end of a trial when the underlying facts were known long before," H.R.Rep.No.93-1453, 93d Cong., 2d Sess. 9, reprinted in [1974] U.S.Code Cong. & Ad.News 6351, 6358. However, Congress did not, for reasons of its own, incorporate this recommendation into the statute. One court has read this fact as proof that Congress did not intend any timeliness requirements for § 455. SCA Services, Inc. v. Morgan, 557 F.2d 110, 117 (7th Cir. 1977). However, prior to the 1974 amendment courts had generally held that a timely objection under the old § 455 was necessary. E.g., Adams v. United States, 302 F.2d 307, 309 (5th Cir. 1962); 13 Wright, Miller & Cooper Federal Practice and Procedure: Civil § 3552 at 382 n.1 and cases cited therein. Thus "Congress' failure to act could as easily have been the result of a belief that the judicial gloss on old section 455 would survive." Note, Disqualification of Federal Judges for Bias or Prejudice, 46 U.Chi.L.Rev. 236, 263 (1978) (hereinafter cited as Disqualification of Judges); see Davis v. Board of School Commissioners of Mobile County, supra (New § 455 was designed to eliminate only specific judicial gloss given statute by subjective "opinion of judge" test and "duty to sit" test; judicial gloss on statute requiring that bias be extra-judicial remains in full force after new enactment.).

We thus are unconvinced that the question is conclusively determined by the legislative history of the 1974 amendments, and we must base our decision on other considerations as well. The general purposes behind the statute as well as the statute's language might seem to indicate that no timeliness requirement should obtain. First, the statute is directed to judges, not to litigants, and it is meant to be self-enforcing. Thus whenever the judge is called upon to disqualify himself he should be prepared and required to consider the propriety of his remaining in the case. Second, the purpose of the statute is to increase public confidence in the judiciary by removing even the appearance of impropriety or partiality. That policy is not served by permitting an arguably biased judge to remain in a case simply because an incompetent or insufficiently diligent counsel failed to raise a timely objection.

Despite the force of these arguments, the lack of a timeliness rule has its own problems. If disqualification may be raised at any time, a lawyer is then encouraged to delay making a § 455(a) motion as long as possible if he believes that there is any chance that he will win at trial. If he loses, he can always claim the judge was disqualified and get a new trial. This result would not comport well with the purposes behind § 455(a). As one commentator has put it:

Note, Disqualification of Judges, supra, at 263-64 n.155. Lack of a timeliness requirement encourages speculation and converts the serious and laudatory business of insuring judicial fairness into a mere litigation stratagem. Congress did not enact § 455(a) to allow counsel to make a game of the federal judiciary's ethical obligations; we should seek to preserve the integrity of the statute by discouraging bad faith manipulation of its rules for litigious advantage.

We are thus convinced that timeliness may not be disregarded in all cases regarding disqualification under § 455(a).3 Moreover, we think that the facts of the present case are well suited to a timeliness requirement. Here the trial judge raised the possibility of disqualification himself at the very beginning. Before trial began, he gave a full and fair disclosure of his situation as regards defendants Porterie and Duke, and indeed described his acquaintance with them in painstaking detail. Thus it cannot be seriously argued that Delesdernier or her counsel were unaware before trial began of facts which might arguably support a § 455(a) motion for disqualification.4 We think that the motion raised for the first time on appeal, and after two full trials on the merits, is too tardily made for us to consider it now.5

Remittitur

Delesdernier's second point on appeal is that the trial court's remittitur of her $25,000 verdict to $10,000 was improper. The scope of appellate review of a trial court's order of remittitur in this circuit is set forth in Bonura v. Sea Land Service, Inc., 505 F.2d 665 (5th Cir. 1974). The general standard of review is a strict one and the trial court will be reversed only if the party opposed to the remittitur shows an abuse of discretion by the judge. Id. at 669. For an appellate court to find an abuse of discretion, it must appear that the jury's verdict was "clearly within the universe of possible awards which are supported by the evidence." Id. at 670. (emphasis in original). If a remittitur was proper under this standard, the next question is "whether the amount of the award remaining after remittitur reflects the maximum award which the evidence will support or whether it merely represents the trial court's opinion of what the proper award should have been." Id. Accord, Geyer v. Vargas Productions, Inc., 627 F.2d 732 (5th Cir. 1980); Gorsalitz v. Olin Mathieson Chemical Corp., 429 F.2d 1033 (5th Cir. 1970).

We think the record of the first trial supports the trial judge's decision, and we find no abuse of discretion in his ordering a remittitur. The evidence obviously supports a finding that Delesdernier suffered some emotional distress from Porterie's withdrawal from her case. However, Delesdernier admitted that she was able to find new counsel to obtain an extension of time for trial shortly after Porterie withdrew. Delesdernier's daughter, Carol Marchard Arnaud, stated that her mother was "in a bad state" after receiving Porterie's letter, and that "she was upset for a couple of weeks." Delesdernier complained of numbness in her face as a result of her nervousness about an upcoming deposition of her uncle, Mark Delesdernier. However, these events occurred in 1975, some three years after Porterie's withdrawal. The deposition itself was eventually taken in 1976. Delesdernier visited a Dr. Labourdette in 1975 and 1977 concerning the numbness in her face. Dr. Labourdette testified that on one of the visits, in May of 1975, Delesdernier described her "marked anxiety" and gave a history of a whiplash injury. Dr. Labourdette recalled that "she was having some legal procedure going on in April of '75, ... and it caused her to be very upset, and ... that is why she came in that particular day." Dr. Labourdette did not give any testimony which connected the numbness in Delesdernier's face in 1975 or her whiplash injury to Porterie's withdrawal in 1972.

Based on the record, we agree with the trial court that the jury's $25,000 verdict is not clearly within the universe of possible awards supported by the evidence. Hence we think a remittitur was proper. As to the $10,000 amount chosen by the court, we note that the trial judge is to be given great deference in his choice of a maximum award, since "he, and not the appellate court, was present during the ebb and flow of the trial." Bonura, supra, at 670. As we stated in Bonura, we will assume that the amount remaining after the remittitur reflects the maximum possible award "unless the party opposed to the remittitur can point to credible evidence which would support a greater recovery." Id. In the light of the record before us, we are unable to say that the trial judge's choice was incorrect.

Jury Instructions

Delesdernier's third point of error concerns remarks which the trial judge made at the first trial. Delesdernier testified at the trial that the August 17 letter she received from Porterie (accusing her of illegally removing files from Porterie's office) showed his secretary's initials on it, indicating that Porterie had dictated it to his secretary. The trial judge interrupted testimony at that point and stated that as a matter of law, a dictation to a secretary could not be publication within the meaning of the doctrine of defamation. Both sides are agreed that this is not a correct view of Louisiana law. However, at the close of the case the trial court gave what both sides agree is a correct instruction of the law, namely, that a defamatory remark is published if it is written or spoken to one other person other than the person it was intended for. See, e.g., Toomer v. Breaux, 146 So.2d 723 (La.App.1962) (rule applies to non-privileged communications; as to privileged communications, reasonably necessary use of clerical personnel does not constitute publication). We need not decide whether the parties are correct in assuming that the pre-instruction remarks were contrary to Louisiana law. Even assuming that the remarks stated the law incorrectly, Delesdernier's attorney made no objection to them at that point nor at any other point prior to this appeal. It is important that the parties make known to the trial court what omissions or commissions are objected to and why so that the trial court can act to correct errors if they are present, and ordinarily this court will not consider issues which are only raised for the first time on appeal. Wright v. Hartford Accident & Indemnity Co., 580 F.2d 809 (5th Cir. 1978). There is an exception to this rule where refusal to consider the issue would result in a miscarriage of justice, Calmaquip Engineering West Hemisphere Corp. v. West Coast Carriers, Ltd., 650 F.2d 633 (5th Cir. 1981); In Re Corrugated Container Antitrust Litigation, 647 F.2d 460 (5th Cir. 1981), or where there is no opportunity to make a timely objection, In Re Novack, 639 F.2d 1274 (5th Cir. 1981). However, neither of these exceptions obtains here. Delesdernier has offered no reasons why counsel could not have objected to the trial court's remarks or specifically requested that the jury be instructed to disregard them. Moreover, since the trial judge corrected himself sua sponte in his final instructions, we are unconvinced that a miscarriage of justice results from our refusal to consider the issue now.

For similar reasons we think Delesdernier's fourth point of error is also untimely. Delesdernier argues that additional jury instructions given in the second trial were confusing to the jury. These instructions were given after the jury had begun deliberations; the jury sent a note back to the judge requesting additional instruction on the one year period of prescription under Louisiana law. The judge called the jury in and gave additional instructions in the presence of both counsel. After the instructions were given, Delesdernier's counsel was specifically asked if he had any objections to these instructions and he stated that he had none. He will not be heard to object now for the first time on appeal.

Admissibility of Porterie's Letter

Delesdernier's final point of error concerns a ruling of the district court at the second trial. During the trial, Delesdernier was questioned by her counsel concerning the August 17 letter from Porterie (which had stated that she had illegally seized Porterie's files):

At this point defense counsel objected and a lengthy bench conference followed. The trial judge sternly admonished Delesdernier for her continual habit of not responding directly to questions put to her, making speeches and engaging in gratuitous observations. An examination of the record indicates that indeed, Delesdernier had been consistently warned, both by Judge Beer at the second trial and by Judge Rubin at the first trial, that she was not to engage in this sort of activity, and that she had, nevertheless, persisted in doing so. Defense counsel also objected to the question posed in that it was relevant only to the issue of defamation, an issue which was not under consideration at the second trial. The following exchanges occurred between defense counsel, Mr. Hunley, the court, and Delesdernier's counsel, Mr. Roy:

Delesdernier argues that this ruling prevented her counsel from introducing relevant evidence of the content of the letter and her reaction to it to establish the mental anguish she suffered as a result of Porterie's withdrawal from the case. We disagree. The language of the trial court's ruling, both on its face and in the context of the discussion, is clear. Defense counsel's objections were overruled. Plaintiff's counsel was permitted to introduce evidence of the letter to the extent that it was relevant to mental anguish caused by Porterie's withdrawal from the case. Delesdernier's reactions to the allegedly defamatory comments within the letter would be admissible to the extent that they showed that Porterie was negligent in his representation of Delesdernier and this poor representation caused her anguish. They would not, as plaintiff's counsel suggested, be admissible simply because Porterie accused Delesdernier of breaking the law. We think no reversible error was made as to this ground. The judgment of the district court is affirmed.

AFFIRMED.