PARK WEST GALLERIES, INC., Plаintiff-Appellee, v. Bruce HOCHMAN; Fine Art Registry; Salvador Dali Gallery, Inc., Defendants, Theresa Franks; Global Fine Art Registry, LLC; David Charles Phillips, Defendants-Appellants.
No. 11-1175
United States Court of Appeals, Sixth Circuit
Sept. 5, 2012.
692 F.3d 539
C
Goldberg also contends that Rule 26 does not apply to appeals from criminal contempt proceedings because they are not “criminal case[s]” within the meaning of the rule. It is true that “[c]ontempt proceedings are often classified as sui generis, neither civil nor criminal.” State ex rel. Corn v. Russo, 90 Ohio St.3d 551, 740 N.E.2d 265, 269 (2001); see also Brown v. Executive 200, Inc., 64 Ohio St.2d 250, 416 N.E.2d 610, 612 (1980). Nevertheless, “most courts distinguish between civil and criminal contempt proceedings,” based on the “purpose to be served by the sanction,” Corn, 740 N.E.2d at 269, and the parties agree that the probate court found Goldberg guilty of criminal contempt.
The Supreme Court has described criminal contempt as a “crime in the ordinary sense.” Bloom v. Illinois, 391 U.S. 194, 201, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968). Accordingly, it has extended to criminal contempt proceedings a variety of constitutional protections—including the right to counsel—applicable in ordinary criminal cases. See Cooke v. United States, 267 U.S. 517, 537, 45 S.Ct. 390, 69 L.Ed. 767 (1925); see also United States v. Dixon, 509 U.S. 688, 696, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993) (double jeopardy); Hicks ex rel. Feiock v. Feiock, 485 U.S. 624, 632, 108 S.Ct. 1423, 99 L.Ed.2d 721 (1988) (proof beyond a reasonable doubt); Gompers v. Bucks Stove & Rаnge Co., 221 U.S. 418, 444, 31 S.Ct. 492, 55 L.Ed. 797 (1911) (privilege against self-incrimination and presumption of innocence).
Goldberg argues that he was constitutionally entitled to effective assistance of counsel in his criminal contempt proceeding, while insisting that his is not a criminal case for the purposes of enforcing this entitlement. But Goldberg cannot have it both ways. We think it plain that the term “criminal case” as used in Rule 26, refers to those cases in which there is a constitutional right to counsel because of the criminal penalties at stake. See, e.g., State v. Komadina, No. 03CA008325, 2004 WL 2244368, at *1 (Ohio Ct.App. Sept. 22, 2004) (unpublished) (granting
III
Because Goldberg cannot show cause to excuse his procedural default, we AFFIRM.
Before: MOORE, GIBBONS, and ALARCÓN, Circuit Judges.*
GIBBONS, J., delivered the opinion of the court in which ALARCÓN, J., joined, and MOORE, J., joined only in the judgment. MOORE, J. (pp. 549-50), delivered a separate opinion concurring in the judgment.
OPINION
JULIA SMITH GIBBONS, Circuit Judge.
Defendants-appellants Theresa Franks, Global Fine Art Registry, LLC, and David Charles Phillips appeаl the district court‘s denial of their motion to reinstate the jury verdict. Defendants-appellants filed the motion after the district court granted the motion for a new trial filed by Park West Galleries, Inc. (“Park West“). In denying the motion, the district court found that it was unclear whether this court‘s waiver doctrine as enunciated in Jones v. Illinois Central Railroad Co., 617 F.3d 843 (6th Cir.2010), extended to requests for a new trial brought under
I.
Park West is an independently owned gallery and art dealer headquartered in Southfield, Michigan. Park West sells art from its Southfield gallery, over the internet, through its catalog, and over the phone, and also conducts art auctions in different cities in North America and on cruise ships around the world. Among the works sold by Park West are works by Salvador Dalí.
In May 2007, Theresa Franks, who is the CEO of Global Fine Art Registry (“GFAR“), began publishing articles on Fine Art Registry (“FAR“), the website run by GFAR, which alleged that Park West engaged in suspect business practices in running its auctions aboard cruise ships and that Park West sold inauthentic or fake works of art to unsuspecting customers—particularly citing the works by Dalí as an example. David Phillips, a
In April 2008, Park West filed a complaint in Michigan state court against Franks, Hochman, and GFAR alleging defamation, tortious interference, interference with prospective business advantage, and civil conspiracy to destroy Park West‘s goodwill and reputation. The action was removed to federal court. Park West had also filed a similar defamation case against Phillips, and the cases were consolidated.
The consolidated case was tried before a jury between March 15, 2010 and April 19, 2010. During trial, Park West frequently objected to what it viewed as misconduct on the part of Franks and counsel for the defendants. The district court gave several warnings to defense counsel regarding the misconduct and sanctioned Franks‘s defense counsel Jonathan Schwartz for his failure to honor the court‘s rulings regarding improper lines of questioning. Despite the repeated instances of misconduct, Park West did not request a mistrial and the case was submitted to the jury on April 19. On April 21, the jury returned a verdict in favor of defendants Franks, Phillips, Hochman, and GFAR on the defamation, tortious interference with business expectancies, and civil conspiracy claims. However, the jury did not find in favor of the defendants on their counterclaims of defamation, tortious interference with business expectancies, and conspiracy to tortiously interfere with business expectancies. Nonetheless, the jury did find in favor of defendant GFAR on its Lanham Act counterclaim against Park West and awarded $500,000.00 in damages.
On May 11, 2010, Park West filed a motion for judgment as a matter of law and/or for a new trial. Park West‘s motion requested several forms of post-trial relief, including a new trial under
On August 16, 2010, the district court found that Franks and counsel for the defendants engaged in contumacious conduct. After considering the factors enumerated in City of Cleveland v. Peter Kiewit Sons’ Co., 624 F.2d 749, 756 (6th Cir.1980), for determining whether there is a reasonable probability that the jury‘s verdiсt was influenced by the improper conduct and a grant of the motion for a new trial is therefore warranted, the district court decided that the misconduct engaged in by Franks and defense counsel was serious enough and permeated the
On October 7, 2010, GFAR, Franks, and Phillips (collectively, the “defendants“) filed a Motion to Reinstate the Unanimous Jury Verdict, Based Upon the Recent 6th Circuit Published Decision in Jones v. Illinois Central Railroad Company, 617 F.3d 843 (6th Cir.2010).2 The defendants’ motion to reinstate argued that under Jones, Park West waived its right to seek a new trial when it failed to seek a mistrial before the jury rendered its verdict despite the fact that the alleged misconduct or instances of potential or actual prejudice were known to Park West prior to jury deliberations. As a result, the defendants requested that the district court grant them relief by reversing its decision to grant a new trial and reinstating the jury‘s verdict in light of Jones.
The district court denied the motion to reinstate on December 8, 2010. The district court considered whether Jones, which involved a Rule 60 motion, should be read to create a broad waiver rule encompassing the case where a party fails to move for a mistrial when the misconduct was known to the party prior to jury deliberations. The district court concluded that Jones did not create such a broad waiver rule, because it found that the opinion “clearly and expressly rested its analysis and holding on the plaintiff‘s Rule 60 motion.” Because Park West moved for a new trial under
II.
On interlocutory appeal, we do not review the district court‘s findings of fact, and instead “consider only pure questions of law.” Bates v. Dura Auto. Sys., Inc., 625 F.3d 283, 285 (6th Cir.2010). We review district court‘s conclusions of law de novo. Id.
II.
The defendants argue that the district court improperly ordered a new trial and erred in denying their motion to reinstate the jury verdict because Park West waived its right to a new trial by failing to request a mistriаl based on known misconduct at trial before the case was submitted to the jury. They contend that Jones demonstrates that a party waives its right to a new trial when it fails to seek a mistrial before the jury renders its verdict. We disagree and conclude that Jones does not extend to motions for a new trial made pursuant to
Pursuant to
Jones involved a negligence action that stemmed from a collision between a fertilizer spreader driven by Keith Jones and an Illinois Central Railroad Company train. Jones, 617 F.3d at 845. The jury returned a verdict finding both parties 50% at fаult. Id. at 846. Theresa Jones, who brought the action individually and on behalf of her husband, then filed post-trial motions to, among other things, vacate the judgment and grant a new trial based on alleged misconduct by Illinois Central and its defense counsel. Id. at 849, 851. Among the claims asserted in her motion to vacate the judgment and grant a new trial under Rule 60(b)(3) and 60(d)(3) on grounds of misconduct, Jones alleged that defense counsel engaged in several forms of misconduct during trial, including instructing a witness not to reveal that defense counsel asked him to appear in court and paid for the witness‘s hotel room. Id. at 849-50. The district court denied Jones‘s motions on the grounds that the misconduct that occurred at trial was adequately remedied by the court and did not cause Jones to suffer prejudice. Id. at 850.
We found that Jones waived relief under Rule 60 because she failed to move for a mistrial before the jury returned its verdict. Id. at 851-52. We noted that Rule 60 was not intended to provide relief from consequences of deliberate decisions after subsequent events reveal the decisions to have been unwise and then observed that the waiver doctrine has been applied “in circumstances similar to those in this case.” Id. at 851. To demonstrate this precedent, we cited Morton Butler Timber Co. v. United Stаtes, 91 F.2d 884 (6th Cir.1937), where the landowners’ request for a new trial based on alleged government attorney misconduct was denied in part because the landowners failed to move for a mistrial, and Carter v. Tennessee, 18 F.2d 850 (6th Cir.1927), a criminal case, where a defendant waived his argument for a new trial because he did not ask for a mistrial prior to judgment. Id. at 851. Because Jones also did not request a mistrial, we found that she waived her right to Rule 60 relief. Id. Of particular note was the fact that Jones had “instead requested and received a curative instruction and the opportunity to read [the witness‘s] deposition testimony to the jury.” Id. at 852. As a result, we found that Jones had “bet on the jury and lost” and could not now be “permitted to seek a new trial on the basis of potential prejudice that was apparent during trial,” particularly given the fact that she “had ample reason and opportunity to seek corrective action in the form of a mistrial before the jury returned its verdict” but chose not to. Id.
As an initial matter, Jones involved a motion for a new trial brought under Federal Rules of Civil Procedure 60(b)(3) and 60(d)(3), and not a motion for a new trial pursuant to
Jones‘s citations to Carter and Morton Butler Timber—which predated the adoption of the Federal Rules of Civil Procedure in 1938, and involve distinguishable contexts—do little to strengthen the defendants’ argument that Jones should apply broadly to include motions for a new trial brought under
Carter involved a criminal trial where the defendant argued that the prosecutor committed misconduct by making an improper closing argument. Carter, 18 F.2d at 853. The alleged misconduct and the actions taken by the trial court in response were not in the record on appeal, but we found that the evidence was sufficient to supрort a guilty verdict for voluntary manslaughter and that “in the absence of a showing to the contrary,” it is assumed that the trial court carried out its duty “to immediately interfere sua sponte, reprimand the offending counsel, and admonish the jury....” Id. Since the general rule is that an improper argument by a prosecutor is not a ground for reversal where the jury is specifically told to disregard it, and it must be assumed that the court did “reprove counsel” and provide proper instructions to the jury, we found that any prejudice that could not be removed by the jury instruction was “waived by the failure of the defendant to movе for a mistrial.” Id. Despite our conclusion that the potential prejudice had to be assumed to have been remedied, we also stated that by failing to move for a mistrial and consenting to the continuance of trial, the plaintiff took “his chance of a favorable verdict, and if the verdict be ‘guilty’ [he should not] then [be allowed to] assert it was founded to a material extent upon misconduct of counsel.” Id. Although in Carter we applied a waiver rule to a criminal defendant who failed to move for a mistrial, Carter‘s relevance is diminished because it is a criminal case involving a different proсedural context.
In Morton Butler Timber, a condemnation case, the appellant landowners argued that they were entitled to a new trial in part due to the alleged misconduct of the government attorneys in cross-examining some of the appellants’ witnesses. 91 F.2d at 889-90. After reviewing the record, we found that the trial judge had properly excluded the evidence complained of and that the conduct complained of was not sufficiently pronounced or persistent to prejudice the jury. Id. at 890. Although we found that the landowners suffered no prejudice and thus that the motion for a new trial was corrеctly denied, we noted, arguably in dicta, that “[f]urthermore, we think the point was waived by failure of the appellants to move for a mistrial.” Id. The defendants’ reliance on Morton Butler Timber for the proposition that it established a general rule requiring a motion for a mistrial is misplaced, since the heart of the case dealt with the no-prejudice finding.
Although the defendants argue that “the holding in Jones ... and its distinguishing of City of Cleveland establishes that the waiver doctrine applies to a party‘s request for a new trial, even under FRCP 59,” Jones clearly distinguishes City of Cleveland based on the absence of a request for relief under Rule 60. In City of Cleveland, we found the district court erred in not granting a new trial due to misconduct on the part of the City‘s counsel, which included frequent “improper and prejudicial references” to the size and international character of the defendant corporation and the amount of insurance coverage carried by the defendant. 624 F.2d at 757-58. The defendant corporation raised objections to the comments and the
In Jones, we noted that although the defendant corporation in City of Cleveland never moved for a mistrial, we granted a new trial to the defendant corporation. 617 F.3d at 852. The Jones court distinguished the situation in City of Cleveland by noting that “the City never challenged the propriety of granting Rule 60 relief despite the losing party‘s failure to seek a mistrial. Had we faced that argument in City of Cleveland, we would have been bound to apply our clear precedent from Morton Butler Timber Co. and Carter....” Id. The defendants argue that this discussion of City of Cleveland demonstrates that the same rule applies to
The defendants also argue that several circuits have adopted a similar waiver rule governing requests for a new trial whereby a motion for a mistrial must precedе a motion for a new trial based on misconduct known to the moving party before the case is submitted to the jury. However, contrary to the defendants’ assertions, much of the persuasive precedent focuses on the failure to make either an objection or a motion for a mistrial, suggesting that either would be sufficient to preserve the right to a new trial on a motion for a new trial under
Further, at least with respect to motions for a new trial based on improper closing arguments, the Eighth Circuit has adopted the clear rule that “[a] party need not object to an offensive argument and move for a mistrial in order to preserve the right to bring a motion for a new trial.” Harrison v. Purdy Bros. Trucking Co., 312 F.3d 346, 353 (8th Cir.2002). This rule is implied by the First Circuit‘s decision in Computer Systems Engineering, 740 F.2d at 69. Indeed, the general rule appears to be that a proper objection to known misconduct at trial is sufficient to preserve the right to later move for a mistrial under
We also find that declining to import the waiver rule from Jones into the
Our conclusion that Jones should not be extended to the situation presented by this case is reaffirmed by the fact that, here, the district court could have granted a new trial to Park West sua sponte and in fact expressed its inclination to do so. We have stated that a district court considering a
For the foregoing reasons, we hold that the waiver rule set forth in Jones does not extend to
KAREN NELSON MOORE, Circuit Judge, concurring in the judgment.
While I concur in affirming the district court‘s judgment, I write separately to express my views as to the proper grounds for reaching this result. I do not believe it is necessary to reach the question of waiver and the application of Jones v. Illinois Central Railroad Co., 617 F.3d 843 (6th Cir.2010), in this instance.
This Circuit has previously recognized that “waiver is a prudential rule, not a jurisdictional one.” Vistein v. Am. Registry of Radiologic Technologists, 342 Fed. Appx. 113, 124 n. 3 (6th Cir.2009) (unpublished opinion) (quoting United States v. Martin, 438 F.3d 621, 627 (6th Cir.2006)) (internal quotation marks omitted). “We have generally considered the following factors in determining whether to exercise our discretion to adjudicate the merits of an issue that has been waived: 1) whether the question is one of law or one that requires some factual development, 2) whether the proper resolution of the issue is clear beyond doubt, 3) whether the failure to take up the issue will result in a miscarriage of justice, and 4) the parties’ right to have their issues considered by both a district judge and an appellate court.” Id. (citing Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 552-53 (6th Cir.2008)).
The question before us is undoubtedly one of law: whether the prejudicial conduct of defense counsel was so severe and pervasive as to warrant granting Park West‘s request for a new trial. The answer to this question is clear, and failure to resolve it would result in an affirmative miscarriage of justice. As the district court identified in its opinion of August 16, 2010, the misconduct by defense counsеl in this case “was frequent, highly prejudicial, and permeated the trial proceedings.” Park West Galleries, Inc. v. Global Fine Art Registry, LLC, 732 F.Supp.2d 727, 754 (E.D.Mich.2010). Indeed, the conduct was so extreme that the district court concluded not even curative instructions could have remedied its prejudicial effect and, for that reason, held that Park West‘s “failure to object and/or request a curative instruction” in the face of each instance of misconduct did “not constitute a sufficient basis for the [district court] to deny [Park West‘s] motion for a new trial.” Id. at 755. This is the precise scenario in which, regardless of waiver, a сourt should intervene to ensure that the interests of justice are served.
Affirming the district court‘s judgment in this instance is also consistent with the expansive nature of the district court‘s power under
Based on the foregoing, I conclude that we need not decide the question of waiver because, regardless, the interests of justice require that we affirm the district court‘s grant of Park West‘s motion for a new trial. Accordingly, I concur in the judgment.
Dorothy BROWN, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
No. 11-3612
United States Court of Appeals, Sixth Circuit
Sept. 5, 2012.