United States of America, Cross-Appellant v. Frank Romano and Thomas Romano, Cross-Appellees

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UNITED STATES of America v. Frank ROMANO and Thomas Romano

No. 81-5710

United States Court of Appeals, Eleventh Circuit

March 5, 1985

tiffs consented to the remittitur order. This contention is based on a misapplication of

Donovan v. Penn Shipping Co., Inc., 429 U.S. 648, 97 S.Ct. 835, 51 L.Ed. 2d 112 (1977). In

Donovan, the Supreme Court reaffirmed “the longstanding rule that a plaintiff may not appeal from a remittitur order he has accepted.”

Id. at 650, 97 S.Ct. at 837; see

Higgins v. Smith Int‘l, Inc., 716 F.2d 278, 282 (5th Cir.1983);

Arnold v. Eastern Air Lines, Inc., 681 F.2d 186, 205 (4th Cir.1982), cert. denied,

460 U.S. 1102, 103 S.Ct. 1801, 76 L.Ed.2d 366 (1983), —

U.S. —, 104 S.Ct. 703, 79 L.Ed.2d 168 (1984);

Westerman v. Sears, Roebuck & Co., 577 F.2d 873, 883 (5th Cir.1978);

Krahn v. B.F. Goodrich Co., 559 F.2d 308, 308 (5th Cir.1977). Here, however, the plaintiffs do not object to the district court‘s determination that the unpaid commissions for the orders that actually were shipped totalled $6,000 instead of $57,000, nor do they contest the court‘s power to enter the remittitur order. In other words, the plaintiffs do not appeal from the remittitur order. Rather, the plaintiffs appeal from the order granting summary judgment in favor of Daewoo, an order completely unrelated to the remittitur order. Hence, the instant case is not governed by

Donovan, and the plaintiffs’ appeal is proper.⁶ See 6A J. Moore, J. Lucas & G. Grotheer, Jr., Moore‘s Federal Practice ¶ 59.08[7], at 59-205 to -206 (2d ed. 1984) (“The Supreme Court has reaffirmed the rule, stated in its early decisions, that a plaintiff in federal court may not appeal from a remittitur order he has accepted. . . . A plaintiff may, however, appeal from other parts of the judgment.“); cf.

Ohio-Sealy Mattress Mfg. Co. v. Sealy Corp., 585 F.2d 821, 843-45 (7th Cir.1978) (plaintiff appealed from denial of equitable relief; appellate court reversed without discussing fact that plaintiff had consented to remittitur order as to damages), cert. denied,

440 U.S. 930, 99 S.Ct. 1267, 59 L.Ed.2d 486 (1979).

For the foregoing reasons, the defendant‘s motion to dismiss the appeal is DENIED.

Neal R. Sonnett, Benedict P. Kuehne, Bierman, Sonnett, Shohat & Sale, Miami, Fla., for defendants-appellants, cross appellees.

James M. Deichert, Sp. Atty., U.S. Dept. of Justice, Atlanta, Ga., Sidney Glazer, Sara Criscitelli, U.S. Dept. of Justice, Crim. Div. Appellate Sect., Washington, D.C., for plaintiff-appellee, cross appellant.

Hatchett, Circuit Judge, concurred in part and dissented in part with statement.

Before RONEY, HATCHETT and ANDERSON, Circuit Judges.

BY THE COURT:

On July 19, 1984, this Court reversed the convictions of Thomas Romano and Frank Romano.

United States v. Romano, 736 F.2d 1432 (11th Cir.1984). The reversal of the convictions necessarily reversed the district court‘s criminal forfeiture orders as to each defendant. While the decision as to Frank Romano was pending before this Court on the Government‘s petition for rehearing and rehearing en banc, Frank Romano died on January 3, 1985.

When a defendant dies pending direct appeal of his criminal conviction, the Court will dismiss the appeal as moot with respect to that defendant and remand the case to the district court to vacate the judgment and dismiss the indictment.

United States v. Lewis, 676 F.2d 508, 510 n. 1 (11th Cir.), cert. denied,

459 U.S. 976, 103 S.Ct. 313, 74 L.Ed.2d 291 (1982);

United States v. Holt, 650 F.2d 651 (5th Cir. 1981);

United States v. Pauline, 625 F.2d 684 (5th Cir.1980).

Although we have not decided whether an appeal involving a criminal forfeiture order would be mooted upon the death of the defendant, in this case the Government has chosen not to contest the matter. Therefore, the opinion of this Court, insofar as it relates to Frank Romano, is VACATED. Frank Romano‘s case is REMANDED to the district court so that it may vacate the judgment and dismiss the indictment as against him.

The Clerk is instructed to issue immediately the mandate on the decision of this Court as to Thomas Romano, which decision is unaffected by this order.

All pending motions and petitions are DISMISSED AS MOOT.

HATCHETT, Circuit Judge, concurring in part and dissenting in part:

1. I would grant Thomas Romano‘s motion to issue the mandate immediately.

2. I would grant Frank Romano‘s motion to dismiss the appeal as moot and direct the district court to vacate the judgment and dismiss the indictment against Frank.

3. Because I adhere to the panel opinion (

United States v. Romano, 736 F.2d 1432 (11th Cir.1984)), I would deny the government‘s Motion to Vacate Portion of Opinion Because of Mootness.

Notes

6

We note in passing that Daewoo‘s argument would lead to the conclusion that the district court‘s order granting summary judgment would be appealable by the plaintiffs only after a new trial on the damages issue, despite the fact that neither party contests the court‘s resolution of the damages issue. Such a result would be illogical and a waste of judicial resources.

Case Details

Case Name: United States of America, Cross-Appellant v. Frank Romano and Thomas Romano, Cross-Appellees

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Mar 5, 1985

Citation: 755 F.2d 1401

Docket Number: 81-5710

Court Abbreviation: 11th Cir.