BORG-WARNER ACCEPTANCE CORPORATION, a body corporate, Appellee, v. Anthony J. ROSSI, Individually and trading as Rossi Refrigeration Sales and Service, Appellant.
No. 73-1205.
United States Court of Appeals, Fourth Circuit.
Nov. 5, 1973.
365 F.Supp. 56
Mitchell Stevan, Baltimore, Md. (Sagner, Stevan & Harris, Baltimore, Md., on brief), for appellee.
Before BRYAN, Senior Circuit Judge, and RUSSELL and WIDENER, Circuit Judges.
PER CURIAM:
Appellee Borg-Warner Acceptance Corporation held the promissory note, with supporting lien documents, representing the deferred balance of $16,323.00 owing by Anthony J. Rossi to Cryocool, Inc. for the purchase price of certain refrigerator systems. Upon Rossi‘s default in this obligation, appellee sued him in the District Court for this amount. From a judgment in favor of the appellee, Rossi appeals.
After review of the record and consideration of the arguments of counsel, on brief and orally, we affirm for reasons assigned in the opinion of the District Judge. Borg-Warner Acceptance Corporation, etc. v. Rossi, etc., 365 F.Supp. 56 (D.C.M.D.1972).
Affirmed.
UNITED STATES of America, Appellee, v. John Lee BOWEN, Appellant.
No. 72-1012.
United States Court of Appeals, Ninth Circuit.
Oct. 23, 1973.
Michael D. Nasatir (argued), Nasatir, Sherman & Hirsch, Beverly Hills, Cal., for appellant.
Shelby R. Gott, Asst. U. S. Atty. (argued), Harry D. Steward, U. S. Atty., Stephen G. Nelson, Asst. U. S. Atty., San Diego, Cal., for appellee.
Before CHAMBERS, MERRILL, KOELSCH, BROWNING, DUNIWAY, ELY, HUFSTEDLER, WRIGHT, TRASK, CHOY, GOODWIN, WALLACE and SNEED, Circuit Judges.
ORDER.
A majority of the judges of this court in active service have voted to hear the above case en banc on December 11, 1973, at 1:30 P.M. If counsel desire to submit additional briefs, such briefs must be filed in the Clerk‘s Office of this Court no later than November 15, 1973.
Argument will be in Courtroom No. 1 in the United States Court of Appeals and Post Office Building, Seventh and Mission Streets, San Francisco.
(Circuit Judge Chambers will file a dissent to the foregoing order.)
CHAMBERS, Circuit Judge (dissenting):
I dissent from the order for en banc. At issue is the retroactivity of Almeida-Sanchez v. United States, 411 U.S. 903, 93 S.Ct. 1531, 36 L.Ed.2d 192 (1973). Also involved in Bowen under Almeida-Sanchez is the status of an intermittent but fixed checkpoint.
It is inescapable that the Supreme Court will decide the questions here. They are too big and too far reaching for that Court to ignore them.
This en banc hearing results in about a three-months’ delay in the case getting to the Supreme Court. Meanwhile, two or three district courts are almost choked with the retroactive question. Thus, knowing our decision means little in this instance, I was prepared to live with any decision the panel might render.
Taking this case en banc is simply flying off into the air without a payload.
Dericksen M. BRINKERHOFF, etc., et al., Appellants, v. AMFAC, INC., et al., Appellees.
No. 73-2365.
United States Court of Appeals, Ninth Circuit.
Sept. 13, 1973.
Bruce W. Kauffman, David H. Pittinsky, Carl H. Hanzelik, William T. Coleman, Jr., Dilworth, Paxson, Kalish, Levy & Coleman, Philadelphia, Pa., Alexander Kahan, New York City, Asa M. Akinaka, Honolulu, Hawaii, Kenneth P. Kimmel, Beverly Hills, Cal., for appellants.
Martin Gendel, Richard S. Berger, Gendel, Raskoff, Shapiro & Quittner, Alfred I. Rothman, Loeb & Loeb, Los Angeles, Cal., James W. Rosenquist, Orrick, Herrington, Rowley & Sutcliffe, San Francisco, Cal., Roger Jon Diamond, Mervyn L. Hecht, Pacific Palisades, Cal., Samuel Gates, Irwin J. Sugarman, Debevoise, Plimpton, Lyons & Gates, New York City, Douglas E. Prior, Cades, Schutte, Fleming & Wright, Paul A. Lynch, Gerald Y. Sekiya, Bortz, Case, Stack, Kay, Cronin & Clause, Howard K. Hoddick, Anthony, Hoddick, Reinwald & O‘Connor, William A. Stricklin, Conroy, Hamilton, Gibson, Nickelsen & Rush, Honolulu, Hawaii, for appellees.
Before KOELSCH, HUFSTEDLER and WALLACE, Circuit Judges.
OPINION
PER CURIAM:
Although appellants insist that they seek only to attack Judge Pence‘s construction of Judge Tavares’ instructions to the appraisers, it is evident that the attack would be pointless unless the real aim were to upset the valuations reached by the court-appointed appraisers. Appellants recognize, or they must, that they are in a situation directly analogous to one who seeks to upset an arbitration award. Accordingly, their only hope in turning over the “award” is to claim that it was the product of extrinsic fraud or that the “arbitrators” exceeded the scope of the submission and thus acted outside their jurisdiction.
To the extent that extrinsic fraud was charged, Judge Pence found against the appellants and there is no basis in the record to upset that determination.
We have examined Judge Pence‘s construction of Judge Tavares’ instructions to the appraisers, and we have concluded that Judge Pence did not err in his interpretation of them.
Appellants are understandably distressed by the valuations reached by the appraisers. Unfortunately for appellants, the scope of judicial review available to them on the basis of their stipulation and the orders of the court predicated upon their agreement is far more