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Perez-Perez v. Popular, 1st Cir. (1993)
Perez-Perez v. Popular, 1st Cir. (1993)
this action
alleged
Betancourt
from
of the death
("Perez-
for emotional
of her forty-
that
while
defendant-appellant
Mateo ("Betancourt")
defendant-appellant
was
Popular
Perez-Perez
seeking damages
sustained as a result
Agustina
driving a
Leasing
PerezOscar
car leased
Rental,
Inc.
Route 849
in Puerto
Perez-Perez's favor
Rico.
A jury returned
in the amount of
a verdict
$275,000.
Betancourt
Fuste,
and from
an order
Rico, Judge
denying defendants'
"Motion For
Relief."
judgment is
necessary because
by
surprised
Defendants claim
perjury,
the
verdict
court of Puerto
Alternative
poisoned
in
(2)
that
defendants
by
relief from
testimony was
counsel
introducing
unfairly
previously
and
considering
plaintiff's
(3)
these
the
verdict
issues,
contention
was
however,
that
this
excessive.
we
court
first
lacks
Before
address
appellate
-22
jurisdiction because
the notice
have
appellate
of appeal and
jurisdiction
to
consider
the "Motion
We
find that
defendants'
direct appeal
jurisdiction
consider the
defendants' post
district
trial motion.
court incorrectly
district
court's
Because we
admitted
as well as
denial of
find that
the testimony
the
of the
for a new
trial.
I.
Appellate Jurisdiction
Fed. R. App. P. 4(a)
a notice
is "mandatory
of appeal
Timely filing
and jurisdictional."
In
this
case,
there
is
no
dispute
that
the
from the
defendants on
parties
dispute whether
district
timely
court's judgment
A notice of
appeal
was
entered against
appeal was not
filed until June 26, 1992, more than two months later.
-33
In
P. 59 is timely filed
motion.
the
runs from
Fed. R.
the entry of
App. P. 4(a)(4).
tolling provisions
of
this rule
is
Defendants invoke
by describing
their
The timeliness of a
Cir. 1988).
Though it might
May 4,
is filed.
denying
the order
154 (1st
Fed. R. Civ.
P.
the
the
entry of
This, however,
judgment.
ten days of
does not
end our
inquiry.
Our
jurisdiction
over the
appeal
from
judgment (as
opposed
depends
on
whether
we
characterize
the
"Motion
For
60(b).
Fed.
-44
under Rule
Browder, 434
_______
the
functional
character
"nomenclature
of
the
should
not
motion
is
be
exalted
over
one:
substance."
caption
"Motion
for
Practice
60.30[1]
(1992).
Alternative
Relief,"
Rule 60.
One of
excessive
verdict, is a classic
claims,
the claims
Rule 59 claim.
of an
The other
of
Rule 59 provides
granted in a
jury action for any reason for which new trials were granted
at
common law.
a broad panoply
of errors, in
order to prevent
injustice.
(1973).
In an
early case
the
It would
appear in general
timely made.
2805-2810.
In
F.2d 108,
112 (5th Cir. 1982), the court held that the grant
of a new
trial
called a
under Rule
59 was
warranted when
a party
____________________
If the defendants' motion did not in fact qualify as a
motion under Rule 59, the district court had no power to
extend
the
time for
filing
an
appeal, which
is
jurisdictional. Browder, 434 U.S. at 264.
_______
-66
previously
unidentified expert
any forewarning,
party.
of
witness to
resulting in a favorable
testify without
verdict for that
which the
defendants complain in
their motion
in this
case.
The
the
court in
60 was described by
cert. denied,
____________
113 S. Ct.
F.2d 1241
89 (1992),
as
follows:
[T]he rules allow a litigant subject to an adverse
judgment to file either a motion to alter or amend
the judgment under Fed.R.Civ.P. 59(e) or a motion
seeking
relief
from
judgment
pursuant
to
Fed.R.Civ.P. 60(b). These two rules are distinct;
they
serve
different
purposes and
produce
different consequences. Which rule applies to a
motion depends essentially on the time a motion is
served.
If a motion is served within ten days of
the rendition of
judgment, the motion
will
ordinarily fall under Rule 59(e).
If the motion
is served after that time it falls under Rule
60(b).
Van Skiver, 952 F.2d at 1243 (citations omitted).
___________
words,
his motion in
In other
on time enjoys
the
not,
he is confined to
grounds of relief
is
additional
not
quite
that simple,
restraints which
the
however,
courts
have
because
of
imposed
on
-77
matters that
district judge
was fundamental.
were brought
during the
to
the attention
of the
alleged error
2805; Harley________
F.2d 611,
the
moving
616
(1st Cir.
1990).
Conversely, motions
within the
exceptional circumstances.
appeal
period,
barring
limits
of
Cir. 1991).
Rule
60(b)
not
be
used
to
opinion
in
further
question
is
raised
by
our
Echevarria-Gonzalez v. Gonzalez-Chapel, in
__________________________________________
which we
held
that a motion
relied on
the
which invoked
as required
critical fact
by Rule 59.
in Echevarria,
__________
the judgment,
default judgment.
26.
The
the motion
Under Fed.
R. Civ.
by motion under
Rule 60(b);
either a
Rule
60(b) or nothing.
A more
general rule is
exemplified by our
opinion in
Lopez v. Corporacion, in
____________________
timely filed
even though
it
was
titled
"Motion
for
Relief
From
We
Judgment"
and
in a leading
text:
[A] motion, though characterized as one under Rule
60(b), which is filed within ten days of the entry
of judgment and questions the correctness of the
judgment, will be considered a functional Rule 59
motion and will postpone the time to appeal until
entry of the order disposing of it.
Id.
___
at
1513-14
(quoting
204.12[1]).
We distinguished
the
in
movant
judgment
Echevarria
__________
and relied
on
Moore's
Federal
cases construing
our
present
case,
to Rule
the
one way
Practice
from
default
Rule 60(b),
and
Id. at 1514.
___
defendants
have
or the other.
not
In
the
60(b), but is
a casual,
rather
-99
than
an
exclusive,
heavily
on a
one.2
case decided
They
under
have,
however,
Rule 60(b),
relied
Anderson v.
___________
But as we
to
the state
Lopez than
_____
of the
to
record in
Echevarria,
__________
this case to
which
we
view
be
as
Accordingly,
having
been filed
we
rule
within
that
the
the
defendants'
ten-day period
as
an appeal
until 30
for filing
motion's determination.
The subsequent
appellate jurisdiction.
II.
____________________
2 "Defendants contend - among other things - that a certain
happening at trial constituted conduct violative of Rule
60(b)(3) of the Federal Rules of Civil Procedure, thus
paving the way for relief from judgment.
In the same vein
the conduct complained of, in addition to other conduct, ran
afoul of section (b)(1) of the same Rule."
-1010
of opposing counsel.
defendants
unfairly
because
testimony
argued they
the
of
court
a
were
allowed
previously
the
surprised at
plaintiff
undisclosed
Second,
to
trial
offer
medical
the
expert.
trial
court, and
discretion.
Co.,
___
See Fed. R.
___
to the discretion
reversed
only for
of
abuse of
A.
aside
clear a
in order
to set
high hurdle
preparation or
The
presentation
of its
case.
We
have
892 F.2d
1115, 1118
(1st Cir.
1989).
When considered against these standards, it is clear to
us
that the
defendants'
district
motion
unsubstantiated
court
as
properly
was
denied so
based
on
of
perjury.
allegations
much
speculative
of
and
Defendants'
Gaetan ("Rafi"),
accident.
During
walking
the
trial,
the
only eye
Rafi testified
witness to
that
as he
the
was
shoulder of the
road.
he heard a
explained that
Betancourt's car
After
down
Rafi
the
informed
his
road,
he had
car, that
was passing
he
struck a
looked in the
then returned to
his car
was falling
a short
ran to
pedestrian.
just in
distance
the
the front of
According to
direction of Maria's
car and
Rafi
body,
identified
cross-examination, Rafi
of his
trial testimony
from two
of the
prior
-1212
significant
him.
additions
to
statements.
saw
body
Maria's
initial
testified at trial
falling
to
____________
the
pavement,
sworn
that he
his
prior
the
time
he turned
towards
of Maria at the
other than
Taking
admission that
of the
blow.
these
sound
time of the
the
inconsistencies
came to a stop
and adding
car,
them
Rafi's
counsel's office to
present clear
perjury or
that opposing
knowingly
note
assisted the
that
counsel
and convincing
one
the
counsel encouraged,
allegedly perjured
purpose
secured, or
testimony.
of cross-examination
opportunity
to
root
out
is
the
committed
to
We
give
type
of
alleged here.
are now
alleged on
appeal to
constitute
-1313
Rafi's
testimony,
as
well
disturb
its
findings
as
his
credibility
or the
district
court's
B.
and
reason
order
Defendants also
introduce
medical
the
expert,
Betancourt's
testimony of
Dr.
Walter
eyesight was
previously
Kleis,
severely
who
testified
impaired by
severe
that it
could cause
him
undisclosed
that
glaucoma.
impairment was
to miss
a pedestrian
those on
the
driving with
case
under
the theory
that
Betancourt
had
was
defendants [sic]
for
not driving
safely."
Plaintiff
in the
At
no time
would
did plaintiff
be raised
suggest
as an
that Betancourt's
issue at
trial, nor
eyesight
did plaintiff
Kleis'
testimony
evidence to
argued to
should
the district
be permitted
examination.
court that
as
"rebuttal"
by Betancourt's direct
testimony on
the
issue follows:
Q
Yes.
Plaintiff's
counsel
made
what the
Betancourt's
purpose of
eyesight
testimony is
issue).
Counsel's
condition
of
devoted to
examination
Betancourt's
eyes,
cross-examination on
explored
namely the
the
this
physical
presence
of
one
eye; and
treatments
on
his
the effect
of
peripheral
-1515
this condition
vision,
his
and these
ability
to
witness.
based
Counsel
on
his
review
of
Betancourt's
medical
records,
he should not
court initially
have been
driving a car
denied plaintiff's
at night.
request, reasoning
hear
jury.
counsel had
that
time, the
court learned
that plaintiff's
Plaintiff made
at
any time
prior to
trial in
seeking to
witnesses
and
plaintiff's
other
April 1992,
despite twice
order to reflect
evidence.
counsel, concluding
The
that he
court
changes in
addressed
would
permit Dr.
"as an act of
justice to
-1616
Kleis to
Kleis
testified
for
the
jury
that
Betancourt
individual's
He
Betancourt's
further
stated
that
the
glaucoma made
reduced
testified that
peripheral vision,
his
eye
his
visual
drops
used
pupils very
capacity.
especially
In
at
to
treat
small,
which
addition,
he
Dr.
at
the
periphery
of
hypothetical question,
his
vision.
Responding
to
that under
a
the
was a
victim
possibility that
on the
side
of
the
Betancourt did
road.
not
Finally,
see the
Dr.
Kleis
that the
that plaintiff's
defendant
was unfairly
surprised and
Though we
-1717
his
ultimate decision
initial reaction
to admit
was correct
well-considered findings
germane findings on
Dr. Kleis'
and we defer
of fact.
the record.
testimony, his
to the
The judge
judge's
made several
that
issue
put
into
plaintiff's counsel
dispute on
Dr. Kleis
direct
available
examination;3
(2)
to testify;"
(3)
there was
[]
"no
sleeve
testimony
until this
moment;"
and
(4) the
proffered
findings, the
testimony
as an "act
of justice" to
In
of an
spite of these
admit Dr. Kleis'
____________________
3
Plaintiff contends that
Dr. Kleis'
testimony was
admissible under the terms of the pretrial order which
expressly reserved
to the
parties a right
to call
undisclosed rebuttal witness. The judge determined that Dr.
Kleis was not a proper rebuttal witness. This determination
___
is within the sound discretion of the trial judge, Lubanski
_________
v. Coleco Indus., Inc., 929 F.2d 42, 47 (1st Cir. 1991), and
______________________
we are in full agreement with it.
-1818
that
In
this
extensive
case,
Dr.
cross-examination of
impairment, introduced
case.
Kleis'
testimony
Betancourt
a novel theory of
and
on
counsel's
his
liability to this
visual
to design
review
Dr. Kleis'
knowledge and
records
or to
without a chance to
Without time to
gain sufficient
medical
investigate Betancourt's
of unfair surprise
succinctly
(footnote
district
and
judge
citations
made a
omitted).
specific
finding that
the criteria
Furthermore, the
for misconduct
plaintiff's
which we
imposed under
to
this motion
judgment and a
remand for
under Rule
59.
a new trial
Reversal
is warranted
of the
under
either analysis.
We
need not
address defendants'
claim that
The judgment is
-2020
the jury
must be a new
case remanded to
________