Filed: Jun. 01, 2010
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Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS No. 09-12863 ELEVENTH CIRCUIT JUNE 1, 2010 Non-Argument Calendar JOHN LEY _ CLERK D. C. Docket No. 05-00167-CV-RLV-4 HOWARD GREGORY CORDELL, Plaintiff-Counter Defendant-Appellant, ALYSSA HARRELL CORDELL, Individually and as parent of Lucas Gregory Cordell, a minor, Plaintiff, versus PACIFIC INDEMNITY COMPANY, CHUBB & SON, a division of Federal Insurance Company, Defendants-Counter Claima
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS No. 09-12863 ELEVENTH CIRCUIT JUNE 1, 2010 Non-Argument Calendar JOHN LEY _ CLERK D. C. Docket No. 05-00167-CV-RLV-4 HOWARD GREGORY CORDELL, Plaintiff-Counter Defendant-Appellant, ALYSSA HARRELL CORDELL, Individually and as parent of Lucas Gregory Cordell, a minor, Plaintiff, versus PACIFIC INDEMNITY COMPANY, CHUBB & SON, a division of Federal Insurance Company, Defendants-Counter Claiman..
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-12863 ELEVENTH CIRCUIT
JUNE 1, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 05-00167-CV-RLV-4
HOWARD GREGORY CORDELL,
Plaintiff-Counter
Defendant-Appellant,
ALYSSA HARRELL CORDELL,
Individually and as parent
of Lucas Gregory Cordell, a minor,
Plaintiff,
versus
PACIFIC INDEMNITY COMPANY,
CHUBB & SON,
a division of Federal Insurance Company,
Defendants-Counter
Claimants-Appellees
JOHN DOES A THROUGH F,
Defendant-Appellee,
CHUBB CORPORATION, et al.,
Defendants.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(June 1, 2010)
Before WILSON, MARTIN and KRAVITCH, Circuit Judges.
PER CURIAM:
Howard Gregory Cordell appeals, pro se, the district court’s denial of his
motion for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b).
Cordell moved for relief from judgment after the district court dismissed John
Does A through F, Chubb & Son, Inc., and Chubb Corporation (“Chubb”) as
defendants, and the jury granted a verdict in favor of Pacific Indemnity Company
(“Pacific”), in the underlying insurance-coverage litigation concerning a house fire.
On appeal, Cordell argues that he is entitled to relief under Rule 60(b)(3)
because Pacific offered both fraudulent evidence and misrepresented the evidence
presented at trial. Specifically, Cordell claims that Pacific violated Rule 60(b)(3)
by: (1) offering into evidence a fraudulent Event History Report from ADT Home
Security,1 (2) entering a fraudulent transcript of a videotaped interview of Chester
Ganyon into evidence, (3) presenting Howard Zandmand’s testimony, which
1
ADT is an acronym for American Home District
2
misrepresented facts regarding the Cordells’ financial condition,
(4) misrepresenting that Cordell never mentioned Vidal Rodriguez as a potential
arson suspect until well into the investigation, (5) making other fraudulent
statements during its closing argument, and (6) fraudulently filing for an entry of
judgment against the Cordells. Upon review of the record and consideration of the
parties’ briefs, we affirm.
I.
We “show a leniency to pro se litigants not enjoyed by those with the benefit
of a legal education.” GJR Invs., Inc. v. County of Escambia, Fla., 132 F.3d 1359,
1369 (11th Cir. 1998). “We review a district court’s denial of a motion for relief
from judgment under Rule 60(b)(3) for abuse of discretion.” Cox Nuclear
Pharmacy, Inc. v. CTI, Inc.,
478 F.3d 1303, 1314 (11th Cir. 2007) (citation
omitted).
II.
Rule 60(b)(3) provides relief from final judgment due to “fraud (whether
previously called intrinsic or extrinsic), misrepresentation, or misconduct by an
opposing party.” Overall, Rule 60(b)(3) “is aimed at judgments which were
unfairly obtained, not at those which are factually incorrect.” Rozier v. Ford Motor
Co., 573 F.2d 1332, 1339 (5th Cir. 1978). “To prevail on a 60(b)(3) motion, the
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movant must prove by clear and convincing evidence that an adverse party has
obtained the verdict through fraud, misrepresentation, or other misconduct.” Cox
Nuclear Pharmacy, Inc., 478 F.3d at 1314 (citation and alteration omitted). “The
moving party must also show that the conduct prevented the losing party from fully
and fairly presenting his case or defense.” Frederick v. Kirby Tankships, Inc.,
205
F.3d 1277, 1287 (11th Cir. 2000). Furthermore, “[a]n appeal of a ruling on a Rule
60(b) motion . . . is narrow in scope, addressing only the propriety of the denial or
grant of relief and does not raise issues in the underlying judgment for review.”
Am. Bankers Ins. Co. of Fla. v. Nw. Nat’l Ins. Co.,
198 F.3d 1332, 1338 (11th Cir.
1999). “[T]he law is clear that Rule 60(b) may not be used to challenge mistakes
of law which could have been raised on direct appeal.”
Id. (citation omitted).
A. The ADT Event History Report
Cordell argues that Pacific knowingly entered a fraudulent Event History
Report (“the report”) from ADT. See Exh. 217. The report contains information
regarding activities in Cordell’s home before it was destroyed in a fire. Cordell
claims that he attached certain documents to his Rule 60(b)(3) motion indicating
that the report was fraudulent because the request to have carbon monoxide
detectors installed in his home was omitted on the report. Cordell also claims that
Chubb has a history of bribery and was also responsible for bribing an ADT
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employee to alter the report. Lastly, Cordell argues that the trial court erred by
precluding him from challenging the report’s certificate of authenticity. These
arguments have no merit.
First, Cordell has not offered any evidence to demonstrate that an ADT
employee was bribed. Second, Cordell has not provided any information to
substantiate his claim that he made a request to have carbon monoxide detectors
placed in his home prior to the fire, or that an authentic report would necessarily
display that information. Moreover, even assuming that Cordell did make this
request and the report omitted this information, this does not constitute clear and
convincing evidence that the report is fraudulent in light of the fact that a
certificate of authenticity was presented at trial. See Exh. 217; Vol. 7-358 at 141,
144, 161. Furthermore, a direct appeal, not a Rule 60(b) motion, is the proper
avenue to challenge the issue of authenticity. Finally, Cordell has not explained
how Pacific’s introduction of the report into evidence prevented him from fully
and fairly presenting his case. Accordingly, we find that the district court
committed no error.
B. The Transcript of Chester Ganyon’s Videotaped Interview
Cordell argues that Pacific knowingly entered into evidence a fraudulent
transcript of Ganyon’s videotaped interview conducted by the Georgia Bureau of
5
Investigations (“GBI”). Specifically, Cordell asserts that omissions in the
transcript constitute fraud.2 Cordell alleges that Pacific conspired with GBI to
produce the fraudulent transcript. In addition, Cordell further alleges that Pacific
conspired to commit perjury by presenting Ganyon as a witness, even though they
knew he was not reliable. Lastly, Cordell argues that the trial court erred by: (1)
preventing him from challenging the validity of the transcript; (2) and by denying
admission of the videotape into evidence for the jury to compare with the
transcript. After review of the record, we find Cordell’s arguments have no merit.
First, Cordell’s claim fails because he has not provided clear and convincing
evidence that the transcript is fraudulent. Furthermore, Cordell made a similar
argument at trial, but the trial court rejected his objections twice and explained that
there was “no evidence” that the transcript was incomplete. Vol. 7-358 at 106–08,
110–11. Consequently, to the extent that Cordell’s arguments challenge the trial
court’s decision not to admit the videotape into evidence, we find that these
arguments raise legal issues which are beyond the scope of Rule 60(b)(3).
Furthermore, even though Cordell contends that the transcript is fraudulent, he
does not assert that, as a result, this prevented him from presenting his case fully
2
In particular, Cordell identifies one of the omissions as a question from Ganyon to
Crosby asking if the GBI wanted “Cordell bad.” Cordell also claims that the transcript
incorrectly uses the word “roads” rather than “drugs.”
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and fairly. Finally, we will not address Cordell’s contention that Pacific
knowingly conspired to commit perjury with Ganyon because Cordell raises this
argument for the first time in his reply brief. See Lovett v. Ray, 327 F.3d 1181,
1183 (11th Cir. 2003) (per curiam) (citation omitted). Accordingly, we find no
error with the district court’s decision.
C. Howard Zandmand’s Testimony
Cordell argues that Pacific’s financial expert, Zandmand, misrepresented
facts and inappropriately based his testimony on fraudulent property appraisals
created by Robert Mines, who was hired by Pacific. According to Cordell, Mines
incorrectly appraised his Mitchell Street property at $265,000 when it was actually
worth $110,000. Cordell, however, has not proffered any evidence to substantiate
these claims. Rather, the record shows that Zandmand stated multiple times during
his testimony that he did not rely on any appraisals in formulating his expert
opinion. Vol. 8-359 at 21–22, 104–05. Consequently, Cordell’s argument fails
because he has neither provided clear and convincing evidence of fraud or
misrepresentations nor addressed how he was prevented from presenting his case
fully and fairly. Accordingly, we find that the district court did not err.
D. Pacific’s Statements During Closing Argument
1. Vidal Rodriguez
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Next, Cordell contends that, during closing argument, Pacific made
misrepresentations that Cordell failed to mention Rodriguez as a potential arson
suspect until well into the investigation. Cordell claims, however, that he told
George Clark, Pacific’s investigator, about Rodriguez right after his home burnt
down and that his counsel had multiple conversations about Rodriguez with Pacific
during discovery. This argument is unpersuasive.
Even if Cordell’s attorneys did mention Rodriguez multiple times during
discovery, Cordell has failed to show how this would make Pacific’s statements a
misrepresentation. Pacific’s statement merely claimed that Cordell did not
mention Rodriguez as a suspect during its earlier investigation. Thus, even
assuming that Cordell did tell others about Rodriguez at the onset of the
investigation, which he has not substantiated, this did not necessarily indicate that
Pacific’s statement during closing argument was false.
2. Cordell’s Financial Obligations and the Destruction of the Home
Cordell also argues that, during its closing argument, Pacific made the
following misrepresentations: that his wife, Alyssa, obtained financing for their
home; that the Cordells were unable to meet their financial obligations; and that the
Cordells paid someone to destroy their home. Cordell claims that letters from bank
representatives, which allegedly display his financial stability, illustrate that
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Pacific’s statements were misrepresentations. These contentions are also
unpersuasive.
Again, Cordell has failed to provide clear and convincing evidence that
Pacific’s statements in its closing argument were misrepresentations or fraudulent.
Moreover, Cordell has not explained why it would be impermissible for Pacific to
make an inference from the evidence that the Cordell played a role in the fire that
destroyed their home. See Commercial Credit Equip. Corp. v. L & A Contracting
Co., Inc., 549 F.2d 979, 981 (5th Cir. 1977) (noting that attorneys can make
reasonable inferences from the evidence presented at trial in making their closing
arguments).
Cordell provided a letter from Washington Mutual, stating that he had a
“great payment history,” and testimony from Gary Floyd, which stated that his
bank had loaned Cordell money since their house was destroyed, as evidence of his
financial stability. However, this does not demonstrate that Pacific’s statements
were misrepresentations. At best, these statements only show that the evidence
presented at trial was conflicting. Accordingly, we find no error.
3. Cordell’s Financial Documentation and the Motion to Compel
Cordell argues that Pacific, during its closing argument, misrepresented that
it had to file a motion to compel to obtain Cordell’s financial records. Cordell
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claims that this was a misrepresentation because he provided numerous financial
documents prior to Pacific’s filing of the motion to compel. This argument is
groundless. The record explicitly shows that Pacific filed a motion to compel
discovery, which the district court granted.
Cordell also claims that Pacific inappropriately instructed Zandmand to
present the Cordell’s financial situation in a manner favorable to Pacific.
Assuming arguendo that such conduct would violate Rule 60(b)(3), Cordell has
not made any specific allegations to identify the manner he believes that Zandmand
misrepresented the evidence. Thus, we find no basis for relief.
E. Entry of Judgment
Cordell argues that Pacific misrepresented itself when it filed for an entry of
judgment for its counterclaim because the counterclaim was never mentioned at
trial, nor was the counterclaim presented to the jury. Although Cordell frames this
argument as an allegation of misrepresentation, Cordell’s argument is actually an
attempt to argue that the district court committed a legal error in granting Pacific’s
motion for an entry of judgment. Because a Rule 60(b)(3) motion may not be
used to challenge mistakes of law, we find that the district court committed no
reversible error.
III.
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Cordell has not provided clear and convincing evidence to substantiate his
claims. Moreover, he does not demonstrate how Pacific’s actions prevented him
from fully and fairly presenting his case. Finally, to the extent that Cordell is
asserting that he is entitled to relief because of the district court’s alleged errors,
those arguments fail because they are beyond the scope of Rule 60(b)(3) and
should have been raised on direct appeal.
AFFIRMED.
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