Rita Allaire, et al v. Maria Benton

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UNPUBLISHED OPINION FILED. [10-30001 Affirmed ] Judge: WED , Judge: JES , Judge: LHS Mandate pull date is 10/22/2010 [10-30001]

Rita Allaire, et al v. Maria Benton

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-30001 S u m m a r y Calendar October 1, 2010 Lyle W. Cayce Clerk

R I T A M. ALLAIRE; DON C. RICHARDSON, P la in t if f s - A p p e lle e s , versu s M A R I A VAN NIFTRIK BENTON, D e fe n d a n t T h ir d Party PlaintiffA p p e lla n t, versu s H A R O L D BUTCHART, T h ir d Party DefendantA p p e lle e .

A p p e a l from the United States District Court fo r the Eastern District of Louisiana N o . 2:02-CV-475

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No. 10-30001 B e fo r e DAVIS, SMITH, and SOUTHWICK, Circuit Judges. J E R R Y E. SMITH, Circuit Judge:*

M a r ia Benton appeals a judgment ordering her to pay plaintiffs Rita Alla ir e and Don C. Richardson on a promissory note. Benton also appeals the den ia l of her motions for new trial and relief from judgment. Because none of Bent o n 's arguments has merit, we affirm.

I. P la in t iffs claim the benefits of a mortgage promissory note executed by B e n t o n and payable to them for $85,000 plus interest. The loan was one aspect o f a larger real estate deal in which Benton purchased a commercial property usin g the $85,000 loan, the proceeds of the simulated sale of her house, a bank lo a n , and her personal funds. I n 2002, plaintiffs sued on the note, alleging that Benton had failed to pay s in c e 1999. Benton responded by arguing that she did not sign the note and, e v e n if she did, she was incompetent because of an alleged brain injury. B e n t o n filed a counterclaim against the plaintiffs and a third-party dem a n d against Harold Butchart. In her counterclaim and third-party demand, B e n t o n alleged that (1) plaintiffs were her financial advisors after she suffered t h e brain injury; (2) plaintiffs breached their fiduciary duty to her by advising h e r to purchase property she could not afford; (3) plaintiffs advised her to sell h e r house to Butchart; (4) Butchart purchased the house for less than it was w o r t h ; (5) part of the money the plaintiffs seek to recover was loaned by them to B u t c h a r t ; and (6) as a consequence of the actions of the plaintiffs and Butchart,

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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No. 10-30001 B e n t o n lost her house and wound up with a heavily mortgaged piece of commerc ia l property. Following a bench trial in which Benton appeared pro se, the district court fo u n d Benton liable for the balance due on the promissory note, plus interest and a t t o r n e y s ' fees, for a final sum of $158,820.15. The court dismissed Benton's c o u n t e r c la im and third-party demand. B e n t o n moved for a new trial under Federal Rule of Civil Procedure 59(a) a n d a motion for relief from judgment under rule 60(b). The district court denied b o th . Benton appeals the judgment and the denial of her motions.

II. O n appeal from a bench trial, we review conclusions of law and mixed q u e s t io n s of fact and law de novo, Am. Int'l Specialty Lines Ins. Co. v. Res-Care, I n c ., 529 F.3d 649, 656 (5th Cir. 2008) (citation omitted); findings of fact for clear e r r o r , Dickerson v. Lexington Ins. Co., 556 F.3d 290, 294 (5th Cir. 2009) (citation o m it t e d ); and evidentiary rulings for abuse of discretion, Abner v. Kansas City S .R .R . Co., 513 F.3d 154, 168 (5th Cir. 2008). If, however, "the complaining part y failed to object [to the evidentiary ruling] at trial, we review only for plain err o r ." United States v. Thompson, 454 F.3d 459, 464 (5th Cir. 2006). The denial o f a rule 60(b) motion is reviewed for an abuse of discretion. Thermacor Process, L .P . v. BASF Corp., 567 F.3d 736, 744 (5th Cir. 2009). O r d in a r ily , this court will not review the denial of a rule 59(a) motion for a new trial. Youmans v. Simon, 791 F.2d 341, 349 (5th Cir. 1986). That is bec a u s e an appeal from a denial of a new trial "merely restates the attack on the m e r it s of the final judgment. It is from the final judgment that the appeal s h o u ld be taken." Gov't Fin. Servs. v. Peyton Place, 62 F.3d 767, 774 (5th Cir. 1 9 9 5 ) (citation omitted). We will review the decision not to grant a new trial only where "new matters arise after the entry of the judgment." Id. Because there 3

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No. 10-30001 a r e no such new matters here, we review only the judgment and the denial of the r u le 60(b) motion.

III. B e n t o n raises seven substantive arguments in her appeal. They are all unpersuasive.

A. B e n t o n incorrectly claims that the district court failed to credit her repeate d denial of signing the promissory note. The court did consider Benton's testim on y but found plaintiffs' countervailing testimony more "compelling and credib le ." R. 1964. Both plaintiffs provided consistent and detailed testimony that t h e y were familiar with Benton's signature, recognized it on the note, and had p e r s o n a lly witnessed her sign it. Id. The credibility decision is for the district c o u r t, and we have no reason to disturb it. See United States v. Turner, 319 F.3d 7 1 6 , 720-21 (5th Cir. 2003). The district court also noted that Benton made payments of $12,155.48 t o w a r d the balance of the loan, a voluntary performance that constitutes tacit c o n fir m a t io n of the contract. R. 1964. Thus, even if the court had erroneously c r e d it e d plaintiffs' testimony over Benton's, the error was harmless. Benton r a is e s no arguments on appeal that directly contradict this conclusion. F in a lly , even if the court did err in concluding that Benton had signed the n o te and engaged in voluntary performance, the errors are harmless, because B e n t o n would still be obligated to repay the loan under a theory of unjust enrichm e n t. Under Louisiana law, a claim for unjust enrichment is established where t h e r e is (1) an enrichment; (2) an impoverishment; (3) a connection between the e n r ic h m e n t and resulting impoverishment; (4) an absence of "justification" or " c a u s e " for the enrichment and impoverishment; and (5) no other remedy at law 4

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No. 10-30001 a v a ila b le to the plaintiff. Finova Capital Corp. v. IT Corp., 774 So. 2d 1129, 1 1 3 2 (La. App. 2d Cir. 2000). Based on the trial testimony, the district court fo u n d that all five requirements for unjust enrichment were satisfied, so Benton is liable for the balance on the note.

B. B e n t o n contests the district court's conclusion that she was cognitively c o m p e t e n t when she signed the note. In Louisiana, it is presumed that all part ie s have the capacity to contract. See LA. CIV. CODE ANN. art. 1918. Lack of cap a c it y , as a defense, must be shown by clear and convincing evidence. Florida v . Stokes, 944 So. 2d 598, 603 (La. App. 1st Cir. 2006). "Where doubt exists as t o the showing of an exception, the presumed capacity to contract prevails." First Nat'l Bank v. Williams, 346 So. 2d 257, 264 (La. App. 3d Cir. 1977). On her defense of lack of capacity, Benton proffered a neuropsychologist, R o b e r t a Bell, who testified that Benton displayed a disparity between certain n e u r o lo g ic a l functions, such as abstract reasoning and memory formation, and h e r otherwise above-average intellect. R. 1965. Bell linked that disparity to a p r e v io u s ly suffered brain injury and concluded that it was "more probable than n o t that that injury resulted in decreased ability to make decisions and judgm e n ts in a manner that is in her best interest, and an inability to adequately c o m p r e h e n d and encode written information in memory, in order to make such d e c is io n s ." App. [not paginated]. As the district court noted, however, Bell's statement does not provide c le a r and convincing evidence that Benton lacked capacity to enter into a cont r a c t . The testimony merely suggests that Benton probably faced an increased d iffic u lt y when entering into a contract; it does not show, by clear and convincing e v id e n c e , that the difficulty rose to the level of incapacity. Not only is the stand a r d offered by Bell insufficientSSbecause "more probable than not" is not the 5

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No. 10-30001 e q u iv a le n t of "clear and convincing"SSbut Bell's final conclusion is insufficient t o deem Benton legally incapable of consenting to the contract, even if clear and c o n v in c in g evidence were offered to support that conclusion. M o r e o v e r , though Bell testified that Benton might have difficulty fully c o m p r e h e n d in g complex decisions or documents, Bell qualified that statement b y stating that the difficulty could be mitigated if Benton was familiar with t h o s e types of documents. Indeed, Benton possessed a history of engaging in v a r io u s transactions, including large-scale commercial purchases, real estate t r a n s a c t io n s , and other loans, after the date of her alleged brain injury. She was fa m ilia r with the types of documents at issueSSa familiarity that further diminis h e d the possibility that she lacked capacity to consent to the contract. Finally, e v e n if, arguendo, the district court did err in concluding that Benton had the ca p a c ity to consent, the error was harmless, because she would still be obligated t o repay the loan under a theory of unjust enrichment, as explained above.

C. B e n t o n maintains that her consent to the contract was vitiated by fraud o n the part of the plaintiffs. Louisiana law defines fraud as "a misrepresentation o r a suppression of truth made with the intention either to obtain an unjust adv a n t a g e for one party or to cause a loss or inconvenience to the other [, and] [f]r a u d may result from silence or inaction." LA. CIV. CODE ANN. art. 1953. Bent o n claims that the plaintiffs orchestrated the larger real estate transaction, of w h ic h the promissory note was a small part, with the intent to defraud Benton fo r their own profit. The district court disagreed, finding that there was no evid e n c e in the record to support Benton's allegations. On appeal, Benton has not cited any relevant evidence, besides her own c o n je c t u r e s and conclusional statements, to cast doubt on the finding of no fraud. Much of the evidence she offers relates not to the principal transaction on which 6

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No. 10-30001 t h is claim arose but more generally to her belief that the plaintiffs are the types o f individuals who have the propensity to commit fraud and have done so in the p a s t . The most charitable reading we can prescribe to Benton's argument for fr a u d is based solely on her own testimony, which the district court did not find c r e d ib le in light of the plaintiffs' countervailing testimony and the absence of corr o b o r a t in g evidence. Again, it is not our role to second-guess legitimate credibilit y determinations made by a trial court. See Turner, 319 F.3d at 720-21. Thus, e v e n with a liberal construction of Benton's claims, there is no merit to her argum e n t.

D. B e n t o n contends that the district court erred by not affording her the opp o r t u n ity to testify as to every exhibit that she proffered. During trial, the court t o o k several exhibits under submission and informed Benton that they would be t a k e n into account during the court's deliberations, as is customary in bench tria ls . R. 2590-91. Accordingly, the court did not allow additional testimony reg a r d in g some of those exhibits but did allow Benton the chance to file a memor a n d u m if she wished to point out any specific information contained in them. R. 2972. Benton did not object to that decision during trial, so we review it only fo r plain error. See Thompson, 454 F.3d at 464. B e n t o n does not deny that the district court considered the exhibits before r u lin g ; rather, she argues that just "considering" the exhibits without the assist a n c e of her trial testimony was insufficient to understand fully the claims she w a s making. Benton lists in her brief what information she would have testified t o regarding some of the exhibits that were admitted. T h e r e are at least two problems with Benton's presentation. First, she did file a post-trial memorandum in which she imparted substantially the same info r m a t io n regarding the submitted exhibits that she now argues should have 7

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No. 10-30001 b e e n part of her trial testimony. R. 1398-1452. Thus, the court considered that information. Second, all of the additional information that Benton claims she w o u ld have imparted in her testimony, and that was not already discussed in h e r post-trial memorandum, are either irrelevant to the claims at issue or are m e r e ly a restatement of her conclusional assertions of fraud. Disallowing this t y p e of testimony on exhibits already taken under submission is not error, much le s s plain error.

E. I n her opening brief, Benton alleges that the district court failed to apprise h e r of the consequences of not testifying regarding some of her trial exhibits. She argues that that failure affected her substantial rights and is plain error und e r Federal Rule of Civil Procedure 61 because it seriously affected the fairness a n d integrity of the judicial proceedings. Benton does not expand any further on the alleged failure to warn. It is fr iv o lo u s on its face. Even assuming that there were negative consequences from B e n t o n 's not providing testimony on some her trial exhibitsSSwhich, as exp la in e d in part III.D above, there were notSSa trial court owes no duty to warn a litigant, pro se or otherwise, of the strategic consequences of an evidentiary r u lin g . Though we construe the arguments of pro se appellants liberally, there is no construction we can offer to create a rational argument from this claim. (We also note that rule 61, on which Benton relies, speaks to harmless error, not p la in error.)

F. B e n t o n claims that the district court erred in refusing to allow a witness t o testify for her via telephone. During trial, Benton made a proffer as to what t h e witness's testimony would be if he were called. R. 1374. Benton wanted the 8

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No. 10-30001 w it n e s s to testify to prior dealings with the plaintiffs and to attest that, in his opinion, plaintiffs had committed fraud against him. R. 2870-2874. Instead of a llo w in g the phone testimony, the court advised Benton that her proffer was suffic ie n t and that the court would take that information into account when renderin g a decision. R. 2874. Specific details regarding the witness's interactions w it h the plaintiffs, none of which had any relationship to the financial transact io n s between Benton and the plaintiffs, were properly deemed unnecessary in lig h t of the court's acceptance of Benton's proffer. The court did not abuse its d is c r e t io n by merely accepting the proffer, especially given that Benton does not p o in t to any additional, relevant information that would have been imparted t h r o u g h trial testimony.

G. B e n t o n urges that the district court erred in failing to grant her motion for r e lie f from final judgment under rule 60(b). Before the district court, Benton form a lly based her motion on rule 60(b)(1), (2), (3), and (6). On appeal, however, s h e relies only on rule 60(b)(3), so we limit our discussion to it. R u le 60(b) provides that "the court may relieve a party or its legal repr e s e n t a t iv e from a final judgment, order, or proceeding for . . . (3) fraud (whether p r e v io u s ly called intrinsic or extrinsic), misrepresentation, or misconduct by an o p p o s in g party." The evidence of fraud that Benton offers in her rule 60(b)(3) arg u m e n t is the same evidence she presented for fraud on the merits, which we a d d r e s s e d and dismissed in part III.C above. For those same reasons, Benton's c l a i m that the court should have granted her rule 60(b)(6) motion is without m e r it. A F F IR M E D .

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