Commonwealth Capital Corporation v. Tempe, City of et al
ORDER AND OPINION - For the reasons above, CCC's motions at docket 222 are DENIED. The Clerk will please amend the entry of judgment at docket 207 to reflect that the case was tried before the court. (See document for further details). Signed by Judge John W Sedwick on 8/25/11.(LAD)
UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
CITY OF TEMPE,
ORDER AND OPINION
[Re: Motions at Docket 222]
I. MOTION PRESENTED
At docket 222, plaintiff Commonwealth Capital Corporation (“CCC”) moves to set
aside the judgment pursuant to Federal Rule of Civil Procedure 60(b)(1); for
amendment of the court’s findings pursuant to Rule 52(b); for judgment as a matter of
law pursuant to Rule 50(b); or for remittitur or a new trial pursuant to Rule 59. A
supporting memorandum is at docket 224. Defendant City of Tempe (“Tempe”)
opposes the motions at docket 225. CCC’s reply is at docket 229. Oral argument was
not requested but would not assist the court.
This case was tried before the court and an advisory jury in May 2011. The jury
returned an advisory verdict in Tempe’s favor on Tempe’s counterclaim for unjust
enrichment. The jury found an award of $1,808,904 to be appropriate. After the jury
returned its advisory verdict, the court denied CCC’s pending motion for judgment as a
matter of law and then heard from both sides on the appropriateness of the advisory
verdict.1 The court then discussed the three most controversial elements of Tempe’s
counterclaim and explained why it decided to have judgment entered in accord with the
jury’s advisory verdict.2 The present motions challenge the sufficiency of the court’s
A. Motion to Set Aside the Judgment
CCC is correct that the judgment erroneously states that it was entered pursuant
to a jury verdict.3 That error is correctable under Rule 60(a) and does not require
setting aside the judgment.4 The thrust of CCC’s motion is that the findings on the
record are insufficient. Rule 52(a) states that “[i]n an action tried on the facts without a
jury or with an advisory jury, the court must find the facts specially and state its
Doc. 210 at 5–8.
Id. at 8–10.
See doc. 207 at 1.
Fed. R. Civ. P. 60(a) (“The court may correct a clerical mistake . . . whenever one is
found in a judgment, order, or other part of the record.”).
conclusions of law separately.”5 However, “[t]he findings and conclusions may be
stated on the record after the close of evidence.”6 Here, the court stated its findings and
conclusions on the record after the jury returned its advisory verdict.
The primary purpose of “Rule 52(a) is to aid the appellate court’s understanding
of the basis of the trial court’s decision.”7 “This purpose is achieved if the district court’s
findings are sufficient to indicate the factual basis for its ultimate conclusions.”8
The court did not iterate its findings of fact with respect to two elements of
Tempe’s counterclaim. However, the court was aware that absence of justification for
the enrichment and benefit and the absence of any remedy at law were necessary
elements.9 The court has concluded that an appellate court would have no difficulty
determining the basis for the court’s decision with respect to those elements.
Consequently, it is not necessary to set aside the judgment. The court’s conclusions
are supported by the discussion that follows.
B. Motion for Amended Findings of Fact
Although styled as a motion for amendment of the court’s findings, CCC
contends that there was insufficient evidence to support each of the elements of unjust
enrichment. CCC is essentially asking the court to revisit the bases of its judgment.
Fed. R. Civ. P. 52(a)(1).
See Vance v. Am. Hawaii Cruises, 789 F.2d 790, 792 (9th Cir. 1986).
See Magna Weld Sales Co. v. Magna Alloys & Research Party, 545 F.2d 668, 671 (9th
With respect to the first element of unjust enrichment–a benefit to
Commonwealth–the court stated that Commonwealth had “the opportunity to try and
recoup everything that it wanted to get out of this deal by keeping . . . the equipment on
the . . . light poles.”10 In other words, CCC’s nodes were more valuable affixed to the
poles, as a network. With respect to the second–a detriment to Tempe–the court found
that Tempe “was unable to reach any sort of resolution with people who came to the
table offering to keep the system up and running” as a consequence of CCC’s
behavior.11 The court concludes that those findings are adequate insofar as an
appellate court would understand their factual basis. The connection between the two
is self-evident and an appellate court would have no difficulty understanding the basis
for that implicit finding.
CCC argues that there was no absence of justification because “[t]he evidence
presented at trial demonstrated that [CCC] sought to remove its nodes, and that
[Tempe] refused to issue a permit” allowing CCC to do so.12 The evidence at trial was
conflicting–although the testimony of Henry Abbott indicated that CCC sent an electric
company out to “recover the assets,”13 the testimony of David Heck indicated that the
electric company sought a permit to remove nodes it could not identify.14 CCC was
Doc. 210 at 8.
Id. at 9.
Doc. 224 at 10.
Doc. 203 at 32.
Doc. 211 at 71.
unable to identify the nodes it owned at summary judgment.15 Moreover, the court’s
reference to CCC’s behavior16 provides an adequate basis for any necessary inference
as to the basis of the court’s implicit finding.17
CCC argues that Tempe did not prove the absence of a remedy at law. Tempe
responds by quoting its trial brief and citation to authority supporting the proposition that
there is no action for trespass until an unconditional demand for removal has been
made. CCC takes issue with Tempe’s response insofar as Tempe’s arguments do not
constitute a finding by the court. Although there was no explicit finding made as to this
element, in the context of a potential trespass claim, there was no other basis for finding
that element met. Tempe was seeking to recover for the time period between May 2008
and October 2008; during that period, the nodes were properly in place on Tempe’s light
poles pursuant to Tempe’s contract with Gobility and there was no unconditional
demand for removal. Consequently, there was no trespass and the court’s rationale
would be clear to a reviewing court.
CCC argues that the court’s findings with respect to the amount of the award are
inadequate insofar as Tempe did not prove that $450 per node per month was the fair
market rental value. The court’s discussion after the jury returned its advisory verdict
noted the difficulty of this issue.18 More importantly, the court’s discussion illustrated
why the situation was unique–the use of fewer poles made the poles more valuable
Doc. 210 at 9.
See Magna Weld, 545 F.2d at 671.
Doc. 210 at 9.
rentals than they would be in the context of a hard-wired network–and consequently
why the lower figures were inadequate. CCC is concerned that “it is impossible to
determine for which 6-month period damages were awarded.”19 It is abundantly clear
from the record that Tempe’s damages were based on the period from May 2008
through October 2008.
Finally, “[f]ailure to comply with Rule 52(a) does not require reversal unless a full
understanding of the question is not possible without the aid of separate findings.”20
Even if the court’s discussion at the close of evidence were not adequate, additional
findings are not needed to aid a full understanding of the questions in this case.
C. Motion for Judgment as a Matter of Law
CCC’s alternative motion for judgment as a matter of law is based on the
arguments advanced in support of its motion for amended findings of fact. The court
has determined that those arguments are without merit.
D. Motion for Remittitur
CCC moves for remittitur or a new trial pursuant to Rule 59. For the same
reasons that the court found the $450 per pole per month figure appropriate, it declines
to order either.
Doc. 229 at 3.
Vance v. Am. Hawaii Cruises, 789 F.2d 790, 792 (9th Cir. 1986).
For the reasons above, CCC’s motions at docket 222 are DENIED. The Clerk
will please amend the entry of judgment at docket 207 to reflect that the case was tried
before the court.
DATED this 25th day of August 2011.
/s/ JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE
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