Falls v. Falls
Filing
118
ORDER denying Oral Motion for Reconsideration. Counsel is reminded to read the order in its entirety for critical deadlines and information. Signed by District Judge Louise Wood Flanagan on 3/20/2018. (Collins, S.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NO. 5:14-CV-777-FL
GOLDMAN SACHS TRUST
COMPANY, N.A., as Executor of the
Estate of RALPH L. FALLS, JR.,
Plaintiff,
v.
RALPH L. FALLS, III,
Defendant.
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ORDER
This matter is before the court on plaintiff’s oral motion for reconsideration in part of the
court’s previous ruling on defendant’s motion in limine (DE 66) to exclude designated deposition
testimony. Upon careful consideration of the motion and the record in this case, the instant motion
is denied.
BACKGROUND
In the parties’ proposed pretrial order, filed March 7, 2018, in pertinent part, plaintiff
designates pages 11:10 to 26:12 of the deposition of defendant, and defendant objects to a portion
thereof, from 23:13 to 26:12, on the basis that it contains “Attorney colloquy.” (Proposed Pretrial
Order (DE 105) at 14-15).1 Defendant previously moved to exclude the same deposition excerpts
on the basis that they include “discussions between counsel of record,” (Def’s Mem. (DE 67) at 3),
which motion was fully briefed in advance of prior pretrial conference in this matter on January 3,
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The objection is renewed in notice filed March 16, 2018, along with discussion of plaintiff’s position thereon.
2017. There, the court decided that motion as follows:
Now I’ve gotten to the motion -- defendant’s motion to exclude designated
deposition testimony. I’m denying defendant’s motion to exclude the son’s
deposition testimony subject to a few limitations as it relates to the involvement of
the local attorney. So we have this lawyer who says some convoluted things. One of
them is:
“[T]here’s an admission in this case that the debt exists and that the
argument is that there’s a setoff . . . . but at this point the question -there is a legal acknowledgment of a debt, and Lynn can correct me
if I’m wrong.”
These statements are not so deliberate, clear and unambiguous as to constitute a
binding judicial admission, they’re pretty vague, the ones that I’ve read. It’s only
deliberate, clear and unambiguous statements that may be considered judicial
admissions. So statements by counsel in the son’s affidavit [sic], without more, are
not admissible as evidence and they’re not admissible as judicial admissions and I’m
excluding them, but statements made by the son are admissible evidentiary
statements which may be subject to further explanation by him or through other
evidence. So in large part, Mr. Falls, III’s motion to exclude his deposition testimony
is denied. In that small part concerning Mr. Wrobel it is allowed.
In its order entered January 5, 2017, memorializing the rulings made at pretrial conference, the court
summarized its decision as follows:
[T]he court GRANTED IN PART and DENIED IN PART defendant’s motion to
exclude deposition testimony (DE 66), excluding only statements made by counsel
for plaintiff Ralph L. Falls, III, regarding admissions [sic] legal principles raised by
the facts in the case. Among other statements by counsel, the court held that the
statement and response from page 58, line 22, to page 59, line 8, was inadmissible.
Plaintiff seeks reconsideration of the court’s order at prior pretrial conference granting defendant’s
motion in limine in part, particularly arguing that the following statements therein constitute judicial
admissions:
MR. WROBEL: . . . . I think there’s an admission in this case that the debt exists and
the argument was that there’s a setoff. . . . [T]here is a legal acknowledgment of the
debt, and Lynn can correct me if I’m wrong.
(Ralph Falls, III, deposition (DE 67-1) at 25:16 - 26:3; see Transcript of Pretrial Conference (DE
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113) at 45; Pl’s Mem. in Opp. (DE 71) at 5). Plaintiff notes that the court’s order memorializing
rulings entered January 5, 2017, did not reference specifically this deposition testimony.
COURT’S DISCUSSION
A.
Motion for Reconsideration
As a general rule, a “counsel’s statements [are] not evidence in the case and [are] to be
disregarded” by the jury. Martin v. Cavalier Hotel Corp., 48 F.3d 1343, 1358 (4th Cir. 1995); see
Dennis v. Gen. Elec. Corp., 762 F.2d 365, 368 (4th Cir. 1985). Nevertheless, “a lawyer’s statements
may constitute a binding admission of a party” if the statements are “deliberate, clear, and
unambiguous.” Fraternal Order of Police Lodge No. 89 v. Prince George’s Cty., MD, 608 F.3d 183,
190 (4th Cir. 2010); see Meyer v. Berkshire Life Ins. Co., 372 F.3d 261, 264-65 & n.2 (4th Cir.
2004).
Here, pages 23:13 to 26:12 of defendant’s deposition, included within designation by
plaintiff and subject of defendant’s present objection, are not admissible because they comprise
commentary by counsel on the propriety of certain questions posed to the deponent.2 See Martin,
48 F.3d at 1358. In so holding, the court rejects plaintiff’s argument, now renewed, that the
following statements by Mr. Wrobel therein constitute judicial admissions:
MR. WROBEL: . . . . I think there’s an admission in this case that the debt exists and
the argument was that there’s a setoff. . . . [T]here is a legal acknowledgment of the
debt, and Lynn can correct me if I’m wrong.
(Ralph Falls, III, deposition (DE 67-1) at 25:16 - 26:3; see Transcript of Pretrial Conference (DE
113) at 45; Pl’s Mem. in Opp. (DE 71) at 5). Hereinafter, for ease of reference, the court will refer
2
Deponent also makes a comment to his counsel in the midst of the colloquy about a question posed, noting
“But it’s a conversation I’m divulging with my father,” which independently is not admissible. (Ralph Falls, III,
deposition (DE 67-1) at 24:6 - 24:8).
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to these identified statements by Mr. Wrobel as “the statements by Mr. Wrobel.”
The statements by Mr. Wrobel are not clear and unambiguous judicial admissions, under the
circumstances of this case, because it is not clear by the statements or their context what Mr. Wrobel
means by references to “the debt” and “the debt exists.” (Ralph Falls, III, deposition (DE 67-1) at
25:16 - 26:3). Among other things, it is not clear whether “the debt” that “exists,” in present tense,
is the same as what defendant and Ralph Falls, Jr., allegedly agreed to in July 2013 (see, e.g.,
Compl. ¶¶ 11-13), or whether “the debt” that “exists” is a debt of some other nature.
The context of the statements by Mr. Wrobel further contributes to their ambiguity and lack
of clarity. The discussion of counsel spanning 23:13 to 26:12 of defendant’s deposition is prompted
by the following question to deponent: “Did you have an agreement that you would provide a
promissory note in favor of your father in the amount of $200,000? Just yes or no.” (Ralph Falls,
III, deposition (DE 67-1) at 23:10 - 23:12) (emphasis added). The statements by Mr. Wrobel, by
contrast, do not reference that specific question, but rather reference “the debt” that “exists,” in
present tense. (Ralph Falls, III, deposition (DE 67-1) at 25:16 - 26:3).
There is a similar disconnect between the statements by Mr. Wrobel and the testimony of
deponent before and after the attorney discussion spanning 23:13 to 26:12 of the deposition. For
example, deponent testified as follows:
Q
A
Q
A
. . . . Did [your father] make a loan to you?
Yes.
Did your father loan you $200,000 to assist you in the purchase and improvement of
a home in Summit, New Jersey?
Yes.
(Ralph Falls, III, deposition (DE 67-1) at 11:23 to 12:5) (emphasis added).
Q
A
Did you agree to provide a promissory note?
Yes.
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Q
A
Did you agree to place a second mortgage on your home?
I believe it was a promissory note/second mortgage, yes. I believe that’s
correct.
(Ralph Falls, III, deposition (DE 67-1) at 28:6 to 28:12) (emphasis added). In sum, there is not a
clear relationship between the statements by Mr. Wrobel, the testimony of deponent, and the
questions discussed in the attorney colloquy.
Plaintiff suggests in moving for reconsideration that “the purpose for which [the statements
by Mr. Wrobel were] made was for [counsel] to move on,” effectively foreclosing other lines of
questioning. (Tr. (DE 113) at 47). The purpose for the statements by Mr. Wrobel, however, is not
so clear. In the attorney colloquy that precedes the statements by Mr. Wrobel, the attorneys express
concern about avoiding questioning regarding “conversations” between defendant and Ralph Falls,
Jr., but the attorneys do not discuss other lines of questioning. (See Ralph Falls, III, deposition (DE
67-1) 23:13 to 26:12). While the court can speculate on what Mr. Wrobel meant or intended by his
statements, it is not the role of the court to so speculate in determining whether they constitute
“deliberate, clear, and unambiguous” judicial admissions. Meyer, 372 F.3d at 265 n.2. It suffices
that the statements by Mr. Wrobel are not deliberate, clear, and unambiguous judicial admissions
under the circumstances of this case.
Plaintiff also suggests that it is odd and illogical for defendant now to contend that the
transfer of $200,000.00 from Ralph Falls, Jr. to defendant was a gift or converted to a gift, where
“there was never any statement by [defendant in his deposition] that it was a gift or converted to a
gift.” (Tr. (DE 113) at 46). Plaintiff may seek to make this point through cross-examination or
argument. It does not serve, however, to transform an ambiguous and unclear statement by counsel
into a binding judicial admission.
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In sum, designated pages 23:13 to 26:12 of the deposition of defendant are not admissible
because they comprise counsel’s statements, and they do not include judicial admissions. Therefore,
plaintiff’s motion for reconsideration is denied, and the court reiterates its ruling made orally at prior
pretrial conference on January 3, 2017, consistent herewith.
B.
Correction to Prior Order
Furthermore, the court corrects and clarifies for instant purposes its prior written order
entered January 5, 2017, memorializing rulings made at final pretrial conference to conform to the
instant ruling. In particular, the court stated in its January 5, 2017, order that the court was
“excluding only statements made by counsel for plaintiff Ralph L. Falls, III, regarding admissions
[sic] legal principles raised by the facts in the case,” and that “[a]mong other statements by counsel,
the court held that the statement and response from page 58, line 22, to page 59, line 8, was
inadmissible.” (DE 77 at 3) (emphasis added).
As an initial matter, the court unnecessarily and unclearly characterized statements of
counsel as being “regarding admissions [sic] legal principles raised by the facts in the case.” (DE
77 at 3). Consistent with the court’s ruling at prior pretrial conference and in this order, the court
excludes those portions of the deposition that constitute attorney statements and discussion as
opposed to statements by the deponent in response to deposition questions. In this instance, as noted
above, the designated pages 23:13 to 26:12 of the deposition properly are excluded on this basis.
In addition, with respect to the issue of judicial admissions, due to an inadvertent scrivener’s
error, the court’s citation to “page 58, line 22, to page 59, line 8” as being inadmissible was
incomplete, and should have included, in addition, citation to page 25, line 16, to page 26, line 3.
Citation to deposition pages 58 and 59 concerned an additional statement of counsel that was
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identified in prior proposed pretrial order, to which defendant objected on a similar basis. (Def’s
Mem. (DE 67) at 3). Plaintiff does not now designate pages 58 to 59 of defendant’s deposition, and
those portions no longer are before the court for consideration.
CONCLUSION
Based on the foregoing, plaintiff’s oral motion for reconsideration is DENIED. The court
reiterates its ruling made orally at prior pretrial conference on January 3, 2017, and the court corrects
and clarifies its order entered January 5, 2017, in accordance with the determinations herein.
SO ORDERED, this the 20th day of March, 2018.
_____________________________
LOUISE W. FLANAGAN
United States District Judge
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