FRANCINE MANDEL, PLAINTIFF-APPELLANT,

v.

MAX-FRANCE, INC., SHIRLEY COHEN AND SAUL COHEN, DEFENDANTS-APPELLEES

11th Cir. | 1983-05-09

No. 81-6103

Before RONEY, VANCE and ANDERSON, Circuit Judges.

704 F.2d 1205 Court of Appeals for the Eleventh Circuit (1983) Positive Treatment

Cited by 6 cases

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Holding

The court held that an erroneous jury instruction on the burden of proof requires reversal unless the appellee can affirmatively demonstrate no prejudice occurred.

Facts & Procedural History

Plaintiff sued for securities violations and appealed after the jury returned a verdict for the defendants, arguing the jury instruction on the burden…

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Topics

Appellate Record Sufficiency Presumption Of Prejudice Violation Of Section 10(B) Of The Securities Exchange Act Of 1934 Violation Of Rule 10B-5

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Opinion of the Court

RONEY, Circuit Judge:

Because the Supreme Court had granted certiorari on our decision in Huddleston v. Herman & MacLean, 640 F. 2d 534 (5th Cir.1981), which the trial court followed in instructing the jury in this § 10(b) securities case, we held this appeal in abeyance pending the Supreme Court’s disposition of the controlling issue. The Court’s reversal of Huddleston now requires reversal in this case.

Plaintiff claimed violations of § 10(b) of the Securities Exchange Act of 1934, 15 U.S.C.A. § 78j(b), and Rule 10b-5 thereunder, 17 C.F.R. § 240.10b-5 (1982). Correctly following our Huddleston decision, the trial court instructed the jury that the plaintiff had the burden of proving every essential element of her claim by clear and convincing evidence. The jury returned a verdict for the defendants. The plaintiff appealed on the ground that the instruction on burden of proof was wrong.

In reversing Huddleston, the Supreme Court held that persons seeking relief under § 10(b) need to prove their cause of action by a mere preponderance of the evidence. Herman & MacLean v. Huddleston, - U.S. -, 103 S.Ct. 683, 74 L.Ed.2d 548 (1983), rev’g in part 640 F. 2d 534, 545-46 (5th Cir.1981), modified, 650 F. 2d 815 (5th Cir.1981).

The instruction that plaintiff had to prove her claim by clear and convincing evidence therefore was in error. The judgment must be reversed unless it can be affirmatively established that there was no prejudice on viewing the entire record. McCandless v. United States, 298 U.S. 342, 347-48, 56 S.Ct. 764, 766, 80 L.Ed. 1205 (1936); Fillippon v. Albion Vein Slate Co., 250 U.S. 76, 82, 39 S.Ct. 435, 436, 63 L.Ed. 853 (1919); Ratay v. Lincoln National Life Insurance Co., 378 F. 2d 209, 212 (3rd Cir.), cert. denied, 389 U.S. 973, 88 S.Ct. 472, 19 L.Ed.2d 465 (1967); Farris v. Interstate Circuit, Inc., 116 F. 2d 409, 412 (5th Cir.1941).

The defendants contend that Mandel is not entitled to a new trial because she cannot demonstrate the erroneous jury instruction was prejudicial due to her failure to provide this Court with a complete transcript of the trial testimony. As a general rule, the appellant is responsible for presenting a record that is sufficient to allow this Court to decide the issues presented by the appeal. Fed.R.App.P. 10(b). See Murphy v. St. Paul Fire & Marine Insurance Co., 314 F. 2d 30 (5th Cir.), cert. denied, 375 U.S. 906, 84 S.Ct. 197, 11 L.Ed.2d 146 (1963). If the entire transcript is not to be included, the appellant must file and serve on the appellee a statement of the issues he intends to present on appeal and a designation of those parts of the transcript he has ordered.

If the appellee deems the partial transcript inadequate to determine the issues, he is required to designate to the appellant the additional parts he considers necessary so the appellant can order them for inclusion in the record. Fed.R.App.P. 10(b)(3). The appellee thus bears some responsibility for insuring the adequacy of the record on appeal, particularly those matters which, in the appellee’s view, show an error to be harmless. Union Pacific R.R. v. Bridal Veil Lumber Co., 219 F. 2d 825, 833 (9th Cir.1955), cert. denied, 350 U.S. 981, 76 S.Ct. 466, 100 L.Ed. 849 (1956); 9 J. Moore, B. Ward, J. Lucas, Moore’s Federal Practice U 210. — 05 & n. 8 (2d ed. 1982). In this case, the plaintiff-appellant ordered those parts of the transcript relevant to the issue of the jury instructions and notified the defendants accordingly. If the defendants’ view was that other parts of the transcript would demonstrate the error was harmless because the evidence showed it was entitled to judgment notwithstanding the verdict, then it was incumbent on appellees to see that those parts were included in the record on appeal.

Because the trial court denied defendants’ motion for a directed verdict both at the conclusion of the plaintiff’s case and at the close of all the evidence, it obviously determined the plaintiff made out a sufficient case to go to the jury. Without the record, we cannot say that the decision was wrong. The jury having decided the case under the wrong burden of proof, the presumption of prejudice carries the case to reversal in the absence of the appellees’ being able to demonstrate that there was in fact no prejudice. A new trial is required.

REVERSED AND REMANDED FOR A NEW TRIAL.

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Citator

Cited By

Garnes v. Gulf & W. Mfg. Co., 789 F.2d 637 (8th Cir. 1986)

…rtial transcript sufficient for this purpose, it had a duty to file and serve on Games a statement of the issues it intended to present on appeal and a copy of its order of a partial transcript. Fed.R.App.P. 10(b)(3). See Mandel v. Max-France, Inc., 704 F. 2d 1205, 1206-07 (11th Cir.1983). That way, Games could have ordered additional parts of the transcript if he thought the partial transcript ordered by Gulf & Western was inadequate. After oral argument, we asked Gulf & Western for, and received, an entire…
Cavalier Carpets, Inc. v. Caylor, 746 F.2d 749 (11th Cir. 1984)

…vidence was in error, and the jury decided the case for defendants under the wrong burden of proof. Because this error is prejudicial on its face, we must remand for a new trial unless we find that the error was harmless. Mandel v. Max-France, Inc., 704 F. 2d 1205, 1207 (11th Cir.1983). Here, the jury reached a verdict for the defendants on both the Rule 10b-5 and the common law fraud claims. In Georgia, the elements of common law fraud, for our purposes, are the same as the essential elements of a 10b-5 cla…
Archie v. Christian, 812 F.2d 250 (5th Cir. 1987)

…ight to file a transcript on appeal. Since Archie has not filed a transcript with this court, we cannot say that there was error in the district court’s decision to adopt the magistrate’s findings. See Fed.R.App.P. 10(b); Mandel v. Max-France, Inc., 704 F. 2d 1205, 1207 (11th Cir.1983). IV. . Next, Archie contends that the district court erred in denying his motion for a change of venue and his motion for a continuance. These motions were untimely filed and therefore properly denied. At any rate, it does no…

Authorities Cited (14 total)

Herman & MacLean v. Huddleston, 459 U.S. 375 (U.S. 1983)
Fillippon v. Albion Vein Slate Co., 250 U.S. 76 (U.S. 1919)
McCANDLESS v. United States, 298 U.S. 342 (U.S. 1936)
Huddleston v. Herman & MacLEAN, 640 F.2d 534 (5th Cir. 1981)
Hoban v. United States, 389 U.S. 973 (U.S. 1967)
Lincoln Nat'l Life Ins. Co. v. Ratay, 389 U.S. 973 (U.S. 1967)
Johnston v. United States, 350 U.S. 981 (U.S. 1956)
Elinor M. Ratay v. The Lincoln Nat'l Life Ins. Co., 378 F.2d 209 (3d Cir. 1967)
Farris v. Interstate Cir., Inc., 116 F.2d 409 (5th Cir. 1941)
Union Pac. R.R. Co. v. Bridal Veil Lumber Co., 219 F.2d 825 (9th Cir. 1955)

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