On petition for writ of certiorari to the United States Court of
Appeals for the Fifth Circuit.
The petition for a writ of certiorari is denied.
Justice BLACKMUN, dissenting.
It seems to me that the Court's denial of certiorari in this
case utterly ignores the parties' intent in executing a consent to
a judgment and in their subsequent actions pursuant thereto.
Petitioner is a sugar refiner. It filed suit under 20(11) of the
Interstate Commerce Act, 24 Stat. 386, as amended, 49 U.S.C.
20(11),1 against respondent, a common carrier by motor, for damage
to a cargo of sugar respondent undertook to transport. Although
respondent by its formal answer denied liability, the real issue in
the litigation proved to be the amount for which respondent was
liable. Petitioner-shipper took the position that, under Gore
Products, Inc. v. Texas & N. O. R. Co., 34 So. 2d 418
(La.App.1948), the proper measure of damages was the profit lost by
petitioner on the completed sale, or $7,529.28. Respondent-carrier,
on the other hand, contended that the proper measure was the cost
of reprocessing the sugar for resale to another customer, or
$488.65.2 Respondent moved for partial summary judgment only on the
issue of the quantum of damages. Over
Page 449 U.S.
924 , 925
petitioner's objection, the United States District Court for the
Eastern District of Louisiana granted that motion, leaving open, so
far as that court was concerned, the issue of liability. The
partial summary judgment, being interlocutory, of course was not
then appealable. See 28 U.S.C. 1291 and 1292.
After a pretrial conference, the parties by their counsel
entered into a stipulation of facts, App. to Pet. for Cert. 29a,
and submitted to the court a "Joint Motion for Approval of Consent
Judgment." Id., at 32 A. 3 The District Court then entered its
"Consent Judgment upon Joint Stipulation of Facts," id., at 26a,
the final paragraph of which recited:
"This judgment is rendered in recognition of the reservation by
the plaintiff of its right to prosecute an appeal in this action in
connection with this judgment and in connection with the partial
summary judgment rendered on March 14, 1979." Id., at 27a.
The smaller of the two sums was then paid to petitioner. It
thereupon executed a satisfaction of judgment, id., at 34a, still
reciting its reservation. [
Footnote
4]
Petitioner in due course appealed to the United States Court of
Appeals for the Fifth Circuit. Both sides devoted their briefs in
that court exclusively to the liability issue. The Court of
Appeals, however, with a short per curiam opinion, held that, on
the authority of another per curiam opin-
Page 449 U.S.
924 , 926
ion, White & Yarborough v. Dailey,
228
F.2d 836 (CA5 1955), (the governing authority of which I
seriously question), "the fact that both parties freely consented
to the entry of a final judgment precludes an appeal from it."
607 F.2d
1100 (CA5 1979).
It seems to me to be clear that any consent on the part of
petitioner did not reach the disputed difference between $7,529.28
and $488.65. To the extent that the Court of Appeals' holding rests
on the suggestion in White & Yarborough v. Dailey, 228 F.2d, at
837, that an appeal will not lie when payment of the judgment has
been accepted, that holding is inconsistent with United States v.
Hougham,
364 U.S.
310, 5 L. Ed. 2d 8 (1960), where this Court said:
"It is a generally accepted rule of
law that where a judgment is appealed on the ground that the
damages awarded are inadequate, acceptance of payment of the amount
of the unsatisfactory judgment does not, standing alone, amount to
an accord and satisfaction of the entire claim." Id., at 312, 81 S.
Ct. at 15.
Nor does the mere fact that the parties entered into a consent
judgment preclude appeal. In Swift & Co. v. United States,
276 U.S. 311
(1928), it was observed:
"The decree sought to be vacated was entered with the
defendants' consent. Under the English practice a consent decree
could not be set aside by appeal or bill of review, except in case
of clerical error. . . . In this Court a somewhat more liberal rule
has prevailed. Decrees entered by consent have been reviewed upon
appeal or bill of review where there was a claim of lack of actual
consent to the decree as entered. . . ." Id., at 323-324, 48 S.Ct.
at 313- 314.
Here there is "a claim of lack of actual consent." See also
Nashville, C. & St. L. R. Co. v. United States,
113 U.S. 261 (1885);
Pacific R. Co. v. Ketchum,
101 U.S. 289 (1880).
The Court of Appeals' opinion also seems to me to be in
Page 449 U.S.
924 , 927
some tension, if not outright conflict, on the point at issue,
with diLeo v. Greenfield,
541 F.2d
949, 952 (CA2 1976); United States ex rel. H & Industries,
Inc. v. F. D. Rich Co.,
525 F.2d
760, 764-765 (CA7 1975); and Gadsden v. Fripp,
330 F.2d
545, 548 (CA4 1964).
It may well be that upon review of the merits of the District
Court's judgment, respondent will prevail. It seems to me, however,
that petitioner is entitled to a ruling on the merits of its appeal
to the Court of Appeals, and is not to be foreclosed by a strict
concept of consent and acceptance in the face of facts that the
asserted consent was specifically limited and that petitioner
consistently and persistently disclaimed full settlement of the
lawsuit. Indeed, until the case arrived here, respondent does not
appear to have claimed otherwise.
The amount in contest is not large, but that fact in itself is
no reason for this Court's lack of interest in a case where the
principle is important. I would give serious consideration to a
summary reversal of the judgment of the Court of Appeals. At the
least, I would grant certiorari and set the case for argument.
Footnotes
Footnote 1 Section 20(11)
was repealed in 1978 by Pub.L. 95-473, 4(b), 92 Stat. 1466, but the
Interstate Commerce Act was reenacted as positive law by the same
statute. 92 Stat. 1337.
Footnote 2 The smaller
amount is not in dispute. Respondent has not agreed that the larger
amount is correct, but it states that it "has always assumed" that
the profit lost on the completed sale of the sugar was in excess of
the smaller amount. Brief in Opposition 2.
Footnote 3 This Joint Motion
recited:
"Amstar Corporation joins in this
motion with full reservation of its right to prosecute an appeal in
this action, both with respect to the attached consent judgment and
with respect to the partial summary judgment granted in this action
on March 14, 1979." App. to Pet. for Cert. 33a.
Footnote 4 The satisfaction
provided:
"This Satisfaction of Judgment has
been executed by Amstar Corporation with full reservation of its
right to prosecute an appeal in this action in connection with the
judgment entered on May 3, 1979, and in connection with the partial
summary judgment rendered on March 14, 1979." Id., at 34a.
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