Brookhaven Landscape & Grading Co., Inc. v. J. F. Barton Contracting Co. & United States Fid. & Guar. Co., 681 F.2d 734 (11th Cir. 1982). · Go Syfert
Brookhaven Landscape & Grading Co., Inc. v. J. F. Barton Contracting Co. & United States Fid. & Guar. Co., 681 F.2d 734 (11th Cir. 1982). Cases Citing This Book View Copy Cite
“failure by defendants to object on the ground of prejudice or to request a limiting instruction to the jury constitutes a waiver of objection on that ground.”
23 citation events (6 in the last 25 years) across 10 distinct courts.
Strongest positive: King v. CVS Caremark Corp. (alnd, 2016-02-23)
Treatment trajectory · 1981 → 2026 · click a year to view as-of
1981 2003 2026
Top citers, strongest first. 9 distinct citers.
discussed Cited as authority (quoted) King v. CVS Caremark Corp.
N.D. Ala. · 2016 · quote attribution · 1 verbatim quote · confidence low
failure by defendants to object on the ground of prejudice or to request a limiting instruction to the jury constitutes a waiver of objection on that ground.
discussed Cited as authority (rule) Angela Ruckh v. Salus Rehabilitation, LLC
11th Cir. · 2020 · confidence medium
F. Barton Contracting Co., 681 F.2d 734, 736 (11th Cir. 1982)). 14 Case: 18-10500 Date Filed: 06/25/2020 Page: 15 of 44 “We review de novo a district judge’s granting judgment as a matter of law under Federal Rule of Civil Procedure 50(b) and apply the same standard as the trial judge.
discussed Cited as authority (rule) HealthSouth of Alabama, LLC v. Shelby Ridge Acquisition Corp.
Ala. Civ. App. · 2016 · confidence medium
Barton Contracting Co., 681 F.2d 734, 736 (11th Cir. 1982)(‘[I]t would be completely inappropriate to allow parties to frustrate the business of this Court by demanding dismissal of an appeal whenever they disagree with or are chagrined by something in the Court’s opinion.’); and Terhune v. Myers, 342 Or. 376, 381 , 153 P.3d 109, 112 (2007)(denying motion to vacate on the basis of mootness when movant failed to present any argument that granting the vacatur would serve the public interest or prevent an inequity).
cited Cited as authority (rule) Oklahoma Radio Associates v. Federal Deposit Insurance
10th Cir. · 1993 · confidence medium
Id. at 736.
cited Cited as authority (rule) United States v. Donald Austin
10th Cir. · 1991 · confidence medium
Barton Contracting Co., 681 F.2d 734, 736 (11th Cir.1982) 2 The facts recited above were established by proffer of evidence, a proper procedure in detention proceedings.
cited Cited as authority (rule) Showtime/The Movie Channel, Inc. v. Covered Bridge Condominium Association, Inc.
3rd Cir. · 1990 · confidence medium
Co., 681 F.2d 734, 736 (11th Cir.1982).
cited Cited as authority (rule) Showtime/the Movie Channel, Inc. v. Covered Bridge Condominium Ass'n
11th Cir. · 1990 · confidence medium
Co., 681 F.2d 734, 736 (11th Cir.1982).
discussed Cited as authority (rule) Commercial Union Insurance Company v. Sepco Corporation
1st Cir. · 1989 · confidence medium
Barton Contracting Co., 681 F.2d 734, 735 (11th Cir.1982). 4 Canadian argues that under Alabama law, which controls here, "all expenses" is unambiguous and by its natural meaning includes attorney's fees paid to outside counsel.
cited Cited as authority (rule) Commercial Union Insurance v. Sepco Corp.
11th Cir. · 1989 · confidence medium
Barton Contracting Co., 681 F.2d 734, 735 (11th Cir.1982).
BROOKHAVEN LANDSCAPE & GRADING CO., INC., Plaintiff-Appellee,
v.
J. F. BARTON CONTRACTING COMPANY and United States Fidelity and Guaranty Co., Defendants-Appellants
81-7059.
Court of Appeals for the Eleventh Circuit.
Jul 29, 1982.
681 F.2d 734
Warren 0. Wheeler, Mary J. Workman, Atlanta, Ga., for defendants-appellants., Stokes & Shapiro, J. Ben Shapiro, Sidney Haskins, Atlanta, Ga., for plaintiff-appellee.
Johnson, Morgan, Per Curiam, Tjoflat.
Cited by 14 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 59%
Citer courts: N.D. Alabama (1)
PER CURIAM:

This Court heard oral argument in this case on February 8, 1982, and on May 17,[*735] 1982, the Court issued its decision in a published opinion, 676 F.2d 516. On May 27, 1982, the parties, by joint motion of their attorneys, moved this Court to modify its judgment by deleting Section II of the opinion or, in the alternative, to dismiss the appeal. The thrust of the joint motion is that the Court’s comments in Section II unfairly criticize counsel’s performance at oral argument and the motion asks that this Court either expunge that portion of the opinion or dismiss the entire appeal. We deny this alternative motion.

As to that portion of the motion asking that the opinion be modified, we conclude that Section II of the opinion is not “dicta” as characterized by the motion now presented and that portion of the Court’s opinion is fully warranted by counsel’s substantial lack of familiarity with the district court’s disposition of the issues in this case, and the record itself. This Court is empowered to regulate attorneys’ practice before it. Fed.R.App.P. 46; Eleventh Circuit Rule 7. In cases in which neither formal disciplinary action nor default is warranted, this Court may censure attorneys for their failure to comply fully with the Rules of the Court and may establish rules designed to secure future compliance.

As stated in the Court’s opinion in this case, Federal Rule of Appellate Procedure 28 and Eleventh Circuit Rule 22 make it very clear that each attorney is responsible for a complete and accurate presentation of the issue presented for review in the course of proceedings and its disposition in the court below. Moreover, it is the responsibility of the appellant to bring to the Court those portions of the record which will sustain its claims of error. In this particular case the defendants-appellants’ contentions squarely challenged the district court’s treatment of the contract at issue. During oral argument the Court asked counsel for both sides for an account of the district court’s action concerning the contract. The Court attempted to find out exactly what transpired at trial in the following four respects:

1. Whether the district court had specifically construed the contract at any point as a matter of law, and, if so, how the court had construed it.
2. How the court had instructed the jury on the contract, whether the court had submitted the contract to the jury without construing it, and whether the jury had made findings of fact on the contract.
3. Whether the defendants had preserved their claim that the court erred by submitting the contract to the jury; and
4. Whether the record reflected objections to the court’s submission of the contract to the jury or any of the jury instructions complained of on appeal.

In response to these and related questions, counsel either failed to offer answers or in some instances gave conflicting answers within the course of the same presentation. Counsel several times attempted to excuse or explain their lack of familiarity with the proceedings in the district court by stating that they were not present at trial. At one point the Court asked plaintiff’s counsel whether there was anyone then present who could respond to its questions. While plaintiff’s counsel stated that one trial counsel was present in court, neither plaintiff nor defendants tendered or introduced anyone to answer the Court’s questions even though both sides had an opportunity to do so.

The questions asked by this Court in this case were important to the outcome. The construction of a contract is a question of law unless there are ambiguities which must be resolved by reference to the evidence. See Department of Transp. v. Claussen Paving Co., 246 Ga. 807, 273 S.E.2d 161, 165-66 (1980). This proposition, however, merely states the rule of law to be applied once the rulings and proceedings below have been accurately explained, and after the Court determines which claims of error the appellant has preserved. Because a full and accurate explanation of these issues forms the basis of relief sought by defendants and opposed by plaintiff, they[*736] should have been discussed in the attorneys’ briefs. Because they were not, it was the duty of the attorneys who appeared for oral argument before this Court to be prepared to discuss fully and accurately the facts and proceedings that occurred in the district court. The observations of this Court as set out in Section II of the published opinion were entirely appropriate and under the circumstances completely justified and warranted. The motion to the extent it seeks modification of the opinion by deleting Section II thereof is without merit.

Federal Rule of Appellate Procedure 42 allows dismissal of an appeal on joint motion. However, the decision to grant or deny a motion to dismiss is within the discretion of the Court of Appeals. Matter of Penn Central Transp. Co., 630 F.2d 183, 188 (3rd Cir. 1980); United States v. Washington, 573 F.2d 1117, 1118 (9th Cir. 1978); Blount v. State Bank, 425 F.2d 266 (4th Cir. 1970); see Moore v. Tangipahoa Parish Sch. Bd., 421 F.2d 1407 (5th Cir. 1969). This Court routinely grants unopposed motions to withdraw the appeal before the case has been submitted to a panel for decision. See Eleventh Circuit Rule 16. This case, however, presents an entirely different question in that the motion to dismiss is filed and presented after the Court has rendered and published a decision in the case and on the basis of the attorneys’ dissatisfaction with a portion of the opinion of the Court.

A motion to withdraw or dismiss the appeal filed after a decision has been rendered and published by the Court of Appeals is not timely. While in rare cases there may be a valid reason to withdraw a decision and opinion once published, it would be completely inappropriate to allow parties to frustrate the business of this Court by demanding dismissal of an appeal whenever they disagree with or are chagrined by something in the Court’s opinion.

Accordingly, it is ORDERED that the joint motion now presented seeking to modify the opinion of this Court or, alternatively, to dismiss the appeal is hereby DENIED.