Unpublished Disposition, 900 F.2d 262 (9th Cir. 1990)

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U.S. Court of Appeals for the Ninth Circuit - 900 F.2d 262 (9th Cir. 1990)

Kodep DILUTAOCH, Plaintiff-Appellant,v.C & S CONCRETE BLOCK PRODUCTS, INC., Defendant-Appellee.

No. 88-15772.

United States Court of Appeals, Ninth Circuit.

Submitted April 9, 1990.* Decided April 23, 1990.

Appeal from the United States District Court for the Northern Marianas Islands, Appellate Division, D.C. No. DCA- 87-9017, Laureta,**  King,***  and Dela Cruz,****  Presiding.

Before FARRIS, PREGERSON and RYMER, Circuit Judges.


MEMORANDUM***** 

Kodep Dilutaoch appeals from a jury verdict for C & S Concrete Block Products (C & S) which found that C & S was not estopped from asserting the Commonwealth's two year statute of limitations as an affirmative defense to Dilutaoch's personal injury suit against C & S. Dilutaoch raises three issues on appeal. He contends that the Commonwealth Trial Court erred in admitting prejudicial evidence. He also contends that the trial court abused its discretion in granting C & S's motion to try separately as a preliminary matter the issue whether C & S is estopped from asserting the statute of limitations as an affirmative defense. Dilutaoch's final contention is that the trial court erred by not requiring C & S to offer any evidence that the statute of limitations had lapsed. C & S seeks court costs and attorneys fees as sanctions pursuant to Fed. R. App. P. 38. We affirm the decision of the district court, and we deny sanctions.

FACTS

Dilutaoch, a C & S employee, was injured while operating a C & S cement mixer on November 22, 1983. Appellate Division Opinion (Opinion) at 2. In September 1984, Dilutaoch retained Douglas Cushnie as his counsel.1  Id. Cushnie tried to negotiate a settlement with C & S's attorney, James Grizzard. Id. No agreement was reached, and Cushnie filed a complaint in Commonwealth Trial Court on November 27, 1985 alleging that Dilutaoch had been injured as a result of C & S's negligence. Id.

C & S asserted the statute of limitations as an affirmative defense and sought judgment on the pleadings.2  Id. The trial court granted C & S judgment on the pleadings and dismissed the suit without prejudice to Dilutaoch, granting him leave to amend. Id. Dilutaoch filed an amended complaint on February 6, 1986, which contained all claims that had been raised in the original complaint. Id. This complaint also included a new claim that C & S was estopped from asserting the statute of limitations because C & S's attorney, James Grizzard, told Douglas Cushnie, Dilutaoch's attorney, that C & S intended to waive the statute of limitations, thereby inducing Cushnie not to file suit until after the limitations period had expired. Id. at 2-3. The amended complaint stated on its face that the limitations period had expired. Id. at 4, n. 1.

C & S denied all charges and again asserted the statute of limitations as an affirmative defense. On May 13, 1987, C & S moved for a separate trial on the issue whether it was estopped from asserting the statute of limitations as an affirmative defense. Order for Separate Trial at 1. A hearing was held and the bifurcation motion was granted. Id. at 2. Dilutaoch did not object to the motion at the hearing. Opinion at 4. The statute of limitations issue was tried before a jury on July 27 and 28, 1987. Judgment of Trial Court (Judgment) at 5.

At the trial, C & S offered into evidence a letter dated November 26, 1984 from Grizzard to Cushnie. Transcript of Trial (Transcript), at 43. The letter stated in part that C & S had no liability insurance and that the company denied liability. Id. The letter was part of a series of communications between Grizzard and Cushnie in the negotiations regarding Dilutaoch's claim. Id. It was offered to show that Grizzard had not intended to induce Cushnie to believe that C & S would waive the statute of limitations. Opinion, at 5-6. Dilutaoch objected to the introduction of the letter solely on the ground that the letter was irrelevant because it discussed liability, an issue not then before the court. Id. at 6. Dilutaoch did not move to have those portions discussing liability excised, nor did he object on the ground that the letter was prejudicial because it discussed liability and insurance. Id.

Cushnie appeared as a witness for Dilutaoch. Transcript, at Table of Contents. Grizzard likewise appeared as a witness for C & S. Id. Cushnie testified on cross examination that he had misread the statute of limitations, which he thought had not yet run at the time he filed the original complaint in November 1985. Id. at 30. Cushnie stated that he did not know if he had placed Dilutaoch's case on his "tickler," so that he would be advised of the exact date on which the statute of limitations ran. Cushnie stated that he had relied on Grizzard to remind him of when the statute of limitations ran. Id. at 30-31.

The jury rendered a verdict in favor of C & S. Judgment at 5. The trial court then dismissed the remainder of the action with prejudice. Id. Dilutaoch appealed to the Appellate Division of the District Court for the District of the Northern Marianas Islands, which had jurisdiction pursuant to 48 U.S.C. § 1694b(a).

Dilutaoch contended that the trial court had erred in bifurcating the trial. Opinion at 4. Dilutaoch contended that further error was committed when the trial court admitted into evidence Grizzard's letter to Cushnie because the references to C & S's insurance and liability were prejudicial. Id. at 4-5. Dilutaoch also contended that because the trial court had not required C & S to offer any proof that the statute of limitations had run, it had erroneously shifted the burden of proof from C & S to plaintiff. Id. at 4.

The Appellate Division affirmed the trial court's decision, id. at 6, based in part on the fact that Dilutaoch had failed to object before the trial court to both the bifurcation and the introduction of the letter on the ground that it was prejudicial. Id. at 4-5. The Appellate Division found that the trial court had not shifted the burden of proof because Dilutaoch's complaint stated on its face that the statute of limitations had run. Id. at 4, n. 1.

Dilutaoch appealed the Appellate Division's decision to this court pursuant to 48 U.S.C. § 1694b(c). The notice of appeal was filed on December 5, 1988. On May 2, 1989, Northern Marianas Islands Public Law 6-25 became effective. That law established the Supreme Court of the Commonwealth of the Northern Marianas Islands, which was given appellate jurisdiction over judgments and orders of the Commonwealth Superior Court. Pub. L. 6-25, Sec. 3101(a).3  The law also gave the Commonwealth Supreme Court appellate jurisdiction over all appeals from the Commonwealth trial court that were pending before the Appellate Division of the district court, the Ninth Circuit, and the U.S. Supreme Court as of May 2, 1989. Pub. L. 6-25, Sec. 3109(b).

JURISDICTION

We determine our jurisdiction de novo. Schlegel v. Bebout, 841 F.2d 937, 941 (9th Cir. 1988). We find that we have jurisdiction over this appeal notwithstanding Pub. L. 6-25. In Wabol v. Villacrusis, No. 87-1736, slip. op. 1807 (9th Cir. Feb. 20, 1990), we held that Pub. L. 6-25 did not strip us of appellate jurisdiction over appeals from final orders of the Appellate Division filed prior to May 2, 1989. Id. at 1823. We find Wabol to be controlling.

The Wabol holding was based on the fact that Congress had not given the Commonwealth the power "to determine which courts would be empowered to hear appeals from federal courts." Id. at 1822. Wabol determined that the Appellate Division is a federal court, notwithstanding the fact that it has jurisdiction over appeals from the Commonwealth Trial Court. Id. at 1823. Therefore, the Commonwealth could not strip the Ninth Circuit of jurisdiction over appeals from final orders of the Appellate Division filed prior to May 2, 1989. Id. We therefore find that we have jurisdiction over this appeal, because Dilutaoch's notice of appeal was filed on December 5, 1988, almost five months before Pub. L. 6-25 became effective.

STANDARD OF REVIEW

We review de novo questions of local law from the Appellate Division of the District Court of the Northern Marianas Islands. People of the Territory of Guam v. Yang, 850 F.2d 507, 510-11 & n. 7 (9th Cir. 1988) (en banc).

DISCUSSION

Dilutaoch contends that the trial court erred in admitting Grizzard's November 26, 1984 letter to Cushnie, on the ground that this letter was prejudicial to Dilutaoch's case because it contained references to C & S's liability and lack of insurance coverage. A trial court's evidentiary decisions are reviewed for an abuse of discretion. Brown v. Sierra Nevada Hosp., 849 F.2d 1186, 1189 (9th Cir. 1988).

The Appellate Division found that although Dilutaoch had objected to the admission of the letter, his objection was limited to the narrow ground that it was irrelevant. The trial court overruled the objection because the letter was relevant to show that Cushnie knew that C & S was not planning to waive the statute of limitations. Dilutaoch did not raise an objection based on prejudice until he was before the Appellate Division. That court found that his objection was too late, and upheld the trial court's admission of the letter.

Under the Federal Rules of Evidence,4  if a party objects to the admission of evidence on one ground at trial, the party waives the right to object to the evidence on all other grounds not included within the original objection. ESCO Corp. v. United States, 750 F.2d 1466, 1469-70 (9th Cir. 1985). The Appellate Division was therefore correct in holding that the letter to Cushnie was properly admitted.

Dilutaoch also contends that the trial court erred in bifurcating the trial into separate trials for the statute of limitations and liability issues. We review an order for bifurcation for abuse of discretion. United States v. 1,071.08 Acres of Land, 564 F.2d 1350, 1352 (9th Cir. 1977).

Commonwealth Rule of Civil Procedure 42(b) states that " [t]he court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any ... issue ... always preserving inviolate the right of trial by jury as given by a statute of the Northern Marianas Islands."5  We have recognized that the issue whether an action is barred by a statute of limitations is an issue which may appropriately be bifurcated and tried separately. See, e.g., Burnham Chem. Co. v. Borax Consol., Ltd., 170 F.2d 569, 572-73 (9th Cir. 1948).

Dilutaoch contends that the bifurcation order resulted in prejudice because Grizzard's letter to Cushnie injected evidence regarding C & S's liability and lack of insurance into the statute of limitations trial.6  Dilutaoch, however, failed to object to the bifurcation at the hearing on the bifurcation motion. The Appellate Division held that this failure to object foreclosed any objections to the bifurcation on appeal under United States v. Whitten, 706 F.2d 1000 (9th Cir. 1983), in which we held that " [a]s a general rule, an issue not presented to the trial court cannot be raised for the first time on appeal." Id. at 1012.

Because Dilutaoch failed to object to the bifurcation at the hearing, he cannot raise this issue before us unless he falls within one of the three exceptions to the Whitten rule. Whitten does not apply when "a new theory or issue arises while an appeal is pending because of a change in the law, ... where the issue conceded or neglected below is purely one of law and does not affect or rely on the factual record developed by the parties, ... or where plain error has occurred and injustice might otherwise result." Id.

Dilutaoch does not fall within the first exception because there has been no change in the law affecting him during the time this appeal has been pending. He does not fall within the second exception, either. "The evident principle underlying this [second] exception is that the party against whom the issue is raised must not have been prejudiced by it." United States v. Patrin, 575 F.2d 708, 713 (9th Cir. 1978). Giving Dilutaoch a second chance to rectify his earlier mistakes by allowing him to object to the bifurcation at this late date would prejudice C & S by forcing it to reargue an issue which a jury found in its favor.

Dilutaoch does not fall within the third exception because injustice would not result in applying the general rule that one may not raise an issue for the first time on appeal. Whatever prejudice he suffered was as a result of his attorney's carelessness. He had over two months between the granting of the bifurcation order and the start of the statute of limitations trial to determine the boundaries of the bifurcation order. Dilutaoch could have made a motion in limine to prevent C & S from introducing any evidence pertaining to liability. Alternatively, he could have prevented the introduction of those portions of the letter dealing with liability by objecting to the admissibility of the letter on prejudicial grounds. Dilutaoch took none of these measures, and therefore should not be allowed to object to the consequences of his inaction now.

Dilutaoch's final contention is that the Trial Court erred in not requiring C & S to offer any evidence that the statute of limitations had run. Dilutaoch contends that as a result of this error, the burden of proving the affirmative defense was shifted from C & S to Dilutaoch. We find this contention to be without merit. The running of the statute of limitations was a fact that was not in dispute, because Dilutaoch admitted that the statute of limitations had run in his amended complaint. In general, a party is bound by an admission made in his pleadings. Cf. Van Der Veen v. United States, 349 F.2d 583, 587 (9th Cir. 1965) (party bound by his own allegations).

Dilutaoch asserted in his amended complaint that C & S is estopped from asserting the statute of limitations because the fraudulent and deceptive conduct of its lawyer induced his lawyer not to file suit until after the statute of limitations had run. Dilutaoch had the burden of proof on this issue and was required to prove three elements in order to satisfy it. Golden v. Faust, 766 F.2d 1339, 1341 (9th Cir. 1985). First, he had to show that C & S was apprised of the facts. Second, he had to show that he was ignorant of the true state of the facts, and that C & S acted so that he had a right to believe that C & S intended its conduct to be acted upon. Third, he had to show that he relied on C & S's conduct to his detriment. Id.

The trial court's jury instruction on Dilutaoch's burden of proof reflects those elements. The court told the jury that it would have to find that C & S's attorney had done or said something calculated to induce Dilutaoch's attorney to believe certain facts and to act on that misbelief, and that Dilutaoch's attorney had acted on that misbelief to his detriment.7  We therefore find that were no erroneous shifts in the burden of proof on the issue of whether C & S is estopped from asserting the statute of limitations.

The judgment of the Appellate Division of the District Court is AFFIRMED. APPELLEE'S motion for SANCTIONS is DENIED.

 *

The panel unanimously found this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth Circuit Rule 34-4

 **

Hon. Alfred Laureta, District Judge, District Court for the Northern Marianas Islands

 ***

Hon. Samuel P. King, Senior District Judge, United States District Court for the District of Hawaii, sitting by designation

 ****

Hon. Jose S. Dela Cruz, Judge, Commonwealth Trial Court, Saipan, CNMI, sitting by designation

 *****

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

Cushnie represented Dilutaoch during the pre-trial phase of this action. He is currently representing Dilutaoch on this appeal. Cushnie did not represent Dilutaoch in the statute of limitations trial because he was Dilutaoch's sole witness

 2

The applicable statute of limitations in this case is 7 CMC Sec. 2503(d), which requires that all negligence actions be filed within two years of the date of accrual. The statute of limitations in Dilutaoch's action expired on November 22, 1985

 3

The Commonwealth Superior Court appears to be the same court as the Commonwealth Trial Court. Prior to Pub. L. 6-25, cases arising in the Commonwealth were initially tried in either the Trial Court or the U.S. District Court for the district of the Commonwealth of the Northern Marianas Islands. The district court had jurisdiction over appeals from the Trial Court, and these appeals were heard by a special Appellate Division of the district court. 48 U.S.C. § 1694b(a). Appeals from the Appellate Division of the district court were then taken to the Ninth Circuit. 48 U.S.C. § 1694b(c)

 4

The Commonwealth Rules of Evidence applicable at trial are identical to the Federal Rules of Evidence

 5

There is no case law available which interprets Commonwealth R.Civ.P. 42(b). However, since this rule is nearly identical to Fed. R. Civ. P. 42(b), we will apply the same analysis that we have developed in reviewing bifurcation orders entered by federal courts pursuant to Fed. R. Civ. P. 42(b)

 6

Dilutaoch's argument on this point is really a disguised restatement of his previous contention that the trial court erred in admitting the letter because it was prejudicial

 7

Even if we were to find error in the jury instructions, Dilutaoch is precluded from obtaining review of any error under Fed. R. Civ. P. 51 because he failed to state distinctly the matter to which he objected and the grounds of his objection prior to the time the jury retired for deliberations. Bertrand v. Southern Pac. Co., 282 F.2d 569, 572 (9th Cir. 1960)

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