Unpublished Disposition, 919 F.2d 741 (9th Cir. 1990)

Universal Health Services ("UHS") appeals the amended judgment in the amount of $809,103 entered against it after the district court denied UHS's motion under Federal Rules of Civil Procedure 52(b) and 59 to amend the court's findings of fact and conclusions of law and the judgment, or in the alternative, for a new trial. We affirm.

Sheldon L. Pollack Corporation ("Pollack") brought suit seeking payment of a finder's fee arising out of UHS's acquisition of certain real property and hospital assets in McAllen, Texas from the Methodist Hospitals of Dallas ("MHD"). After a one day non-jury trial, the district court found for Pollack, holding that although there was no written agreement satisfying the statute of frauds, UHS was equitably estopped from asserting a statute of frauds defense, citing Tenzer v. Superscope, Inc., 39 Cal. 3d 18, 216 Cal. Rptr. 130, 702 P.2d 212 (1985).

Following the entry of judgment against it, UHS moved to amend the court's findings, or for a new trial. On this post-judgment motion and for the first time, UHS argued that Pollack was a licensed California real estate broker and as such, could not invoke equitable estoppel to avoid a statute of frauds defense. It also proffered a certified copy of Pollack's license, and contended that Phillipe v. Shappell Indus., Inc., 43 Cal. 3d 1247, 241 Cal. Rptr. 22, 743 P.2d 1279 (1987), cert. denied, 486 U.S. 1011 (1988), required judgment in its favor, or at least, a new trial. In addition to these points UHS challenged the district court's computation of the amount of the finder's fee. The district court denied the motions for new trial and to amend the findings, and entered an amended judgment against UHS.¹ 

The decision under Federal Rules of Civil Procedure 52(b) and 59 to alter or amend findings or the judgment, or to grant a new trial, is committed to the sound discretion of the trial judge. Accordingly, we review denials of such motions for an abuse of discretion. Springs v. First Nat'l. Bank of Cut Bank, 835 F.2d 1293 (9th Cir. 1988); Hard v. Burlington Northern R.R., 812 F.2d 482 (9th Cir. 1987).

The purpose of post-judgment motions under Rules 52(b) and 59 is to give the district court an opportunity to correct manifest errors of law or fact at trial, allow the parties to present newly discovered evidence, take additional testimony, make additional findings, or take other action in the interests of justice.

"This is not to say, however, that a motion to amend should be employed to introduce evidence that was available at trial but was not proffered, to relitigate old issues, to advance new theories, or to secure a rehearing on the merits." Fontenot v. Mesa Petroleum Co., 791 F.2d 1207, 1219 (5th Cir. 1986); see also Brown v. Wright, 588 F.2d 708, 710 (9th Cir. 1978) ("the defendant's desire to introduce additional evidence after losing the case did not constitute a proper ground for granting a new trial"). Similarly, a party who fails to present his strongest case is not entitled to a second opportunity by moving to amend a finding of fact and a conclusion of law, or for a new trial. See Fontenot, 791 F.2d at 1220.

This was the effect of what UHS tried in this case. UHS sought post-trial relief on the basis of a new theory and new evidence. There is no suggestion that either was unavailable at the time of trial. "Except for motions to amend based on newly discovered evidence, the trial court is only required to amend its findings of fact based on evidence contained in the record. To do otherwise would defeat the compelling interest in the finality of litigation." Fontenot, 791 F.2d at 1219; see also United States Gypsum Co. v. Schiavo Bros., Inc., 668 F.2d 172, 180 (3d Cir. 1981) ("the trial record must support whatever additional findings of fact or conclusions of law a party seeks under Rule 52(b) or it is certainly not entitled to them"), cert. denied, 456 U.S. 961 (1982).

UHS now argues that it had no obligation to adduce evidence about Pollack's status, but rather that it was plaintiff's burden to establish all elements of equitable estoppel, including in this case that Pollack was not a licensed broker. Whether or not a viable point, it was not made to the district court by way of any pre-judgment motion, objection or argument. It comes too late on appeal.

The district court, which is most familiar with the surrounding circumstances of the litigation, acted within its discretion in finding that "defendants have not established entitlement to alteration or amendment of the findings, conclusions or judgment or to a new trial" and denying the motion. Order denying motion, E.R. at 47.

UHS also contests the district court's determination that Pollack was entitled to a finder's fee of $809,103, representing 1 1/2 percent of the purchase price. The district court found that the purchase price of the hospital project was $53,953,027, consisting of the payment of approximately $6 million for the real property and related assets, and the assumption of a $48 million loan.

UHS argues that Pollack is entitled only to a commission on the value of the assets it "found" and which UHS purchased. Pollack, according to UHS, did not find a completed $54 million hospital, but rather found the business opportunity consisting of undeveloped land, the plans and specifications for a new hospital, and MHD's rights to build and operate the hospital--assets for which UHS paid about $6 million. UHS contends that the loan did not represent funds paid to MHD in return for assets, but rather represented amounts UHS itself subsequently put into the project. Accordingly, UHS claims that the district court erred in including the value of the loan as part of the "purchase price."

After construction of the hospital, UHS completed the purchase when it paid the $6 million for the land and other assets, and was substituted as obligor under a Deed of Trust Note with a balance of about $48 million. MHD was released from liability under the note. Because the record indicates this obligation represented a genuine debt and that MHD would still be liable should UHS decide not to exercise its option to purchase the hospital,²  the assumption of the note was part of the consideration MHD received for the hospital. Moreover, witnesses at trial referred to the price involved in the transaction as $53 million. The record therefore supports the district court's conclusion that the purchase price was $54 million, rather than only $6 million. Accordingly, the district court's computation of the finder's fee as 1 1/2 percent of $54 million is not clearly erroneous.

Pollack asks this court to impose sanctions on UHS for violating Federal Rule of Appellate Procedure 28 and Circuit Rule 28-2.5 by failing to indicate in its brief "where in the record on appeal the issue was raised and ruled on." Although we do not believe that monetary sanctions should be imposed,³  we do believe that an admonishment is required.

The brief for appellants filed by Fulbright & Jaworski is disturbingly misleading. At the outset it states that " [i]n its Findings of Fact and Conclusions of Law which accompanied the judgment (E.R. 33-39), the District Court held that plaintiff Pollack Corporation, a licensed California real estate broker, was entitled to recover a finder's fee from UHS." Appellant's Opening Brief at 2. This statement implies that the district court found that Pollack was a licensed California real estate broker, or at the very least that the record before the court showed that to be the case. In fact the district court did not hold, nor was there any evidence before it to show, that Pollack was a licensed California real estate broker. Similarly, the first issue is framed as, " [m]ay a licensed California real estate broker recover a finder's fee with respect to the sale of real property in the absence of a written agreement signed or subscribed by the party to be charged as required by the applicable California Statute of Frauds, Civil Code Sec. 1624(d)." This conveys the impression, incorrectly, that the district court had been squarely presented with the issue of whether a licensed California real estate broker could recover a finder's fee on the facts of this case. The unmistakable import of characterizing the record as the brief does, and framing the issue as the brief does, is that the appellant was trying to lead the court of appeals to conclude that the district court erred because it (a) found that Pollack was a licensed broker; (b) nevertheless disregarded Phillipe and relied on Tenzer for no good reason; and (c) therefore erred egregiously. Because the district court made no such finding, and no such issue was presented for its consideration, this mischaracterization fails to comport with an attorney's responsibility as an officer of the court accurately and candidly to state the issues, and the rulings, from which appeal is taken.

We trust that Mr. Lumish's acknowledgment at argument that the more "prudent" course would have been to state up front that Pollack's status was first raised in post-judgment motions constitutes a recognition that in the future his briefs will be more agreeably presented.

AFFIRMED.