                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-18-2004

Elliott v. Kiesewetter
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1681




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                                                             NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                              _________

                       Nos. 03-1681, 03-1682 & 03-1797
                                 _________

   CONSTANCE K. ELLIOTT; PATRICIA J. KIESEWETTER; LINTON A. ELLIOTT;
    CHARLES L. ELLIOTT; JONATHAN B. ELLIOTT, Minors by CONSTANCE K.
                      ELLIOTT, their parent and guardian,

                                        v.

           WILLIAM B. KIESEWETTER, JR.; JAYNE H. KIESEWETTER.


                 William B. Kiesewetter, Appellant in No. 03-1681.
                  Jayne H. Kiesewetter, Appellant in No. 03-1682.
                Patricia J. Kiesewetter; Linton A. Elliott; Charles L.
                  Elliott; Jonathan B. Elliott; Constance K. Elliott,
                              Appellants in No. 03-1797.
                                    _________

                On Appeal from the United States District Court
                   for the Western District of Pennsylvania
                           (D.C. Civil No. 94-0576)
                 District Judge: Honorable Gary L. Lancaster
                                  _________

                Submitted Pursuant to Third Circuit LAR 34.1(a)
                               October 8, 2004

     BEFORE: SLOVITER, VAN ANTWERPEN AND COWEN, Circuit Judges

                            (Filed: October 18, 2004)
                                   __________

                                    OPINION
                                   __________

VAN ANTWERPEN, Circuit Judge
       These appeals arise from a jury trial concerning the alleged fraudulent conveyance

of family assets by Appellants Jayne and William Kiesewetter (the “Kiesewetters”) to the

detriment of Appellees and Cross-Appellants Constance Elliott, Patricia Kiesewetter,

Linton Elliott, Charles Elliott and Jonathan Elliott (the “Beneficiaries”). Judgment was

entered on February 26, 2003, and the parties filed timely notices of appeal. We have

jurisdiction pursuant to 28 U.S.C. § 1291 and affirm the two appeals and cross-appeal.

                                              I.

       As the parties are familiar with the facts of this case, we review them only briefly.

The parties are all members of the same family. They have previously litigated the assets

at issue. See Elliott v. Kiesewetter, 98 F.3d 47 (3d Cir. 1996). In the matter now before

us, Beneficiaries’ fraudulent transfer action alleged the illegitimacy of asset transfers by

William Kiesewetter to Jayne Kiesewetter. The transfers at issue involved money as well

as real estate in Pittsburgh and Florida. At trial, Beneficiaries presented evidence of, inter

alia, computer spreadsheets summarizing accounting activity and an expert witness in the

field of asset valuation. On December 20, 2002, the jury answered special verdict

interrogatories, finding the Kiesewetters fraudulently transferred the properties and

money and that Jayne Kiesewetter was unjustly enriched as a result. The jury also

awarded punitive damages against both Kiesewetters. In its final judgment and order, the

District Court reduced the underlying damages award by approximately $1.5 million to

reflect monies the Beneficiaries had already recovered from the Kiesewetters. The



                                              2
     District Court then awarded prejudgment interest.

                                                   II.

            All told, the parties raise some thirteen issues on appeal. However, the

     Kiesewetters fail to pursue certain issues, and they raise others for the first time on

     appeal. “When an issue is not pursued in the argument section of the brief, the appellant

     has abandoned and waived that issue on appeal.” Nagle v. Alspach, 8 F.3d 141, 143 (3d

     Cir. 1993). Further, “[t]his Court has consistently held that it will not consider issues

     raised for the first time on appeal.” Harris v. City of Philadelphia, 35 F.3d 840, 845 (3d

     Cir. 1994). Those issues are therefore waived.1 We address the remaining issues in turn.

            The Kiesewetters first contend it was error for the District Court to admit the

     Beneficiaries’ computer spreadsheets. We review the District Court’s decision to admit

     evidence for abuse of discretion. Coleman v. Home Depot, Inc., 306 F.3d 1333, 1341

     (3d Cir. 2002). The admissibility of the spreadsheets is governed by Fed.R.Evid. 1006,

     which allows presentation of voluminous writings in summary form provided the


        1
 1           Jayne Kiesewetter waives: (1) whether the District Court erred in not allowing the
 2   jury to determine her intent; (2) whether the District Court erred “in allowing an attorney
 3   to withdraw a few weeks before trial”; (3) whether the District Court erred in “forcing”
 4   her to appear pro se; (4) whether the District Court erred in not admitting exhibits
 5   establishing her state of mind; and (5) whether the District Court erred in structuring the
 6   special verdict interrogatories “such that she could not win.” William Kiesewetter
 7   waives: (1) whether the District Court erred in granting partial summary judgment
 8   against the Kiesewetters in previous litigation between the parties; (2) whether the
 9   District Court erred in allowing the jury to consider punitive damages; and (3) whether
10   the District Court applied the incorrect fraudulent transfer statute in the parties’ previous
11   litigation, resulting in application of an incorrect statute of limitations.
                                                   3
underlying originals be made available for examination. Here, the record shows the

Kiesewetters had such opportunity and that the summaries contained only information set

forth in those underlying originals. To the extent the Kiesewetters contend the

underlying records were inadmissible, our review of the record shows that neither of

them made such an objection at trial. The contention is therefore waived. See, e.g.,

Pennsylvania Environmental Defense Foundation (P.E.D.F.) v. Canon-McMillan School

District, 152 F.3d 228, 233 (3d Cir. 1998) (“In the usual circumstance, a party’s failure

to object will result in waiver of an issue on appeal.”). While we have recognized that

the concept of plain error may be applied in the civil context, the exercise of such power

is reserved for “serious and flagrant” errors jeopardizing “the integrity of the

proceeding.” Id. at 234; see generally Walden v. Georgia-Pacific Corp., 126 F.3d 506,

520-521 (3d Cir. 1997), cert. denied, 523 U.S. 1074 (1998). Here, the record shows no

such error occurred.

       The Kiesewetters next contest the admissibility of the Beneficiaries’ expert

witness. The admissibility of expert testimony is governed by Fed.R.Evid. 702. We

have summarized the requirements of Rule 702 as focusing on the “trilogy of restrictions

on expert testimony: qualification, reliability and fit.” Schneider v. Fried, 320 F.3d 396,

404 (3d Cir. 2003); see also Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.

579 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). Here, the record

shows the Beneficiaries’ expert possessed the specialized expertise necessary for


                                              4
qualification, employed a methodology necessary for reliability, and gave relevant

testimony that assisted the jury. See generally In re Paoli R.R. Yard PCB Litig., 35 F.3d

717, 741-743 (3d Cir. 1994). The expert had been qualified previously and testified here

that his methodology is customarily relied upon in his industry for the valuation of assets,

a subject beyond the experience of most jurors. F or these reasons, we discern no abuse

of discretion as to the admission of the Beneficiaries’ expert.

       Next, all parties contend insufficient evidence supported certain of jury’s answers

to the special verdict interrogatories. Our review is plenary, but because the jury

determined the issues, “our scope of review is limited to examining whether there is

sufficient evidence to support the verdict, drawing all reasonable inferences in favor of

the verdict winner.” Le v. University of Pennsylvania, 321 F.3d 403, 406 (3d Cir. 2003).

Additionally, because the jury in this case answered special verdict interrogatories, and

because the parties allege inconsistencies in those answers, we observe that “a verdict

must be molded consistently with a jury’s answers to special interrogatories when there is

any view of the case which reconciles the various answers.” Bradford-White Corp. v.

Ernst & Whinney, 872 F.2d 1153, 1159 (3d Cir. 1989), cert. denied, 493 U.S. 993 (1989)

(emphasis added); see also Jones & Laughlin Steel Corp. v. Johns-Manville Sales Corp.,

626 F.2d 280, 293 (3d Cir. 1980) (“Since there is at least one way to explain the jury’s

answers to the interrogatories, we are bound to affirm them.”). “Thus, our role as an

appellate court is limited to determining, after plenary review, cf. Bradford-White, 872


                                             5
F.2d at 1158, whether the district court’s molding of the jury’s answers is a minimally

plausible ‘view of the case.’” McAdam v. Dean Witter Reynolds, Inc., 896 F.2d 750, 764

(3d Cir. 1990).

       In this regard, the Kiesewetters first contend the District Court failed to mold the

verdict properly by failing to deduct approximately $1.5 million from the jury’s verdict to

offset sums the Beneficiaries had already recovered in prior litigation. Our review of the

record, however, shows that the Beneficiaries moved the District Court to deduct

$1,533,826.80 from the jury’s award of $2,842,000.00, thus reducing the fraudulent

transfer judgment against the Kiesewetters to $1,308,173.20. This was the sum the

District Court entered as judgment before adding prejudgment interest, which neither of

the Kiesewetters now contests. Accordingly, we do not find error.

       The Kiesewetters next argue that the special verdict interrogatories caused the jury

to make an inconsistent, duplicative award which the District Court failed to modify.

Because our review of the record shows that neither of the Kiesewetters ever objected to

the special verdict form, this issue is waived. Neely v. Club Med Mgmt. Services, Inc., 63

F.3d 166, 200 (3d Cir. 1995) (“[W]here a defendant fails to object to . . . special verdict

forms . . . objections are waived.”). Even were this Court to engage in a plain error

review, Walden, 126 F.3d at 520-21, the record shows the District Court and the parties

anticipated that the Beneficiaries’ separate fraudulent transfer and unjust enrichment

theories could properly address separate harms if the jury viewed the sums fraudulently


                                             6
    transferred as distinct from any rents and profits subsequently gained through use of the

    acquired properties. As such, we cannot find error in the District Court’s decision not to

    mold the jury’s answers on this point. 2

           Finally, the above considerations also govern the Beneficiaries’ contention on

    cross-appeal that the jury inconsistently answered the special verdict interrogatories

    regarding the Florida property. Here, the record shows that “there is at least one way to

    explain the jury’s answers to the interrogatories.” Jones & Laughlin Steel Corp., 626

    F.2d at 293. The jury heard testimony that Jayne Kiesewetter paid $60,894.44 towards

    the property some eight months after William Kiesewetter had purchased it with

    fraudulently transferred funds; that her payment came from an account she had opened in

    1992 in her sole name; and that she had made an oral agreement with her husband that

    she would make additional payment with funds from the sale of her property in

    Colorado. This evidence allows a view of the case whereby most of the Kiesewetters’

    transfers were part of a fraudulent scheme, but not all. Whether or not this one transfer

    from Jayne Kiesewetter to her husband was part of their overall scheme was precisely

    one of the questions directed to the jury in the special verdict interrogatories, and it was


       2
1         We also note that, to the extent the Kiesewetters’ contentions rest upon a claim that
2   the evidence was insufficient to support the jury’s answers to the special interrogatories,
3   the record shows that neither of them moved for judgment as a matter of law pursuant to
4   Fed.R.Civ.P. 50 at the close of all the evidence. Such failure “‘wholly waives the right to
5   mount any post-trial attack on the sufficiency of the evidence.’” Greenleaf v. Garlock,
6   Inc., 174 F.3d 352, 364 (3d Cir. 1999) (quoting Yohannon v. Keene Corp., 924 F.2d
7   1255, 1262 (3d Cir. 1999)).
                                                  7
well within the jury’s role as fact finder to determine it was not. The District Court’s

decision not to mold the jury’s answer on this point reconciles all of the jury’s answers

through a view of the case that is “minimally plausible.” McAdam, 896 F.2d at 764. As

such, “we are bound to affirm them.” Jones & Laughlin Steel, 626 F.2d at 293.

                                            IV.

                                     CONCLUSION

       For the above reasons, we will affirm the judgment of the District Court.




                                             8
