                                UNPUBLISHED ORDER
                             Not to be cited per Circuit Rule 53




              United States Court of Appeals
                                   For the Seventh Circuit
                                   Chicago, Illinois 60604

                                  Submitted January 5, 2006*
                                  Decided February 24, 2006

                                              Before

                         Hon. MICHAEL S. KANNE, Circuit Judge

                         Hon. TERENCE T. EVANS, Circuit Judge

                         Hon. ANN CLAIRE WILLIAMS, Circuit Judge

No. 05-3137

SARKES TARZIAN,                                        Appeal from the United States District
INCORPORATED,                                          Court for the Southern District of
    Plaintiff-Appellant,                               Indiana, Indianapolis Division

       v.                                              No. 99 C 165

U.S. TRUST COMPANY OF                                  Richard L. Young,
FLORIDA SAVINGS BANK,                                  Judge.
      Defendant-Appellee.

                                            ORDER

       In this successive appeal, Sarkes Tarzian, Inc. (“STI”) appeals the district court’s
denial of its motion for a new trial.* The motion for a new trial was premised upon
alleged newly-discovered evidence and STI’s allegations that defendants wrongfully
withheld critical evidence. For the reasons discussed below, we affirm the district
court’s denial of STI’s motion.


       *
          Because “the facts and legal arguments are adequately presented in the briefs and record, and
the decisional process would not be significantly aided by oral argument,” we have concluded that oral
argument is unnecessary. See Fed. R. App. P. 34(a)(2)(C).
No. 05-3137                                                                       Page 2




                                    I. Background

       Because our earlier opinion includes a detailed review of the facts in this case,
a lengthy background discussion is unnecessary. See Sarkes Tarzian Inc. v. U.S. Trust
Co., 397 F.3d 577, 579 (7th Cir.) (“Sarkes Tarzian I”), cert. denied 126 S.Ct. 398 (2005).
It is sufficient to state that this case arises out of a dispute over whether a binding
contract was ever created between U.S. Trust Company of Florida Savings Bank (“U.S.
Trust”) and STI. We found that the district court erred in denying U.S. Trust’s motion
for judgment as a matter of law because STI presented no evidence at trial showing
that U.S. Trust’s lawyer, James Pressly, had actual authority to contractually bind
U.S. Trust. On the basis of this finding we reversed the district court and remanded
with instructions to enter judgment for U.S. Trust. Subsequently, STI moved,
pursuant to Fed. R. Civ. P. 59(a), 60(b)(2) and 60(b)(3), for a new trial on the basis of
newly-discovered evidence that allegedly demonstrated that U.S. Trust had improperly
withheld critical evidence. This evidence was discovered during STI’s litigation against
Bull Run, the company that bought the shares STI sought to purchase. The district
court denied STI’s motion because it found that the evidence offered by STI did not
remedy “the deficiencies in STI’s proof.” See STI v. U.S. Trust, No. 99-C-0165, 2005
WL 1528235, slip op. at 3 (S.D. Ind. Jun. 16, 2005). Specifically, the court found that
the newly discovered evidence, handwritten notes of Mr. Pressly, (1) did not contradict
the testimony of U.S. Trust’s principals that Mr. Pressly lacked authority to bind STI,
and (2) did not show that STI had made an attempt to contact U.S. Trust’s principals
to determine the scope of Mr. Pressly’s authority. Id. STI now appeals.


                                      II. Analysis

       As we have previously observed, “Rule 59(a), in a bit of a circular way, allows
new trials in cases where new trials have been traditionally allowed at law.” ABM
Marking, Inc. v. Zanasi Fratelli S.R.L., 353 F.3d 541, 543 (7th Cir. 2003). While the
text of the Rule provides little clarity as to the exact standards a district court should
apply, what is clear is that this court reviews the district court’s decision to grant a
new trial only for abuse of discretion. See id. “Under this deferential standard, an
abuse of discretion occurs only when no reasonable person could take the view of the
district court.” U.S. v. Re, 401 F.3d 828, 832 (7th Cir. 2005). We think that the district
court very reasonably synthesized its analyses of STI’s burdens under Rules 59(a) and
60(b)(2), applying our precedent regarding Rule 60(b) motions for a new trial on the
basis of newly discovered evidence. The district court relied on our holding in Jones
v. Lincoln Elec. Co., 188 F.3d 709 (7th Cir. 1999), which STI also identifies as the
correct precedent defining its burden in moving for a new trial under Rules 59(a) and
No. 05-3137                                                                      Page 3

60(b). See Appellant’s Brief at 14. In Jones, we identified five prerequisites that a
litigant must establish in order to be granted a new trial on the basis of alleged newly-
discovered evidence; the litigant must prove that:

              1. The evidence was discovered following trial;
              2. Due diligence on the part of the movant to discover the
              new evidence is shown or may be inferred;
              3. The evidence is not merely cumulative or impeaching;
              4. The evidence is material; and
              5. The evidence is such that a new trial would probably
              produce a new result.

Jones, 188 F.3d at 732. The district court found that STI’s proffered evidence was
insufficient to prove the third, fourth, and fifth prerequisites. STI now argues that (1)
“[t]he District Court erred in finding that STI had a duty to inquire about the scope of
Pressly’s actual authority”; and (2) the district court erred in finding that STI’s
evidence was immaterial and cumulative.
       The essence of STI’s arguments is disagreement with the earlier rulings of this
court in Sarkes Tarzian I. In Sarkes Tarzian I, we found that “STI did not discharge
its burden of showing that Mr. Pressly had actual authority” and furthermore that STI
had failed to “discharge its duty under New York law to ascertain the scope of Mr.
Pressly’s authority.” Sarkes Tarzian I, 397 F.3d at 585. STI’s newly discovered
evidence is a set of handwritten notes composed by Mr. Pressly on January 1, 1999
which read, in relevant part:

              Steve Opler 404-881-7693
              Alston & Bird in Atlanta
              How clean is their offer?
              He says it is very clean.
              It says that we represent that we own the stock. They
              represent that they'll close ‘tomorrow.'
              I tell him we want to be indemnified . . . .
              JP: I’ll disclose everything about our negotiations except the
              price . . . . We agreed to terms and they are to draw up
              contract. I asked him about indemnification . . . .
              No indemnification.
              But they are willing to take the stock with this full
              disclosure that we had the negotiations today. He is in
              arbitration. I ask how he will be able to wheel and deal.
              The proposal has already been sent to Higney.
No. 05-3137                                                                       Page 4

Appendix to the Appellant’s Brief at 16-17. As the district court correctly concluded,
Mr. Pressly’s notes do not directly or indirectly prove that he had actual authority to
bind U.S. Trust, and they do not contradict the testimony of U.S. Trust’s principals
that Mr. Pressly had no authority to bind the company. They also fail to remedy what
we identified as a significant deficiency in STI’s case — STI’s failure to make any effort
to ascertain the actual scope of Mr. Pressly’s authority. STI identifies this third basis
for the district court’s ruling as an error of law that was first made by this court in
Sarkes Tarzian I, where we cited Ford v. Unity Hospital, 299 N.E.2d 659 (N.Y. 1973).
Though the litigant in Ford based its claim on an “apparent authority” theory, the Ford
Court’s holding was based on its view that a party’s ability to rely on apparent
authority is limited by the scope of actual authority. See id. at 664 (“An agent's power
to bind his principal is coextensive with the principal's grant of authority.”). Thus,
where we cited Ford in Sarkes Tarzian I for its statement that “[o]ne who deals with
an agent does so at his peril, and must make the necessary effort to discover the actual
scope of authority,” our holding spoke to the point at which the actual and apparent
authority inquiries necessarily meet. Indeed, STI’s failure to investigate the scope of
Mr. Pressly’s authority is fatal to its apparent authority claim, but it also informs the
question as to whether any proof was offered of actual authority.
        Though STI cites several New York cases for the proposition that an agent’s
statements are admissible to establish the scope of an agent’s actual authority, the
statements made by agents in these cases are nothing like Mr. Pressly’s notes; in each
of the relevant cases cited by STI, the agent made an explicit statement regarding his
actual authority. See Charles Hyde Realty, Ltd. v. Yerganian, 540 N.Y.S.2d 735 (App.
Div. 1989) (“Since the defendant Yerganian admitted he had authority to enter
brokerage agreements on behalf of the defendant corporation, the corporation's failure
to offer any evidence on the limited nature of the agency rendered summary judgment
appropriate.”); Peoples Westchester Sat. Bank v. Gand, 705 F.Supp. 164, 168-69
(S.D.N.Y. 1989) (“When asked whether John Herman of [the principal company] agreed
to [the arrangement authorizing the agent to receive funds], [the agent] answered that
‘he did agree.’”); Shapiro, Bernstein and Co., Inc. v. Royal Plastics Corp., 81 F.Supp.
555, 556 (S.D.N.Y. 1948) (“At the time of service Loewus stated that he was the District
Sales Manager of both Royal Plastics and King Records.”). Here, Mr. Pressly never
testified that he had actual authority to bind U.S. Trust, and no reasonable
interpretation of the notes could view them as explicit admissions of such authority.
We reject STI’s assertion that the language in Mr. Pressly’s notes regarding
indemnification constitutes such evidence.
        STI overstates the significance of this language in asserting that they reveal
“that he believed he had authority to, and did in fact, bind U.S. Trust to a contract with
STI.” Mr. Pressly could have confidently believed that no contract had been formulated
while simultaneously believing that STI might seek to enforce the non-binding
preliminary agreement. Indeed, the notes suggest that Mr. Pressly felt the need to
secure final authorization from his principals on the offer he negotiated with Bull Run;
No. 05-3137                                                                       Page 5

the notes could therefore be offered for the contrary proposition to that argued by STI.
The notes are, at best, cumulative, as they are reliable only as either additional
evidence demonstrating that Mr. Pressly had authority to negotiate without the power
to bind U.S. Trust, or as additional evidence that Mr. Pressly believed he had authority
to bind U.S. Trust. See U.S. v. Kizeart, 102 F.3d 320 (7th Cir. 2000) (“Evidence is
‘cumulative’ when it adds very little to the probative force of the other evidence in the
case, so that if it were admitted its contribution to the determination of truth would
be outweighed by its contribution to the length of trial”).
       The notes are also ultimately immaterial, as they fail to address the lack of proof
of actual authority that was the basis of our earlier ruling. As noted earlier, STI’s
failure to take steps to investigate the extent of Mr. Pressly’s authority necessarily
dooms its apparent authority claim. See Fitzgibbon v. Abatelli Real Estate, 625
N.Y.S.2d 276 (App. Div. 1995) (“With regard to the issue of apparent authority, it has
been held, ‘One who deals with an agent does so at his [or her] peril, and must make
the necessary effort to discover the actual scope of authority.’”) (quoting Ford, 299
N.E.2d at 664). The only material question that they could hope to inform is whether
Mr. Pressly had actual authority. They do not address this question. Our earlier ruling
already considered and rejected more probative evidence — Mr. Pressly’s statement
that “This is not what we had hoped for and I can’t say we’re happy with it, but we’ll
take it” and his statement that he was “authorized to make this offer.” See Sarkes
Tarzian I, 397 F.3d at 583. We concluded that this evidence was insufficient to prove
actual authority. The notes offered here are not even as compelling as this insufficient
testimonial evidence; they are not inconsistent with the testimony of U.S. Trust’s
principals indicating that Mr. Pressly had authority to negotiate but not to bind. Even
were we to agree with STI’s estimation of the value of Mr. Pressly’s notes, STI falls far
short of demonstrating that the district court’s conclusion was outside of the
boundaries of reasonableness, and thus we cannot find an abuse of discretion.
       Finally, with regard to STI’s Rule 60(b)(3) motion, though the district court erred
in failing to address this motion, the error was harmless because STI has not
demonstrated that such a motion should have been granted. “In order to obtain relief
under Fed.R.Civ.P. 60(b)(3), the movant must prove that: (1) the party maintained a
meritorious claim at trial; and (2) because of the fraud, misrepresentation or
misconduct of the adverse party; (3) the party was prevented from fully and fairly
presenting its case at trial.” Lonsdorf v. Seefeldt, 47 F.3d 893, 897 (7th Cir. 1995). STI
cannot satisfy the second and third prongs of this test. First, STI has not demonstrated
that U.S. Trust’s decision to withhold the notes constituted “fraud, misrepresentation,
or misconduct” under Rule 60(b)(3). The notes were accurately identified in U.S.
Trust’s privilege log, and STI failed to make any motion to compel during discovery.
Regardless of whether the notes actually constituted attorney work product under the
relevant precedent, the nature of Mr. Pressly’s notes makes obvious that he reasonably
believed they constituted such work product, and thus, the type of fraud contemplated
by Rule 60(b)(3) is not present here. Even if it was present, STI could not succeed on
No. 05-3137                                                                         Page 6

its motion because the withholding of the notes did not prevent STI from fully and
fairly presenting its case. As discussed above, the notes would have been insufficient,
as a matter of law, for STI to demonstrate that Mr. Pressly had actual or apparent
authority to bind U.S. Trust. Thus, the district court’s error was harmless; STI cannot
meet the test for a Rule 60(b)(3) motion.
       Ultimately, STI’s motions with regard to Mr. Pressly’s notes amount to little
more than an attempt to revisit the various issues that were addressed in our prior
decision and in the court below. As our colleagues on the Second Circuit have
observed, a motion for a new trial “is not a vehicle for relitigating old issues, presenting
the case under new theories, securing a rehearing on the merits, or otherwise taking
a ‘second bite at the apple.’” See Sequa Corp. v. GBJ Corp., 156 F.3d 136, 145 (2d Cir.
1998). STI here attempts to take just such a bite. We decline to indulge its appetite.

                                    III. Conclusion

       The judgment of the district court is AFFIRMED.
