1There were other defendants in the suit, but they have by now

passed out of the case.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 97-30302

 

RICHARD L. CONKLING,

Plaintiff-Appellant,

versus

BERT S. TURNER,

Defendant-Appellee.

 

Appeal from the United States District Court for the

Middle District of Louisiana, Baton Rouge

 

April 6, 1998

Before POLITZ, Chief Judge, GARWOOD and BARKSDALE, Circuit Judges.

GARWOOD, Circuit Judge:

In the previous appeal of this case, we affirmed in part and

reversed and remanded in part the district court’s April 1992

judgment dismissing the entire suit of plaintiff-appellant Richard

L. Conkling (Conkling) against defendant-appellee Bert S. Turner

(Turner).1 Conkling v. Turner, 18 F.3d 1285 (5th Cir. 1994).

Following remand, the district court, who had presided throughout

the proceedings leading to the earlier appeal, in February 1997

dismissed Conkling’s remanded claims with prejudice, and Conkling

again appeals to this Court. The district court grounded its
2

instant dismissal on the view that its April 1992 judgment, so far

as it dismissed the claims we subsequently remanded, which claims

had not been submitted to the jury, was based on the agreement of

the parties and the court, made shortly prior to the March 19,

1992, discharge of the jury, that Conkling would not pursue such

claims if this Court ultimately affirmed the judgment dismissing

his other claims. Finding insufficient record support for such an

agreement in these circumstances, we reverse and remand.

Context Facts and Proceedings

Much of the relevant factual background is set out in our

prior opinion, and we here repeat only so much of it as appears

necessary to an understanding of our present holdings.

This suit was initially filed by Conkling in November 1985.

It focused on Conkling’s business relationships with Turner, which

arose in January 1962 when Conkling went to work for Nichols

Construction Company, a corporation formed by Turner and one Eaton.

Turner then allegedly told Conkling he would give Conkling stock in

Nichols, and in all related entities that Turner would later form,

and that such stock would be redeemed at a fair price when

Conkling’s employment ended. In November 1962, Turner had a

document prepared calling for Conkling and two others, St. Clair

and Millican, to each receive 5% of Nichols’ stock, with Turner and

Eaton each receiving 42.5%. However, the parties later agreed to

depart from this agreement. Thereafter, in May 1963, Nichols

redeemed all of Eaton’s stock, and, as a result, according to

Conkling, his interest in Nichols increased from 5% to 8.69565%.
3

However, in June 1963 the parties signed an agreement (the 1963

agreement), prepared by Turner’s attorney, reflecting Conkling’s

ownership to be 8%. Subsequently, Turner formed a number of

related companies and partnerships, in at least most of which

Conkling eventually acquired an 8% interest. As to one of these

companies, Harmony Corporation, in which Conkling acquired an

interest in March 1980, Conkling claimed that the same day his

interest was wrongfully diluted by the issuance of shares to a

third party “straw man” nominee for Turner, who ultimately put the

stock in his own name in January 1982. Conkling was discharged

from Nichols in December 1983, and Turner did not purchase his

stock in Nichols or the other Turner entities.

In the instant suit, Conkling alleged civil RICO violations

under 18 U.S.C. §§ 1962(c) & (d), and pendent claims under

Louisiana law for breach of the oral 1962 contract to repurchase

his stock in Nichols and the related companies and for breach of

fiduciary duty. His primary contention was that the 1963 agreement

was procured by Turner’s fraud, and hence his interest in Nichols,

and in the entities subsequently created by Turner, should have

been 8.69565%, not merely the 8% which he ultimately received.

Conkling also asserted claims that Turner Investments, Ltd. (TIL),

an entity wholly owned by Turner and his family (and in which

Conkling claimed no ownership interest or right thereto), charged

Nichols and its affiliated concerns excessive fees for certain

services.

As stated in our prior opinion:
4

“. . . Conkling alleged civil RICO violations under 18

U.S.C. §§ 1962(c) & (d). He also alleged pendent claims

under Louisiana law for breach of fiduciary duty and

breach of contract.

. . . .

After a protracted discovery, the defendants filed

motions to dismiss and for summary judgment. A lengthy

joint pre-trial order defining the issues for trial was

signed by the judge on October 17, 1991, and filed on

October 21, 1991 (the ‘pre-trial order’). Prior to

trial, by order entered January 21, 1992 (the ‘pre-trial

summary judgment’), the district court granted the

defendants’ summary judgment motions in part, dismissing

(i) Conkling’s RICO predicate act based upon Turner’s

alleged refusal to redeem his stock in Nichols and

affiliates, (ii) certain derivative claims, (iii)

Conkling’s claims for wrongful discharge, denial of

access to corporate records, and damages due to the

corporations’ use of an unfavorable depreciation method,

(iv) all claims against Carpenter, and (v) certain

miscellaneous claims not discussed in this appeal. In

response to requests from both parties, the district

court clarified the pre-trial summary judgment by order

of February 5, 1992 (the ‘clarification order’), to

confirm that it had ‘dismissed all claims which are

shareholder derivative claims in nature, including any

claim involving Harmony to the extent that such claim is

derivative.’

The weekend before trial, the district court

announced that it would sever the issues to be tried and

would try only a single alleged predicate act——fraud in

the 1963 agreement——with respect to Conkling’s civil RICO

claims in the first phase of trial. The court also

stated that the breach of contract claim would be tried

in this initial phase. After Conkling presented his

case, both parties moved for judgment as a matter of law;

the district court granted the defendants’ motion with

respect to Conkling’s breach of contract claims. The

1963 agreement issue was submitted to the jury, which

found that Turner did not commit fraud in the 1963

agreement. As a result of the jury’s verdict on this

issue, the district court, on April 9, 1992, entered

summary judgment in favor of the defendants on the

remainder of Conkling’s complaint, both under civil RICO

and breach of fiduciary duty (the ‘post-trial summary

judgment’).” Conkling, 18 F.3d at 1292.

On appeal from the April 1992 judgment, Conkling raised four
5

points of error. His point I contended that the district court

erred in ordering that the RICO counts be separately tried so that

only the single predicate act of alleged fraud in the 1963

agreement would be tried in the first phase. We rejected that

contention. We likewise rejected the contention made by Conkling’s

point IV that the district court erred by excluding at trial

evidence of an alleged oral agreement between Turner and Conkling

concerning Nichols stock ownership made after November 1962 and

before June 1963 and in instructing the jury in that respect. In

his point III Conkling argued that the district court erred in

granting, after Conkling had rested, Turner’s motion for judgment

as a matter of law on Conkling’s claim of breach of the alleged

oral contract to repurchase his shares. We rejected this

contention, agreeing with the district court that there was no

contract because there was no agreement as to price. For the same

reason, we rejected Conkling’s related contention (made in part C

of point II of Conkling’s brief) that the district court erred in

its pre-trial summary judgment ruling that the alleged breach of

that contract was not cognizable as a RICO predicate act. 

Conkling’s remaining contentions were presented in parts A and

B of his point II on appeal. In part A he argued that the “postverdict summary judgment” on the RICO counts was improper because

there were fact issues as to other RICO predicate acts besides the

alleged fraud in the 1963 agreement (or matters the asserted

wrongfulness of which depended on that agreement being fraudulent),

including the Harmony transaction, matters concerning Merit
 

2As to a claim regarding Gymco, we held Conkling did not

proffer sufficient evidence “to defeat summary judgment.”

Conkling, 18 F.3d at 1297, 1298. A claim as to depreciation was

held waived by Conkling’s failure to brief it in his opening brief

on appeal. Id. at 1299.

6

Industrial Constructors, Inc. (Merit), and the TIL related claims.

We rejected this contention. We held that the Merit related claims

had all been waived in the trial court when, on the record,

Conkling had agreed they would be considered only as evidentiary of

other claims, not as claims or as RICO predicate acts on their own,

and that the TIL and other similar claims were all either

derivative claims Conkling had no standing to bring or were

dependent for their validity on there being fraud in the 1963

agreement.2 We recognized that there were fact issues concerning

the Harmony claim, but held that as a single predicate act it did

not suffice to make a RICO claim, which required two predicate

acts. We stated:

“The trial court correctly perceived that the

predicate acts remaining for jury resolution——with the

exception of Harmony——were contingent as a matter of law

upon a finding of fraud in the 1963 agreement.

Accordingly, we hold that the trial court did not err in

granting summary judgment to the defendants on the RICO

case.” Id. at 1299.

In part B of his point II Conkling argued that the district

court erred in granting “the post-verdict Summary Judgment on

Conkling’s Breach of Fiduciary Duty Claim.” We partially sustained

this point, stating:

“The district court determined ‘that there is no factual

or legal basis to support [Conkling’s] breach of

fiduciary claim.’ Accordingly, it granted summary

judgment on Conkling’s breach of fiduciary duty claim.
7

. . . .

Turner contends that the fiduciary duty claims are based

upon the same facts already found to be fatally deficient

as causes of action as discussed both supra and infra.

However, after careful review of the record on appeal, we

have not found that Turner moved for summary judgment on

all of the breach of fiduciary duty issues.15

Specifically, Turner did not move for summary judgment in

the court below on the basis that the Harmony dilution

claims pled as a breach of fiduciary duty could be

summarily adjudicated; rather, he argued only that

Conkling did not have standing to assert Harmony claims

derivatively.16 In fact, Turner has conceded on appeal

that a fact issue exists with respect to the Harmony

dilution transaction. Although that claim, as noted

above, was properly adjudicated in the RICO context on

the basis that it was the only predicate act available to

Conkling, we conclude that the conceded fact issue

preserves it in the fiduciary duty context.

Similarly, Turner did not request summary

disposition of the fiduciary duty claims relating to the

1963 agreement and its progeny. The summary judgment

arguments and the jury issue went to whether any of the

actions or omissions stemming from that agreement were

fraudulent——not whether they constituted a breach of any

fiduciary duty. With respect to these claims, therefore,

Turner could not have met his initial summary judgment

burden of pointing out an absence of any fact issues by

identifying portions of the pleadings, discovery, and

affidavits which support its position. See Celotex Corp.

v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91

L.Ed.2d 265 (1986). Thus, the trial court’s grant of

summary judgment on these fiduciary duty issues was in

error.

15 Many of the fiduciary duty claims were raised on

summary judgment below. For example, Turner argued in

his summary judgment papers that Conkling did not have

standing to bring any of the asserted derivative claims

as a matter of law, a position adopted by the district

court. Moreover, and as discussed above, Conkling waived

any damage claim with respect to the Merit transactions,

and we interpret this waiver to include damages for

breach of fiduciary duty. There is also an indication in

Conkling’s Supplemental Memorandum in Opposition to

Defendants’ Motions for Summary Judgment filed on

December 11, 1991, that the court below sua sponte raised

the issue of whether its decision in Nichols Constr.

Corp. v. St. Clair, 708 F.Supp. 768 (M.D. La. 1989),

aff’d mem., 898 F.2d 150 (5th Cir. 1990), was ‘applicable
8

to the pendent breach of fiduciary duty claim asserted in

this case by’ Conkling. The Nichols case addressed St.

Clair’s similar allegations about an agreement to redeem,

which the trial court rejected. Thus, these fiduciary

duty claims appear to have been addressed and resolved in

the summary judgment framework.

16 As noted above, the Harmony transaction, like many

of the others, involved both derivative claims and

individual claims between which the district court

distinguished in granting and clarifying summary

judgment. The clarification order explains that the

trial court specifically disposed of the Harmony

derivative claims, but retained the dilution claims.”

Id. at 1299-1300.

We summarized our disposition of the appeal as follows: “For

the foregoing reasons, we reverse and remand the district court’s

summary adjudication of Conkling’s breach of fiduciary duty claims

as described above. In all other respects, we affirm the judgment

of the district court.” Id. at 1305.

Following our remand, Turner in August 1996 moved for

dismissal or summary judgment on the remanded claims, asserting:

“After the case was given to the jury, the Court

convened a conference in chambers to discuss with counsel

for the parties how the case would proceed if the jury’s

verdict was favorable to the defendants and how it would

proceed if the verdict was favorable to the plaintiff.1

If the verdict was favorable to the defendants, the RICO

claims would be dismissed. At that point, if the trial

was to continue as to the remaining causes of action

(i.e., breach of fiduciary duty under Count III of the

Complaint), the jury would be ordered to return; if not,

the jury would be discharged. After the jury returned a

defense verdict, plaintiff’s counsel waived trial of any

remaining claims at that time; no further evidence was

produced and plaintiff did not object to the discharge of

the jury.

Later, based upon the jury’s verdict, the Court’s

ruling dismissing the state law implied contract claim,

the waiver by counsel of trial of any remaining claims,

the defendants previously filed motions for summary

judgment and the defendants’ motions for involuntary

dismissal under Fed. R. Civ. P. 50, this Court entered
 

3Turner’s motion also raised limitations and merits defenses

to the remanded claims. 

 

4Conkling also asserted, as he does on this appeal, that

Turner raised the same argument on the prior appeal, and we

implicitly rejected it.

 

5The district court determined it would listen to the

testimony before deciding whether to recuse.

9

judgment dismissing all of plaintiff’s claims against all

defendants.

1Counsel is unsure as to whether the chambers

conference occurred on the evening of March 18, 1992 or

the morning of March 19, 1992. Despite diligent search

by counsel, court reporters and the Court, no transcript

of this conference can be located. The Court’s Order of

April 9, 1992 makes reference to a procedure agreed upon

by the Court and parties prior to the jury’s verdict.

Counsel believes this to be a reference to this same

chambers conference and the discussions which lead [sic]

to plaintiff’s waiver of all remaining claims.”3

In his response filed August 23, 1996, Conkling, represented

by new counsel, asserted:

“There was, and is, no evidence in the record of any

agreement between the parties as to any ‘procedure’ which

was to be followed depending upon the jury verdict.

Although the Court stated that it wanted to discuss with

counsel for the parties a procedure for handling matters

remaining after the jury reached its verdict, no

procedure was ever established. There is no evidence

that Conkling agreed not to pursue the nine (9) claims

not tried to the jury.”4

Conkling also moved the district court to recuse itself as it might

be a witness to what had happened in the 1992 trial.

A hearing was held by the district court on August 30, 1996,

at which two of the lawyers representing Turner and two of the

lawyers who had previously represented Conkling testified.5 The

essence of the testimony of Turner’s lead counsel (Phillips) is the

following: 
10

“It is my recollection that a conference occurred

after the jury brought in its verdict. Now, I cannot

tell you whether or not there was a conference on the

previous evening. I just don’t remember.

And it’s possible that the conference that I

recollect could have occurred on the previous evening but

I do not think so.

. . . .

There was a discussion . . . during the conduct of

the trial and particularly towards the end, there being

a recognition that if the verdict was favorable to the

plaintiff, then the case would continue and would be

submitted to the jury on the issue -- all of the issues

that were involved in a RICO complaint, plus whatever

else would have went to the jury. And then if the

verdict was in the favor of the defendant, with a finding

of no fraud, then there had to be some disposition of the

remaining issues in the trial because it was acknowledged

that the fraud issue -- just the jury’s finding on fraud

. . . would specifically eliminate nothing but the RICO

case, and we would have to consider the other counts.

One of the counts was disposed of by the court . .

. before the matter went to the jury. It was taken from

the jury and . . . I believe it was count . . . which had

to do with breach of the alleged contract to redeem, and

the court took that away from the jury and found for the

defendant on our [Rule 50] motion . . . .

. . . .

Q. The specific issue of what was to be done after the

jury verdict; was that discussed in the conference you

described earlier, attended by yourself and Mr. Tulley

[associate counsel for Turner] and Mr. Beckner [lead

counsel for Conkling]?

A. Yes, sir.

Q. And do you recall that discussion?

A. Well, it’s my recollection -- now, this is -- and I

have looked for notes and I cannot find any notes that I

made, or in our files . . . . Could find no notes; but

it’s my recollection that after the jury brought in its

verdict, and the things that come in my mind is that Mr.

Conkling left the courtroom. I remember that he left and

went out and I didn’t see him again. And the judge

called us in his office, in his chambers in the big
 

6Counsel also testified that the district court “considered it

would be desirable to have a court reporter in at all of our

conferences and it’s my recollection that we had a court reporter

in at that conference that I referred to, but unfortunately I

understand there is no record of it.” There is nothing else

indicating that a court reporter was in fact present at the

mentioned conference, nor, if one was, of any explanation (such as

death of the reporter, loss of the reporter’s notes, or the like)

for the absence of any record of the mentioned conference.

11

conference room with a long oak table. And we were there

and, of course, we were quite pleased that the case was

-- that we had prevailed with the jury on the issue, on

the RICO claim. And it was discussed among all of us

that this -- there would only be one predicate act; there

was only one predicate act left . . . that could possibly

be involved, and that was the Harmony claim. And that

that one predicate act would not support a judgment for

the plaintiff in the RICO matter. And Mr. Beckner, I

think, discussed that issue and the court essentially

said that that would be the order -- the decision of the

court.

And then the discussion of what was left was of the

remaining issue; it’s my recollection that -- and I do

remember this, that Mr. Beckner [Conkling’s lead counsel]

made the statement, I can’t use his precise words, but

that -- his statement was, in effect, that with the RICO

case gone, there was not enough left for him to try. To

be tried. And it was -- that was his statement that I

remember at that meeting. And I think it was held --

that meeting took place, it’s my recollection, after the

jury brought in the verdict.

Q. Do you have a recollection of returning to the

courtroom after that meeting?

A. I do not.

. . . .

Q. Do you have a recollection at the conference of Mr.

Beckner objecting and insisting that everyone return to

the courtroom so that the trial could proceed?

A. I do not, and . . . it’s my recollection that he did

not acquiesce in the fact that there were . . .

inadequate predicate acts to fuel a RICO claim, but it’s

my recollection that he said if that was the court’s

ruling, well, then he had no desire to try the rest of

the case.”6
 

7Turner’s associate counsel further testified that after this

conference there was never any further argument before the court.

12

Turner’s associate counsel testified that there was a

conference——”I don’t remember whether it was just before or just

after the verdict was returned”——at which the district judge, he,

Turner’s lead counsel, and both counsel for Conkling were present

(he did not recall whether a court reporter was present) and at

which:

“We discussed the issue of what was left to be tried

after a judgment in favor of the defendants on the fraud

issue. And I remember specific mention being made of the

-- of claims arising out of the Harmony transaction.

Q. And what specific mention of those claims was made,

and by whom?

A. I think we mentioned it, Mr. Beckner [Conkling’s

lead counsel] mentioned it, and everybody acknowledged

that a finding of no fraud did not dispose of everything

in the case. And the one particular aspect that everyone

focused on was the Harmony situation. And I recall Mr.

Beckner stating that if his RICO case was dismissed

because of the finding of no fraud, that the stand alone

Harmony claim wasn’t big enough or sufficient enough to

justify his going forward and that he would just take it

up to the Fifth Circuit.

Q. So, was it your understanding that if the jury

verdict was favorable to the defendants, that the RICO

case would be dismissed because of lack of sufficient

number of predicate acts?

A. Right.

Q. And if that, in fact, occurred, was it Mr. Beckner’s

position that there was not going to be any further

evidence; nothing further at trial?

A. That’s right.

Q. And did he express that to the court and counsel?

A. Yes.”7
 

8Conkling’s lead attorney also testified that he believed the

court’s “decision to revisit the defendant’s motions for summary

judgment in the event of an adverse verdict for Mr. Conkling, came

about as a result of hearing the evidence that was adduced at

trial.”

13

Conkling’s lead attorney (Beckner) testified that while the

jury was deliberating, apparently on the afternoon of Wednesday,

March 18, 1992, he and his wife were sitting outside the courtroom,

where Turner was also waiting, both of Turner’s attorneys having

gone into the court’s chambers. Turner complained about waiting,

and Conkling’s attorney testified:

“When I went back in there to tell Mr. Phillips

[Turner’s lead counsel] what Mr. Turner had said, the

court told me that in the event that the jury came back

with a verdict of no fraud, that it was going to

reconsider its motions for summary judgment that had been

filed by the defendants . . . . And the court just

stated that as its decision; but there was no court

reporter there. And I understood that that was how the

court felt about it, that in the event that the decision

was no fraud, that it was going to reconsider its motions

for summary judgment. And that was said to me in the

space of just a very, very, very brief period of time.

I had already suspected that that was how the court was

going to handle the situation. So, it came as no real

surprise when the court told me that.”8

Conkling’s lead attorney testified he did not consider this a

conference, and that there was no chambers conference on Thursday,

March 19, before or after the jury verdict. He specifically denied

making the statements attributed to him by the testimony of

Turner’s lawyers, and under questioning by the court stated:

“When I came back into the room to get Mr. Phillips,

you told me that if the verdict was no fraud, that you

were going to reconsider the defendants motions for

summary judgment.

. . . .
 

9The transcript of the 1992 trial concludes at this point.

14

. . . I didn’t say that I wasn’t going to proceed with

the remaining claims. . . . And I just never made the

statement I wasn’t going to proceed with the remaining

claims.

THE COURT: And so, you didn’t object to my

discharging the jury, even though we had remaining

claims?

THE WITNESS: No, because you told me that in the

event the jury came back no fraud, that you were going to

reconsider the defendants motions for summary judgment.

That was the procedure that you had decided to go

with.

THE COURT: But how could I do that with the jury

still there?

THE WITNESS: You dismissed the jury.”

The court questioned Conkling’s lead counsel about the reference to

arguments on motions appearing in the final portion of the

transcript of the 1992 trial reflecting the following, after

receipt of the verdict and poll of the jury on Thursday, March 19,

viz:

“The Court: . . . I just wanted to say thank you to

you, okay.

So the jury will be excused and just wait for me

just for a couple of minutes.

(Jury excused 1:54 p.m.)

The Court: Okay. We agreed last night that we

would have arguments on the motion on Friday at 9:00 if

anybody wants oral argument.

Why don’t I just let you think about it. It is 9:00

Friday unless everybody -- unless everybody calls me back

and says they don’t want it. But that was the only

motions that I took under advisement.

Okay. All right. We will be at recess.

(Recess 1:55 p.m.)”9
 

10The testimony of all concerned reflected that there were no

arguments on motions following the jury verdict. Nor is there any

record of such.

 

11The attorney testified:

“Sitting here today, I don’t recall. The only thing I

recall after the jury went in, the only picture I have in

my mind, is at some point we were in the judge’s

conference room; I don’t think we were having a

conference because I think we were just sitting, the jury

had gone in and I was talking to his then law clerk . .

. . Whether we had a conference before that, sitting

here today, I don’t recall.”

15

Conkling’s lead counsel testified in this regard as follows:

“This is what I understood the court to mean; that

we agreed last night that the court was going to

reconsider the defendants motions for summary judgment.

And that if you wanted to have arguments, we could have

them at 9:00 on Friday morning.

And it’s my recollection that both parties concluded

that no additional argument was necessary.”10

Conkling’s other attorney had no relevant independent

recollection of the events at issue. He recalled no conferences

with the judge after the case was submitted to the jury, except one

concerning a jury note asking for some evidence.11 He recalled no

waiver or dismissal of claims after the case was submitted to the

jury.

At the conclusion of this August 30, 1996, hearing, the court

took Conkling’s recusal motion under advisement.

On February 13, 1997, the court heard further oral argument on

Conkling’s motion to recuse and on the portion of Turner’s motion

to dismiss based on the assertion that just after (or just before)

the verdict Conkling’s lawyer had said he would not further pursue
 

12The district court did not at any time rule on or address

Turner’s motion to dismiss or for summary judgment on a limitations

and/or merits basis.

 

13Other similar descriptions then given by the court of the

agreement it found are the following:

“Nobody made an objection to the discharge of the jury;

nobody did. And it’s like it’s a limited -- my

understanding was it was a limited type of dismissal. It

wasn’t like dismissing with prejudice. It was like you

-- the verdict came in and because of that verdict we

16

the claims that we ultimately remanded.12 The court denied the

motion to recuse, stating that he did so:

“. . . because the evidence that the court is

relying on is evidence of things that actually happened

before me, facts learned by me presiding in this case in

open court based on the record here, . . . the transcript

of the trial, . . . the minute entries and opinions that

I wrote post-trial and the fact that I discharged the

jury . . . and it’s clearly reflected in this

[transcript] passage that Mr. Phillips just read, that I

was very concerned, very concerned about what to do with

the remaining issue. And the statement that I made,

namely that I don’t want to cause any problems by

discharging this jury. . . .

I don’t think I need, and I will not take into

consideration anything that was said at this hearing that

we conducted . . . [the August 30, 1996, hearing]. I

don’t think it’s necessary to do that. I think I can

rely solely on my minute entries, on my comments in the

record that’s set forth in the transcript and my clear

understanding without any objection from either

plaintiff’s counsel or defense counsel at the time I

discharged the jury.”

In granting the motion to dismiss, the court ruled that:

“The agreement reached by the parties was that in light

of the verdict that came in, the remaining count would

not be tried, that an appeal would be taken, that if on

appeal plaintiff was successful in reversing the jury or

if I even did it in a post-trial motion, that count that

we didn’t try would be retried or would be tried later.

But if I didn’t reverse the verdict or if it was affirmed

on appeal, then that remaining count would not be tried.

Based on that understanding I discharged the jury.”13
don’t try the remaining issue.

But if on appeal the Fifth Circuit reverses this

judgment or if you grant a new trial on this judgment,

then we can come back and pick this other one up. And

that was the agreement in this case.”

and,

“It was an agreement between all parties that the jury

would be discharged, that remaining count would not be

tried, an appeal would be taken. If there was a

reversal, that remaining claim would be brought back up.

If there was -- if it was affirmed, the case was over.”

17

On the same day, the district court signed an order directing

that the case be dismissed with prejudice “[f]or the oral reasons

assigned.” Conkling now appeals the resulting judgment of

dismissal with prejudice.

Discussion

I. Law of the case

Conkling contends that Turner’s argument asserting that

Conkling abandoned the remanded claims before discharge of the jury

was implicitly rejected by this Court in the prior appeal.

Conkling states that Turner raised this contention in two passages

of his brief on that appeal. The first is a footnote in the

“statement of the case” portion of Turner’s brief stating:

“

3After the jury returned its verdict and the court

had entered its rulings on the Fed. R. Civ. P. 50 motion

and the summary judgment motion, the court conducted a

conference with counsel at which time counsel for

Conkling was asked whether he wished to proceed with

trial of the alleged securities fraud involving Harmony

as a stand-alone (non-RICO) claim. Counsel declined.

(This discussion is not part of the record, but counsel

for defendants believes this representation to be

accurate and undisputed. It is offered to explain why

the Harmony securities fraud claim was included in the

judgment dismissing the entirety of plaintiff’s suit).”
 

14In the portion of his prior appeal reply brief directed to

his contention that the district court erred in granting postverdict summary judgment on the RICO counts, Conkling states:

“Incidentally, defendants assert that after the jury

verdict on the single predicate act tried the district

court conducted a conference in which Conkling’s counsel

allegedly declined to proceed to trial on the Harmony

predicate act, thereby causing the district court to

grant summary judgment on this predicate act.

Defendants’ assertion is unequivocally incorrect. No

such conference ever occurred. There is no record of any

such conference. Conkling’s counsel never made any such

statement.” (Emphasis in original).

18

The second is contained in the portion of Turner’s brief responding

to Conkling’s contention (made in part A of his point II in his

appellant’s brief) that the district court erred in granting “The

Post-Verdict Summary Judgment on Conkling’s Complaint Alleging

Violations of 18 U.S.C. § 1962(c) and (d)-Counts I and II.” The

language cited by Conkling is the following:

“Conkling’s argument regarding ‘Harmony Corporation:

Securities Fraud, Predicate Act (2)’ (Conkling’s original

brief, p. 20-22) deserves special mention. As discussed

above, dismissal of the RICO counts resulted from

plaintiff’s legal inability to meet the basic

requirements of 18 U.S.C. 1962(c) or (d). When the RICO

claims were dismissed, this securities fraud claim

technically remained viable. In fact, during a post

verdict conference with counsel, plaintiff was offered,

but refused, the opportunity to move forward with trial

of this claim. Although under federal law, this claim

was probably filed too late or was inadequate to support

a RICO case, [footnote omitted] it is erroneous for

Conkling to say that it was dismissed as part of the

court’s grant of summary judgment on the RICO counts.”14

Conkling also points to Turner’s letter on the prior appeal

responding to a post-argument letter of inquiry from this Court.

This Court’s letter inquired about how the district court disposed

of any claim Conkling may have made under section 10b of the
 

15Our letter references certain paragraphs of the October 1991

pre-trial order “which imply that plaintiff-appellant Richard L.

Conkling asserted a claim against the defendants-appellees for

violations of section 10b of the Securities Exchange Act of 1934,

15 U.S.C. § 78j, in connection with an alleged dilution of his

interest in Harmony Corporation,” and goes on to state:

“The panel is unable to find any place in the record on

appeal which indicates whether the district court decided

this claim under the securities fraud laws as

distinguished from its treatment of the claim as a RICO

predicate act. The parties are therefore directed to

file letter briefs with this court on or before

Wednesday, February 23, 1994, providing record citations

that reflect the district court’s disposal of this

claim.”

19

Securities Exchange Act in respect to Harmony, other than simply as

a RICO predicate act.15 In his response to this letter, Turner’s

counsel wrote this Court asserting that Conkling never made any

stand alone section 10b securities fraud damages claim as to the

Harmony transaction, but merely asserted it as a RICO predicate

act, and that in any event at an unrecorded status conference after

the jury charge Conkling’s counsel informed the court he would not

proceed with any other claims if the jury verdict were adverse to

Conkling, which was the reason any Harmony “stand alone” securities

fraud claim was included, though not specifically mentioned, in the

dismissal called for by the order for judgment entered April 9,

1992 (dated April 7). Turner’s letter suggested the possibility

that because the asserted status conference was unrecorded, this

Court might want to order “that this issue be directed to the

District Judge for submission of additional reasons for the

inclusion of the Harmony securities fraud claim in the judgment of
 

16The relevant portions of Turner’s letter are the following:

“In the complaint, Conkling made no separate claim

for damages, apart from his RICO claim, resulting from

the allegations of securities fraud in the Harmony

transaction . . . . Conkling describes his suit as

seeking treble damages under RICO and damages under

certain pendent state law claims. . . . Count I of the

complaint seeks recovery under 18 U.S.C. § 1961(4); Count

II alleges violations of 18 U.S.C. §§ 1962(d) and

1964(c); Count III is a pendent state law claim for

breach of fiduciary duty; Count IV is a pendent state law

claim for breach of an implied contract. Nowhere in the

complaint does Conkling expressly articulate a claim for

damages under 10(b)-5 other than as a part of his RICO

claim. In the pretrial order . . . Conkling describes

‘The Harmony Fraud,’ and contends merely that it was ‘an

artifice to dilute Mr. Conkling’s interest in Harmony in

relationship to Turner’s interest.’ This is part of

Conkling’s overall contention that he did not receive the

percentage in certain entities that he believed he was

entitled to receive. Again, Conkling makes no specific

10(b)-5 damage claim.

. . . Plaintiff never amended the complaint to

allege separate damages resulting from this transaction

(even though he had the opportunity to do so even up to

the order of dismissal) and, in view of his ultimate

decision not to pursue this claim after the jury verdict,

apparently never truly considered it anything other than

a predicate act.

. . . . 

Defendants respectfully submit that . . . an

unrecorded status conference was held in chambers. . . .

It was during these discussions that plaintiff’s counsel

informed the court that he would not proceed with any

other claims, presumably including any ‘stand alone’

securities fraud claim involving Harmony, if the jury’s

verdict was adverse to Conkling [footnote omitted;

emphasis in original].

The jury returned a verdict favorable to defendants

and, based upon the procedure previously agreed upon, the

court discharged the jury. . . . On April 7 [sic], the

court entered an order dismissing plaintiff’s case,

making specific reference to the ‘procedure’ agreed upon

20

dismissal.”16 In response to this letter, Conkling’s counsel wrote
by the parties to be followed after the jury verdict. .

. . Although the order does not specifically mention the

Harmony securities fraud claim, it was included in the

overall dismissal of Conkling’s case. 

. . . .

Any securities fraud claim associated with the

Harmony transaction was dismissed by the court for two

reasons: it was waived as a separate cause for damage

during the unrecorded status conference in chambers after

the first part of the bifurcated trial was given to the

jury; and regardless of the waiver, to the extent that

the Harmony claim constituted a predicate act, it was

properly dismissed as part of the RICO case. . . .

Despite a thorough and exhaustive search, including

inquiries to court reporters, defendants have been unable

to locate a transcript of the conference in which the

agreed upon ‘procedure’ which lead [sic] to dismissal was

established. Counsel for defendants believe their

recollection of these events to be both accurate and a

logical explanation for the dismissal of the Harmony

claim, particularly in light of the court’s multiple

record references to the agreed ‘procedure’ to be

followed after the jury returned its verdict, and the

absence of any objection by Conkling, either pre- or post

judgment, to the dismissal of his entire case.

Recognizing that there is no express waiver of this

claim on the record, defendants suggest in the

alternative to this court’s accepting their version of

the events, that this issue be directed to the District

Judge for submission of additional reasons for the

inclusion of the Harmony securities fraud claim in the

judgment of dismissal.”

The letter also suggested that any stand alone Harmony securities

fraud claim was probably barred by limitations.

21

to this Court asserting there never was any unrecorded status

conference at which he stated he would not proceed on other claims

if the jury verdict was adverse to Conkling. Conkling’s letter

also states, however, that the Harmony securities fraud claim “was
 

17The relevant portions of Conkling’s letter state:

“The first inquiry of the panel is in reference to

Conkling’s allegation that the dilution of his ownership

in Harmony Corporation resulted from a fraud in the sale

of Harmony securities (stock) to him by the defendants.

This fraud in the sale of securities claim was asserted

only as a RICO predicate act in Counts I and II.

. . . .

There was never any unrecorded status conference in which

any procedure was discussed or agreed upon depending on

the possible verdicts, and there was never any unrecorded

status conference in which Conkling’s counsel stated that

he would not proceed on any other claims if the jury

verdict was adverse to Conkling on the single predicate

act tried.” (Original emphasis).

22

asserted only as a RICO predicate act in Counts I and II.”17

We reject Conkling’s argument in this respect. While we

recognize that “the law of the case” doctrine “comprehends things

decided by necessary implication as well as those decided

explicitly,” Terrell v. Household Goods Carriers’ Bureau, 494 F.2d

16, 19 (5th Cir. 1974), it nevertheless “applies only to issues

that were decided” and “‘does not include determination of all

questions which were within the issues of the case and which,

therefore, might have been decided.’” Id.

We note, to begin with, that none of the arguments by Turner

on the prior appeal which Conkling now cites were made in respect

to the state law breach of fiduciary claim, and all related only to

the putative “stand alone” Harmony federal securities law claim.

Turner on the prior appeal made no such or similar argument as to

the state law breach of fiduciary duty claim. Turner’s argument as

to that claim was solely that it was either improperly derivative
 

18Turner, in the portion of his appellee’s brief on the prior

appeal arguing that “the district court properly reconsidered and

granted defendants’ motion for summary judgment in the pendent

state law breach of fiduciary duty claim,” states in relevant part:

“The plaintiff’s breach of fiduciary duty claim is

based upon the same conduct originally alleged to be

predicate acts for purposes of the RICO claims. Because

the district court properly concluded that either the

alleged conduct was not actionable by Conkling (i.e. was

a derivative claim) or did not constitute any

misrepresentations by Turner or any defendants owing

Conkling a fiduciary duty (as a result of the jury’s

verdict as to the 1963 agreement), there was ample legal

basis to grant the dismissal. There were no genuine

issues of material fact remaining to be tried.

. . . .

The jury found no fraud or misrepresentation to

Conkling in the 1963 agreement. . . . The court properly

dismissed the remainder of this pendent state law claim

on the grounds that there was absolutely no evidence to

support it.

23

or was foreclosed by the jury’s finding of no fraud in the 1963

agreement.18 Our prior opinion does not address any federal

securities law “stand alone” claim in respect to Harmony, and

addresses that matter only as a RICO predicate act, which,

according to Conkling’s (as well as Turner’s) post-argument letter,

is all it was. It is beyond dispute that the district court’s

April 1992 judgment dismissed with prejudice the entirety of

Conkling’s suit, and that we affirmed that dismissal in all

respects except only as to two portions of the state law breach of

fiduciary duty claim which we reversed and remanded because they

were disposed of by summary judgment and Turner’s summary judgment

motion as to those portions of the breach of fiduciary duty claim

was inadequate. Nothing in our prior opinion addresses or even
24

mentions any asserted agreement by Conkling not to pursue such

claims or any asserted failure on his part to do so, or treats

their disposition as being based on anything other than granting

Turner’s motion for summary judgment, which is what the order for

judgment entered April 9, 1992, states. Moreover, there was

nothing in the record then before us which would have allowed us to

make any other assumption. There is nothing in our remand of the

two portions of the state law breach of fiduciary duty claim which

even suggests that Turner is precluded from having them dismissed

prior to trial on a proper motion for summary judgment or on any

other proper basis.

In sum, if the district court’s post-remand dismissal is

otherwise proper, our prior disposition does not preclude it.

II. Post-remand Dismissal Inadequately Supported

Conkling also argues that in any event the district court’s

post-remand dismissal is not justified. We agree.

As previously stated, the district court’s post-remand

dismissal was based on its conclusion that the parties through

counsel and the court had agreed, some time on March 18 or 19,

1992, and before the jury was discharged on the latter date, that

if the jury verdict were for Turner, or in light of such verdict,

then Conkling would not pursue any claim that had not been tried in

the event this Court affirmed the judgment on the other claims. We

assume——at least arguendo——that such an agreement, properly

documented or reflected in the record, could be enforced. As the

district court recognized, however, nothing in the transcript or in
25

any order or writing whatever——including any letter to or from the

court or any of the parties or counsel or even any informal notes

of the court, counsel, or anyone else——reflects such or any similar

agreement. Conkling’s lead counsel has denied under oath making

any such agreement, and his other counsel, more than four years

after the event, simply had no recollection. Turner’s lead counsel

testified that Conkling’s counsel stated after the verdict that if

the court were to give judgment for Turner on the RICO count “then

he had no desire to try the rest of the case.” Turner’s associate

counsel, though he was unclear as to whether this occurred before

or after the verdict, testified that Conkling’s counsel said “if

his RICO case was dismissed because of the finding of no fraud,

that the stand alone Harmony claim wasn’t big enough or sufficient

enough to justify his going forward.” The testimony by Turner’s

attorneys not only relates to statements after the verdict——in

contrast to the district court who plainly was speaking of a preverdict agreement——but, more importantly, if credited would

ordinarily have led to a dismissal of Conkling’s pendent breach of

fiduciary duty claim for failure to prosecute. See Sturgeon v.

Airborne Freight, 778 F.2d 1154, 1160 (5th Cir. 1985); Lopez v.

Aransas County Independent School District, 570 F.2d 541, 544 (5th

Cir. 1978). Cf. G.A. Thompson & Co., Inc. v. Partridge, 636 F.2d

945, 951-53 (5th Cir. 1981) (plaintiff’s counsel’s announcement, at

unrecorded conference to modify the pretrial order on the first day

of trial, that evidence would not be presented on the section 10b-5

claim did not amount to dismissal or waiver of that claim, where
26

not incorporated into the pre-trial order and plaintiff’s counsel

later that day disputed any abandonment). But that is not what the

district court then did. Rather, it expressly granted Turner’s

motion for summary judgment on that claim, because (as the April

1992 order recited) it found “there is no factual or legal basis to

support plaintiff’s breach of fiduciary [duty] claim which was set

forth in the complaint,” and dismissed the claim on that basis. By

the same token, the testimony of Turner’s attorneys does not

describe any character of agreement, much less the unusual and

somewhat complicated one found by the district court following

remand, namely that Turner would be free to continue——in this same

suit——his pendent breach of fiduciary duty claims if, but only if,

this Court (or the district court acting on a post-judgment motion

for new trial) were to reverse or order retrial of (presumably in

whole or in part) the judgment for Turner on the RICO claims (or,

presumably, on the breach of contract claim).

The district court, in support of its order following remand,

also relied on the language in the second paragraph of its order

for judgment entered April 9, 1992 (dated April 7), referring to

following a pre-verdict agreement of the parties and the court as

to the court’s post-verdict procedure. While this language does

indeed support the conclusion that there was some pre-verdict

agreement between all concerned as to what would be done postverdict, the April 9, 1992, order, taken as a whole, clearly does

not support, but rather tends to contradict, the agreement found by

the court following remand. The April 1992 order reads as follows:
 

19On April 28, 1992, following the written suggestion of

Turner’s counsel, the first sentence of this order was amended to

read as follows: “On March 19, 1992, the jury found that the

defendants were not guilty of any fraud after the Court had granted

a judgment as a matter of law holding there was no redemption

agreement entered into between the parties in 1962.” The court

had, in fact, granted Turner’s motion for judgment as a matter of

law on the contract claim after the evidence closed and before the

case was submitted to the jury.

27

“On March 19, 1992, the jury found that the

defendants were not guilty of any fraud and that there

was no redemption agreement entered into between the

parties in 1962.[19] At the conclusion of the evidence,

both the plaintiff and the defendants moved for a

judgment as a matter of law. The Court finds that

defendants’ motion is moot. The Court also finds that

the evidence clearly supports the jury’s verdict.

Therefore, plaintiff’s motion for judgment as a matter of

law is denied.

Prior to the jury’s verdict, the Court and the

parties agreed to a procedure to be followed by the Court

once the jury’s verdict was returned. Following that

procedure, the Court finds as follows.

The Court reconsiders its prior decision which

denied defendants’ motion for summary judgment and now

finds that plaintiff’s claim under RICO should be

dismissed since the jury found no fraud on the part of

the defendants in this case. The Court also finds that

there is no factual or legal basis to support plaintiff’s

breach of fiduciary claim which was set forth in the

complaint. Therefore, the Court finds that the

plaintiff’s RICO claims and plaintiff’s breach of

fiduciary claims must be dismissed as a matter of fact

and law. Accordingly, defendants’ motion for summary

judgment on these claims is granted.

In summary, the Court finds as follows:

1. Plaintiff’s motion for a judgment as a matter of

law is DENIED.

2. Considering the jury’s verdict, defendants’

motion for a judgment as a matter of law is DISMISSED AS

MOOT.

3. Upon reconsideration, defendants’ motion for

summary judgment is GRANTED, and plaintiff’s claims under

RICO and breach of fiduciary relationship are DISMISSED.
 

20Following the jury’s verdict, the district court initially,

on March 23, 1992, simply entered judgment “[i]n accordance with

the jury verdict” dismissing Conkling’s entire suit with prejudice.

On April 1, 1992, the Court entered an order vacating this judgment

on its own motion, and reciting the judgment was improper because

“[t]here are other issues remaining in the case for the Court to

decide. The jury’s verdict only decided some of the issues which

are pending in this case . . . . After the Court decides the

remaining issues in the case including the motions for judgment as

a matter of law which were filed at the conclusion of the evidence

by all of the parties, the Court will issue an appropriate

judgment.” Following the order of April 7 entered April 9, quoted

in the text above, the court on April 10, 1992, signed a judgment

dismissing Conkling’s entire suit “[f]or the written reasons

assigned.”

28

4. Judgment shall be entered dismissing plaintiff’s

entire case with prejudice at plaintiff’s costs.”

(Emphasis added).20

This order expressly grants Turner’s motion for summary

judgment on the breach of fiduciary duty claim and orders its

dismissal for that reason; and, it grants that summary judgment

because “[t]he Court . . . finds there is no factual or legal basis

to support plaintiff’s breach of fiduciary [duty] claim which was

set forth in the complaint.” There is nothing in this order

suggesting that Conkling refused to proceed further after the

verdict or that the breach of fiduciary duty claim was dismissed

for that reason. Nor does anything in the April 9 order suggest

that Conkling agreed, or the court determined, that if the summary

judgment on the breach of fiduciary duty claim were reversed on

appeal, but the judgment on the RICO and contract claims were

affirmed, that Conkling nevertheless would not pursue the breach of

fiduciary duty claim. Indeed, the form of the April 9 order

suggests the very opposite——that in such event Conkling could pursue

the breach of fiduciary duty claim——for that is the legal effect of
 

21This is not to say that the district court’s understanding

is factually incorrect; only that the April 9 order does not

support (and indeed tends to contradict) it.

29

the order, as our prior disposition reflects, absent some express

provision to the contrary. The April 9 order is far more

consistent with Conkling’s attorneys’ understanding——that he did not

proceed with the breach of fiduciary duty claim because the

district court had already said that it would dispose of that by

reconsidering Turner’s motion for summary judgment——than it is with

the district court’s post-remand view of what was understood

between the parties and the court.21

We note also that on the prior appeal Turner defended the

breach of fiduciary duty summary judgment on the merits (see note

18, supra), and never contended that it should not be remanded

because there was an agreement not to pursue it should the judgment

dismissing the other claims be affirmed.

The district court, in its remarks at the February 13, 1997,

hearing, also relied on two passages in the transcript of the

proceedings in the late afternoon and early evening of March 18,

1992. The first of these occurred after the jury arguments and the

charge had been given and, at 5:02 p.m., the jury had been excused

but told not to begin deliberations until so directed by the court.

Then the court heard further objections to the charge. When this

was completed, and just before the jury was brought back in to hear

a portion of the charge which the court had earlier inadvertently

failed to read to the jury, the court remarked to counsel as

follows:
30

“The Court: One of the things I want to do when

we get through with this, and y’all take a break or two,

I want y’all to come sit down with me and tell me,

depending on which verdict comes in, what we need to do.

So, if you get a verdict tonight we can tell the jury to

come or not come back. I think we ought to start

planning that phase (jury enters).”

The jury then entered and the court read the jury the previously

omitted portion of the charge, and at 5:10 p.m. the jury was sent

out with directions to begin its deliberations. Thereafter the

court directed the marshal to get the jury the verdict forms and

counsel to get together the exhibits to be taken to the jury room.

Then, after some instructions to counsel as to being available and

the procedures to be followed if there were a jury note, the court

made the following remarks to counsel (this being the second of the

two paragraphs relied on by the court), viz: “After y’all take a

break for a few minutes, I want y’all to come see me and let’s just

sit and see what the effect of these verdicts are and where we’re

going to go from here, because I don’t want to discharge the jury

tonight erroneously.” The court then instructed counsel that if

they wanted they could wait on the jury in two specific rooms

“upstairs” or “outside in the hallway.” The transcript then

reflects that there was recess from 5:15 p.m. until 7:34 p.m., when

the jury sent in a note saying they wanted to go home for the

evening. The jury was brought in, and at 7:41 p.m. was excused for

the evening and told to come back at 9:00 a.m. the following

morning. The court advised that it would be out of the courthouse

in the morning but could be reached, and that counsel did not have

to come to the courthouse the next day until there was a jury note.
 

22The court’s minute entry for March 18, though going through

the proceedings until the jury was discharged for the evening, does

not mention any conference with counsel or any agreed procedure.

 

23The only relevant part of the court’s minute entry for March

19 states:

“The jury finds in favor of the defendants. At the

request of the plaintiff the jury is polled and all agree

with the verdict. Judgment shall be entered accordingly.

As previously agreed by the parties, oral argument

on the motions for judgment as a matter of law will be

held at 9:00 a.m. on Friday, March 20, 1992.”

31

The court suggested to the parties Conkling and Turner personally

that they consider settlement, and at 7:45 p.m. recessed for the

evening.

While these passages do reflect that the court was concerned

about how to proceed after any verdict, wanted to avoid erroneously

discharging the jury, and wanted to discuss this with counsel, they

do not in any way suggest what was said or agreed on at any

subsequent discussion.22

The above-noted transcript passage of the court’s statement to

counsel, just after the jury was excused following its verdict on

Thursday, March 19, “[w]e agreed last night that we would have

arguments on the motion on Friday at 9:00 if anybody wants oral

argument,” does reflect that there was an agreement for arguments

on motions, but does not reflect any other or further agreement.

Nor is it inconsistent with Conkling’s counsel’s asserted

understanding, as stated in his testimony, that this referred to

the court’s statement the previous evening that the court was going

to reconsider the defendant’s motions for summary judgment.23 And,
While this minute entry refers to the motions to be argued as

ones “for judgment as a matter of law,” what was said in open court

does not include any characterization of the motion[s] to be

argued, and the April 9 order states that the court, post-verdict,

granted Turner’s motion for summary judgment.

 

24For example, the district court might have announced that it

was going to grant summary judgment on the state law breach of

fiduciary duty claim, and Conkling’s counsel might then have said

something generally like what Turner’s associate counsel attributed

to him, namely “if his RICO case was dismissed because of the

finding of no fraud, that the stand alone Harmony claim wasn’t big

enough or sufficient enough to justify his going forward”; but

Conkling’s counsel may have been referring only to a stand alone

Harmony federal securities law claim, not as part of a state law

breach of fiduciary duty claim. As earlier recited, Turner’s

appellee’s brief on the prior appeal refers only to a purported

statement by Conkling’s counsel that in light of the verdict he

would not pursue “the alleged securities fraud regarding Harmony as

a stand alone (non RICO) claim.” As also previously observed,

following oral argument on the prior appeal, this Court was

32

that is what the April 9 order said the court did.

In sum, the court’s reasons for its post-remand dismissal are

ultimately not adequately supported by anything in the record other

than the court’s recollection of what was said by counsel during an

informal, unrecorded status conference over four years previously,

as to which no one, the court included, has any confirmatory order,

minute entry, correspondence, or on-the-record remarks, or even

informal notes, and as to which the recollections of the lawyers

involved on each side differ not only from each other but also from

the court’s recollection. Moreover, the most natural inferences

from the April 9, 1992, order do not support, but rather tend to

undercut, the district court’s reasons for its post-remand

disposition. In these circumstances, the risk of misunderstanding

what was said and intended years previously is simply too great to

allow such a disposition to stand.24
uncertain whether the district court had disposed of any damage

claim for violation of section 10b of the Securities Exchange Act

of 1934 in relation to Harmony “as distinguished from its treatment

of the claim as a RICO predicate act” (see note 15, supra, and

accompanying text); Turner replied that such a stand alone federal

securities law claim was never really made, and if made was

abandoned (see note 16, supra); Conkling, though denying any

abandonment, seemed to state such a federal securities law claim

“was asserted only as a RICO predicate act in Counts I and II” (the

RICO counts) (see note 17, supra, and accompanying text).

Ultimately, on the prior appeal we affirmed the dismissal of all of

Conkling’s claims except only two portions of his state law breach

of fiduciary duty claim, one being the “Harmony dilution claims

pled as a breach of fiduciary duty” and the other being “the

fiduciary duty claims relating to the 1963 agreement and its

progeny,” Conkling, 18 F.3d at 1300 (as to each of these two

portions of the state law breach of fiduciary duty claim we held

Turner’s motion for summary judgment was inadequate and accordingly

remanded).

 

25Williams v. Edwards, 87 F.3d 126 (5th Cir. 1996), cited by

the district court, is not to the contrary. There the state

appealed a 1995 order modifying an earlier consent decree

contending that the district court had no jurisdiction because of

the “sunset” provision of a 1983 order under the terms of which the

case would have terminated in November 1989. However, in 1993 the

district court, convinced that it had previously extended the 1983

order, entered an order indefinitely extending the 1983 order. The

1993 order was made retroactive to November 1989. The state did

not appeal the 1993 order, and between 1992 and 1994 the state

filed in the district court eleven motions to “partially terminate”

specific, discrete portions of the 1983 order. We held that the

state’s jurisdictional challenge to the 1995 order on the basis

33

In analogous circumstances, we have held that while we would

not insist on a signed, written stipulation for a post-answer

voluntary dismissal under Fed. R. Civ. Proc. 41(a)(1) to be without

prejudice, although the terms of the rule require that,

nevertheless any oral stipulation “must, however, be unequivocal

and in the record.” Ocean Drilling Explor. v. Mont Boat Rental

Serv., 799 F.2d 213, 218 (5th Cir. 1986). This was thought

necessary “to avoid later dispute.” Id. See also Camacho v.

Mancuso, 53 F.3d 48, 52-53 (4th Cir. 1995).25
that the 1983 order had terminated in November 1989 was foreclosed

by its failure to appeal the 1993 order. Id. at 130-131.

34

The district court’s post-remand decision here was obviously

taken in complete good faith and represents its sincere and

conscientious view of what happened in March and April 1992. Nor

do we purport to say that this is in fact not what actually

happened. We do hold, however, that there is inadequate record

support for the more than four-year-old oral agreement found by the

district court, and too much room for confusion, doubt, and

misinterpretation in that respect, to justify the belated dismissal

of the remanded claims on the basis thereof. We consequently

reverse the district court’s February 1997 order of dismissal and

remand the cause for further proceedings consistent herewith. The

case shall proceed on the basis that the claims previously remanded

are not precluded by any such agreement as found by the district

court, nor by any failure to proceed or statement of intention to

waive or the like (as urged by Turner in section 1 of his

memorandum below in support of his post-remand motion to dismiss or

for summary judgment).

III. Recusal

Conkling urges that the district court should have granted his

post-remand motion to recuse because in acting on Turner’s motion

to dismiss the district court was relying on its own recollection

of the events of March and April 1992, and hence in some sense

became the equivalent of a witness. This complaint of itself is

likely rendered moot by our reversal of the February 1997 dismissal
 

26We also note that nothing about the parties

personally——Conkling and Turner——is or was involved in respect to

the agreement relied on by the district court in its February 1997

order, the mentioned agreement being attributed solely to

Conkling’s then counsel. Since our remand, Conkling has been

represented by other counsel (not of the same firm), and neither

counsel who represented Conkling in the March and April 1992

proceedings continued to represent him in this case following our

earlier remand.

35

order. However, Conkling also requests that we direct that on

remand the case be assigned to another district judge. We decline

to do so. To begin with, we do not conclude that the district

court erred in denying the motion to recuse. As a general rule,

for purposes of recusal, a judge’s “‘[p]ersonal’ knowledge of

evidentiary facts means ‘extrajudicial,’” so “[f]acts learned by a

judge in his or her judicial capacity regarding the parties before

the court, whether learned in the same or a related proceeding,

cannot be the basis for disqualification.” Lac Du Flambeau Indians

v. Stop Treaty Abuse-Wis., 991 F.2d 1249, 1255-56 (7th Cir. 1993).

“Opinions formed by the judge that are based on . . .

events occurring during the proceedings do not constitute

a basis for recusal ‘unless they display a deep-seated

favoritism or antagonism that would make fair judgment

impossible. Thus, judicial remarks during the course of

a trial that are critical or disapproving of, or even

hostile to, counsel, the parties, or their cases,

ordinarily do not support a bias or partiality

challenge.’” United States v. Landerman, 109 F.3d 1053,

1066 (5th Cir. 1997) (quoting Liteky v. United States,

114 S.Ct. 1147, 1157 (1994)).

There is here no reflection of any such “deep-seated favoritism or

antagonism” as would “make fair judgment impossible.”26 Conkling

relies on In re Murchison, 75 S.Ct. 623 (1955), but we see here no

invasion of the principle there relied on, namely that “no man is

permitted to try cases where he has an interest in the outcome.”
36

Id. at 625. Nor is Tyler v. Swenson, 427 F.2d 412 (10th Cir.

1970), also relied on by Conkling, on point, for there it was

charged that the judge, in the unrecorded chambers conference,

engaged in improper threats to cause the defendant to plead guilty.

Here, there has never been any assertion that the district judge

did or said anything improper at the mentioned chambers conference.

Conclusion

For the reasons stated, we reverse the district court’s

February 1997 judgment of dismissal and remand the cause for

further proceedings not inconsistent herewith.

REVERSED and REMANDED