UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 97-50660
Summary Calendar
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BERNARD I. L. THOMAS,
Plaintiff-Appellant,
versus
NEW YORK LIFE INSURANCE COMPANY,
Defendant-Third Party Plaintiff-Appellee,
versus
CHRISTOPH BASISTA, As Guardian and Next Friend for Pascal
Basista, A minor Child,
Third Party Defendant-Appellee.
______________________________________________
Appeal from the United States District Court
for the Western District of Texas
(W-95-CV-316)
______________________________________________
October 8, 1998
Before JOLLY, BENAVIDES, and PARKER, Circuit Judges.
PER CURIAM:*
Bernard Thomas appeals the denial of his claims against New
York Life Insurance Company (“New York Life”) following a bench
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under the
limited circumstances set forth in 5TH CIR. R. 47.5.4.
trial on an interpleader action, wherein the district court
determined that Thomas had played a role in the murder of his wife
and that he therefore had no right to the $200,000 proceeds of her
life insurance policy. The parties to the interpleader were Thomas
and Christoph Basista, the father and next friend of Pascal
Basista, the sole surviving minor child of Christine Thomas,
Appellant’s wife. On appeal, Plaintiff-Appellant argues (1) that
there was insufficient evidence to support the district court’s
findings of fact, (2) that procedural errors undermined the
integrity of the verdict, and (3) that the award of attorneys’ fees
to the attorney ad litem was erroneous. We disagree.
I. Sufficiency of the Evidence
“Findings of fact, whether based on oral or documentary
evidence, shall not be set aside unless clearly erroneous, and due
regard shall be given to the opportunity of the trial court to
judge of the credibility of the witness.” Fed.R. Civ.P. 52(a). A
finding of fact is clearly erroneous when, although there is
evidence to support it, the reviewing court is left with a definite
and firm conviction that a mistake has been committed. Justiss Oil
Co., Inc. v. Kerr-McGee Refining Corp., 75 F.3d 1057, 1062 (5th Cir.
1996) (citing United States v. United States Gypsum Co., 333 U.S.
364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948)). This
deferential standard precludes an appellate court from reversing a
finding of the trier of fact simply because it would have decided
the case differently: “Where there are two permissible views of the
evidence, the fact-finder’s choice between them cannot be clearly
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erroneous.” Anderson v. City of Bessemer City, 470 U.S. 564, 573-
74, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985).
A. Involvement of Appellant in Death of the Insured
Christine Thomas
Appellant Bernard Thomas argues that the district court erred
when it found that he acted as a principal or accomplice in
willfully bringing about the death of his wife, Christine Thomas.
However, a review of the record does not support the Appellant’s
claim of error. At trial, evidence was introduced that Thomas and
his wife had a history of family violence. The trial court
reasonably relied upon testimony of Appellant that in January 1993,
the military found him guilty of an assault on his wife; testimony
of Gabriella and Mark Lacey, friends of the deceased, who stated
that Appellant had threatened his wife with a rifle; an affidavit,
signed by Christine Thomas in support of her cross-petition for
divorce, providing a detailed description of incidences of abuse;
as well as records from Families in Crisis, a shelter where
Christine Thomas and her son temporarily stayed, that recounted
similar acts of domestic violence.
In addition, evidence was presented at trial that Bernard
Thomas was the primary suspect in the June 1994 double murder of
Christine Thomas and her boyfriend Michael Gleason. The court
heard testimony from Bill Cooke, a Texas Justice of the Peace, who
had been the criminal investigator assigned to the Thomas/Gleason
homicide prior to his September 1996 departure from the Bell County
District Attorney’s office, Jerry Stringer, a retired Killeen
Police Lieutenant, who was in charge of the Crimes Against Persons
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Unit of the Criminal Investigation Division from mid 1995 through
January 1996, and Richard Tramp, an Investigator with that same
unit, who was assigned to the Thomas/Gleason case at the time of
trial. These men testified that Bernard Thomas was the only
suspect for the murders, that no other viable suspects had emerged
during the course of the investigation, that Appellant’s motive for
the double homicide had been jealousy, that the police had evidence
suggesting the involvement of a third party (explaining the lack of
physical evidence tying the Appellant to the scene of the murders),
that Thomas had failed a polygraph, and that a confidential
informant had named him as the murderer.
Based upon our review of the trial record, we hold that the
district court’s finding that Appellant willfully acted as an
accomplice or a principal in the death of his wife is not clearly
erroneous. The trial court’s determination was well within the
realm of “reasonable evaluations of credibility and reasonable
inferences of fact,” and this Court will not disturb the district
court’s finding on appeal. Real Asset Management, Inc. v. Lloyd’s
of London, 61 F.3d 1223, 1227 (5th Cir. 1995).
B. Statutory Requirements Regarding Handling of Claim
Appellant next argues that no evidence supports the court’s
findings of fact as they relate to the actions of New York Life in
handling Thomas’ claim. Specifically, Thomas challenges the trial
judge’s determinations that New York Life did not violate Article
21.55 of the Texas Insurance Code, which sets forth the time period
for accepting or rejecting claims, or Article 21.21, which
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establishes penalties for an insurer’s breach of the duty of good
faith and fair dealing.
Appellant is not entitled to recover penalties pursuant to
Articles 21.55 or 21.21 regardless of whether or not New York Life
engaged in any conduct which violated the mandates of the Texas
Insurance Code. A claimant may not recover policy proceeds and/or
statutory penalties for an insurer’s non-compliance with Article
21.55 or Article 21.21 unless the insurer is otherwise liable for
the policy claim. See Mid-Century Ins. Co. of Tex. v. Barclay, 880
S.W.2d 807, 811 (Tex.App. 1994, writ denied) (holding that the
amount of a claim under Article 21.55 Section 6 is “restricted to
the amount to which the insured shows herself legally entitled”);
Koral Indus. v. Security-Connecticut Life Ins. Co., 802 S.W.2d 650,
651 (Tex. 1990) (per curiam) (finding that defense to payment of
insurance contract negated any breach of good faith and fair
dealing violations under Article 21.21 of the Texas Insurance Code
and any actions for unconscionability under the Deceptive Trade
Practices Act); see also Bartlett v. American Republic Ins. Co.,
845 S.W.2d 342 (Tex.App. 1992); Grunbaum v. American Express
Assurance Co., 1998 WL 59491, No. Civ.A. 396-CV-3315-D, (N.D. Tex.
Feb. 9, 1998). In light of the district court’s undisturbed
finding that Thomas played a role in his wife’s murder, New York
Life was not liable to Thomas for the policy claim. Accordingly,
Appellant is not entitled to damages for violations, if any, of
Articles 21.55 or 21.21, and this Court does not address the
district court’s findings of fact as they pertain to the actions of
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New York Life.
II Procedural Errors
On appeal, Thomas additionally complains that the district
court erred in several procedural rulings: (1) that the district
court wrongly allowed witnesses to testify who were not named or
noticed until six days before trial, (2) that the court erroneously
denied Appellant an opportunity to present a rebuttal case, and (3)
that the court improperly entered its final judgment without
affording Thomas an occasion to make closing arguments. This Court
accords procedural rulings considerable deference on appeal and
reviews such rulings under an abuse of discretion standard. Our
review of the record indicates that the district court properly
acted within its discretion.
First, the district court did not abuse its discretion in
allowing testimony from Officer Richard Tramp, Debra L. Brock, and
Mark and Gabriella Lacey, none of whom were named or noticed until
six days before trial. Thomas on appeal does not challenge the
qualifications of Officer Tramp who testified as an expert witness
nor the relevance of the testimony of Ms. Brock or the Laceys.
Instead, Thomas complains that as a result of the court’s order of
April 24, 1997, granting the attorney ad litem’s request for leave
to call witnesses, the Appellant suffered unfair surprise and
ambush at his May 1, 1997, trial. Thomas’ claim of error therefore
is a procedural rather than evidentiary one and will be reviewed
accordingly.
The district court granted the attorney ad litem’s motion for
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leave to call witnesses because the court believed that it would be
in the interest of justice to do so. In particular, the district
court recognized that leave to call witnesses was warranted by the
fact that the guardian ad litem had not been appointed until after
initial pretrial discovery deadlines had expired and pretrial
orders had been filed by Thomas and New York Life. The district
court, in its order, also acknowledged that Thomas would have
little opportunity to depose before trial the new witnesses as a
result of the timing of the motion. For this reason, the district
court expressly stated in its order that if Thomas, after direct
and cross examination of the new witnesses, could demonstrate that
justice required a delay for him to seek other evidence, he would
be allowed to make that request. At trial, however, Appellant
never made an attempt at such a showing and on appeal still has not
done so.
Furthermore, any surprise created by the new witnesses was
limited by the fact that their testimony was only cumulative of
other oral and documentary evidence presented at trial. Tramp’s
testimony, in particular, was cumulative of Lieutenant Stringer’s
and Investigator Cooke’s testimony as to the facts of the
investigation as well as their conclusions and opinions. Debra
Brock was merely a witness through whom the Family in Crisis
business records were introduced and the testimony of the Laceys
was cumulative of the allegations contained within Christine
Thomas’ sworn divorce affidavits. Accordingly, we find that the
district court’s order allowing these witnesses to testify, at
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worst, would amount to harmless error not warranting reversal.
Second, Thomas argues that the district court improperly
denied him an opportunity to present witnesses and evidence to
rebut the testimony of the three law enforcement officers, Debra
Brock, and Mark and Gabriella Lacey. The record, however, shows
otherwise. After all parties rested their cases-in-chief, Judge
Smith asked Appellant if he had any other evidence. Thomas
recalled Lieutenant Stringer, who was originally called by New York
Life, and questioned him in rebuttal, regarding redacted portions
of the police report recently provided to Thomas. After Mr.
Stringer was excused, Thomas stated that he had no other witnesses.
The only issue remaining before the Court at that time was the
possible use of the privileged investigation file to further cross-
examine Officer Tramp. Appellant asked the district court to
perform an in camera inspection of the investigation file in its
entirety so that the court might determine if there was any
information contained within it that he could use to cross examine
Mr. Tramp. At no time did Thomas request an opportunity to seek
and/or present any rebuttal evidence regarding the testimony of
Debra Brock, Gabriella Lacey, or Mark Lacey.
Because of the scope of the task, Judge Smith recessed the
matter in order that he could review the investigative file and
instructed Appellant to examine the eight pages of the
investigation report he had already been given and to let the court
know if Mr. Tramp needed to be recalled at a later date. After
waiting more than a month after the trial was recessed and
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determining that the investigative file contained no information
which Thomas could use to cross examine law enforcement officers,
the district court did not abuse its discretion in closing the
trial and entering its findings and conclusions. See Orduna S.A.
v. Zen-Noh Grain Corp., 913 F.2d 1149, 1154 (5th Cir. 1990).
Third, Thomas argues that the district court erred in denying
him the right to present a closing argument. Although closing
arguments are required in a criminal case under the Sixth
Amendment’s right to effective assistance of counsel, Herring v.
New York, 422 U.S. 853, 859, 95 S.Ct. 2550, 2554, 45 L.Ed.2d 593
(1975), closing arguments in a civil bench trial are not accorded
the same constitutional protection. See In re Generes, 69 F.3d
821, 825 (7th Cir. 1995), cert. denied, 117 S.Ct. 81, 136 L.Ed.2d
39 (1996). Denying closing arguments in a civil bench trial is
within a district court’s discretion. Id. Moreover, Federal Rule
of Civil Procedure 61 forbids reversal absent prejudice to the
“substantial rights” of a party and Appellant has not suggested
with any particularity how he was prejudiced by the denial of the
opportunity to present closing arguments. We, therefore, refuse to
substitute our judgment for that of the district court concerning
the necessity of closing arguments.
III. Award of Attorneys’ Fees
Appellant’s final claim of error is that the trial court
erroneously awarded attorneys’ fees to the guardian ad litem.
However, Thomas lacks standing to raise this issue on appeal. See
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct.
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2130, 2136, 119 L.Ed.2d 351 (1992). The attorneys’ fees awarded to
both New York Life and the attorney ad litem were payable out of
the proceeds of the insurance policy. At the point that the
district court properly found that Thomas was not entitled to the
policy proceeds, Appellant lost any property interest in the
interpled funds. For this reason, Thomas does not have standing to
contest the court’s award of attorneys’ fees, and we do not address
the merits of the claim.
IV Conclusion
For the foregoing reasons, we hold that the district court did
not err in finding that Thomas acted as a principal or accomplice
in the death of his wife and in awarding the $200,000 life
insurance policy proceeds to the minor son of Christine Thomas.
The judgment of the district court is AFFIRMED.
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