April 26, 1996
[Not for Publication]
United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
No. 95-1949
ELIZABETH V. BOGOSIAN,
Plaintiff, Appellee,
v.
JAMES H. WOLOOHOJIAN, ET AL.,
Defendants,
WOLOOHOJIAN REALTY CORP.,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Francis J. Boyle, Senior U.S. District Judge]
Before
Cyr, Boudin and Stahl,
Circuit Judges.
William R. Grimm, with whom Robert M. Duffy and Hinckley, Allen &
Snyder, were on brief for appellant.
Charles D. Ray, with whom John W. Cannavino and Cummings &
Lockwood, were on brief for appellee.
Per Curiam. This litigation has already used up an
Per Curiam.
enormous amount of legal talent and judicial resources over
its seven-year life. The ultimate issue is simply the value
of a minority shareholder's stake in a closely held
corporation. Yet, the dispute has resulted so far in more
than 250 entries on the district court docket and four
district court orders published in the Federal Supplement.
This is the third occasion on which the numerous protagonists
of this legal war have brought appeals before us; none of the
appeals concern the principal issue in the litigation. From
all we can tell, the end is not yet in sight.
Now two district court judges have entered what
appear to be conflicting orders affecting interim payments
due to the appellee. Orders by a third district judge and a
magistrate judge also implicate those payments, and a bevy of
lawyers, for themselves and for their clients, have asserted
claims and liens against the same funds. The issues
presented in this appeal could have been resolved without our
intervention if the parties were disposed to manage this
litigation with a view toward resolving issues instead of
proliferating them.
In any case, there are before us for review two
different orders of the district court entered on two
different dates. The first is the July 26, 1995, order
denying a motion by Woloohijian Realty Corporation ("WRC") to
-2-
2
modify the July 13, 1990, order directing WRC to make monthly
payments to Bogosian. The second is the August 8, 1995,
order releasing funds to Bogosian that had been held in an
escrow account pursuant to a June 8, 1993, order of the
magistrate judge. We treat the two orders separately for
reasons that will become apparent.
1. There is no apparent jurisdictional basis for
immediate appeal of the August 8 order. This order, so far
as it is contested on appeal, merely released to Bogosian
funds held under an escrow established at the direction of
the magistrate judge and held explicitly subject to the
control of the court. The district court ruled (1) that the
magistrate judge lacked authority to order these funds placed
in escrow and (2) even if that course had been permissible,
the funds should now be disbursed from escrow to Bogosian.
Contrary to appellants' assumption, this order is
not in form an injunction immediately appealable under 28
U.S.C. 1292(a)(1). Sometimes orders not designated as
injunctions are so treated where irreparable injury is
threatened, Carson v. American Brands, 450 U.S. 79, 84
(1981), but here there is also no showing of irreparable
injury. The court's disposition of funds within its own
control does not create any danger that appellants will be
held in contempt by another judge; nor is it apparent that
-3-
3
this single transfer of funds to Bogosian will subject
appellants to the potential for excessive liability.
2. The July 26 order refusing to modify the
earlier injunction stands on a different footing. Appellants
had urged its modification, arguing that the injunction
(directing them to make payments monthly to Bogosian) clashed
with a later directive of another judge of the same court
directing appellants to withhold the monthly payments from
Bogosian pursuant to an attachment order in favor of other
creditors.1 The refusal to modify an injunction is
ordinarily appealable at once. Section 1292(a)(1).
The district court based its July 26 refusal to
modify on the ground that appellants would not be held in
contempt for distributing funds in the court's "custody."
Rhode Island law is unsettled as to the scope of the in
custodia legis doctrine. While we agree that this reasoning
would likely apply to the escrowed funds, it is at best
debatable whether in the present circumstances unearmarked
funds held by appellants would meet this description; and
assuming that appellants are under a conflicting order not to
pay those funds to Bogosian, we think that the district
1. We have assumed this conflict arguendo because it is
asserted by appellants and not directly disputed by the
district court, the appellee or the record materials before
us. But we note that the record before us is not complete
and are not ourselves ruling that the conflict exists.
-4-
4
court's reasoning does not explain away the apparent threat
to appellants.
3. In remanding for further consideration, we
think it important to emphasize that there are serious
problems of both appearance and fairness when a litigant
seems to be subject to conflicting directives from two judges
of the same court. However tangled and vexatious the
litigation may be, this apparent conflict needs to be
resolved, either by establishing that the judicial orders do
not conflict, or by harmonizing the appellants' obligations
to the several claimants to the funds.
One solution might be for the court to act promptly
on the long-pending interpleader action by which appellants
have sought to reconcile the alleged conflict.
Alternatively, it might be possible to consolidate these
actions before a single judge so that he or she can make a
binding determination as to the scope of the appellants'
interim obligations. Whatever course the district court
adopts, we think this aspect of the matter does need careful
but prompt attention.
The appeal from the August 4, 1995, order of the
district court is dismissed. The July 26, 1995, order of the
district court is vacated, and that matter is remanded for
further proceedings consistent with this order.
It is so ordered.
It is so ordered
-5-
5