Tiller v. Baghdady

United States Court of Appeals
For the First Circuit

Nos. 01-1618, 01-1835

GEORGETTE BAGHDADY TILLER,

Plaintiff, Appellant,

v.

SAMI J. BAGHDADY,

Defendant, Appellee.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Joseph L. Tauro, U.S. District Judge]

Before

Torruella, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lipez, Circuit Judge.

Donald R. Furman, Jr., for appellant.

Gael Mahony, with whom John D. Lawrence and Hill & Barlow,
P.C. were on brief, for appellee.

July 1, 2002
 LIPEZ, Circuit Judge. Georgette Tiller appeals from the

district court's denial of her motion for relief from judgment

under Rule 60(b) of the Federal Rules of Civil Procedure. The

motion alleged several grounds for relief, among them discovery

misconduct and fraud. The district court denied the motion and

later rejected Tiller's request for reconsideration. Tiller

challenges both decisions. We affirm.

I.

We described the facts of the underlying dispute in a

previous appeal, and do not repeat them in detail here. See Tiller

v. Baghdady, 244 F.3d 9 (1st Cir. 2001) (Tiller I). It suffices to
say that the parties disagreed as to the significance of a $31,000
transaction between Tiller and her brother, Sami Baghdady. The

$31,000 represents the price of stock Tiller owned in a company
named Teledyne, Inc. Tiller alleged that Baghdady sold her
Teledyne shares without her consent and used the proceeds to

finance his investment in a real estate project known as the Cedar
Crest Apartments. Although she admitted at trial that she gave
Baghdady a Power of Attorney authorizing him to manage her
investments, Tiller maintained that she told him not to sell the

Teledyne shares: "You don't touch these. These are untouchables.

These are long-term investment for my old age." Thus, when she

learned of the sale in the summer of 1971, she was furious and

demanded that Baghdady repurchase the Teledyne shares. Baghdady

told her that he could not afford to buy back the stock because he

had used the $31,000 to purchase the property for the Cedar Crest

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development. Tiller claimed that Baghdady promised her that he

would treat the money as an equity investment, making her a partner

in the Cedar Crest Apartments. When he later reneged on that
promise, she sued, alleging (among other things) intentional

misrepresentation.

Baghdady told a different story. He denied promising
Tiller a partnership interest in the Cedar Crest apartments.

Instead, Baghdady testified that Tiller sold the Teledyne stock

herself. Once the transaction was complete, she loaned him the

$31,000, to be repaid at 10% simple interest, or roughly $250 per

month. In support of that claim, Baghdady produced a hand-written

note dated August 4, 1971, in which he pledged to repay a $31,000

"debt" to Tiller. Another note, dated the previous day, set out
the parties' agreement as to interest. Moreover, Baghdady

introduced a series of monthly checks in the amount of $250, marked

"Int." or "Interest," -- and a final check for $31,000, marked "For
payment of loan dated August 4, 1971" -- all of which had been

cashed by Tiller.

At trial, Tiller called her sister, Violette Haddad, as

a witness. Haddad testified that Baghdady had sold her Teledyne

stock as well, and that he had attempted to make amends by

promising her a partnership interest in the Cedar Crest Apartments.

Haddad maintained that Baghdady had no authority to sell her stock.

On cross-examination, however, defense counsel confronted her with

a Power of Attorney, which -- like that executed by Tiller --

authorized Baghdady to sell Haddad's Teledyne shares. The Power of

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Attorney was signed by Haddad and Baghdady, witnessed by Tiller,

and notarized by Baghdady's secretary, Mary Cooper. Haddad

confirmed that her signature appeared on the Power of Attorney,
although she claimed not to remember signing the document.

Defense counsel also showed Haddad a hand-written letter

dated April 18, 1977, in which Haddad represented that she had
authorized Baghdady to sell her Teledyne shares and that she had

received the proceeds of the stock sale except for $15,000, which

she allowed Baghdady to keep as a loan. The note was signed by

Haddad and, again, witnessed by Tiller. Haddad confirmed that the

signature on the note was hers.

Defense counsel sought to admit both documents into

evidence. Tiller's attorney objected that the Power of Attorney
was cumulative. The district court disagreed, stating: "There is

nothing cumulative. This is impeaching evidence." The 1977 letter

was admitted without objection, and defense counsel continued
questioning Haddad. After a few minutes, he attempted to introduce

into evidence a check from Baghdady to Haddad's son Nicholas. The

check had been endorsed by Nicholas, and bore the notation "final

payment" on both the front and back. Tiller's attorney objected on

the ground that the check, like the Haddad Power of Attorney and

the 1977 letter previously introduced, was not "provided under any

discovery in this case." Defense counsel explained that he was

"responding to information that has just come into the case" --

presumably, Haddad's testimony that Baghdady had sold her Teledyne

shares without permission, and used the money to invest in the

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Cedar Crest development. The district court overruled the

objection.1

Tiller took the stand after Haddad. Notwithstanding her
sister’s testimony to the contrary, Tiller maintained that Haddad's

signatures on the Power of Attorney and the 1977 letter were

forgeries.2 She also stated repeatedly that her own signatures, as
witness to both documents, had been forged.

At the conclusion of the case, the court submitted

Tiller's claim of intentional misrepresentation to the jury. The

first question on the jury form asked the jurors to determine

whether Tiller had proved by a preponderance of the evidence that

1
The entire colloquy reads as follows:
MR. TARIOT [counsel for Tiller]: May we approach,
your Honor?
. . . .
THE COURT: No. Do you have an objection?
MR. TARIOT: Only in the nature of the fact this is,
granted, impeachment evidence, but this was not, nor was
[sic] the prior two documents [the Haddad Power of
Attorney and the 1977 letter], previously provided under
any discovery in this case.
MR. MAHONEY [counsel for Baghdady]: I don't think,
your Honor, the evidence that Mr. Tariot has identified
was identified, or which he has been putting in through
the witness was identified in the pre-trial proceedings
either. I am responding to information that has just
come into the case.
THE COURT: Come into the case? I will overrule the
objection.
MR. TARIOT: Yes, Judge.
2
Tiller made similar claims regarding the notations on the
checks from Baghdady, testifying that Baghdady must have added
notations such as "int." or "interest" and "for payment of loan
dated August 4, 1971" after Tiller cashed the checks. She
maintained that claim in the face of microfiche records from the
bank showing that the notations appeared on the checks when they
were cashed.

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Baghdady misrepresented to her that she was his partner in the

Cedar Crest development. The jury answered in the negative, and

the court entered judgment for Baghdady on December 21, 1999.
Tiller appealed. She did not raise any issues regarding

the production or admission of the Haddad Power of Attorney or the

1977 letter. Instead, she challenged the district court's refusal
to admit certain evidence supportive of her claim. We agreed that

the court erred in excluding the evidence. See Tiller I, 244 F.3d

at 14. We concluded, however, that "the overwhelming weight of the

evidence . . . support[ed] Baghdady's version of this dispute."

Id. at 15. Accordingly, we held that the district court's error

was harmless. Id.

While her appeal was pending in Tiller I, Tiller engaged
the services of two handwriting experts. The experts examined the

sisters' signatures on the Haddad Power of Attorney and the 1977

letter. Both experts concluded, subject to certain reservations,
that it was "probable" that both women's signatures had been

forged.

On September 12, 2000 (while her Tiller I appeal was

still pending), Tiller filed a motion in the district court seeking

relief from the judgment under Rule 60(b). The crux of the motion

was that the Haddad Power of Attorney and the 1977 letter were

improperly withheld during discovery and, when produced at trial,

contained forged signatures. More specifically, Tiller sought

relief under Rule 60(b)(1) on the ground that she had suffered

unfair "surprise" when Baghdady introduced the two documents at

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trial. She also requested relief under Rule 60(b)(2) on the ground

that the reports of the two handwriting experts constituted "newly

discovered evidence." Finally, Tiller sought relief under Rule
60(b)(3) on the grounds that the documents were forged and

therefore constituted "fraud," and that Baghdady's failure to

produce the documents during discovery was "misconduct." Fed. R.
Civ. P. 60(b)(3) (authorizing relief from final judgment for

reasons of "fraud . . . , misrepresentation, or other misconduct of

an adverse party").

The district court denied the motion by margin order, and

later denied Tiller's request for reconsideration. Tiller

appealed, challenging only the district court's judgments with

respect to relief under Rule 60(b)(3).3

II.

In order to obtain relief under Rule 60(b)(3), Tiller had
to present the district court with "clear and convincing evidence"
that the claimed fraud or misconduct occurred. Anderson v.

Cryovac, Inc., 862 F.2d 910, 926 (1st Cir. 1988). Next, she had to
show that the misconduct or fraud "substantially interfered with
[her] ability fully and fairly to prepare for, and proceed at,

trial." Id. In other words, the misconduct or fraud "must have
been harmful -- it must have affected [Tiller's] substantial

3
Tiller argues on appeal that she is also entitled to relief
under Rule 60(b)(6). That argument was not presented to the
district court, and we do not consider it. Teamsters, Chauffeurs,
Warehousemen & Helpers Union, Local No. 59 v. Superline Transp.
Co., 953 F.2d 17, 21 (1st Cir. 1992).

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rights." Id. at 924 (internal alterations and quotation marks

omitted).

On appeal, Tiller faces an additional hurdle. "When Rule
60(b) is in play, we ordinarily defer to the trial judge's more

intimate knowledge of the case." Id. at 923. We will upset the

district court's judgment only if it represents an abuse of
discretion. "Under this standard, we reverse only if it plainly

appears that the court below committed a meaningful error in

judgment." Id.

A. Discovery Misconduct

We turn first to Tiller's claim that Baghdady wrongfully

withheld the Haddad Power of Attorney and the 1977 letter, in
violation of the Federal Rules of Civil Procedure and the district
court's discovery orders. See Fed. R. Civ. P. 26(a). Baghdady

maintains that the documents in question were never requested
during discovery and that, in any event, Tiller forfeited her claim
of discovery misconduct by failing to object properly to the

admission of the evidence at trial, and by choosing not to raise
the issue on appeal in Tiller I.

Our cases make clear that the appropriate course for

parties who uncover discovery violations is "not to seek reversal
after an unfavorable verdict," but to request a continuance "at the
time the surprise occurs," United States Fidelity & Guaranty Co. v.

Baker Material Handling Corp., 62 F.3d 24, 29 (1st Cir. 1995)

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(internal quotation marks omitted),4 or to seek exclusion of the
newly presented evidence under Fed. R. Civ. P. 37(c), see Klonoski

v. Mahlab, 156 F.3d 255, 271 (1st Cir. 1998) (explaining that "the
appropriate sanction when a party fails to provide certain evidence

to the opposing party as required in the discovery rules is

preclusion of that evidence from the trial"). Here, Tiller allowed
the Haddad Power of Attorney and the 1977 letter to be introduced

into evidence without objection. Later, when defense counsel

sought to introduce the check from Baghdady to Nicholas Haddad,

Tiller argued that the check "was not, nor was [sic] the prior two

documents [the Haddad Power of Attorney and the 1977 letter],

previously provided under any discovery." Tiller did not ask that

the latter documents be excluded as a sanction for discovery
misconduct. Nor is it clear that such a request would have been

proper, given that the Haddad Power of Attorney and the 1977 letter

already had been admitted.
We do not have to determine whether Tiller's belated and

somewhat vague objection was sufficient to preserve her claim of

discovery misconduct for appeal, however, because Tiller failed

4
Although requesting a continuance may often be an
appropriate response to surprises at trial, a continuance can be
problematic when the requesting party needs to engage the services
of an expert witness in order to respond to the surprise. That
engagement can take time, and courts are understandably reluctant
to countenance lengthy delays in jury trials. It is unclear
whether delay would have been a problem in this case, as Tiller
already had retained a handwriting expert to examine documents
Baghdady produced during discovery. Nevertheless, we do not have
to decide whether a continuance would have been appropriate here.
As explained in the text, we conclude that Tiller forfeited her
claim of discovery misconduct by failing to raise it in her first
appeal.

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entirely to pursue that claim in Tiller I. Indeed, she did not so

much as mention the issue of discovery misconduct in her first

appeal. We have held that Rule 60(b) cannot be used as a
"substitute for a timely appeal under Rule 4(a)(1) of the Federal

Rules of Appellate Procedure." Ojeda-Toro v. Rivera-Mendez, 853

F.2d 25, 28 (1st Cir. 1988). Tiller has offered no reason why she
needed to wait nearly nine months after the entry of judgment

before raising her claim of discovery misconduct. We conclude that

she forfeited that claim by failing to present it on direct

appeal.5 Accordingly, we express no view as to whether Baghdady's

failure to produce the Haddad Power of Attorney and the 1977 letter

during discovery violated the Federal Rules of Civil Procedure or

the district court's orders.

B. Fraud

We turn, then, to Tiller's claim that Baghdady forged the
signatures on the Haddad Power of Attorney and the 1977 letter.
Baghdady maintains that Tiller forfeited that claim as well.

Tiller, he points out, "knew" in her mind that the documents were
forged from the moment they were introduced. Nevertheless, she did
not present her claims of fraud to the district court at that time,

beyond her own assertion of forged signatures. Rather than seeking

5
We note that Tiller seems to have conceded the point in her
reply brief: "The Appellee's Brief asserts that '[h]aving failed
to seek relief for the alleged discovery misconduct at trial and in
the first appeal, Ms. Tiller is barred by waiver and res judicata
from making that claim now.' . . . Mr. Baghdady is correct. . . .
The 'relief' sought by Ms. Tiller in this appeal, however, is for
the perpetration of a fraud. The discovery misconduct . . . simply
facilitated the fraud."

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a continuance, a mistrial, or the exclusion of the purportedly

fraudulent evidence, Tiller made a "conscious decision" to go

forward on the perceived strength of her own testimony that the
documents were forged. Parrilla-Lopez v. United States, 841 F.2d

16, 19 (1st Cir. 1988). In such circumstances, Baghdady argues,

Tiller should not be permitted to upset the judgment under Rule
60(b)(3). See Ojeda-Toro, 853 F.3d at 29 ("[A] party may not

prevail on a Rule 60(b)(3) motion on the basis of fraud where he or

she . . . has knowledge of inaccuracies in an opponent's

representations at the time of the alleged misconduct.").

We need not decide whether Tiller forfeited her fraud

claim because it is clear that she does not qualify for relief

under Rule 60(b)(3). As noted, in order to prevail under that
provision, Tiller was required to establish fraud6 by clear and

convincing evidence. She has not met that burden.

Tiller's motion relied on the reports of two handwriting
experts, both of whom examined the Haddad Power of Attorney and the

1977 letter. The first expert, Pauline Patchis, completed her

6
Although we have not had cause to delineate the precise
boundaries of the term "fraud" in Rule 60(b)(3), we have observed
that it need not rise to the level of "fraud upon the court," as
required to maintain an independent action under the savings clause
of Rule 60(b), see Fed. R. Civ. P. 60(b) ("This rule does not limit
the power of a court to . . . set aside a judgment for fraud upon
the court."). Reintjes Co., Inc. v. Riley Stoker Corp., 71 F.3d
44, 48-49 (1st Cir. 1995) (concluding that allegations of "ordinary
fraud" such as perjury may be raised in a timely-filed motion for
relief under Rule 60(b)(3), but are insufficient to support an
independent action for fraud on the court). It seems clear -- and
Baghdady does not argue to the contrary -- that intentionally
presenting forged documents would constitute "fraud" within the
meaning of Rule 60(b)(3).

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report in January 2000, shortly after the conclusion of the trial.

Patchis evaluated Haddad's signatures on copies of the two

challenged documents, comparing them to a copy of Haddad's
signature on her passport, dated June 1992. Based on that

examination, Patchis offered her "preliminary" opinion that the two

Haddad signatures "were not, in all probability, authored by the
'known' writer" of the signature on the 1992 passport. "In order

to be more conclusive," however, she stressed the need for original

documents, "along with additional 'known' signatures attributed to

Violette Haddad, preferable [sic] in the 1970 time frame."

The second expert, Charles Shure, issued his report eight

months later. Shure was asked to examine the signatures of both

Haddad and Tiller on the Haddad Power of Attorney and the 1977
letter. He, too, based his evaluation on copies of the women's

signatures. With respect to the 1977 letter, Shure offered his

"professional opinion,[7] subject to applicable limitations imposed
by copy viewing plus the number and date of available [signatures

for comparison], that it is:

1. Probable that the questioned 'Violette
Haddad' signature was written by another
person.
2. At least more likely than not that the
questioned signature 'Georgette Tiller' was
written by another person."

7
Shure inserted an asterisk before the word "opinion" each
time it appeared on his report. It is unclear, however, what those
notations were intended to mean.

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Shure's opinion was the same for the Haddad Power of Attorney,

except that he concluded that it was only "[m]ore likely than not"

that Haddad's signature had been forged on that document.
Shure "reserve[d] the right to re-evaluate any or all of

the above opinion components pending [an] examination of additional

and/or better (up to including original) evidence should such
become available to [him]." He added that "[i]mplementation of

this procedure, if possible, is particularly recommended for the

questioned document[s]."

As they stand, the expert reports do not establish clear

and convincing evidence of forgery. Both experts expressed only a

preliminary opinion that it was "probable" that the signatures on

the Haddad Power of Attorney and the 1977 letter were forged. Both
made clear that they could not render conclusive findings on the

materials Tiller provided them. Both requested access to the

original documents, and stressed the need for original signatures
-- or at least more copies -- to use as samples. Patchis made that

request in January 2000. Tiller ignored it. Instead, purportedly

"to remove doubt before expending the time of the lower court,"

Tiller consulted Shure to obtain a second opinion. Yet, despite

having been advised by Patchis of the need for originals, or at

least copies from the same time frame as the signatures under

review, Tiller failed to give Shure even an original of her own

signature. Nor does it appear that she provided him with samples

of a sufficient "number," or from an ideal "date," despite the fact

that her own signature can be found more than fifty times in the

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exhibits the parties submitted at trial -- including on several

checks from the 1970s.

Moreover, the experts' tentative conclusions are flatly
contradicted by the testimony of Tiller's own witness. At trial,

Haddad stated unequivocally that the signature on the Power of

Attorney and the 1977 letter was hers. In an effort to avoid the
weight of that testimony, Tiller argues that Haddad meant only that

her name had been written on both documents, not that she had in

fact signed them. However, Haddad's testimony makes clear that she

understands the difference between a name and a signature. During

cross-examination, defense counsel asked Haddad whether her

signature appeared on the 1977 letter. Haddad answered, "[t]hat is

my signature, yes." Defense counsel then asked, "[a]nd is that
your sister, Georgette's, signature?" Haddad answered, "I don't

know. You will ask her. . . . I don't know it is her signature."

Perhaps recognizing that her own showing is insufficient
to merit relief under Rule 60(b)(3), Tiller argues that we should

presume fraud because Baghdady did not hire handwriting experts to

refute the charge of forgery, and because neither he nor Cooper

(who notarized the Haddad Power of Attorney) submitted an affidavit

stating that the disputed signatures were authentic. That argument

ignores that Tiller, not Baghdady, bears the burden of proof of

proving fraud. In light of the inconclusive nature of Tiller's

expert reports, it is hardly surprising that Baghdady opted to

forego the expense of retaining his own handwriting expert. Nor

was he under any obligation to buttress his opposition with

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affidavits. Both Baghdady and Cooper denied the charges of fraud

at trial, under oath.

Given our conclusion that Tiller failed to prove fraud by
clear and convincing evidence, we need not consider whether the

alleged wrong "substantially interfered" with her ability to

prepare for and proceed at trial. Anderson, 862 F.2d at 926. We
hold that the district court did not abuse its discretion in

denying Tiller's Rule 60(b)(3) motion.

III.

Tiller argues that the district court abused its
discretion in refusing to reconsider its judgment in light of our

decision in Tiller I. The district court denied Tiller's Rule
60(b) motion on March 19, 2001. We decided Tiller I three days

later. On April 20, 2001, Tiller moved the district court to

reconsider its denial of her Rule 60(b) motion, invoking our
opinion in Tiller I as an additional ground for relief.8 The
district court rejected that motion as well, again by margin order.

Requests for reconsideration are committed to the sound
discretion of the district court. "An appellate court ought not to
overturn a trial court's denial of a motion for reconsideration

unless a miscarriage of justice is in prospect or the record
otherwise reveals a manifest abuse of discretion." Ruiz Rivera v.

8
The motion to reconsider made no mention of Fed. R. Civ. P.
60(b)(6) (authorizing relief from judgment for any reason not
listed in subsections (1) through (5)), and we reject Tiller's
suggestion that we should treat it as a motion under that
provision.

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Riley, 209 F.3d 24, 27 (1st Cir. 2000). We find no abuse here,

manifest or otherwise. As we explained above, Tiller was not

entitled to relief under Rule 60(b)(3) because she failed to
establish fraud by clear and convincing evidence. Nothing in

Tiller I suggests otherwise.

Affirmed.

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