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Marvin Firestone, M.D., J.D. And Associates, a Professional Corporation v. Denard M. Fobbs, M.D.
Citations: 13 F.3d 405; 1993 U.S. App. LEXIS 37576; 1993 WL 525708Docket: 92-1146
Court: Court of Appeals for the Tenth Circuit; December 19, 1993; Federal Appellate Court
Citation of unpublished opinions has become permissible if they hold persuasive value on a material issue, provided a copy is attached to the citing document or supplied to the Court and all parties during oral argument. The case involves Dr. Marvin Firestone and Associates, a professional corporation, suing Dr. Denard M. Fobbs for unpaid legal fees related to administrative proceedings concerning Dr. Fobbs' staff privileges at St. Agnes Medical Center. The case was removed from state to federal court, establishing diversity jurisdiction based on the parties' domiciles and the amount in controversy exceeding $10,000. During the initial jury trial, Dr. Fobbs represented himself after losing his legal counsel. The jury awarded nominal damages of $1.00 to Dr. Firestone, but shortly after the verdict was announced, the jury foreman indicated a mistake in their intent. The district judge subsequently declared a mistrial without objection from either party. Dr. Firestone's motion for post-trial relief to amend the verdict was denied. In the retrial, Dr. Fobbs again represented himself, resulting in a verdict awarding Dr. Firestone $60,475.19. Dr. Fobbs appealed, claiming three errors: the declaration of a mistrial, improper admission and rejection of evidence, and perceived bias from the district court. The appellate court found no merit in these arguments and affirmed the judgment. A party generally cannot raise issues for the first time on appeal unless there is plain error, as established in precedent cases. This rule serves two purposes: it allows the trial court to address specific issues raised in real time, and it prevents parties from remaining passive during trial and later contesting errors on appeal. In this case, Dr. Fobbs did not object to the district court's order granting a mistrial or any preceding events, nor did he object during the retrial. Consequently, he cannot contest the mistrial on appeal, and no plain error was found. Dr. Fobbs did object to certain evidence presented by Dr. Firestone, but the trial court's evidentiary rulings are only reversible if there is a clear abuse of discretion causing prejudice, which was not the case here. Additionally, Dr. Fobbs alleged that the district court exhibited hostility towards him during the second trial, but he failed to object at the trial level. The record does not support claims of judicial misconduct; rather, the judge's disapproval of Dr. Fobbs' pro se representation does not constitute hostility warranting reversal. Dr. Fobbs' self-representation contributed to his challenges, but this does not afford him special treatment on appeal. The judgment was affirmed. Additionally, the order and judgment have no precedential value except for specific legal doctrines. The district judge declared a mistrial due to unauthorized communication between the jury and a deputy clerk, which violated prior instructions and indicated a verdict variance.