In breach of construction contract suit by property/housing development owner and third party subcontractors over defendant's failure to perform the contracted work, trial court properly excluded evidence of two other construction projects involving the same parties, one which ended in litigation because, this proffered other lawsuit evidence was not addressed to any issue of defendant's motive, intent, plan, or knowledge under FRE 404(b), which could make the evidence admissible under the FRE, in Weitz Co. LLC v. MacKenzie House, LLC, __ F.3d __ (8th Cir. Dec. 8, 2011) (No. 10–3713)
Evidence of other suits between contending parties in a civil case occasionally become admissible at trial as other act evidence under FRE 404(b). The probative value of the evidence can play a variety of roles at trial, for instance when a proponent of the evidence cites it as evidence of fraud or fabrication in the case being tried, or that a party has a tendency to be negligent (for example, that a party's prior suits against the other involved the same lateness, or tendency to accident or other negligence) so that it should be precluded from recovery. In essence, the other trial evidence could play a role barred by FRE 404(b) -- it can suggest that it is a matter of the party's practice and mode of operation to be late, sloppy and negligent. This is the type of evidence typically excluded by FRE 404(b) as it allows the fact finder to conclude that the opponent of the evidence had made false charges before and was continuing this pattern in the current litigation.
Recently the Eighth Circuit briefly touched on this issue, in a breach of contract diversity case involving construction of an apartment complex. In the case, Weitz, a general contractor, filed a suit for breach of contract on an apartment construction contract. MacKenzie, the owner of the planned complex, counterclaimed and at trial prevailed in seeking a liquidated damages and costs award from Weitz. The jury verdict determined that the plaintiff Weitz had not substantially complied with its construction contract with MacKenzie, so that the complex owner was entitled to damages. Weitz appealed, contending that the trial court erred under FRE 404(b) by excluding Weitz's evidence that there had been "two other construction projects—one ending in litigation—involving the [same] parties." Weitz, __ F.3d at __ (footnote omitted).
The Eighth Circuit affirmed the exclusion of the other projects evidence. The circuit noted that the plaintiff did not properly show a link between the parties in the case in dispute and the prior two cases. But even if one assumed there was a relationship, still the evidence would be excluded under FRE 404(b). It was essentially prior or other act evidence offered "to prove the character ... in order to show conformity therewith.” FRE 404(b). The circuit briefly set out why Weitz did not have a leg to stand on in asserting that exclusion of the other suit evidence had been an error. According to the Circuit:
“[P]rior acts include prior lawsuits.” Evidence of prior or other acts “may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Fed.R.Evid. 404(b). This type of evidence is admitted only when one of these legitimate purposes is at issue in the case.Weitz, __ F.3d at __ (citing Batiste–Davis v. Lincare, Inc., 526 F.3d 377, 380 (8th Cir. 2008); King v. Ahrens, 16 F.3d 265, 268 (8th Cir./1994); Donald v. Rast, 927 F.2d 379, 381 (8th Cir. 1991)).
As the essential issue before the jury trial had been to determine:
[O]nly claims ... for breach of contract. The issue at trial was whether the parties complied with the contract. Proving a breach here does not put motive, intent, plan, or knowledge at issue. Weitz argues that MH Metropolitan “opened the door” to the evidence, but points to no instance where [defendant MacKenzie-] MH Metropolitan focused on the other projects. In addition, the district court instructed the jury not to speculate about the previous projects and to decide the case solely on the law and the evidence in this trial. In light of the instruction, the few instances where [defendant MacKenzie-] MH Metropolitan alluded to another project do not affect Weitz's substantial rights. The district court properly exercised its discretion in excluding the evidence of other projects."Weitz, __ F.3d at __ (citing Unit Drilling Co. v. Enron Oil & Gas Co., 108 F.3d 1186, 1194 (10th Cir. 1997)).
In reaching this conclusion, the Eighth Circuit relied on an earlier case that noted the circuit split in this area, which it identified in Batiste-Davis v. Lincare, Inc, 526 F.3d 377 (8th Cir. May 19, 2008):
Before trial, the district court ruled that evidence of the earlier lawsuit was admissible to show Davis's motive in filing this case. Lincare adds that evidence of the prior suit has a bearing on Davis's credibility, state of mind with respect to the current litigation, and pattern or plan of asserting false claims.Weitz, __ F.3d at __ . A previous blog evaluated the Eighth Circuit's disposition of Baptiste-Davis in a similar manner Previous Civil Suits As FRE 404(b) Other Act Evidence.
Other courts generally do not admit evidence of prior suits unless they were fraudulently filed. See McDonough v. City of Quincy, 452 F.3d 8, 20 (1st Cir. 2006) citing Outley v. City of New York, 837 F.2d 587, 592 (2d Cir. 1988); see also Mathis v. Phillips Chevrolet, Inc., 269 F.3d 771, 776-77 (7th Cir. 2001). Evidence of a prior lawsuit may be admitted on a case-by-case basis if it meets the four requirements of this circuit's test. See Duckworth v. Ford, 83 F.3d 999, 1002 (8th Cir. 1996). Davis's prior suit was relevant, similar, and probably close enough in time. See Gastineau v. Fleet Mortgage Corp., 137 F.3d 490, 495-96 (7th Cir.1998) (three suits against former employers filed within five years of current case were sufficiently close in time to be admitted as proof of reason why supervisor kept notes about plaintiff's work, rather than proof of plaintiff's litigiousness).
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