LEVIN v. GARFINKLE, 667 F.2d 381 (3rd Cir. 1981)

LEVIN, BENNETT, APPELLANT, No. 80-2816, v. HOWARD N. GARFINKLE, APPELLANT, No. 80-2817, BARBARA GARFINKLE, ASHER FENSTERHEIM, APPELLANT, No. 80-2818, CYRUS WEST, K. B. WEISSMAN, EDWARD BREGER, APPELLANT, No. 80-2819, NORMAN SEPTIMUS, JACK DEUTSCHMANN, HUCKELBERRY FARM, INC., COUNTRY REALTY, INC., HAW CORPORATION, A SOUTH DAKOTA CORPORATION, TAFU CORPORATION, A SOUTH DAKOTA CORPORATION, AND CZAR REALTY CORP., A SOUTH DAKOTA CORPORATION. LEVIN, BENNETT, APPELLANT, Nos. 81-1134, 81-1135, v. BARBARA GARFINKLE, ADMINISTRATRIX OF THE ESTATE OF HOWARD N. GARFINKLE, BARBARA GARFINKLE, APPELLANT, No. 81-1137, ASHER FENSTERHEIM, APPELLANT, No. 81-1138, CYRUS WEST, K. B. WEISSMAN, EDWARD BREGER, APPELLANT, No. 81-1139. NORMAN SEPTIMUS, JACK DEUTSCHMANN, HUCKELBERRY FARM, INC., COUNTRY REALTY, INC., HAW CORPORATION, A SOUTH DAKOTA CORPORATION, TAFU CORPORATION, A SOUTH DAKOTA CORPORATION, AND CZAR REALTY CORP., A SOUTH DAKOTA CORPORATION. APPEAL OF ASHER FENSTERHEIM IN Nos. 80-2818, 81-1138. APPEAL OF EDWARD BREGER IN Nos. 80-2819, 81-1139.

Nos. 80-2816 to 80-2819, 81-1134, 81-1135 and 81-1137 to 81-1139.United States Court of Appeals, Third Circuit.Argued November 30, 1981.
Decided December 17, 1981.

Patrick T. Ryan (argued), Mark M. Wilcox, Drinker, Biddle
Reath, Philadelphia, Pa., for Bennett Levin.

Jerome J. Shestack (argued), David Smith, Schnader, Harrison, Segal Lewis, Philadelphia, Pa., for Garfinkle, Fensterheim and Breger.

Appeal from the United States District Court for the Eastern District of Pennsylvania.

Before ALDISERT, ROSENN and WEIS, Circuit Judges.

[1] OPINION OF THE COURT
PER CURIAM:

[2] Before the court is a series of appeals brought by Bennett Levin, Howard N. Garfinkle, Asher Fensterheim, and Edward Breger from a judgment of liability in an action brought by Levin to recover for fraud, misrepresentation, and breach of fiduciary and contractual duties. The Honorable Alfred L. Luongo, the trial judge, directed the entry of a final judgment under Fed.R.Civ.P. 54(b). The issue of liability was tried to the court, non jury, over a two week period. The transcribed testimony now fills over 2,000 pages of transcript; the parties submitted some 400 exhibits. On June 11, 1980, Judge Luongo filed a 90 page opinion, finding for Levin on certain claims and against defendants Garfinkle, Breger, and Fensterheim in certain specific amounts. He also found in favor of K.B. Weissman on his counterclaim against Levin. Levin v. Garfinkle, 492 F. Supp. 781

Page 382

(E.D.Pa. 1980). Judge Luongo made 281 findings of fact and announced 27 conclusions of law in his first opinion. See id.
He later held a two-day hearing limited to evidence on the value of a certain wraparound mortgage and announced his decision on this issue with an opinion dated October 16, 1980. 499 F. Supp. 1344 (E.D.Pa. 1980). On the same day he filed an unpublished memorandum in which he amended certain of his original findings and conclusions and declined to amend others. See app. at 70. On December 31, 1980, he filed an opinion in support of his decision to enter judgment under Rule 54(b). App. at 81. We granted extensive oral argument and have considered the contentions presented by the appellant and cross-appellants.

[3] To the extent that the various appellants have challenged the findings of fact, we are persuaded that the findings are not clearly erroneous. Krasnov v. Dinan, 465 F.2d 1298, 1302-03 (3d Cir. 1972). To the extent appellants contest the trial court’s choice, interpretation, or application of legal precepts, we conclude that the court did not err. We adopt the detailed reasoning set forth by Judge Luongo in Levin v. Garfinkle, No. 77-3211 (October 16, 1980), reprinted in app. at 70; 499 F. Supp. 1344; and 492 F. Supp. 781 (E.D.Pa. 1980). [4] The judgment of the district court will be affirmed in all respects.