United States Court of Appeals, Eleventh Circuit.
No. 02-10015-CC.
March 13, 2002.
Appeal from the Denial of Motion to Set Aside Judgment Pursuant to Rule 60(B)(3) from the United States District Court for the Northern District of Florida, Tallahassee Division
Reply Brief of Appellant - Malbiz Music, Inc. Janet M. Conway, Esq., Utah State Bar No. 7488, 817 Park Avenue, P.O. Box 1902, Park City, Utah 84060, (435) 901-8071.
Stephen T. Hard, Esq., Utah State Bar No. 1357, 7889 S. Prospector Dr., Salt Lake City, Utah 84121, (801) 918-2800, Attorneys for Appellant, Malbiz Music, Inc.
The critical issues to be determined by this Court are whether Defendants committed fraud during trial through perjury by the adverse party, Armen
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1) Boladian materially altered the March 4, 1982 by cutting and pasting transfer language into the contract, to convert the agreement from a security agreement to a copyright transfer agreement. Boladian further altered this Agreement by adding three additional songs for which copyrights were to be transferred;
2) Boladian materially altered the December 2, 1983 Addendum by cutting and pasting property description language in the Transfer of Copyright, to effectively transfer all copyrights previously owned by Malbiz, whether or not they were written in whole or in part by Mr. Clinton, as well as adding 49 additional valuable copyrights to be transferred (clearly exceeding the description of property to be transferred in the Addendum).
3) Boladian fraudulently obtained a notarization upon the materially altered Agreement, and further altered the Agreement to remove qualifying language placed on the Agreement by the notary public, to overcome initial Copyright Office rejection;
4) Defendants intended the Agreement and Addendum to be one contract, which effectively signed away all of the economic fruits of Mr. Clinton's creativity, for no consideration, as evidenced by Defendants' Copyright Office filing;
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originally attempted to convey itself. It is no stretch of any imagination to conclude that Boladian took an original genuine contract signed by Mr. Clinton, and created the Addendum introduced at trial through "cutting and pasting," since there is undisputed evidence that he, in fact, admitted to doing so to the original March 4, 1982 Agreement. How or why the altering came to be is not relevant. The only relevant fact is that is was materially altered.
Defendants attempt to argue that because there was no apparent alteration to the Addendum, this Court should disregard both the obvious fraudulent and undenied alterations to the underlying agreement, as well as the obvious fraudulent and undenied alterations to the Exhibits annexed to the Addendum. Defendants thoroughly and completely disregard the black letter law for contract interpretation, as well as the long-standing material alteration doctrine.
Defendants also completely ignore the controlling case authority which requires the setting aside of a judgment pursuant to Rule 60(b)(3), when an adverse party committed fraud in obtaining the judgment. Fraud, for purposes of Rule 60(b)(3) has been defined as perjury by the adverse party. Defendants thoroughly ignore responding to the evidence of fraud presented by Malbiz in its primary brief that Boladian lied, that Defendants concealed their fraudulent activity, and that Joseph P. Della Maria, Jr. remained silent as his clients did so. Defendants imply that the fraud is not relevant, and merely seek to persuade this Court of the correctness of the verdict by only bullet-pointing the evidence that was favorable to the defense.
The evidence presented by Defendants' witnesses, Howard Hertz and Ruth Holmes, is not relevant in determining whether Armen Boladian committed perjury ormaterially altered the critical contracts. At trial on January 29, 2001, Defendants presented three witnesses: Armen Boladian, Howard Hertz, and Ruth Holmes. Malbiz' brief focused solely on the actions and testimony of the adverse party, Armen Boladian, and his attorney, Joseph P. Della Maria, Jr. Because of Malbiz' narrow focus on misconduct by the adverse party (and his attorney, Joseph P. Della Maria, Jr.), Defendants assert that Malbiz was not candid in its brief because it did not discuss the testimony of Howard Hertz or Ruth Holmes.
Malbiz did not discuss their testimony because the issue is not whether the trial court would have ruled differently had it known of the perjury and fraudulent concealment. Thus, whether there was evidence supporting the trial court's judgment is not relevant. Malbiz correctly focused strictly on its evidence of fraud by the adverse party (perjury and material alteration by Armen Boladian), and ethical violations by Boladian's attorney, Joseph P. Della Maria, all of which greatly affected the integrity of the proceeding.