Virgo v. Riviera Beach Associates, Ltd.

• Decision Date: 01 September 1994
• Docket Number: No. 93-4032,93-4032
• Citation: 30 F.3d 1350
• Parties: 65 Fair Empl.Prac.Cas. (BNA) 1317, 29 Fed.R.Serv.3d 1557 Amy Lytton VIRGO, Plaintiff-Appellee. v. RIVIERA BEACH ASSOCIATES, LTD., d/b/a Sheraton Ocean Inn, L.H. Hardaway, Jr., Main Street Properties, Inc., Defendants-Appellants, Imperial Associates, Inc., et al., Defendants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1350

30 F.3d 1350

65 Fair Empl.Prac.Cas. (BNA) 1317, 29

Fed.R.Serv.3d 1557

Amy Lytton VIRGO, Plaintiff-Appellee. v. RIVIERA BEACH ASSOCIATES, LTD., d/b/a Sheraton Ocean Inn L.H. Hardaway, Jr., Main Street Properties, Inc. Defendants-Appellants Imperial Associates, Inc., et al., Defendants.

No. 93-4032.

United States Court of Appeals Eleventh Circuit.

Sept. 1, 1994.

Melissa A. Tenenbaum, Kurt R. Klaus, Jr., Miami, FL, for appellants.

Joseph L. Mannikko, Frasier & Mannikko, Stuart, FL, for appellee.

Jennifer S. Goldstein, EEOC, Washington, DC, for amicus--EEOC.

Appeal from the United States District Court for the Southern District of Florida.

Before COX and CARNES, Circuit Judges, and WOOD ^*, Senior Circuit Judge.

HARLINGTON WOOD, Senior Circuit Judge:

In 1985, L.H. Hardaway, Jr. and Imperial Associates, Inc. became limited partners in Riviera Beach Associates, Inc. ("Riviera Beach"), a partnership specifically formed to own the Sheraton Ocean Inn located on the east coast of Florida, north of Miami. Riviera Beach contracted with Sterling Group, Inc. to manage the hotel. Hugh Jones and Jerry Markert, the president and vice-president of Sterling Group respectively, were the two individuals primarily involved in managing the hotel.

In June 1986, Plaintiff Amy Virgo began working as a sales representative at the Sheraton Ocean Inn where she quickly moved up the corporate ladder. Markert promoted Virgo to assistant sales manager in July 1986, assistant general manager on August 13, 1986, and to acting general manager on August 30, 1986. In September 1986, Jones advanced Virgo to the position of general manager.

Over the course of Virgo's employment at the Inn, she was sexually harassed by Jones. The evidence and testimony introduced at trial described a pattern of conduct in which Jones touched her sexually without her permission, and also told her she would have to engage in sexual intercourse with him or else he would write disparaging reviews concerning her job performance. Virgo succumbed to the pressure and subsequently engaged in sexual intercourse with Jones on four different occasions. Eventually, in March 1987, Virgo voluntarily resigned on account of Jones' sexual harassment. On May 7, 1987, Virgo filed a charge of discrimination with the Equal Employment Opportunity Commission and the Florida Commission on Human Rights. The EEOC issued Virgo a Notice of Right to Sue on January 10, 1990.

I. Procedural Background

Plaintiff Amy Virgo sued Defendants Riviera Beach Associates, Ltd., d/b/a Sheraton Ocean Inn, L.H. Hardaway, Jr., Main Street Properties, Inc. ("Main Street"), ¹ Sterling Group, and Hugh Jones ² based on Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq. and added several pendant state law claims. Virgo's complaint consists of four counts. Count I names all defendants and alleges quid pro quo sexual harassment and constructive discharge in violation of Title VII. Count II alleges that Riviera Beach and its partners, L.H. Hardaway, Jr. and Main Street Properties, are liable for negligently retaining and supervising Sterling Group. Counts III and IV respectively allege the torts of invasion of privacy and battery only against Sterling Group. After counsel for Sterling Group, Inc. failed to appear in court, the district court entered a default judgment on counts II, III, and IV, of the complaint against that corporation on April 28, 1992 with damages to be determined at trial.

Only Riviera Beach appeared as a defendant at trial. The parties tried the Title VII count to the bench and the three common law tort claims simultaneously to a jury. After Virgo presented her case-in-chief, the district court entered judgment as a matter of law in favor of Riviera Beach on count II. At the conclusion of trial, the jury returned a verdict against Sterling Group on counts III and IV, and awarded $1,081,605.00 in damages. The district court held in favor of Virgo on count I.

On November 17, 1992, the district court issued a memorandum opinion entitled "Order and Memorandum Opinion As To Count I For Title VII Employment Discrimination" and awarded Virgo damages in the amount of $173,460.00 in back pay, $247,210.00 in front pay, for an aggregate amount of $420,670.00 in damages, and awarded reasonable attorney's fees under 42 U.S.C. Sec. 2000e-5(k). Included in the memorandum opinion the district court stated, "At the close of all the evidence, the jury returned a verdict in Virgo's favor against Sterling Group, Inc. in the amount of $1,081,605.00 on Counts II, III and IV." We assume that the court meant to refer only to counts III and IV because Sterling Group was not named as a defendant in count II for negligent retention.

On November 19, 1992, the district court entered judgment on count I of the complaint in favor of Virgo and on count II in favor of Riviera Beach, but made no mention of the jury's verdict against Sterling Group on counts III and IV.

Under Fed.R.Civ.P. 59, Appellants filed a motion for new trial on December 4, 1992 and a supplemental motion for new trial on December 7. After the district court denied these motions on December 9 and 15 respectively, the Appellants filed their notice of appeal on December 31, 1992 purporting to appeal from the November 19 judgment.

Because the district court had not entered judgment against Sterling Group on counts III and IV, on February 26, 1993 and March 15, 1993 Virgo filed motions requesting the court to do so. The court did not respond to these motions, so plaintiff, on April 12, 1993, filed a motion requesting the court to enter final judgment or to clarify the November 19 judgment regarding the jury's verdict in favor of Virgo. The district court granted this motion on May 7, 1993, and entered judgment against the defendants in favor of Virgo on counts III and IV, in the amount of $1,081,605. Because the plaintiff's complaint does not contain a claim against Riviera Beach on counts III and IV, the parties submitted an agreed motion to strike any reference to Riviera Beach regarding these counts from the amended judgment. The district judge granted this motion and issued a second amended judgment on July 20, 1993. Defendants did not file a new notice of appeal after the district court entered either of the amended final judgments.

II. Appellate Jurisdiction

Before addressing the substantive issues presented by this appeal, we must first decide whether we have jurisdiction to do so. Jurisdiction in this court is premised on 28 U.S.C. Sec. 1291. The complicated procedural history of this case presents us with a difficult jurisdictional question. For appellate jurisdiction under Sec. 1291 to be invoked the appeal must be from a final judgment and "the requirements for an effective judgment generally must be satisfied." Bankers Trust Co. v. Mallis, 435 U.S. 381, 384, 98 S.Ct. 1117, 1119, 55 L.Ed.2d 357 (1978).

A. Timeliness of Notice of Appeal

Federal Rule of Appellate Procedure 4(a)(1) gives the parties thirty days in which to file a notice of appeal after entry of the judgment or order. ³ Virgo asserts that Riviera Beach has not complied with this rule and argues that we should dismiss this appeal.

On December 31, 1992, Riviera Beach filed its notice of appeal from the November 19 "Final Judgment." Assuming that the November 19 judgment is final and appealable, Virgo argues that Riviera Beach did not file a timely notice of appeal because more than thirty days elapsed between November 19 and December 31. However, under App.R. 4(a)(4), where a party files a "timely motion [for a new trial], the time for appeal for all parties runs from the entry of the order disposing of the last such motion outstanding." The question we must resolve is whether the defendants filed a timely motion for new trial thus tolling the permissible time for appeal.

Federal Rule of Civil Procedure 59(b) requires a motion for a new trial to be served no later than ten days after the entry of the judgment. See Great American Ins. Co. v. Rush, 670 F.2d 995, 996 (11th Cir.1982). Under Federal Rule of Civil Procedure 6(a) "[w]hen the period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation."

Calculating the number of days that elapsed between November 19, and December 4, 1992, we determine that Riviera Beach's notice of appeal was timely served. In 1992 four Saturdays and Sundays (November 21, 22, 28, and 29) and one legal holiday (November 26) fell between the pertinent dates. After these dates are subtracted from the computation under rule 6, exactly ten days elapsed between the date the court entered judgment on counts I and II, and the date of service of the motion for new trial. Therefore, the time for beginning the appeals period was tolled under App. Rule 4(a)(4) until December 15, 1992, the date the district court disposed of the motion for new trial. Therefore the December 31, 1992, notice of appeal was filed within the thirty-day statutory period. This analysis assumes the November 19, 1992, order was a final and appealable order, but it was not. The December 31, 1992 notice of appeal, though timely filed, was ineffective to give us jurisdiction as that judgment did not dispose of the entire case.

Litigants may appeal from a district court's order only if it is final or otherwise permitted by the Federal Rules of Civil Procedure. See Fed.R.Civ.P. 54. A judgment is final if it disposes of all of the claims with regard to all of the parties. There appears to be a final appealable order in November 1992. On November 17 the district court issued a memorandum opinion in which it rendered judgment in favor of Virgo on count I, noted that count II had previously been decided in favor of Riviera Beach, and noted that the jury had assessed damages against Sterling on counts II, III, and IV. In sum, all of the claims had been decided as...