Century Laminating, Ltd. v. Montgomery, 77-1541

• Decision Date: 02 April 1979
• Docket Number: No. 77-1541,77-1541
• Parties: CENTURY LAMINATING, LTD., Plaintiff-Appellee, v. Steven H. MONTGOMERY, individually and d/b/a Laminating Company of Colorado, and d/b/a American Laminating Company, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 563

595 F.2d 563

CENTURY LAMINATING, LTD., Plaintiff-Appellee, v. Steven H. MONTGOMERY, individually and d/b/a Laminating

Company of Colorado, and d/b/a American Laminating

Company, Defendant-Appellant.

No. 77-1541.

United States Court of Appeals,

Tenth Circuit.

April 2, 1979.

Gregory G. Vernon, Richard B. Sartore, Wesley W. Hoyt and William J. Graveley of Vernon, Sartore & Hoyt, Denver, Colo., submitted on briefs for defendant- appellant.

William J. Lock of Robinson, Stevens & Wainwright, Albuquerque, N. M., for plaintiff-appellee.

Before SETH and BREITENSTEIN, Circuit Judges, and STANLEY, Senior District Judge ^*.

STANLEY, Senior District Judge.

On May 11, 1977, judgment was entered on a verdict in favor of the plaintiff-appellee (Century). On May 19, the defendant-appellant (Montgomery) filed a motion for judgment notwithstanding the verdict. Century, on the same date, filed a motion to enjoin the violation by Montgomery of the agreement which was the fountainhead of the litigation. On June 10, Montgomery filed a notice of appeal, ". . . from the final judgment entered on the 11th day of May, 1977." On June 10, when the notice of appeal was filed, Montgomery's motion for judgment n. o. v. and Century's motion for an injunction were pending in the district court. Montgomery's motion for judgment n. o. v. was denied June 19, 1977 and Century's motion for an injunction was granted August 9. On September 7, Montgomery filed a motion for stay of the injunction pending appeal, which was denied November 9. No appeal was taken from any of the orders of the district court made after the entry of judgment on May 11.

Century's motion to dismiss the appeal as untimely was denied by us ". . . with leave to renew the motion at the time of oral argument, the jurisdictional question to be considered with the other issues raised on appeal." The motion was renewed at the time of oral argument and the jurisdictional question must be answered before we may proceed to consideration of the other issues, for, as Judge Murrah once said, ". . . if the appeal is untimely, jurisdiction is lacking and that ends the matter." Director of Revenue, State of Colorado v. United States, 392 F.2d 307 (10th Cir. 1968).

United States Courts of Appeal have only such jurisdiction as Congress specifically has given them and the grant of appellate jurisdiction, with exceptions not here pertinent, is limited to appeals from final decisions of those courts. 28 U.S.C. § 1291; United States v. Nixon, 418 U.S. 683, 690, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974).

A final decision is defined as ". . . one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911; Kappelmann v. Delta Airlines, Inc., 176 U.S.App.D.C. 163, 165, 539 F.2d 165 (1976), Cert. denied, 429 U.S. 1061 97 S.Ct. 784, 50 L.Ed.2d 776; Dunlop v. Ledet's Foodliner of Larose, Inc., 509 F.2d 1387 (5th Cir. 1975); Donovan v. Hayden, Stone, Inc., 434 F.2d 619 (6th Cir. 1970). The rule requiring finality of a judgment or order as a prerequisite to appeal is dependent upon statute. 28 U.S.C. § 1291. Any exceptions must be made by Congress, not by the courts, although to the courts falls the responsibility of deciding whether a judgment or order is final and therefore appealable. It is our duty to resolve that question. United States v. Grand Jury, 425 F.2d 327 (5th Cir. 1970); Levin v. Baum, 513 F.2d 92 (7th Cir. 1975).

This is not such a case as Morris v. Uhl & Lopez Engineers, Inc., 442 F.2d 1247 (10th Cir. 1971). That case involved multiple claims and multiple parties. Morris, while an employee of one Gottlieb, was injured by the fall of a utility pole which, as a result of decay, broke off at its base. The pole was federally owned and was located on land owned by the United States. It had been inspected and tested by Uhl & Lopez. Morris sued the United States under the Federal Tort Claims Act and Uhl & Lopez for negligence. The United States settled with Morris, cross-claimed against Uhl & Lopez for indemnity and impleaded Gottlieb as a third-party defendant. Morris' claim against Uhl & Lopez was separately tried and the trial court found Morris guilty of contributory negligence and dismissed his claim. Morris filed a notice of appeal before the cross-claim and the third-party complaint had been disposed of. No order had been entered under Rule 54(b), Fed.R.Civ.P., making the judgment against Morris separately final. This court entered an order authorizing the trial court to entertain a motion giving the Morris judgment separable finality and expressly retaining "jurisdiction of the cause for all other purposes". The trial court then dismissed the indemnity claims and Morris proceeded on appeal without filing another notice of appeal "in reliance upon the order of this Court retaining jurisdiction". 442 F.2d at p. 1250.

In denying the motion of Uhl & Lopez to dismiss the appeal as premature we said,

In our view, the notice of appeal had capacity in the circumstances to provide jurisdictional basis that we would entitle this Court to refuse, as it did, to make dismissal of the appeal out-of-hand and to allow the notice to ripen into full effectiveness as to the rendered judgment, Since it seemed apparent that the judgment would remain unchanged in its form and content ; that its lack of technical form finality would become dispelled in natural course and within a not undue period of time; and that no prejudice could result to any one from so dealing with the notice. (442 F.2d at p. 1250) (Emphasis supplied.)

In Uhl & Lopez the appealed judgment was entered on the principal claim, a claim separable from the still unresolved claims among the interpleaded parties. All that remained for disposition were the indemnity claims and this was the situation when the notice of appeal was filed. The judgment appealed from lacked finality only because of the failure of the trial court to comply with the formalities of Rule 54(b) and this court expressed the belief that no disposition of the indemnity claims would alter the form and content of the judgment appealed from. In the case at bar, on the date that Montgomery filed his notice of appeal, his motion for judgment n. o. v. was pending the disposition of which clearly could have changed the form and content of the judgment.

Rule 4(a), Fed.R.App.P., requires that in a civil case the notice of appeal must be filed within thirty days from the date of the judgment or order appealed from. The rule specifically provides that the running of the time for filing a notice of appeal is terminated by the timely filing of a motion for judgment n. o. v. ". . . and the full time for appeal fixed by this subdivision commences to run and is to be computed from the entry of (an order) granting or denying a motion for judgment under Rule 50(b)." The requirement of Rule 4, Fed.R.App.P., is mandatory and jurisdictional. Gooch v. Skelly Oil Co., 493 F.2d 366 (10th Cir. 1974), Cert. denied, 419 U.S. 997, 95 S.Ct. 311, 42 L.Ed.2d 270. And see United States v. Robinson, 361 U.S. 220, 228, 80 S.Ct. 282, 4 L.Ed.2d 259.

The circuits are not in agreement as to whether the filing of a notice of appeal automatically divests a district court of jurisdiction and transfers jurisdiction to the court of appeals. See e. g., First Nat'l Bank of Salem, Ohio v. Hirsch, 535 F.2d 343 (6th Cir. 1976); United States v. Lafko, 520 F.2d 622 (3d Cir. 1975); and Williams v. Bernhardt Bros. Tugboat Serv., Inc., 357 F.2d 883 (7th Cir. 1966). We have held that a district court retains jurisdiction if the notice of appeal is untimely filed or refers to a non-appealable order. Arthur Andersen & Co. v. Finesilver, 546 F.2d 338 (10th Cir. 1976), Cert. denied, 429 U.S. 1096, 97 S.Ct. 1113, 51 L.Ed.2d 543. And see Hodgson v. Mahoney, 460 F.2d 326 (1st Cir. 1972), Cert. denied, 409 U.S. 1039, 93 S.Ct. 519, 34 L.Ed.2d 488; Ruby v. Secretary of United States Navy, 365 F.2d 385 (9th Cir. 1966), Cert. denied, 386 U.S. 1011, 87 S.Ct. 1358, 18 L.Ed.2d 442.

Where the trial court has power to further review its judgment it cannot be said that the judgment is final as long as it is being considered by the court. Suggs v. Mutual Ben. Health & Acc. Ass'n., 115 F.2d 80 (10th Cir. 1940). An attempt to appeal a non-final decision of a district court remains just that, an attempt. It is a nullity and does not divest the trial court of its jurisdiction. Euziere v. United States, 266 F.2d 88 (10th Cir. 1959), Vacated on other grounds, 364 U.S. 282, 80 S.Ct. 1615, 4 L.Ed.2d 1720. In our view, when one of the motions enumerated in the second paragraph of Rule 4(a), Fed.R.App.P., is timely filed after the entry of judgment in a civil case the judgment does not become final until the motion has been ruled upon by the trial court. A notice of appeal filed while such a motion is still pending in the trial court is prematurely filed and does not transfer jurisdiction to the court of appeals.

In the case of Barnett v. Life Ins. Co. of the Southwest, 562 F.2d 15 (10th Cir. 1977), the defendant had filed a motion for judgment n. o. v. after judgment had been entered and after the plaintiff had filed its notice of appeal. The trial court granted judgment n. o. v. and on appeal the plaintiff urged that the trial court lacked jurisdiction to consider the motion for judgment n. o. v. We said,

It is apparent from the record that the trial court had not (concluded) its consideration of the jury verdict at the time appellant's first notice of appeal was filed. The matter thus was not final, and the notice of appeal filed in an attempt to prevent further consideration of the verdict by the trial court was not effective.

The finality requirement of 28 U.S.C. § 1291 must have been satisfied as of the date a notice of appeal is filed. Biliske v. American Nat'l. Bank & Trust Co. of Shawnee, Nos....