60 F.3d 222 (5th Cir. 1995), 94-60368, United States Leather, Inc. v. H & W Partnership
| Citation | 60 F.3d 222 |
| Party Name | UNITED STATES LEATHER, INC., Plaintiff-Appellee, Cross-Appellant, v. H & W PARTNERSHIP, a Mississippi general partnership, et al., Defendants, Cross-Appellees, H & W Partnership, a Mississippi general partnership and Walter E. Helms, Jr., Defendants-Appellants, Cross-Appellees. |
| Case Date | August 07, 1995 |
| Court | United States Courts of Appeals, U.S. Court of Appeals — Fifth Circuit |
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Roger A. Maness, Jesse M. Stockton, Jr., Marks, Shell, Maness & Marks, Clarksville, TN, for appellant.
Nancy J. Sennett, Foley & Lardner, Milwaukee, WI, Thomas J. Suszek, Halcomb, Dunbar, Connell, Chaffin & Willard, Oxford, MS, for appellee.
Appeals from the United States District Court for the Northern District of Mississippi.
Before WOOD, [*] JOLLY and DeMOSS, Circuit Judges.
HARLINGTON WOOD, Jr., Circuit Judge:
In this diversity action, H & W Partnership and Walter Helms, a general partner, appeal the district court's ruling that the execution of a promissory note in favor of United States Leather by another general partner obligated the partnership. In reconsideration of its earlier grant of judgment as a matter of law in favor of the partnership and Helms, the district court found that Dean Wilkerson, the other general partner, was acting within the scope of the partnership business when he signed a promissory note as a general partner of H & W Partnership. H & W Partnership and Helms appeal, and United States Leather cross-appeals the amount of attorneys' fees allowed by the district court.
I.
Beginning in 1989, Dean Wilkerson [Wilkerson] and Walter Helms [Helms] jointly formed several corporations and one general partnership. All of the businesses were either directly or indirectly involved in the manufacturing of upholstered furniture. Wilkerson and Helms initially formed a holding company, Princeton Industries, Inc., for the purpose of acquiring all of the stock and assets of Pierce-Etheridge Group, Ltd., a manufacturing furniture plant in Booneville, Mississippi. They also formed Artistic of Mississippi, Inc., the purpose of which was to acquire the assets of Artistic Furniture Company of St. Louis. Later that year, Wilkerson and Helms formed DWA of Tennessee, Inc. [DWA]. DWA was organized to purchase some of the assets of Artistic of Mississippi, specifically its furniture manufacturing facility located in Amory, Mississippi. Helms and Wilkerson were the directors, officers, and investors in each of these corporate entities.
Shortly after DWA was formed, Helms and Wilkerson created H & W Partnership [H & W], a general partnership. H & W was formed to purchase the DWA furniture manufacturing facility in Amory, Mississippi and then lease it back to DWA. 1 No written partnership agreement was ever created to memorialize the purpose of the partnership or the respective roles of the two partners.
In October 1990, DWA began purchasing leather from Lackawanna Leather Company [Lackawanna], a division of United States Leather [USL]. By December 1990, DWA
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had purchased over $350,000.00 of leather on an unsecured corporate account, balance of which was due in January 1991. In early 1991, Lackawanna's Chief Financial Officer Robert Link [Link] became involved in arranging a repayment plan. DWA and Lackawanna worked out an agreement whereby DWA would pay Lackawanna $10,000.00 every other week on a timely basis and Lackawanna would continue to ship DWA leather. Link testified that the agreement never really took place because DWA neither bought any more leather from Lackawanna, nor made any payments under the contract.
In May 1991, Link visited the Amory plant in an effort to collect on the balance. DWA reaffirmed that they would begin to pay on the account under the terms of the prior agreement. In June 1991, Lackawanna agreed to ship two orders of leather to DWA on a C.O.D. basis. DWA's checks for those shipments bounced, and by the end of June 1991, the balance due on DWA's account was $438,229.65.
On August 8, 1991, Wilkerson and Howard Bloom, another investor in DWA, met with Link and other representatives at Lackawanna's offices in Conover, North Carolina, to discuss payment of the indebtedness and potential future shipments. At the meeting, Wilkerson and Bloom presented a promissory note in favor of Lackawanna for the principal amount. The note provided for payments beginning on August 16, 1991, and that performance on the note was a condition to any future shipments of leather. During this meeting, Bloom encouraged Link to contact another DWA supplier, Quaker Fabric Corporation [Quaker], because DWA had worked out a similar financing arrangement with them. A few days after the note was signed, Link contacted Quaker and learned that DWA had a similar promissory note with Quaker. The Quaker note, however, required the inclusion of all DWA-related entities as makers to the note, including H & W Partnership.
A few days before the first payment on the note was due, Wilkerson called Link and requested an extension of time. Link, now with the knowledge of the Quaker arrangement, conditioned the extension on making several changes to the note, including the addition of DWA Realty, Pierce-Etheridge, Princeton Industries, and H & W Partnership as makers to the note. The changes were made and Wilkerson signed the note. Approximately at the same time the revised promissory note was executed, Link and Wilkerson signed a security agreement with respect to future shipments of goods by Lackawanna. The security agreement included as "debtors" DWA, DWA Realty, Pierce-Etheridge, Princeton Industries, and H & W Partnership. Both Wilkerson and Helms signed the security agreement. Helms, who had a priority lien on certain assets of DWA, agreed to subordinate his lien in favor of Lackawanna to enable the agreement to be finalized. Helms and his wife signed directly below the H & W Partnership signature line binding H & W as debtors.
Payment was never made on the note and by the end of October 1991, DWA, Pierce-Etheridge, and Princeton Industries went out of business. In February 1992, USL filed its complaint seeking to recover on the promissory note executed by Wilkerson. In January 1994, the case proceeded to jury trial and at the conclusion of the evidence, both parties moved for judgment as a matter of law. The district court granted USL's motion with respect to Wilkerson and entered judgment against him in the amount of $438,229.65, plus interest of $193,156.54 for a total judgment of $631,386.19. The district court, however, granted H & W's and Helms' motion based on the finding that Wilkerson's execution of the promissory note on behalf of the partnership went beyond the scope of the partnership business and therefore did not bind H & W or Helms. The court found that the sole purpose of the partnership was to own the real property of DWA in Amory, Mississippi. Judgment was entered on January 27, 1994.
From the date of the judgment, USL had ten days to file post-trial motions. The relevant ten day period would have expired on February 10, 1994. On February 9 and 10, a severe ice storm struck northern Mississippi. Due to the extreme weather conditions, USL was unable to get to the federal courthouse
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in Aberdeen, Mississippi, in order to make a timely filing of its post-trial motions. The day after the storm, USL filed its renewed motion for a judgment as a matter of law or for a new trial pursuant to Fed.R.Civ.P. 50(b) and 59(a). USL also filed a motion to alter or amend the judgment in its favor to include an award of attorneys' fees and expenses under Rule 59(e). The district court accepted and considered the motions.
On April 25, 1994, the district court, in reconsideration of its earlier judgment, granted USL's motion for judgment as a matter of law and awarded attorneys' fees. The court found that the acts of Wilkerson in signing the August 8 note were within the scope of the partnership business because there was a direct relationship between DWA and H & W. The court also awarded attorneys' fees in the amount of $82,653.50, despite USL's request for a total award of $192,994.00. H & W and Helms appeal the district court's judgment and USL cross-appeals the amount of attorneys' fees. Wilkerson does not join in this appeal.
II.
A party has ten days from the entry of judgment in which to file any post-trial motions, including a renewed motion for judgment as a matter of law, a motion for a new trial, and a motion to amend or alter a judgment. Fed.R.Civ.P. 50(b), 59(b) & (e). The requirement that post-trial motions be filed within the relevant ten day period after entry of judgment is jurisdictional, and may not be extended by a waiver of the parties or by a rule of the district court. Vincent v. Consolidated Operating Co., 17 F.3d 782, 785 (5th Cir.1994) (citing Flores v. Procunier, 745 F.2d 338, 339 (5th Cir.1984)). The mover's failure to serve the motion within the ten day limit deprives the district court of jurisdiction to alter or reconsider its earlier judgment. Flores, 745 F.2d at 339. Therefore, we review the rulings on these motions de novo, employing the same standards the district court applied. Wheat v. Pfizer, Inc., 31 F.3d 340, 343 (5th Cir.1994); Omnitech Int'l, Inc. v. Clorox Co., 11 F.3d 1316, 1322-23 (5th Cir.1994); Resolution Trust Corp. v. Cramer, 6 F.3d 1102, 1109 (5th Cir.1993).
Rule 6(a) provides that the last day of the ten day period cannot occur on a day the courthouse is not accessible because of weather or other conditions. In pertinent part, Rule 6(a) states:
(a) Computation. In computing any period of time prescribed or allowed by these rules, ... the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, or, when the act to be...
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