A. O. Smith Corp. v. Sims Consol. Ltd., 80-2082

Decision Date16 April 1981
Docket NumberNo. 80-2082,80-2082
PartiesA. O. SMITH CORPORATION, a New York corporation, Plaintiff-Appellant, v. SIMS CONSOLIDATED LIMITED, also doing business as Sims Products Proprietary, Ltd., an Australian corporation; and Irrigation and Power Equipment, Inc., a Colorado corporation, Defendants- Appellees.
CourtU.S. Court of Appeals — Tenth Circuit

Arthur R. Karstaedt III, Denver, Colo., James N. Johnson, Milwaukee, Wis., and

Irvin M. Kent, Denver, Colo., of counsel, for plaintiff-appellant.

W. David Pantle of Sherman & Howard, Denver, Colo., for defendant-appellee Sims Consolidated Limited.

William C. McClearn and Hugh Q. Gottschalk of Holland & Hart, Denver, Colo., for defendant-appellee Irrigation and Power Equipment, Inc.

Before BARRETT, McKAY and LOGAN, Circuit Judges.

PER CURIAM.

After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R.App.P. 34(a); Tenth Circuit R. 10(e). The cause is therefore ordered submitted without oral argument.

Appellant, A. O. Smith Corporation (Smith), instituted an action under Fed.R.Civ.P. 60(b) to set aside the district court's prior judgment in Civil Action C-3632. Appellee Sims Consolidated Limited (Sims) moved for summary judgment. Appellee Irrigation and Power Equipment, Inc. (IPE) answered and counterclaimed, alleging malicious prosecution and abuse of process. Smith then moved for summary judgment on its own complaint and on the counterclaim filed by IPE. On September 10, 1980, the district court entered an order granting both Sims' motion for summary judgment as to Smith's Rule 60(b) motion and Smith's motion for summary judgment as to IPE's abuse of process counterclaim, but denying Smith's motion for summary judgment as to IPE's malicious prosecution counterclaim. As required by the district court, IPE timely filed a notice of intent to proceed on the malicious prosecution count. On October 10, 1980, Smith filed a notice of appeal as to that portion of the order dismissing his complaint.

On November 7, 1980, the Tenth Circuit advised the parties that it was considering whether to dismiss the appeal for lack of appellate jurisdiction and requested that the parties file briefs on this issue. Smith then requested that the appeal be held in abeyance pending district court consideration of Smith's request for Rule 54(b) certification. On February 5, 1981, Smith filed a "Supplemental Statement Re: Jurisdiction" and attached an order of the district court dated January 27, 1981, certifying its orders of September 10, 1980, for appeal pursuant to Rule 54(b).

This appeal, like many others recently filed in this court, demonstrates a misunderstanding of the jurisdictional requirements for an appeal to this court. Therefore, we take this opportunity to clarify this aspect of the appellate process.

Subject to exceptions not pertinent here, the appellate jurisdiction of this court is limited to review of final judgments of the district courts. See United States v. Nixon, 418 U.S. 683, 690-92, 94 S.Ct. 3090, 3098, 41 L.Ed.2d 1039 (1974); 28 U.S.C. § 1291. In this case, whether the district court's order constitutes a final judgment must be determined by reference to Rule 54(b), which provides:

When more than one claim for relief is presented in an action, whether as a claim, counter-claim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all of the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

(Emphasis added.) This case involves multiple claims, and the order from which Smith appeals resolved fewer than all of these claims. The district court, however, made no express Rule 54(b) certification in its September 10, 1980 order. Therefore, under Rule 54(b), that order was not yet final and thus not immediately appealable.

This being so, the next question is whether the Rule 54(b) certification that Smith obtained from the district court on January 27, 1981, cured Smith's otherwise defective appeal, or whether instead that certification merged with the September 10, 1980 order to become a final judgment, appealable only upon a timely filing of a new notice of appeal within thirty days of the January 27, 1981 certification. Recent amendments to Fed.R.App.P. 4(a) have clarified some pre-existing ambiguities with respect to notices of appeal in civil cases. Generally, a liberal approach is followed, and a notice of appeal filed after announcement of a decision or order but before entry of the judgment or order is treated as timely filed. Id. (a)(2). 1 An exception is provided if there is a timely motion filed in the district court:

(i) for judgment under Rule 50(b) (judgment n. o. v.), (ii) under Rule 52(b) to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted; (iii) under Rule 59 to alter or amend the judgment; or (iv) under Rule 59 for a new trial, the time for appeal for all parties shall run from the entry of the order denying a new trial or granting or denying any other such motion.

Id. (a)(4). 2 In those cases a notice of appeal filed before disposition has no effect and a new notice must be filed within the prescribed time measured from the date of entry of the order disposing of the motion. The reviser's notes indicate a desire for a charitable approach to early filing except in Rule 4(a)(4) cases, in which "it would be undesirable to proceed with the appeal while the district court has before it a motion the granting of which would vacate or alter the judgment appealed from." Notes of the Advisory...

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18 cases
  • McKinney v. Gannett Co., Inc., s. 81-2156
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • 9 Diciembre 1982
    ...v. United States, supra. A jurisdictional defect cannot be cured by means of a rule 54(b) certification. A.O. Smith Corporation v. Sims Consolidated, Ltd., 647 F.2d 118 (10th Cir.1981). Thus, we cannot review the merits at this time. To do so would vitiate a vital purpose of the final judgm......
  • Lewis v. B.F. Goodrich Co.
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • 5 Julio 1988
    ...is whether we have jurisdiction over the appeal. In deciding this issue, we reassess our holding in A.O. Smith Corp. v. Sims Consolidated, Ltd., 647 F.2d 118, 120-21 (10th Cir.1981). The grant of summary judgment here was not an appealable final order because a counterclaim by B.F. Goodrich......
  • Federal Sav. & Loan Ins. Corp. v. Huff, s. 86-1598
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • 5 Julio 1988
    ...ed. 1987). This court expressed a similar view in Lamp v. Andrus, 657 F.2d 1167 (10th Cir.1981), relying on A.O. Smith Corp. v. Sims Consolidated, Ltd., 647 F.2d 118 (10th Cir.1981). In Lamp, we held that an order which did not expressly dismiss contingent defendants was not appealable with......
  • Harrison v. Edison Bros. Apparel Stores, Inc.
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • 21 Febrero 1991
    ...satisfied jurisdictional requirements), cert. denied, 456 U.S. 979, 102 S.Ct. 2249, 72 L.Ed.2d 856 (1982); A.O. Smith Corp. v. Sims Consolidated, Ltd., 647 F.2d 118 (10th Cir.1981). A more lenient view has been taken by the D.C., Third, Fifth, Seventh, Eighth, and Ninth Circuits. These cour......
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