Stephenson v. Calpine Conifers II, Ltd.

• Citation: 652 F.2d 808
• Decision Date: 27 July 1981
• Docket Number: No. 78-3271,78-3271
• Parties: Fed. Sec. L. Rep. P 98,249 Homer E. STEPHENSON and Freda Lois Stephenson, his wife, Plaintiffs-Appellants, v. CALPINE CONIFERS II, LTD., a Limited Partnership, et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 808

652 F.2d 808

Fed. Sec. L. Rep. P 98,249

Homer E. STEPHENSON and Freda Lois Stephenson, his wife Plaintiffs-Appellants, v. CALPINE CONIFERS II, LTD., a Limited Partnership, et al Defendants-Appellees.

No. 78-3271.

United States Court of Appeals Ninth Circuit.

Submitted Oct. 10, 1980.

Decided July 27, 1981.

James G. Luce, Diemer, Schneider, Faster and Luce, Palo Alto, Cal., for plaintiffs-appellants.

Thomas McInerney, P. Salter II, Haims, MacGowan & McInerney, Oakland, Cal., for defendants-appellees.

Appeal from the United States District Court for the Northern District of California.

Before GOODWIN and PREGERSON, Circuit Judges, and NIELSEN, ^* District Judge.

NIELSEN, District Judge:

I Facts.

This case arises out of Homer and Freda Stephenson's $20,000 investment in a California limited partnership, Calpine Conifers II (hereinafter Calpine II). The Stephensons were told about Calpine II by Ethel Jaquess, an investment counselor. Ms. Jaquess was the individual general partner in Calpine II until her death in April of 1976. Until shortly before she died, Ms. Jaquess was the only representative of Calpine II with whom the Stephensons had any contact.

Calpine II was formed for the purpose of planting and selling Christmas trees. The Stephensons allege that at the time they made their initial $15,000 investment in Calpine II in October of 1975 and again in March of 1976, when they made a $5,000 capital contribution to the partnership, they were misled as to the success of Calpine II's tree planting program. In particular they claim that in October of 1975 Ms. Jaquess represented to them that approximately 80 acres of trees had been successfully planted by Calpine II and that the operation was on schedule. They also point to a February 20, 1976 letter from Ms. Jaquess in which she informed them that while she was seriously ill:

"... my husband Ron is well acquainted with the programs and contractual relations and agreements as well as current progress and future plans .... Additionally, in two more months we will have the services of our son, Garry, for full time coordination and closer supervision of the farming activities." CT 68

Neither the February 20, 1976 letter, nor a February 23 note from Ronald Jaquess requesting the Stephensons' 1976 capital contribution, mentioned any of the difficulties Calpine II was then experiencing.

Those difficulties did come to light in August of 1976 when the Stephensons received a "summary" prepared by Ronald and Garrison Jaquess. Ronald and Garrison had taken over control of Calpine II following Ethel's death and their "summary," in pertinent part, told the limited partners that:

"Delays caused by the farming contractor and the nursery supplying the transplant stock have had a net effect of setting the program back three years.

In 1975, an unexpected water supply problem required the drilling of a well at Calpine Ranch. Carl Welch, acting as an officer of Calpine Development Corp., was to arrange for the well to be dug in early spring. He failed to do so and the well was not completed until late summer. Only forty acres of stock were then planted after having been stored for five to six months. This resulted in a total death loss.

In 1976, Warren Welch had assumed the office of President of Quarter Circle CW Ranch, Inc. and conscienciously worked to bring the program up to date as much as possible. The intention was to plant sixty acres of 2-1 (3' yr. old) stock and forty acres of 2-0 (2 yr. old) stock. This would have provided 100 acres of growing trees as required by the original schedule. Improper preparation, packing, and shipping by the nursery caused a loss of over 50% in the stock received. The order for 2-1 stock was not completely filled because of aphid infestation at the nursery. Therefore, at present only 40 acres of 2-1 stock has been planted of which stock over 50% has died." CT 72.

In September of 1976 the Stephensons visited the Calpine II farm and discovered that no more than 40 acres were planted and that no more than 10% of the trees were still alive.

On October 26, 1976 the Stephensons filed a nine-count complaint in which they alleged that a number of defendants violated § 10 of the 1934 Securities and Exchange Act (15 U.S.C. § 78j), Rule 10b-5 (17 CFR 240.10b-5), §§ 12, 12(2) and 17(a) of the 1933 Securities Act (15 U.S.C. §§ 77l, 77l (2), and 77q), California Corporations Code §§ 15021, 25110, 25401, 25501, and 25503 and California Business and Professions Code §§ 10210 and 10331. The complaint also alleged that the defendants were guilty of common law fraud and were liable to the Stephensons for punitive damages.

Ronald Jaquess, Garrison Jaquess, and Calpine II were named as defendants, as well as Calpine Development Company, Inc. (hereinafter Development), the corporate general partner in Calpine II. ¹

On May 5, 1978 Calpine II, Development, and the Jaquesses moved for summary judgment on all causes of action. On May 26, 1978 those motions were granted in part. As to Calpine II the cause of action demanding an accounting under California Corporations Code § 15021 was dismissed. As to Development the district court left standing only the claim under § 12 of the 1933 Act and the claims for common law fraud and punitive damages; the remainder of the claims against Development were dismissed. With respect to the Jaquesses the entire action was dismissed.

On June 7, 1978 the district court filed orders granting the summary judgments and directing, under Rule 54(b), Fed.R.Civ.P., that judgment in favor of the Jaquesses be entered. On June 9, 1978 the Stephensons moved under Rules 59 and 60 for a new trial and for relief from the June 7 orders. On September 27, 1978 orders denying those motions were filed and on October 10, 1978 the Stephensons filed a notice of appeal in which they sought review of both the summary judgments and the subsequent orders denying relief under Rules 59 and 60.

II Scope of this Appeal.

The defendants have asked that we dismiss the appeal from the June 7, 1978 summary judgments on the grounds that the October 10, 1978 notice of appeal was filed more than 30 days after the judgments were entered and the orders filed. We decline to do so because plaintiffs' June 9, 1978 motions for relief from the summary judgments were proper under Rule 59(e), ² and as such suspended the 30-day limitation period set forth in Rule 4(a), Fed.R.App.P. Our conclusion that a Rule 59 motion is proper in this context is predicated on Mir v. Fosburg, 646 F.2d 342 at 344, (9th Cir. 1980), where this court held that a Rule 59(e) motion is the proper vehicle for seeking reconsideration of an order granting dismissal without leave to amend. We discern no valid distinction, for Rule 59(e) purposes, between an order granting summary judgment and one dismissing a complaint without leave to amend. Both orders are dispositive trial court determinations of law and both should be subject to reconsideration under Rule 59(e). See 6 Moore Federal Practice, p. 56-1549, P 56.26-1 (2nd ed. 1976), Sonnenblick-Goldman Corp. v. Nowalk, 420 F.2d 858, 859 (3rd Cir. 1970).

The fact that plaintiff's motions were not specifically denominated as ones brought under Rule 59(e) does not alter their impact on Rule 4(a). Whittaker v. Whittaker Corp., 639 F.2d 516, 520 (9th Cir. 1981), Mir v. Fosburg, supra, at 1707, Sea Ranch Ass'n v. California Coastal Zone Conservation Comm'n, 537 F.2d 1058, 1061 (9th Cir. 1976). Since the motions were made within 10 days of the summary judgments and could have been brought under Rule 59(e), they suspended the time for appeal until they were denied on September 22, 1978. Whittaker v. Whittaker Corp., supra, 639 F.2d at 520. The October 10, 1978 notice of appeal from the summary judgments was thus well within the bounds of Rule 4(a).

We also note that insofar as we are treating the motions for relief as Rule 59(e) motions, the September 27 order denying them is itself appealable, Walker v. Bank of America NT & SA, 268 F.2d 16, 25 (9th Cir. 1959), cert. denied, 361 U.S. 903, 80 S.Ct. 211, 4 L.Ed.2d 158, (1959), and the October 10, 1978 notice of appeal perfected plaintiffs' appellate rights as to that order as well.

While we cannot dismiss the appeal as untimely, we must dismiss it to the extent it is from relief granted in favor of Calpine II and Development. Under 28 U.S.C. § 1291 we are without jurisdiction to hear an appeal from their partial summary judgments because the district court did not order entry of those judgments pursuant to Rule 54(b). Hamman v. United States, 399 F.2d 673 (9th Cir. 1968).

For much the same reason, we do not think the September 27 order, insofar as it affects Calpine II and Development, is appealable. While the denial of a Rule 59(e) motion is appealable, Walker, supra, we do not think a Rule 59(e) motion could have been entertained with respect to Calpine II or Development. Our conclusion in this regard is based on the fact that no judgments were ever entered in favor of Calpine II or Development, and on the language of Rule 59(e), ³ which we think clearly contemplates entry of judgment as a predicate to any motion. Our holding is supported by the fact that were we to permit Rule 59(e) motions without entry of judgment, litigants could obtain appellate review of partial judgments by simply appealing a Rule 59(e) order, completely by-passing the requirements of Rule 54(b) and 28 U.S.C. § 1291. We do not think that the court in Walker, supra, or the drafters of Rule 59 intended such a result. Accordingly, since no 59(e) motion could have been made with respect to Calpine II or Development, insofar as the September 27 order effects them, we treat it as an interlocutory order and dismiss plaintiffs' appeal therefrom. See Carey v. Greyhound Company, 424 F.2d 485, 486-487 (9th Cir. 1970).

This leaves for review on the merits the summary judgments entered in favor of the Jaquesses and the...