Textile Banking Co., Inc. v. Rentschler

• Decision Date: 17 April 1981
• Docket Number: No. 80-1826,80-1826
• Citation: 657 F.2d 844
• Parties: TEXTILE BANKING COMPANY, INC., Plaintiff-Appellee, v. William H. RENTSCHLER, Defendant. Appeal of Sarah Y. Rentschler MITTENDORF, Citation-Respondent-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 844

657 F.2d 844

62 A.L.R.Fed. 148

TEXTILE BANKING COMPANY, INC., Plaintiff-Appellee, v. William H. RENTSCHLER, Defendant.

Appeal of Sarah Y. Rentschler MITTENDORF,

Citation-Respondent-Appellant.

No. 80-1826.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 11, 1981.

Decided April 17, 1981. ^*

Joseph D. Keenan, III, Puchalski, Keenan & Puchalski, Chicago, Ill., for citation-respondent-appellant.

Michael L. Weissman, Chicago, Ill., for plaintiff-appellee.

Before CUMMINGS, Circuit Judge, MARKEY, Chief Judge, ^** and CUDAHY, Circuit Judge.

CUDAHY, Circuit Judge.

Citation-Respondent Sarah Y. Rentschler Mittendorf ("Sarah") appeals from the district court's entry of a default judgment order against her in supplementary proceedings to satisfy a judgment entered against her father, William H. Rentschler ("William"). Sarah also seeks review of the district court's denial of her motion pursuant to Rule 60(b) of the Federal Rules of Civil Procedure to vacate the default judgment order.

The district court entered the judgment in question here on April 30, 1980 ("April 30 Judgment Order"), after Sarah had failed to appear in Chicago on March 13, 1979, pursuant to a citation to discover assets and also failed to appear before the district court on April 30, 1980, to respond to plaintiff's subsequent motion to compel Sarah to execute a conveyance of real property and assign a promissory note. Sarah finally appeared, through counsel, on May 9, 1980, but her ensuing motion to set aside the April 30 Judgment Order was denied. This appeal was instituted on June 16, 1980. Because we find that Sarah's appeal of the April 30 Judgment Order was not timely filed, we have no jurisdiction to review the merits of that order. We have, however, reviewed the district court's denial of Sarah's Rule 60(b) motion to vacate the April 30 Judgment Order and we affirm.

I.

These supplementary proceedings arose out of an action commenced by plaintiff Textile Banking Company, Inc. ("Textile") against William Rentschler in August 1973. When William failed either to answer or appear, the district court entered a default judgment against him in the amount of $79,265.61. Since William was preoccupied with several other legal problems at that time, Textile postponed any enforcement action for approximately five years.

In December 1978, Textile finally decided to collect the judgment and served William with a citation to discover assets. During the course of the citation examination, counsel for Textile inquired about the ownership of the home at 361 Cherokee Road, Lake Forest, Illinois, in which William and his family were living. Textile suspected that William had fraudulently conveyed the property to his oldest daughter, Sarah, and that William, who was still using and treating the property as his own, was the real owner.

As a result, a citation to discover assets was issued against Sarah on February 16, 1979, and was personally served upon her at her residence in New York. Textile then filed a motion requesting that Sarah's citation Sarah never arrived in Chicago on March 13th, however, and the reason for her failure to appear is in dispute. Textile claims that it was unable to determine in advance how Sarah wished to have the logistics of the trip handled. Sarah argues that Textile did not furnish the plane ticket in time for her to make the necessary arrangements. In either case, Textile was notified that Sarah was unavailable on March 13th and would appear, instead, on March 16th. When Sarah arrived three days later, counsel for Textile, in court for an evidentiary hearing in the instant case, refused to depose her.

examination be conducted on February 23, 1979, "in the form and manner of a deposition" at the office of Textile's counsel in Chicago. The district court, referring to the citation as a "subpoena," denied the motion, holding that under Rule 45(d)(2) of the Federal Rules of Civil Procedure the court could not compel Sarah, a New York resident, to come to Chicago for the examination. The court suggested, however, that counsel for William attempt to work out an agreement whereby the examination would be conducted in New York or whereby Textile would reimburse Sarah for the cost of travel to Chicago. Although William's counsel indicated that he had no authority to enter into such an agreement because he did not represent Sarah, William's counsel did attempt to comply with the request. On March 1, 1979, counsel informed the court that Textile had agreed to furnish round-trip air fare for Sarah in return for her appearance in Chicago on March 13, 1979, for the citation examination. The court acknowledged this agreement in a separate order.

On March 19, 1979, Textile filed a motion to compel Sarah to execute a conveyance of the Cherokee Road property. This motion was based on the proposition that Sarah's failure to comply with the citation to discover assets constituted a default, and by such default, Sarah admitted that the Cherokee Road property was an asset of the judgment debtor, William Rentschler. The court conducted an extensive eight-day hearing on the ownership of the Cherokee Road property. Sarah, who was never personally served with a copy of the motion and was never provided with notice of the hearing, did not appear. Counsel for William was present, however, and despite his insistence that he did not represent Sarah, was allowed to participate fully in the proceedings "in the interest of absolute fairness and in view of the gravity of the charges." At the conclusion of the hearing, the court asked the parties to submit appropriate legal memoranda, but no formal findings of fact on the merits were ever issued by Judge Hoffman with respect to this property.

On May 29, 1979, Textile filed a motion to compel Sarah to assign a promissory note, executed by MoPed American, Inc., ("MoPed") and payable to her in the amount of $19,134.88. Textile claimed that the note stemmed from monies Sarah lent to MoPed out of the proceeds of a mortgage loan on the property occupied and used by William. Since the property was really one of William's assets, Textile reasoned that the MoPed note should also be considered as such. A copy of this motion was mailed to Sarah but was not personally served upon her.

Nine months later, on March 26, 1980, the district court denied both Textile's motion to compel conveyance of the Cherokee Road property and its motion for assignment of the promissory note. The court noted that service of the citation summons on Sarah gave the court proper jurisdiction over her, but Judge Hoffman concluded that Textile's motions (for conveyance and assignment) represented requests for new or additional relief and should have been personally served on Sarah. Since Sarah had not been given notice in the proper manner on either motion, no valid order could be entered.

On April 30, 1980, Textile filed a second motion to compel Sarah to execute a conveyance of the Cherokee Road property and to assign the promissory note. Although notice of this motion had been personally served on Sarah on April 18, 1980, she failed A copy of the April 30 Judgment Order was served upon Sarah by certified mail on May 5, 1980. Four days later, counsel for Sarah filed an appearance on her behalf and delivered to Textile's counsel a motion seeking: (1) additional time to file a motion to vacate the April 30 Judgment Order and (2) a stay of execution of the judgment until May 19, 1980. Sarah then filed her motion pursuant to Federal Rule 60(b) to vacate the April 30 Judgment Order. A hearing was conducted on June 5, 1980, and the motion was denied.

to appear on April 30, 1980, either personally or through counsel. The court heard and granted Textile's new motion. No supplemental evidence was received apparently because the denial of Textile's previous motion on March 26, 1980, was due not to a lack of proof but to Textile's failure to serve proper notice. Judge Hoffman entered a default judgment order which required Sarah to execute a warranty deed to the Cherokee Road property and deliver it to the U.S. Marshal for the purpose of judicial sale before May 10, 1980. Sarah was also ordered to endorse and deliver the MoPed note to Textile within the same period.

Sarah filed a notice of appeal with the district court on June 16, 1980, seeking review of both the April 30 Judgment Order and the trial court's denial of her Rule 60(b) motion. Textile responded with a motion to strike that portion of the appeal which sought review of the April 30 Judgment Order on the grounds that it was untimely filed. This court subsequently decided that the motion to strike would be taken with the case. When Sarah's motion to stay execution of the judgment without bond pending appeal was denied on July 15, 1980, Sarah delivered to Textile a special warranty deed to the Cherokee Road property and an assignment of her interest in the MoPed note.

DISCUSSION

I.

After examining the circumstances surrounding the post-judgment motions in this case, we conclude that we have no jurisdiction to review the April 30 Judgment Order because the notice of appeal was not timely filed. Rule 4(a) of the Federal Rules of Appellate Procedure ("FRAP") provides that the notice of appeal in a civil case must be filed by a party other than the United States, or an officer or agency thereof, within 30 days of the date of entry of the judgment or order appealed from. Although the 30-day appeal period may be tolled by a timely motion filed pursuant to Rule 50(b), 52(b) or 59 of the Federal Rules of Civil Procedure ("FRCP"), the applicable time limitations are not suspended by a motion to vacate the judgment pursuant to Rule 60(b).

In the instant case, Sarah filed a notice of appeal on June 16, 1980, seeking review of both the April 30 Judgment Order and the denial on June 5, 1980, of her Rule 60(b) motion to vacate that order. But the time for filing an appeal of...