Clark-Dietz and Associates-Engineers, Inc. v. Basic Const. Co.
| Decision Date | 21 March 1983 |
| Docket Number | ASSOCIATES-ENGINEER,No. 82-9312,INC,CLARK-DIETZ,82-9312 |
| Parties | AND, Petitioner, v. BASIC CONSTRUCTION COMPANY, the Mayor and City Council of the City of Columbus, Mississippi and Columbus Utility Commission, Respondents. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Threadgill, Smith, Sanders & Jolly, Columbus, Miss., for petitioner.
Robins, Zelle, Larson & Kaplan, Atlanta, Ga., Gholson, Hicks & Nichols, Columbus, Miss., Mitchell, McNutt, Bush, Lagrone & Sams, Tupelo, Miss., Buckley, Treacy, Schaffel, Mackey & Abbate, New York City, for respondents.
On Application for Leave to Appeal from an Interlocutory Order.
Before RUBIN, JOHNSON and WILLIAMS, Circuit Judges.
Finding the defendant in a diversity tort case liable, the district court certified an interlocutory appeal under 28 U.S.C. Sec. 1292(b) (1976) before determining damages. We deny leave to appeal because the district court did not specify the controlling issue of law to be considered and the appellants have not pointed out any issue or issues appropriate for interlocutory consideration.
The Mayor and City Council of Columbus, Mississippi, and the Columbus Utility Commission (the City), sued Clark-Dietz and Associates-Engineers and Basic Construction Company for damages resulting from the failure of a protective levee surrounding the construction site of the Columbus Waste Water Treatment Plant, located between the Luxapalila River and McCrary Creek. In the first phase of a bifurcated trial, the district court held an 18-day evidentiary hearing concerning liability. The district court issued a detailed and comprehensive 36-page memorandum setting forth its findings of fact and conclusions of law, holding Clark-Dietz liable on several issues.
An interlocutory appeal assuredly does not lie simply to determine the correctness of a judgment of liability. Cf. 28 U.S.C. Sec. 1292(a)(3) (1976). An interlocutory appeal may be heard on the basis of a certification by the district court that includes no more than the language specified in Sec. 1292(b), 1 but the case must present a controlling question of law as to which there is substantial ground for difference of opinion. In deciding whether such a question is presented we "must necessarily rely upon the would-be appellant to supply in his petition, or in a supporting memorandum attached thereto, a certified copy of the challenged order, a concise but adequate presentation of facts showing the proceedings below prior to the challenged order and the proceedings remaining in the district court, and a statement of the precise nature of the controlling question of law involved, together with a brief argument showing the grounds for the asserted difference of opinion and the way in which the allowance of the petition would 'materially advance the ultimate termination of the litigation.' " In re Heddendorf, 263 F.2d 887, 889 (1st Cir.1959).
In the order finding liability, the district court, 550 F.Supp. 610, issued a certification pursuant to Sec. 1292(b), but did not specify any question of law that was appropriate for interlocutory review. The liability phase of the trial involved numerous factual disputes and legal claims by the plaintiffs against one or both defendants, by each defendant against plaintiffs, and by one defendant against the other defendant.
The appellant's brief seeking leave to appeal lists five issues it considers controlling questions of law. Basic objects to interlocutory review on grounds that (1) this appeal may substantially prejudice Basic's interest by affecting the time from which interest may run if prejudgment interest is not allowed and (2) the issues raised by Clark-Dietz are either irrelevant or involve factual matters. Basic's objections appear to be well-founded.
Clark-Dietz says the case is appealable because the judgment affects the "future conduct of contractors and architect/engineers." However, Clark-Dietz has not defined a controlling question having such significance. The issues framed for appeal do not appear to involve (1) the legal relationship between an architect or engineer and a contractor, or (2) the scope of a design professional's responsibility for construction supervision, or (3) the distinction between an engineering design and construction methods. The district judge found Clark-Dietz liable because its designs were defective, see 550 F.Supp. at 615, 617, 618, 620, 622, 623, not because of any unusual legal relationship to any other party or because of its responsibility over construction supervision...
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