Beaudry Motor Co. v. Abko Properties, Inc.

• Decision Date: 09 January 1986
• Docket Number: 84-1889,Nos. 84-1888,s. 84-1888
• Citation: 780 F.2d 751
• Parties: BEAUDRY MOTOR COMPANY, an Arizona corporation Plaintiff/Appellant/Cross-Appellee, v. ABKO PROPERTIES, INC., a DE corporation (formally known as Chrysler Realty Corporation); Chrysler Corporation, a De corporation; Chrysler Motors Corporation, a DE corporation; and Chrysler Realty Corporation, a DE corporation, Defendants/Appellees/Cross-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 751

780 F.2d 751

4 Fed.R.Serv.3d 142

BEAUDRY MOTOR COMPANY, an Arizona corporation Plaintiff/Appellant/Cross-Appellee, v. ABKO PROPERTIES, INC., a DE corporation (formally known as Chrysler Realty Corporation); Chrysler Corporation, a De corporation; Chrysler Motors Corporation, a DE corporation and Chrysler Realty Corporation, a DE corporation Defendants/Appellees/Cross-Appellants.

Nos. 84-1888, 84-1889.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 14, 1985.

Decided Jan. 9, 1986.

D. Michael Mandig, Molloy, Jones, Donahue, Trachta, Childers & Mallamo, Tucson, Ariz., for plaintiff/appellant/cross-appellee.

David L. White, Donn G. Kessler, Jennings, Strouss & Salmon, Phoenix, Ariz., for defendants/appellees/cross-appellants.

Appeal from the United States District Court for the District of Arizona.

Before POOLE, NELSON, Circuit Judges, and KELLEHER, District Judge. ^*

POOLE, Circuit Judge:

Beaudry Motor Company (BMC) appeals the district court's order granting summary judgment for defendants, its order denying BMC's post-judgment motions for a new trial and for permission to amend the complaint, and its order granting defendants attorneys' fees. Defendants Abko Properties, Inc., Chrysler Corporation, and Chrysler Realty Corporation cross-appeal from the denial in part of their attorneys' fee request. We decline to address the merits of BMC's appeal of the district court summary judgment and post-judgment orders since we hold the appeal as to these issues untimely. We reverse and remand the issue of attorneys' fees for the district court to set forth its consideration of the factors announced in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67 (9th Cir.1975), cert. denied sub nom., 425 U.S. 951, 96 S.Ct. 1726, 48 L.Ed.2d 195 (1976).

I. Facts

BMC is a Chrysler franchise automobile dealer in Tucson, Arizona. With the goal to relocate BMC to a more competitive location in Tucson, Chrysler Realty Corporation (CRC) with BMC's approval purchased a tract of property for the dealership. Originally, CRC planned to retain title to the real estate, build a new dealership facility and lease it to BMC.

CRC, however, encountered difficulty obtaining suitable bids for construction of the facility, and so suggested that BMC itself purchase the property and develop it. BMC was receptive to this idea, but soon discovered that local lenders refused to finance the full amount needed without the additional security of a "lease/sublease" agreement between BMC and CRC. Such an agreement was reached and BMC borrowed the necessary funds. Thereafter, CRC deeded the property to BMC, with BMC executing a twenty-five-year note and a deed of trust to the lending bank. CRC and BMC also entered into a leasing arrangement whereby BMC leased the property to CRC and CRC in turn subleased the premises to BMC. The lease and sublease were for twenty-five years with five options of five years each. Rent obligations for the lease and sublease were identical. BMC assigned its right to rent payments to the bank in order that CRC would become obligated to make rent payments to the bank in the event that BMC became insolvent.

After several years BMC became dissatisfied with the lease arrangement as it wanted to use the realty for other, more profitable ventures. Negotiations with CRC to sell or lease a portion of the property were unsuccessful. Thereafter, in 1979, Chrysler Corporation sold CRC to Abko Realty, Inc. (Abko) and Abko assumed CRC's obligation under the lease agreement. In 1982, BMC began negotiating with Abko to terminate the lease/sublease agreement. These negotiations were also unsuccessful.

In 1982, BMC obtained from the bank's successor-in-interest a release of the lease assignment. BMC again sought to terminate the lease/sublease with Abko. After this offer was rejected, BMC filed an action in Arizona state court claiming that the agreement was unconscionable or a violation of state antitrust laws.

Abko removed the action to federal court on diversity grounds. Subsequently, Abko sold its CRC interest back to Chrysler. BMC thereafter filed first and second amended complaints adding Chrysler Corporation and CRC as defendants and alleging federal antitrust claims and a state antitrust claim and asking for declaratory relief on the lease agreement on the ground of unconscionability.

Defendants moved for summary judgment on the theory that BMC's claims were time-barred and did not raise a justiciable controversy. They also moved for an award of attorney fees. In response, BMC filed a cross-motion for summary judgment in which BMC raised for the first time a new theory that the lease/sublease was a statutory mortgage or, in the alternative, a security device under common law. BMC argued that since the bank had released the security, the district court should impose a constructive trust and compel reconveyance of the leasehold to BMC.

At argument on the motions, BMC's counsel admitted that he was abandoning the antitrust claims. Concluding that the amended complaint failed to allege a constructive trust theory, the district court granted defendants' motion for summary judgment. Judgment was entered on December 7, 1983.

BMC thereafter filed a timely motion for a new trial and sought permission from the court to amend its complaint to allege the new theories. On January 5, 1984, the district court entered a minute order denying BMC's motions "[f]or [the] reasons set forth in defendant's [sic] response to plaintiff's motions for new trial and to amend complaint." Copies of the minute order were mailed to counsel, and plaintiff's counsel received his copy on January 9, 1984.

Defendants' motion for attorneys' fees was argued January 23, 1984. On March 21, the district court entered an order finding that defendants were entitled to an award of $8,000. On April 20, BMC filed its notice of appeal. Defendants timely cross-appealed from the denial in part of their fee request.

II. Timeliness of BMC's Appeal on the Merits

Before this court, defendants moved to dismiss BMC's appeal of the merits on the ground that BMC's notice of appeal was filed more than thirty days after the district court's denial of BMC's post-judgment motions. A panel of this court denied the motion leaving to us the consideration whether the January 5 order should be deemed a judgment or order within the meaning of Fed.R.Civ.P. 58.

Fed.R.App.P. 4(a) requires that a notice of appeal in a civil case be filed within thirty days after the date of entry of the judgment or order appealed from. A timely motion for a new trial under Fed.R.Civ.P. 59, however, stays the time for appeal. Fed.R.App.P. 4(a)(4). A new notice of appeal must then be filed within thirty days, measured from the entry of the order disposing of the post-judgment motion. Id. These time periods for appeal are jurisdictional and cannot be waived by the parties. Browder v. Director, Illinois Department of Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 560, 54 L.Ed.2d 521 (1978).

It is the date of "entry" of a judgment or order that starts the time period for noticing an appeal. A judgment or order is not entered within the meaning of Fed.R.App.P. 4(a) unless it is entered in compliance with Rules 58 and 79(a) of the Federal Rules of Civil Procedure. Calhoun v. United States, 647 F.2d 6, 8 (9th Cir.1981); Fed.R.App.P. 4(a)(6). Rule 58 requires that every judgment be set forth on a separate document, ¹ and Rule 79(a) details the civil docketing procedure to be followed by the district court clerk when entering the judgment. ²

BMC makes several arguments that its notice of appeal filed 110 days after the January 5 order is timely. First, BMC contends that the minute order denying its post-trial motions is not a judgment or order within the meaning of Fed.R.Civ.P. 58. Second, it argues that the minute order did not meet the entry requirements of Fed.R.Civ.P. 79(a). Last, BMC argues that the judgment on the merits was not final absent compliance with Fed.R.Civ.P. 54(b) while the motion for attorneys' fees was pending. The earlier panel rejected the latter arguments and left to us the resolution of the first. Nevertheless, the motion panel's entire order is subject to reconsideration. See In re Commercial Western Finance Corp., 761 F.2d 1329, 1332 n. 6 (9th Cir.1985); United States v. Humphries, 636 F.2d 1172, 1174 n. 2 (9th Cir.1980), cert. denied, 451 U.S. 988, 101 S.Ct. 2324, 68 L.Ed.2d 846 (1981).

Rule 58 provides that when relief is denied by the court, the clerk, unless otherwise directed by the court, "shall forthwith, prepare, sign, and enter the judgment * * * * " Fed.R.Civ.P. 58. BMC contends that the January 5 minute order fails to comply with the rule because it was not signed and does not purport to be an order disposing of the pending motions. BMC relies on Weldon v. United States, 196 F.2d 874 (9th Cir.1952) and Calhoun v. United States, 647 F.2d 6 (9th Cir.1981) for support.

In Weldon, what was filed with the clerk of the district court was an unsigned, typewritten paper labeled "Minute Order," which denied plaintiffs' petitions. This court held that the minute order could not be regarded as an order of the district court because the record failed to show that the district court wrote or filed the minute order or caused it to be written or filed. Weldon, 196 F.2d at 876. In addition, this minute order was never noted in the civil docket, and thus, never became effective or appealable. Id. Here BMC concedes that the minute order was prepared at the direction of the district judge. The order also was noted in the civil docket. Finally, the court's copy of the order is file stamped and signed by a deputy clerk. Apparently the copy mailed to counsel was file stamped but unsigned. This fact, however does not alter our conclusion. The copy of the minute order with its language "IT IS ORDERED" clearly put plaintiff's counsel on notice that an order had been...