807 F.2d 1239 (5th Cir. 1987), 86-4474, Brown v. United Ins. Co. of America

Docket Nº:86-4474.
Citation:807 F.2d 1239
Party Name:Annette BROWN, Plaintiff-Appellee, v. UNITED INSURANCE COMPANY OF AMERICA, Defendant-Appellant.
Case Date:January 20, 1987
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 1239

807 F.2d 1239 (5th Cir. 1987)

Annette BROWN, Plaintiff-Appellee,

v.

UNITED INSURANCE COMPANY OF AMERICA, Defendant-Appellant.

No. 86-4474.

United States Court of Appeals, Fifth Circuit

January 20, 1987

Page 1240

[Copyrighted Material Omitted]

Page 1241

Thomas H. Suttle, Jr., Daniel & Coker, Jackson, Miss., for defendant-appellant.

Paul Snow, Snow & Brantley, Jim Brantley, Jackson, Miss., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Mississippi.

Before CLARK, Chief Judge, GARWOOD and HILL, Circuit Judges.

PER CURIAM:

Appellee has moved to dismiss the appeal on the theory that appellant's notice of appeal was rendered ineffective by the pendency of an undisposed of motion to clarify the judgment. We deny the motion to dismiss.

The jury rendered a verdict adverse to defendant-appellant on April 8, 1986, and judgment (apparently dated April 25, 1986) against appellant on this verdict was entered on April 28, 1986. This judgment provided for $25,000 compensatory damages, $45,000 punitive damages, prejudgment interest (from June 3, 1980 to April 7, 1986) and postjudgment interest and costs. On May 6, plaintiff-appellee served and filed a motion for new trial as to punitive damages only, and on May 7, appellant served and filed motions for judgment n.o.v. and, alternatively, for a new trial; these motions were all timely and within the ten-day period allowed by Fed.R.Civ.P. Rules 50(b) and 59(b). By order dated June 4, 1986 and entered June 6, 1986, all the above-referenced May 6 and May 7 motions of appellee and appellant were in all things denied. On July 2, appellant timely filed its notice of appeal. No other notice of appeal has been filed herein.

On July 2, appellant also filed its "Motion for Clarification of Judgment and Order." This motion, which makes reference to none of the Federal Rules of Civil Procedure, asks that the court "clarify its Final Judgment ... by stating specifically whether prejudgment interest is allowed" only on the $25,000 compensatory damages or on the $70,000 total of both the compensatory and the punitive damages; it alleges that defendant believes "the intent of the Court" was to allow prejudgment interest on only the $25,000 compensatory damages, that plaintiff's "position was to the contrary," and that defendant needs to know in order to compute the amount of its supersedeas bond. On July 25, the district court granted appellant's July 2 motion for clarification and ordered "that the Final Judgment dated April 25, 1986, is amended to reflect that the prejudgment interest shall be applied on the compensatory damages of $25,000.00 only."

Appellee contends that appellant's July 2 motion for clarification, which was undisposed of until July 25, vitiated appellant's otherwise proper and timely July 2 notice of appeal under the second sentence of Fed.R.App.P. Rule 4(a)(4), and that, there being no other notice of appeal, we accordingly lack appellate...

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