Livernois v. Medical Disposables, Inc., 87-8235

• Decision Date: 17 February 1988
• Docket Number: No. 87-8235,87-8235
• Citation: 837 F.2d 1018
• Parties: , 2 Indiv.Empl.Rts.Cas. 1832 Douglas J. LIVERNOIS, Plaintiff-Appellant, v. MEDICAL DISPOSABLES, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1018

837 F.2d 1018

10 Fed.R.Serv.3d 943, 2 Indiv.Empl.Rts.Cas. 1832

Douglas J. LIVERNOIS, Plaintiff-Appellant, v. MEDICAL DISPOSABLES, INC., Defendant-Appellee.

No. 87-8235.

United States Court of Appeals, Eleventh Circuit.

Feb. 17, 1988.

C. Rauch Wise, Wise & Tunstall, Greenwood, S.C., for plaintiff-appellant.

Donald D. Smith, Smith, Eubanks & Smith, David P. Darden, Marietta, Ga., for defendant-appellee.

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

Before RONEY, Chief Judge, JOHNSON, Circuit Judge, and PECK ^*, Senior Circuit Judge.

JOHNSON, Circuit Judge:

This case concerns an appeal from the district court's grant of summary judgment in favor of Medical Disposables, Inc. ("the Company"). We affirm in part, reverse in part, and remand.

I. FACTS

In February 1984, Douglas Livernois was hired by the Company as Director of Institutional Sales. When Livernois accepted employment, the parties had an oral agreement as to the terms of the contract. There was never a written contract between the parties. Although the parties disagree on what the terms of the contract were, they agree that the oral agreement contemplated full-time, permanent employment for an indefinite period.

During the six months that he worked for the Company, Livernois attempted to have his employment contract reduced to writing. Livernois asserts that the agreement called for him to receive a $65,000 salary, a $35,000 bonus, an equity position in the Company, and other benefits. Livernois claims that the Company's failure to put this agreement in writing led to this dispute. On the other hand, Medical Disposables contends that the dispute arose because Livernois demanded an immediate $13,000 bonus, a $10,000 raise in his annual salary, and an equity position in the Company, none of which was anticipated in the original oral contract.

In September 1984, the Company produced a written draft of a proposed employment agreement, but Livernois refused to sign it. The Company contends that Livernois responded with a counterproposal which it rejected. It then terminated Livernois' employment.

The appellant filed a complaint alleging two causes of action. First, he claimed that Medical Disposables breached its oral contract with him because he never received the benefits to which he was entitled. In this action, he did not seek damages for future earnings or wrongful termination; he sought payment of the non-salary benefits which he claims had accrued under the contract. Second, he sought additional damages on the ground that the appellee's agent, William Smith, made fraudulent misrepresentations regarding the financial stability and promising future of the Company in order to induce Livernois to accept the Company's offer of employment. Livernois alleged that these misrepresentations caused him to accept the Company's employment offer, forcing him to forego other employment opportunities.

On June 2, 1986, Medical Disposables filed a motion for summary judgment. Livernois failed to serve a responsive memorandum to this motion within the twenty days required by the local Rule 220-1(b) of the United States District Court for the Northern District of Georgia. ¹ Accordingly the district court ruled that the Company's motion was unopposed, and it entered an order granting summary judgment on August 6, 1986.

On August 14, 1986, Livernois filed a motion for reconsideration pursuant to Fed.R.Civ.P. 59 and 60. This motion was denied on February 20, 1987. On March 23, 1987, Livernois filed a Notice of Appeal from the district court's order granting summary judgment. ²

II. DISCUSSION

A. Timeliness of Appeal

As a threshold issue, the Company claims that, because Livernois failed to file a notice of appeal within thirty days of the district court's August 6, 1986 order granting summary judgment, this Court can review only the district court's denial of the motion for reconsideration. For a notice of appeal to be timely, it must be filed within 30 days of the judgment or order appealed from. Fed.R.App.P. 4(a)(1). Absent the filing of a timely notice, this Court does not have jurisdiction over an appeal. Burnam v. Amoco Container Co., 738 F.2d 1230, 1231 (11th Cir.1984). However, Fed.R.App.P. 4(a)(4) provides that the time for filing a notice of appeal is tolled by the filing of a timely motion under Fed.R.Civ.P. 59. ³ Great American Ins. Co. v. Rush, 670 F.2d 995 (11th Cir.1982). Consequently, a notice of appeal filed within 30 days of the disposition of the Rule 59 motion is timely. Id. at 996.

In the case at bar, the notice of appeal was not filed until March 23, 1987. This was approximately seven and one-half months after the district court entered its order granting the Company's motion for summary judgment. However, on August 14, 1986, eight days after summary judgment was entered, Livernois filed a motion to have the court "reconsider" its judgment pursuant to Fed.R.Civ.P. 59(a)(2) ⁴ and 60(b)(1) and (6). ⁵ This Court must determine whether this motion tolled the running of the 30 day appeal period.

The two rules cited in Livernois' motion for reconsideration afford different types of relief, and this Court will characterize a motion as one under Rule 59 or Rule 60, depending on the type of relief requested. Nomenclature does not control the legal status of a post-trial motion. Burnam, 738 F.2d at 1231 (citing Morgan Guaranty Trust Co. v. Third Nat'l Bank of Hampden County, 545 F.2d 758, 760 (1st Cir.1976)). Instead, the court will conduct an independent determination of what type of motion was before the district court. See Morgan Guaranty, 545 F.2d at 760. Whether a motion is characterized as a Rule 59 or a Rule 60 motion is critical because a Rule 59 motion tolls the running of the time for appeal, while a Rule 60 motion does not affect the finality of a judgment or suspend its operation for purposes of appeal. Burnam, 738 F.2d at 1232.

In Burnam, this Court analyzed the district court's actions to determine what type of motion was involved. ⁶ The district court had dismissed Burnam's complaint because appellee's motion to dismiss was unopposed. ⁷ 7] However, ten days later, the court issued an order in which it reviewed Burnam's memorandum in opposition to the motion to dismiss. While undertaking this reconsideration, the district court decided that its earlier decision to dismiss had been correct. Id. Thus, it entered a second order as a "clarification" of the first. Id. at 1231.

This Court held that this sequence of events was most like a Rule 59(e) motion to alter or amend a judgment. By the time the district court examined Burnam's memorandum of law, the complaint had already been dismissed. Consequently, in evaluating the memorandum, the district court had to consider whether it should vacate the judgment of dismissal. Such action is usually characterized as a Rule 59(e) motion. Id. at 1232.

A similar analysis is necessary in the present case. On the motion for reconsideration below, the district court stated that it would vacate its prior order "if plaintiff were to establish material facts were in dispute, or if plaintiff were to present argument that would discount defendant's prior arguments." Livernois v. Medical Disposables, Inc., No. C85-3403A (N.D.Ga. Feb. 18, 1987). In its order, the district court discussed the law of at-will employment contracts and concluded that summary judgment was proper in this case. Although the facts and motions involved here were different from those involved in Burnam, the Burnam analysis suggests that the case at bar also involved a Rule 59 motion.

This conclusion finds further support in our case law. In United States v. Eastern Air Lines, 792 F.2d 1560 (11th Cir.1986), Eastern contended that this Court lacked jurisdiction because the appellant, the Federal Aviation Administration ("FAA"), failed to file a timely notice of appeal. However, after summary judgment had been entered in Eastern's favor, the FAA had filed a Rule 59 motion for "reconsideration." As was the case here, the FAA failed to label its motion for reconsideration as a motion to amend the judgment. Id. at 1562. Nonetheless, the Court held that the motion for reconsideration tolled the running of the filing period. After first noting that nomenclature was not controlling in evaluating these motions, the Court said that:

All a rule 59 motion need do is request relief which may be granted. Here, the FAA requested the district court to change its order and deny Eastern summary judgment--relief cognizable by rule 59. Accordingly, we conclude that the FAA's motion for reconsideration was a proper rule 59 motion.

Id. (citations omitted).

Under the law of Burnam and Eastern, Livernois' motion for reconsideration was cognizable under Rule 59(e). That Livernois failed to label the motion correctly does not change the treatment it receives from this Court. ⁸ Since a Rule 59 motion was timely filed, Livernois was allowed to file his notice of appeal 30 days after the disposition of the Rule 59 motion. Thus, Livernois' notice of appeal was timely, ⁹ and this Court can review the district court's grant of summary judgment to the Company.

B. Summary Judgment

In determining the appropriateness of a district court's grant of a summary judgment motion, an appellate court's review is "plenary, and is conducted utilizing the same legal standards as those used in the district court. Summary judgment is appropriate if the moving party establishes that there is no genuine issue as to any material fact and he is entitled to a judgment as a matter of law." Carlin Communication, Inc. v. Southern Bell Tel. & Tel. Co., 802 F.2d 1352, 1356 (11th Cir.1986) (citations omitted).

To determine if the moving party meets his burden of proof, the court must view all evidence and inferences to be drawn from it in a light most favorable to the nonmoving party. All reasonable doubts must be resolved in the...