857 F.2d 988 (5th Cir. 1988), 88-1038, Davidson v. Sun Exploration & Production Co.

Docket Nº:88-1038.
Citation:857 F.2d 988
Party Name:Gail W. DAVIDSON, Plaintiff-Appellant, v. SUN EXPLORATION & PRODUCTION CO., Defendant-Appellee.
Case Date:August 24, 1988
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 988

857 F.2d 988 (5th Cir. 1988)

Gail W. DAVIDSON, Plaintiff-Appellant,



No. 88-1038.

United States Court of Appeals, Fifth Circuit

August 24, 1988

Dennis C. Reich, Reich & Binstock, Houston, Tex., for plaintiff-appellant.

Franklin H. McCallum, Hinkle, Cox, Eaton, Midland, Tex., Richard E. Olson, Roswell, N.M., for defendant-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before RUBIN, JOHNSON, and JOLLY, Circuit Judges.


Once again, the express terms of Federal Rule of Appellate Procedure 4(a)(4), as interpreted by us in Harcon Barge Co. v. D & G Boat Rentals, Inc., 1 require that we treat as ineffective a notice of appeal filed while a motion for a mistrial or new trial, albeit on only one issue in the case, was pending. That notice of appeal was a nullity, and no other notice was filed. We therefore lack jurisdiction and must dismiss the appeal.

This is the sequence of events:

January 5, 1988: The district court entered final judgment on all claims.

January 12, 1988: Gail W. Davidson, the plaintiff-appellant, filed a motion for mistrial or in the alternative for a new trial. While Davidson directed the motion for a new trial to only her age-discrimination claim and not her Title VII sex-discrimination claim, had the motion been granted the judgment in favor of the defendant, Sun Exploration & Production Co., would have been set aside. Hence this was a motion under Federal Rule of Civil Procedure 59 for a new trial, even if not for a completely new trial, because Rule 59 authorizes the grant of a new trial on "all or part of the issues." A motion for new trial on only some issues activates the provisions of appellate Rule 4(a)(4) on all issues. 2 To hold otherwise, as Davidson asks, would introduce the kind of uncertainty that, we found in Harcon Barge, Rule 4(a)(4) was designed to banish. 3

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January 14, 1988: Davidson filed a notice of appeal.

February 4, 1988: The district court denied Davidson's motion for a mistrial or new trial.

February 26, 1988: The clerk of this court dismissed the appeal because Davidson had failed to make financial arrangements for a transcript with the district court reporter.

February 26, 1988: Davidson ordered the transcript and made financial...

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