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
 
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Page 988

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

Gail W. DAVIDSON, Plaintiff-Appellant,

v.

SUN EXPLORATION & PRODUCTION CO., Defendant-Appellee.

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.

PER CURIAM:

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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