993 F.2d 281 (1st Cir. 1993), 92-1836, Perez-Perez v. Popular Leasing Rental, Inc.

Docket Nº:92-1836.
Citation:993 F.2d 281
Party Name:Agustina PEREZ-PEREZ, Plaintiff, Appellee, v. POPULAR LEASING RENTAL, INC., et al., Defendants, Appellants.
Case Date:May 25, 1993
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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993 F.2d 281 (1st Cir. 1993)

Agustina PEREZ-PEREZ, Plaintiff, Appellee,


POPULAR LEASING RENTAL, INC., et al., Defendants, Appellants.

No. 92-1836.

United States Court of Appeals, First Circuit

May 25, 1993

Heard Nov. 5, 1992.

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Harry A. Ezratty, San Juan, for appellants.

Arnoldo E. Granados with whom Ortiz Toro & Ortiz Brunet, Hato Rey, PR, was on brief for appellee.

Before TORRUELLA and STAHL, Circuit Judges, and SKINNER, [*] Senior District Judge.

SKINNER, Senior District Judge.

Plaintiff-appellee Agustina Perez-Perez ("Perez-Perez") brought this action seeking damages for emotional distress sustained as a result of the death of her forty-nine year-old sister, Maria Perez-Perez ("Maria"). Perez-Perez alleged that while defendant-appellant Oscar Betancourt Mateo ("Betancourt") was driving a car leased from defendant-appellant Popular Leasing Rental, Inc. ("Popular"), Betancourt negligently struck and killed Maria on November 27, 1990, as she was walking along the side of Route 849 in Puerto Rico. A jury returned a verdict in Perez-Perez's favor in the amount of $275,000. Betancourt and Popular appeal from the judgment entered on the verdict by the United States district court of Puerto Rico, Judge Fuste, and from an order denying defendants' "Motion For Alternative Relief." Defendants claim that relief from judgment is necessary because (1) the trial testimony was poisoned by perjury, (2) plaintiff's counsel unfairly surprised the defendants by introducing previously undisclosed expert medical testimony concerning Betancourt's eyesight, and (3) the verdict was excessive. Before considering these issues, however, we first address plaintiff's contention that this court lacks appellate jurisdiction because the notice of appeal and the "Motion for Alternative Relief" were untimely filed. We find that we have appellate jurisdiction to consider defendants' direct appeal from the district court judgment, as well as jurisdiction to consider the district court's denial of defendants' post trial motion. Because we find that the district court incorrectly admitted the testimony of the plaintiff's medical expert, we reverse and remand for a new trial.

I. Appellate Jurisdiction

Fed.R.App.P. 4(a) requires any party appealing from a judgment of the district court to file a notice of appeal within 30 days of the entry of the judgment. Timely filing of a notice of appeal is "mandatory and jurisdictional." Browder v. Director, Dept. of Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 561, 54 L.Ed.2d 521 (1978). In this case, there is no dispute that the defendants timely

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filed a notice of appeal from the district court's order denying the motion for alternative relief. In contrast, the parties dispute whether timely appeal was taken from the district court's judgment entered against defendants on April 22, 1992. A notice of appeal was not filed until June 26, 1992, more than two months later.

If a motion to alter or amend judgment pursuant to Fed.R.Civ.P. 59 is timely filed with the district court, the time for appeal runs from the entry of the order denying such motion. Fed.R.App.P. 4(a)(4). Defendants invoke the tolling provisions of this rule by describing their "Motion for Alternative Relief" as one timely brought under Rule 59(e). The motion was filed with the district court on April 30, 1992, but not served on Perez-Perez until May 4, 1992. The timeliness of a Rule 59 motion to amend judgment is determined by the date it is served, not by the date it is filed. Rivera v. M/T Fossarina, 840 F.2d 152, 154 (1st Cir.1988). Though it might appear that the motion was not filed within the requisite 10-day period, Fed.R.Civ.P. 6(a) provides that the intermediate Saturdays and Sundays be excluded from the 10-day count. Accordingly, we find that the motion was served on the plaintiff within ten days of the entry of judgment. This, however, does not end our inquiry.

Our jurisdiction over the appeal from judgment (as opposed to the appeal from the denial of the motion itself) depends on whether we characterize the "Motion For Alternative Relief" as one brought under Rule 59(e) or Fed.R.Civ.P. 60(b). A motion for relief from judgment under Rule 60(b), unlike a motion to amend a judgment under Rule 59(e), does not toll the 30-day appeal period. Browder, 434 U.S. at 263 n. 7, 98 S.Ct. at 560 n. 7; Lopez v. Corporacion Azucarera de Puerto Rico, 938 F.2d 1510, 1513 (1st Cir.1991). Our inquiry into the character of the motion is a functional one: "nomenclature should not be exalted over substance." Echevarria-Gonzalez v. Gonzalez-Chapel, 849 F.2d 24, 26 (1st Cir.1988) (quoting Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 41 (2nd Cir.1982)); 7 Moore's Federal Practice p 60.30 (1992). The caption "Motion for Alternative Relief," does not describe a motion under either Rule 59 or Rule 60. One of the claims for relief, remittitur of an excessive verdict, is a classic Rule 59 claim. The other claims, surprise and misconduct, are specifically referred to in Rule 60(b), and the defendants appear to rely on Rule 60(b)(1) in their memorandum to the district court. 1

Rule 59 provides that a new trial may be granted in a jury action for any reason for which new trials were granted at common law. The rule creates the opportunity to correct a broad panoply of errors, in order to prevent injustice. 11 Wright & Miller, Federal Practice and Procedure: Civil §§ 2803, 2805 (1973). In an early case under Rule 59, the Supreme Court described the breadth of the rule:

The motion for a new trial may invoke the discretion of the court in so far as it is bottomed on the claim that the verdict is against the weight of the evidence, that the damages are excessive, or, that, for other reasons, the trial was not fair to the party moving; and may raise questions of law arising out of substantial errors in admission or rejection of evidence or instructions to the jury.

Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251, 61 S.Ct. 189, 194, 85 L.Ed. 147 (1940) (emphasis supplied). It would appear in general that the grounds for relief from judgment under Rule 60(b) may also be grounds for a new trial under Rule 59, if the motion is timely made. 11 Wright & Miller, supra, §§ 2805-2810. In Conway v. Chemical Leaman Tank Lines, Inc., 687 F.2d 108,

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112 (5th Cir.1982), the court held that the grant of a new trial under Rule 59 was warranted when a party called a previously unidentified expert witness to testify without any forewarning, resulting in a favorable verdict for that party. This is precisely one of the instances of misconduct of which the defendants complain in their motion in this case.

The interrelation of Rules 59 and 60 was described by the court in Van Skiver v. United States, 952 F.2d 1241 (10th Cir.1991), cert. denied, --- U.S. ----, 113 S.Ct. 89, 121 L.Ed.2d 51 (1992), as follows:

[T]he rules allow a litigant subject to an adverse judgment to file either a motion to alter or amend the judgment under Fed.R.Civ.P. 59(e) or a motion seeking relief from judgment pursuant to Fed.R.Civ.P. 60(b). These two rules are distinct; they serve different purposes and produce different consequences. Which rule applies to a motion depends essentially on the time a motion is served. If a motion is served within ten days of the rendition of judgment, the motion will ordinarily fall under Rule 59(e). If the motion is served after that time it falls under Rule 60(b).

Van Skiver, 952 F.2d at 1243 (citations omitted). In other words, the litigant who gets his motion in on time enjoys the full menu of grounds for relief provided by Rule 59; if not, he is confined to the six specific grounds of relief found in Rule 60(b).

It is not quite that simple, however, because of additional restraints which the courts have imposed on motions brought under each rule. Motions under Rule 59 must raise matters that were brought to the attention of the district judge during the trial, unless the alleged error was fundamental. 11 Wright & Miller, supra, § 2805; Harley-Davidson Motor Co. v. Bank of New England-Old Colony, N.A., 897 F.2d 611, 616 (1st Cir.1990). Conversely, motions under Rule 60(b) must raise issues which were not available to the moving party within the appeal period, barring exceptional circumstances. Silk v. Sandoval, 435 F.2d 1266 (1st Cir.), cert. denied, 402 U.S. 1012, 91 S.Ct. 2189, 29 L.Ed.2d 435 (1971); Mitchell v. Hobbs, 951 F.2d 417 (1st Cir.1991). The relatively open ended time limits of Rule 60(b) can not be used to circumvent the time limitations on appeal.

A further question is raised by our opinion in Echevarria-Gonzalez v. Gonzalez-Chapel, in which we held that a motion which invoked Rule 60(b) and relied on the rhetoric of Rule 60(b) to support it, would not be construed as a motion under Rule 59 for purposes of tolling the appeal period, even though filed within ten days of the judgment, as required by Rule 59. Echevarria, 849 F.2d at 26. The critical fact in Echevarria, however, was that the motion sought relief from a default judgment. Under Fed.R.Civ.P. 55, the only means of setting aside a default judgment is by motion under Rule 60(b); the motion was either a Rule 60(b) or nothing.

A more general rule is exemplified by our opinion in Lopez v. Corporacion, in which we held that a timely filed motion could be treated as filed under Rule 59 even though it was titled "Motion for Relief From Judgment" and ostensibly filed pursuant to Rule 60(b). Lopez, 938 F.2d at 1513. We quoted with approval the statement in a leading text:

[A] motion, though characterized as one under Rule 60(b), which is filed within ten days of the entry of judgment and questions the correctness of the judgment, will be considered a functional Rule 59 motion and will...

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