Alimenta (U.S.A.), Inc. v. Anheuser-Busch Companies, Inc.
| Decision Date | 10 November 1986 |
| Docket Number | 85-8859,Nos. 85-8686,ANHEUSER-BUSCH,s. 85-8686 |
| Parties | , 2 UCC Rep.Serv.2d 441 ALIMENTA (U.S.A.), INC., Plaintiff-Appellant, v.COMPANIES,INC., Defendant-Appellee, ALIMENTA (U.S.A.), INC., Plaintiff-Appellant, Cross-Appellee, v.COMPANIES, INC., Defendant-Appellee, Cross-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
W. Lyman Dillon, Atlanta, Ga., for plaintiff-appellant, cross-appellee.
Robert N. Meals, Larry H. Chesin, A. Lee Parks, Jr., Atlanta, Ga., for defendant-appellee, cross-appellant.
Appeal from the United States District Court for the Northern District of Georgia.
Before VANCE and EDMONDSON, Circuit Judges, and ALLGOOD *, Senior District Judge.
CORRECTED OPINION
On September 17, 1984, the district court entered a final judgment, ruling that Anheuser-Busch Companies, Inc. (Anheuser) was liable for approximately twelve metric tons of peanuts it had processed; that Anheuser properly revoked acceptance as to approximately 148 metric tons of peanuts it had blanched; and that Anheuser had rightfully rejected the remaining 1040 metric tons it had neither blanched nor processed. The court further ruled that the parties were to bear their own costs. Alimenta, Inc. (Alimenta) filed a timely motion for judgment NOV, or in the alternative, for a new trial. This motion was denied on August 2, 1985, and Alimenta filed a Notice of Appeal Docket Number 85-8686, on August 29, 1985. On September 13, 1985, the district court Clerk resubmitted a Rule 59 motion filed by Anheuser on September 27, 1984. The district court denied this motion on October 22, 1985 and Alimenta filed a second notice of appeal, Docket Number 85-8859. On November 1, 1985, Anheuser filed a Notice of Cross Appeal. These two appeals, Docket Numbers 85-8686 and 85-8859, have been consolidated for determination.
FACTS:
Anheuser was seeking peanuts in the Fall of 1980. Alimenta supplied two samples of Malawi peanuts to Anheuser, and with Alimenta's knowledge, Anheuser fried, oil-roasted and tested the samples.
On December 17, 1980, the parties contracted for the sale of 700 metric tons of Malawi peanuts at $1.20 per pound, plus 500 metric tons of Malawi peanuts at $1.30 per pound. Alimenta delivered the peanuts, and Anheuser temporarily stored them in warehouses. Anheuser began test production runs with the peanuts, and complained that the peanuts had a terrible taste and gave off an awful odor.
Anheuser notified Alimenta of the problem, and tried to vary the roasting process in an effort to eliminate the bad taste and smell. The efforts proved unavailing, and six weeks after shipment of the peanuts, Anheuser formally notified Alimenta that it was rejecting the peanuts. Prior to this notice of rejection, Anheuser blanched 160 metric tons of peanuts, and honey roasted 25,000 pounds. Anheuser returned the peanuts, and Alimenta filed a complaint alleging that Anheuser was in breach of contract by virtue of its failure to pay for 1200 metric tons of peanuts. Anheuser counterclaimed against Alimenta for the damages it suffered in consequences of being shipped defective and non-conforming goods.
The first issue to be addressed by this court relates to jurisdiction. The district court entered its final judgment in this case on September 17, 1984. On September 27, 1984, Anheuser filed a motion, styled as a Rule 59 motion, which asked that the district court reconsider its decision to require each party to bear its own costs. Alimenta timely filed a motion for a judgment NOV or, in the alternative, for a new trial. Alimenta's motion was denied on August 2, 1985, and Alimenta filed a notice of appeal on August 29, 1985. Anheuser's Rule 59 motion was resubmitted to the court on September 13, 1985. The district court denied that motion on October 22, 1985. Alimenta then filed a second notice of appeal on October 25, 1985, in response to which Anheuser filed a timely Notice of Cross-Appeal. The issues created by this situation are whether Alimenta's first Notice of Appeal was valid, and whether Anheuser's Notice of Cross-Appeal, filed in response to Alimenta's second Notice of Appeal, is valid.
Rule 4(a)(4) of the Federal Rules of Appellate Procedure provides that:
If a timely motion under the Federal Rules of Civil Procedure is filed in the district court by any party: ... under Rule 59 to alter or amend the judgment ... the time for appeal for all parties shall run from the entry of the order ... granting or denying any ... such motion. A notice of appeal filed before the disposition of any of the above motions shall have no effect.
Seemingly, Alimenta's first notice of appeal filed during the pendency of Anheuser's Rule 59 motion is ineffective. However, Anheuser's "Rule 59" motion was not in fact a motion to alter or amend judgment. According to Lucas v. Florida Power and Light Co., 729 F.2d 1300 (11th Cir.1984), Id. at 1301. In the present case, Anheuser's "Rule 59" motion in fact requests the court to tax the costs of the action to the losing party. In keeping with Rule 4(a)(4) of the Federal Rules of Appellate Procedure, and with the Lucas case, Alimenta's first Notice of Appeal is valid. As to Anheuser's Notice of Cross-Appeal, it is ineffective. According to Federal Rules of Appellate Procedure, Rule 4(a)(3),
If a timely notice of appeal is filed by a party, any other party may file a notice of appeal within 14 days after the date on which the first notice of appeal was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period last expires.
Anheuser's Notice of Cross Appeal was filed two months after Alimenta's first Notice of Appeal, and was therefore not timely filed.
The next issue to be addressed is whether the district court abused its discretion in excluding the testimony of Dr. John T. Powers, an expert witness for Alimenta. The district court's exclusion of Dr. Powers' testimony was a sanction imposed upon Alimenta for failure to conform to Fed.R.Civ.P. 26(e)(1)(B) which states that:
A party is under a duty seasonably to supplement his response with respect to any question directly addressed to ... the identity of each person expected to be called as an expert witness at trial, the subject matter on which he is...
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