Barnett v. Petro-Tex Chemical Corp.
| Decision Date | 08 February 1990 |
| Docket Number | PETRO-TEX,No. 89-2146,89-2146 |
| Citation | 893 F.2d 800 |
| Parties | Troy D. BARNETT, et al., Plaintiffs-Appellants, v.CHEMICAL CORPORATION, et al., Defendants-Appellees. Robert H. BROUGHTON, et al., Plaintiffs-Appellants, v.CHEMICAL CORPORATION, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
David M. Feldman, Tamara D. Kontrimas, Vinson & Elkins, Houston, Tex., for Barnett, et al.
Gregg M. Rosenberg, Houston, Tex., for Broughton, et al.
Richard R. Brann, Carol Helliker, Baker & Botts, Houston, Tex., for Petro-Tex Chemical Corp.
Appeals from the United States District Court for the Southern District of Texas.
This is an appeal from summary judgment for the defendants in a consolidated action seeking damages for claimed violations of the Employee Retirement Income Security Act, 29 U.S.C. Sec. 1001 et seq. (1982) (ERISA) and pendent state law claims.
In 1984, Tenneco, Inc. sold the assets of its wholly-owned subsidiary, Petro-Tex Chemical Corp., to an unrelated entity, Texas Petrochemicals, Inc. Some Petro-Tex employees accepted immediate employment with Texas Petrochemicals while others exercised an available option and took early retirement around the time of the sale. Members of both groups eventually filed suits against Petro-Tex and Tenneco, claiming breach of contract and ERISA violations.
Forty-seven former Petro-Tex employees who accepted employment with Texas Petrochemicals (Barnett plaintiffs) filed a complaint in a Texas district court. They charged that the sale resulted in their involuntary termination and that none of them received the notice of termination required by their employment contracts. Although these plaintiffs accepted employment with Texas Petrochemicals, they complained that they were not given the same jobs or salaries that they had with Petro-Tex. In addition, the Texas Petrochemicals benefit package was worth less than the one they had at Petro-Tex.
Eleven of the employees who accepted early retirement (Broughton plaintiffs) filed a complaint in the United States District Court for the Southern District of Texas. They claimed that Petro-Tex and Tenneco denied them severance benefits in violation of an employer's duties under ERISA, and breached their contract of employment.
The defendants removed the Barnett plaintiffs' case to the United States District Court for the Southern District of Texas where it was consolidated with the Broughton plaintiffs' case on motion of the defendants and over the objections of the plaintiffs. The district court denied the Barnett plaintiffs' motion to remand their action to the state court. Pursuant to a local rule the consolidated action proceeded as "Troy D. Barnett, et al. v. Petro-Tex Chemical Corp., et al." Counsel for each group of plaintiffs continued to press that group's claims separately.
The district court granted summary judgment in favor of the defendants on all claims. The final judgment dismissing the consolidated action was signed by the district judge on December 27, 1988, and entered by the clerk on December 30, 1988. On January 9, 1989, the Broughton plaintiffs filed a motion for reconsideration. On January 25, 1989, the Barnett plaintiffs filed a notice of appeal, as follows:
Troy D. Barnett, Et Al., Plaintiffs,
v.
Petro-Tex Chemicals Corp. & Tenneco, Inc., Defendants.
Notice is hereby given that Troy D. Barnett, et al., Plaintiffs above-named, hereby appeal to the United States Court of Appeals for the Fifth Circuit from the This notice was signed by an attorney who had represented the Barnett plaintiffs throughout the district court proceedings.
Final Judgment entered in this action on December 30, 1988....
On January 25, 1989, the district judge signed an order denying the Broughton plaintiffs' motion for reconsideration. This order was entered January 30, 1989. On February 24, 1989, the Broughton plaintiffs filed a notice of appeal as follows:
Troy D. Barnett, et al., Plaintiffs,
v.
Petro-Tex Chemical Corporation and Tenneco, Inc. Defendants.
Notice is hereby given that Robert H. Broughton, et al., Plaintiffs above-named, hereby appeal to the United States Court of Appeals for the Fifth Circuit from the Final Judgment entered in this action on December 30, 1988 and from the Order denying Plaintiffs' Motion for Reconsideration entered in this action on January 30, 1989.
This notice was signed by the attorney who had represented the Broughton plaintiffs throughout the district court proceedings.
The defendants filed a motion to dismiss the Barnett plaintiffs' appeal as untimely and the Broughton plaintiffs' appeal as to all plaintiffs except Robert H. Broughton. The motion was referred to the hearing panel. The defendants argue that the Barnett plaintiffs' notice of appeal was premature, since the Broughton plaintiffs' motion for reconsideration was pending at the time this notice of appeal was filed. The Barnett plaintiffs did not file a new notice of appeal within 30 days after the entry of the order disposing of the motion for reconsideration. While conceding that the notice of appeal filed by the attorney for the Broughton plaintiffs was timely, the defendants contend that the notice was effective only to appeal the judgment against Robert H. Broughton, the only appellant named in the notice.
The Barnett plaintiffs respond that they filed a "Form of Appearance of Counsel" on February 27, 1989, which listed the name of each Barnett plaintiff seeking to appeal the final judgment. They argue that this document, filed within 30 days after entry of the order denying the Broughton plaintiffs' motion for reconsideration, advised the court that all the Barnett plaintiffs were appealing. They argue, further, that since the district court entered only one final judgment in the consolidated cases, only one notice of appeal was required. The Broughton plaintiffs' timely appeal stated that the "Plaintiffs above-named" appealed, and the caption showed Troy D. Barnett, et al. as plaintiffs. Thus, they contend that the Broughton plaintiffs' notice, when combined with their own Form for Appearance of Counsel, was effective to appeal the final judgment on behalf of all the Barnett plaintiffs.
In the alternative, the Barnett plaintiffs maintain that the Broughton plaintiffs' motion for reconsideration did not affect the time for a notice of appeal by the Barnett plaintiffs. Therefore, they argue, their January 25, 1989, notice of appeal was not premature and they were not required to file a new notice of appeal.
The Broughton plaintiffs argue that their notice of appeal should be amended to add the names of all the Broughton plaintiffs as appellants. They argue, in the alternative, that the case should be remanded to the district court for clarification of the final judgment. They contend that the judgment is ambiguous since the district court merely wrote that "[t]he plaintiffs take nothing" without designating to which of the 58 plaintiffs the judgment applied.
All issues related to the notices of appeal have been fully briefed by the parties.
The defendants' motion to dismiss raises questions under two different rules of appellate procedure. Federal Rule of Appellate Procedure 3(c) states, "The notice of appeal shall specify the party or parties taking the appeal...." Rule 4(a)(4) provides that if a timely motion is filed in the district court by any party under Rule 59 of the Federal Rules of Civil Procedure to alter or amend a judgment, the time for all parties to appeal runs from entry of the order granting or denying the motion. The Rule continues:
We examine the Barnett plaintiffs' notice of appeal first. The motion for reconsideration is treated as a civil procedure Rule 59(e) motion to alter or amend the judgment, thus bringing appellate Rule 4(a)(4) into play. Benson v. Bearb, 807 F.2d 1228 (5th Cir.1987). That rule provides that a motion filed "by any party" causes the time for appeal "for all parties" to run from entry of the order, and renders a notice of appeal filed before disposition of the motion of "no effect." Thus, the pendency of the Broughton plaintiffs' motion rendered the Barnett plaintiffs' January 25, 1989, notice of appeal a nullity.
The Barnett plaintiffs' argument that the Form for Appearance of Counsel, which listed all the plaintiffs represented by the filing attorney, should be treated as a timely notice of appeal cannot be sustained. In Van Wyk El Paso Investment, Inc. v. Dollar Rent-A-Car-Systems, 719 F.2d 806 (5th Cir.1983), this court rejected the same argument now made by the Barnett plaintiffs. In Van Wyk, Rule 4(a)(4) rendered a premature notice of appeal ineffective, and the would-be appellant relied on several documents which it filed within 30 days of entry of final judgment as providing constructive notice of appeal. One of the documents relied upon was a Form for Appearance of Counsel. Refusing to treat the documents relied upon as the equivalent of a notice of appeal, this court characterized such documents as "no more than steps in the perfection of the prematurely noticed appeal." Id. at 807. Briggs v. Procunier, 764 F.2d 368 (5th Cir.1985), does not hold to the contrary. In Briggs, the notice of appeal was ineffective, but the plaintiff "rescued his appeal," by filing a motion to clarify the record. Id. at 370. This motion, unlike the documents in Van Wyk, contained all of the information required of a notice of appeal by Rule 3(c). Id. at 370-71.
Page v. DeLaune, 837 F.2d 233 (5th Cir.1988), likewise provides no support for...
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