Bodin v. Gulf Oil Corp.

Decision Date20 July 1989
Docket NumberNo. 88-2608,88-2608
Citation877 F.2d 438
PartiesDebra BODIN, Astor Morgan, David Dyson, and Clomare Trahan, Plaintiffs-Appellants, v. GULF OIL CORP., Sun Oil Co., Exxon U.S.A., Inc., Defendants-Appellees. Summary Calendar.
CourtU.S. Court of Appeals — Fifth Circuit

Debra Bodin, pro se.

Donna C. Kline, Houston, Tex., for plaintiffs-appellants.

Michael C. Smith, Tulsa, Okl., for Gulf.

Cynthia Keely Timms, Michael V. Powell, Dallas, Tex., for Sun Oil.

W.N. Blanton, III, Houston, Tex., Theresa U, Fay, Colleyville, Tex., for Exxon.

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

Before KING, JOHNSON, and JOLLY, Circuit Judges.

PER CURIAM:

Plaintiffs Debra Bodin, Astor Morgan, David Dyson, and Clomare Trahan ("the Dysons") appeal an order of the district court granting summary judgment in favor of defendants Gulf Oil Corporation, Sun Oil Company, and Exxon U.S.A., Inc. Because we lack jurisdiction to address the Dysons' appeal, we dismiss.

I.

The Dysons originally filed the instant suit against the defendant oil companies on August 26, 1986. In their complaint, the Dysons sought to recover from the oil companies certain monies as royalties on past mineral production from a tract of property which the Dysons claimed to have owned. After the parties engaged in discovery, the defendant oil companies filed motions for summary judgment in June 1987. On June 16, 1987, a hearing was conducted by the district court on the motions for summary judgment of the defendant oil companies. It was not until approximately one year later, however, on June 16, 1988, that the district court orally granted the summary judgment motions of the defendant oil companies at a status conference attended by the parties. At that status conference, the Dysons orally moved for leave to amend their complaint to assert a different theory of recovery which the district court orally denied. A final written order granting the summary judgment motions of the defendant oil companies was subsequently entered by the district court on June 16, 1988, subject to a supplemental order of the district court entered that same day correcting a purely typographical error. The district court did not, however, enter a written order denying the Dysons' motion to amend their complaint at that time.

Thereafter, the Dysons filed a notice of appeal from the order of the district court granting the summary judgment motions of the defendant oil companies on July 5, 1988. After the Dysons filed their notice of appeal, the district court, on July 21, 1988, 707 F.Supp. 875, issued a memorandum opinion explaining its final order granting summary judgment in favor of the defendant oil companies. Finally, on July 25, 1988, the district court entered a written order denying the Dysons' motion to amend their complaint. The Dysons did not file a second notice of appeal from the July 25 order of the district court denying their motion to amend.

II.

Initially, we note that none of the parties have raised the question of jurisdiction of this Court on appeal. Nevertheless, we must examine the basis of our jurisdiction over this appeal whether on our own motion or at the request of one of the parties. In re Lift & Equipment Service, Inc., 816 F.2d 1013, 1015 (5th Cir.1987). Federal Rule of Appellate Procedure 4(a)(4) provides in pertinent part:

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 denying a new trial or granting or denying any other such motion. A notice of appeal filed before the disposition of any of the above motions shall have no effect. A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion as provided above. No additional fees shall be required for such filing.

In the instant appeal, the issue becomes whether the motion filed by the Dysons to amend their complaint constitutes a motion to alter or amend the June 16, 1988, judgment within the context of Fed.R.Civ.P. 59. To answer the above query, it is necessary to reference the en banc decision of this Court in Harcon Barge Co., Inc. v. D & G Boat Rentals, Inc., 784 F.2d 665 (5th Cir.) (en banc), cert. denied, 479 U.S. 930, 107 S.Ct. 398, 93 L.Ed.2d 351 (1986). In Harcon Barge Co., this Court stated that "[i]f a motion falls within the scope of Rule 59(e), and it is timely served within ten days after entry of judgment as that rule requires, then the court must consider it as a Rule 59(e) motion for the purposes of Fed.R.App.P. 4(a)(4), regardless of how it is styled." Harcon Barge Co., 784 F.2d at 668. In the instant appeal, the motion of the Dysons to amend their complaint was filed on June 23, 1988, within ten days of the final order of the district court granting the ...

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