Burnley v. City of San Antonio

• Decision Date: 09 November 2006
• Docket Number: No. 04-51181.,04-51181.
• Parties: Dorothy BURNLEY, Plaintiff-Appellee, v. CITY OF SAN ANTONIO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

470 F.3d 189

Dorothy BURNLEY, Plaintiff-Appellee, v. CITY OF SAN ANTONIO, Defendant-Appellant.

No. 04-51181.

United States Court of Appeals, Fifth Circuit.

September 15, 2006.

Revised November 9, 2006.

COPYRIGHT MATERIAL OMITTED

W. Bailey Barton (argued), Law Offices of W. Bailey Barton, San Marcus, TX, Sarah A. Scott, Law Office of Sarah Scott, Austin, TX, for Plaintiff-Appellee.

Jacqueline Marie Stroh (argued), Crofts & Callaway, Amy M. Eubanks, San Antonio, TX, for Defendant-Appellant.

Before DAVIS, SMITH and DENNIS, Circuit Judges.^*

DENNIS, Circuit Judge:

Dorothy Burnley brought suit in Texas state court against her employer, the City of San Antonio ("the City"), asserting claims under the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101-12213, the Texas Commission on Human Rights Act, TEX. LAB.CODE § 21.051, and Texas negligence law. She alleged that the City failed to reasonably accommodate her disability and that the City's negligence caused her mold-induced respiratory illness. The City removed the case to federal court, and, after a trial, a jury returned a general verdict accompanied by interrogatories in Burnley's favor, awarding her $165,000 in compensatory damages. The clerk prepared a judgment incorporating the substance of the jury verdict and entered it in the civil docket on February 2, 2004. The court did not approve the form of the judgment before it was entered by the clerk. Burnley filed a motion for attorney's fees on February 10, 2004.

Several months later, on September 16, 2004, the district court granted Burnley's motion for attorney's fees, awarding her $31,530. On October 18, 2004, the City moved the district court to: (1) order under FED.R.CIV.P. ("FRCP") 58(c)(2) that Burnley's motion for attorney's fees have the same effect under FED.R.APP. P. ("FRAP") 4(a)(4) as a timely motion under FRCP 59; and (2) approve the form of a separate document judgment, entered by the clerk, incorporating the jury verdict. The court granted both motions on October 18, 2004. Also on October 18, 2004, the clerk entered the judgment approved as to form by the court, and the City filed a notice of appeal.

Thus, the time line unfolded as follows:

(1) February 2: Jury verdict; clerk's entry of judgment; no court approval.

(2) February 10: Plaintiff moved for attorney's fees under FRCP 54(d)(2).

(3) July 2: 150 days elapsed after clerk's entry of judgment on the verdict.

(4) September 16: Plaintiff's fee motion granted.

(5) October 18: Defendant filed, and court granted, FRCP 58(c)(2) motion to treat fee motion as FRCP 59 new trial motion to delay running of time to appeal.

(6) October 18: Court approved the form of the judgment on the merits entered by the clerk on February 2, 2004.

(7) October 18: Defendant filed notice of appeal.

I.

Burnley objects to our exercise of appellate jurisdiction, contending that the City did not file a timely notice of appeal. FRAP 4(a)(1)(A) provides: "In a civil case except as provided in Rules 4(a)(1)(B), 4(a)(4), and 4(c), the notice of appeal required by Rule 3 must be filed with the district clerk within 30 days after the judgment or order appealed from is entered." The taking of an appeal within the prescribed time is "mandatory and jurisdictional."¹ Budinich v. Becton Dickinson & Co., 486 U.S. 196, 203, 108 S.Ct. 1717, 100 L.Ed.2d 178 (1988)(citing FRAP 2, 3(a), 4(a)(1), 26(b); United States v. Robinson, 361 U.S. 220, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960); Farley Transp. Co. v. Santa Fe Trail Transp. Co., 778 F.2d 1365 (9th Cir.1985)); see Moody Nat. Bank of Galveston v. GE Life and Annuity Assur. Co., 383 F.3d 249, 250 (5th Cir.2004) ("A timely filed notice of appeal is an absolute prerequisite to this court's jurisdiction."); Halicki v. Louisiana Casino Cruises, Inc., 151 F.3d 465, n. 1 (5th Cir.1998). The Advisory Committee's Note under FRAP 3 states:

Rule 3 and Rule 4 combine to require that a notice of appeal be filed with the clerk of the district court within the time prescribed for taking an appeal. Because the timely filing of a notice of appeal is "mandatory and jurisdictional," compliance with the provisions of those rules is of the utmost importance.

FRAP 3 advisory committee's note (quoting Robinson, 361 U.S. 220, 224, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960)). Although FRAP 2 provides that a court of appeals may, "to expedite its decision or for other good cause, suspend any provision of these rules in a particular case," FRAP 26(b) forbids a court to "extend the time to file . . . a notice of appeal (except as authorized in rule 4)." Therefore, under the rules, we may not hear a case unless we can say that the notice of appeal has been filed within the time constraints laid upon us by FRAP 4. The Advisory Committee's view that the time for filing a notice of appeal requirement of FRAP 4 is jurisdictional, "although not determinative, is `of weight' in our construction of the Rule." Torres v. Oakland Scavenger Co. 487 U.S. 312, 316, 108 S.Ct. 2405, 101 L.Ed.2d 285 (1988) (quoting Miss. Publ'g Corp. v. Murphree, 326 U.S. 438, 66 S.Ct. 242, 90 L.Ed. 185, (1946)).

In the present case, because the City filed its notice of appeal on October 18, 2004, over seven months after the clerk entered the judgment in the civil docket on February 2, 2004, it appears that the City's appeal was late. The City argues, however, that: (1) the clerk's entry was a nullity and therefore did not cause the time for appeal to commence; or, in the alternative, (2) under the district court's order of October 18, 2004, the plaintiff's post-judgment motion for attorney's fees must be treated as having the same effect as a motion for a new trial, i.e., as delaying the effectiveness of the entry of judgment until the court disposed of the motion on September 16, 2004, resulting in the October 18, 2004 notice of appeal being timely because it was within 30 days of the entry of judgment.

II.

The City first argues that the notice of appeal clock never began to run because the clerk's entry of judgment on February 2, 2004 was invalid due to the court's failure to approve of that judgment as to form, as required by FRCP 58(a)(2)(B)(i). To address this argument, we turn to FRCP 58 and FRAP 4, which contain definitions of "entry" and "time of entry" of judgments.²

Both FRCP 58 and FRAP 4 were amended in 2002 to provide, together with FRCP 79, an integrated system fostering promptness, accuracy, certainty and finality in the entry of judgments by district courts. FRCP 58 and FRAP 4 establish the "entry of judgment" by the district court as the triggering event for the beginning of tolling periods for the filing of notices of appeals and post-judgment motions. Under FRCP 58, in the case of specified uncomplicated orders, verdicts and judgments, judgment is deemed entered by the court when the clerk makes an entry of it under FRCP 79(a) showing its nature and substance in the civil docket. See FRCP 58(a)(2)(A), (b)(1). In the case of certain more complicated verdicts and other grants of relief, judgment is deemed entered by the court when the earlier of two events occurs: (1) when it is set forth on a separate document approved by the court and entered under FRCP 79(a); or (2) when 150 days have run from the clerk's entry of its nature and substance under Rule 79(a). See FRCP 58(a)(1), (a)(2)(B), (b)(2); see also FRAP 4(a)(7)(B) (noting that a failure to set forth a judgment on a separate document does not affect the validity of an appeal from that judgment).

In applying these provisions to the case at hand, it is important to note that FRCP 79(a) authorizes and requires the clerk to make entries of all "orders, verdicts and judgments" and the "substance of each order or judgment of the court."³ Thus, even when the court fails to promptly approve the form of a separate document judgment under FRCP 58(a)(2)(B), as in the present case, the clerk is required and authorized to make such an entry. Further, when the court fails to promptly approve a judgment as required by Rule 58(a)(2)(B), the rules require that if the court subsequently approves the form of a separate document judgment before 150 days have run from the clerk's initial entry in the civil docket under Rule 79(a), the judgment set forth on a separate document approved by the court shall be entered in the civil docket by the clerk and will supplant the clerk's initial entry pertaining to that judgment. See FRCP 58(b)(2)(i); 16A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 3950.1 (3d ed. Supp.2006) ("The deadlines in Rule 4(a)(1) will begin to run 150 days after the judgment or order is entered in the civil docket (or when the judgment or order is actually set forth on a separate document, if that occurs before the 150th day).").

In the present case, because the jury returned a general verdict accompanied by interrogatories, FRCP 58(a)(2)(B)(i) required that the court promptly approve the form of the judgment in a separate document, and that it be promptly entered by the clerk. The court failed to promptly approve the form of the judgment at that time. Nonetheless, the clerk, under FRCP 79(a), promptly made an entry in the civil docket in the form of a judgment on the verdict showing the nature and substance of the verdict in Burnley's favor against the City. Accordingly, under FRCP 58(b)(2)(B), when 150 days had run from the clerk's entry in the civil docket under FRCP 79(a), the clerk's entry by law constituted the entry of judgment of the court for purposes of FRCP 58 and other Federal Rules. Because the clerk's entry under FRCP 79(a) was recorded on February 2, 2004, the entry of judgment of the court 150 days later fell on July 2, 2004.⁴ Thus, the City of San Antonio's notice of appeal, filed on October 18, 2004, was filed more than 30 days after the entry of the judgment of the court and was not timely under FRAP 4(a)(1)(A).

The City acknowledges that its notice of appeal was not filed...