Faysound Ltd. v. Falcon Jet Corp.

• Decision Date: 01 August 1991
• Docket Number: No. 90-2896EA,90-2896EA
• Citation: 940 F.2d 339
• Parties: FAYSOUND LIMITED, Appellee, v. FALCON JET CORP. Walter Fuller Aircraft Sales, Inc., Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 339

940 F.2d 339

21 Fed.R.Serv.3d 1009

FAYSOUND LIMITED, Appellee, v. FALCON JET CORP Walter Fuller Aircraft Sales, Inc., Appellant.

No. 90-2896EA.

United States Court of Appeals Eighth Circuit.

Submitted June 13, 1991.

Decided Aug. 1, 1991.

Michael Lowenberg, Dallas, Tex., for appellant, Michael Lowenberg, Melinda G. Jayson and Mary B. Spector, Dallas, Tex., on the brief.

Vincent Foster, Jr., Little Rock, Ark., for appellee, Vincent Foster, Jr. and Jess Askey III, Little Rock, Ark., on the brief.

Before ARNOLD, Circuit Judge, HEANEY, Senior Circuit Judge and WOLLMAN, Circuit Judge.

PER CURIAM.

This case is about who owns a Falcon jet. It is also about the procedural requirements for prosecuting an appeal. The District Court ¹ awarded title to Faysound Limited, the plaintiff. Walter Fuller Aircraft Sales, Inc., which also claims title to the plane, appealed. After Fuller's notice of appeal had been filed, Falcon Jet Corporation, the other defendant, asked the District Court to amend its judgment in this case. The District Court denied the motion. Fuller did not file another notice of appeal after the District Court's judgment thus became final. Faysound now argues that Fuller's failure to file a timely and effective notice of appeal deprives this Court of jurisdiction. Fuller disagrees, of course, and offers several reasons why we should continue on to the merits of this interesting dispute. The reasons are ingenious, but we are unconvinced. The appeal will be dismissed for lack of a final judgment supporting Fuller's notice of appeal.

I.

Faysound is a Hong Kong corporation. In 1982 it purchased a Falcon 50 jet aircraft from Falcon Jet Corporation for a little over nine million dollars. Faysound promptly leased the jet to a Philippine corporation, United Coconut Chemicals, for five years. During the term of that lease, President Ferdinand Marcos fled the Philippines, and was succeeded by Corazon Aquino. As one of her first official acts, President Aquino established the Philippine Commission on Good Government. The Commission's job was to recover assets held by President Marcos and his associates that had, in effect, been plundered from the Philippine treasury. United Coconut was suspect. One of the corporation's largest stockholders was a close friend and advisor to Marcos. The Falcon was seized by the Commission in 1986. The writ of sequestration authorizing the seizure lapsed, however, in 1988. The Commission nonetheless continued to hold the jet, and in 1989 it sold the Falcon to Walter Fuller Aircraft Sales, Inc. Fuller flew the jet to Little Rock, Arkansas, for repairs at the Falcon Jet facility there.

Faysound then sued to recover the jet. Fuller and Falcon Jet Corporation were named as defendants. Falcon Jet delivered the jet into the custody of the District Court and cross-claimed for the storage costs. Fuller asserted good title based on its purchase from the Philippine government, acting through its agency, the Commission. The Commission's actions in acquiring the plane were, Fuller contended, acts of state, insulated from foreign judicial process. Faysound disagreed, countering with the treaty exception to the act-of-state doctrine. It argued that according to the Geneva Convention on International Rights in Aircraft, 4 U.S.T. 1830, T.I.A.S. 2847 (the United States and the Philippines are both signatories), the sequestration was improper from the start. And in any event, it had been lifted. The Commission could not convey to Fuller what it did not own.

The District Court sided with Faysound. On cross-motions for summary judgment, the Court rejected Fuller's act-of-state defense and awarded title to the jet to the plaintiff. The Court also rejected Falcon Jet's claim for storage costs. It held that it would be unfair to tax Faysound for a benefit the corporation had not sought. Faysound Ltd. v. Walter Fuller Aircraft Sales, Inc., 748 F.Supp. 1365 (E.D.Ark.1990). The District Court entered its judgment on October 29, 1990. On November 7th, Fuller filed a timely notice of appeal. Two days later, Falcon Jet filed a motion to amend the judgment. Fed.R.Civ.P. 59(e). This motion was also timely. It asked the District Court to reconsider its refusal to assess storage costs against Faysound. On January 22, 1991, the District Court entered its order denying Falcon Jet's motion to amend the judgment.

II.

The appeal proceeded on a normal course. After briefing was completed and a variety of other motions had been dealt with, however, Faysound filed a motion to dismiss the appeal. ² Faysound contends that Falcon Jet's Rule 59 motion voided Fuller's earlier notice of appeal. The judgment, it continues, was not final until the motion to amend had been decided. Fuller's failure to file a new notice of appeal after January 22 (when the District Court disposed of Falcon Jet's motion) allegedly dooms its appeal. The language of Federal Rule of Appellate Procedure 4(a)(4) strongly supports Faysound's analysis. "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 ..., [a] notice of appeal filed before the disposition of [that motion] shall have no effect."

The Supreme Court has strictly enforced Rule 4. In Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982) (per curiam), the Court rejected the view that an appellate court has discretion to consider a case on the merits when the notice of appeal is filed during the pendency of a Rule 59 motion. Provident's notice of appeal was filed after a motion to amend the judgment had been docketed, but before the motion had been decided. The Court held that the notice "was a nullity." Relying on the plain language of Rule 4, the Court explained: "[I]t is as if no notice of appeal were filed at all. And if no notice of appeal is filed at all, the Court of Appeals lacks jurisdiction to act." Griggs, 459 U.S. at 61, 103 S.Ct. at 403. In dicta, the Court also addressed the situation presented in our case. "Professor Moore has aptly described the post-1979 effect of a Rule 59 motion on a previously filed notice of appeal: 'The appeal simply self-destructs.' " Ibid (quoting 9 Moore, Ward, & Lucas, Moore's Federal Practice p 204.12, p. 4-65 n. 17 (1982)).

Fuller gives three reasons why its appeal remains intact. First, it argues that various pleadings filed in this Court after the judgment became final satisfy Fed.R.App.P. 3's requirements. Any one of these papers, according to Fuller, can and should be read as a notice of appeal. Second, it argues that the November 1990 notice of appeal is in fact sufficient. Fuller offers two paths to that conclusion: the Forgay doctrine, a narrow exception to the final-judgment rule, and the general appealability of injunctions under 28 U.S.C. Sec. 1292(a)(1). Finally, Fuller argues that there are extraordinary circumstances present in this case that justify our taking jurisdiction. We are not persuaded by any of these arguments.

Assuming that the judgment became final on January 22, 1991, Fuller contends that it had until April 11, 1991, to notice its appeal. (This of course is more than 30 days. Fuller says a bankruptcy proceeding tolled the normal time period, and we assume this is correct.) Fuller filed several papers with our Court during that period. Those documents included notice that the bankruptcy stay had been lifted, Fuller's reply brief, and a motion to show cause and take judicial notice of a court decision in the Philippines. Each of these papers, Fuller says, satisfies the spirit of Rule 3, and includes all the required information: the parties, the judgment appealed from, and the court being appealed to. Fed.R.App.P. 3(c). We disagree. It is true that filing a sufficient notice of appeal in the court of appeals instead of the district court is not a good reason to dismiss the appeal. Fed.R.App.P. 4(a)(1). It is also true that "informality of form or title" is not a fatal error. Fed.R.App.P. 3(c). But on the far edge of informality lies insufficiency. Looking past the fact that Fuller's supposed notices were filed in the wrong court, and reading those papers generously, Fuller's pleadings are still insufficient: they do not specify correctly the judgment being appealed from. All the various documents specify instead the District Court's October order, the original judgment, and not the final judgment entered on January 22, 1991, with the denial of Falcon Jet's post-judgment motion.

It is perfectly true, as Fuller repeatedly points out, that all during the spring of 1991, or at least until Faysound filed its motion to dismiss on May 16, all of the parties and this Court assumed that the appeal was properly before us, that there was no question as to its timeliness, and that the case was proceeding on course. It is also true that the technical error upon which Faysound has seized has not misled it in any material way, or caused it any prejudice. In these circumstances, there is a strong temptation to try to find a way around the technical problem, for example, by treating the various papers filed with us by Fuller, or one of them, anyway, as the functional equivalent of a notice of appeal. With some regret, we conclude that the temptation must be resisted.

Jurisdiction is a technical subject, appellate jurisdiction perhaps more so than jurisdiction in general. It is important to have bright-line rules in this area, rules that can be easily applied at the early stages of a case to determine with certainty whether our jurisdiction has been properly invoked. If we allow ourselves to search through various documents in our Clerk's office, including even a letter from Fuller's counsel informing us of the lifting of a bankruptcy stay, in order somehow to piece together the various constituent elements necessary to a proper notice of appeal, this purpose will have been...