Fidelcor Mortg. Corp. v. Insurance Co. of North America, 86-3507

• Citation: 820 F.2d 367
• Decision Date: 29 June 1987
• Docket Number: No. 86-3507,86-3507
• Parties: FIDELCOR MORTGAGE CORPORATION, f/k/a Local Mortgage Company of Georgia, a foreign corporation, Plaintiff-Appellant, v. INSURANCE COMPANY OF NORTH AMERICA, a foreign corporation, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 367

820 F.2d 367

FIDELCOR MORTGAGE CORPORATION, f/k/a Local Mortgage Company

of Georgia, a foreign corporation, Plaintiff-Appellant, v. INSURANCE COMPANY OF NORTH AMERICA, a foreign corporation,

Defendant-Appellee.

No. 86-3507.

United States Court of Appeals, Eleventh Circuit.

June 29, 1987.

Stephen C. Bullock, Marks, Gray, Conroy & Gibbs, Jacksonville, Fla., for plaintiff-appellant.

William M. Howell, Howell, Liles, Braddock & Milton, Jacksonville, Fla., for defendant-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before GODBOLD and HILL, Circuit Judges, and ESCHBACH ^*, Senior Circuit Judge.

HILL, Circuit Judge:

Fidelcor Mortgage brought suit against its insurer, Insurance Company of North America (ICNA), seeking reimbursement for monies paid to a third party who had successfully sued Fidelcor in state court for fraud, slander of title, and punitive damages. The district court found that ICNA's policy covered Fidelcor for the slander claim, but not for fraud or punitive damages.

A synopsis of the docket sheet best explains the course of events. On January 23, 1986, the district court filed an order finding ICNA liable for coverage on the slander claim; not liable for coverage on the fraud claim; and not liable for coverage on the punitive damage award. The last paragraph of the order concluded, however, that Fidelcor was owed nothing. The court directed entry of a final judgment based on this order. On January 23, 1986, that final judgment was entered.

Then, on April 30, 1986, in an order issued on Fidelcor's Motion for Reconsideration, the court struck the last paragraph of its January 23rd order (which stated that Fidelcor was owed nothing). The court then vacated the January 23rd judgment, and directed the parties to stipulate to the costs and fees incurred by Fidelcor in its state court direct appeal of the action brought by the state court plaintiff, as well as attorneys' fees and costs incurred by Fidelcor in pursuing the instant federal action.

Next, on June 30, 1986, once the court had received the information requested in its order of April 30th, the district judge entered an order requiring ICNA to pay Fidelcor $5,001.00 for coverage on the slander claim; $72,893.63 in costs and attorneys' fees incurred in both state and federal court; and $15,255.00 in prejudgment interest. On June 30, 1986, a final judgment was entered to this effect. The final judgment required ICNA to pay to Fidelcor the total sum of $93,149.63.

On July 10, 1986, Fidelcor filed a motion to amend the judgment. The court responded to Fidelcor's motion to amend the judgment in an order dated July 14, 1986. The court noted that the final judgment entered on June 30 was correct in the amount of $93,149.63. It then denied Fidelcor's motion to amend.

On July 29, 1986, Fidelcor filed a notice of appeal. On September 10, 1986, ICNA paid the judgment of June 30th in full. Fidelcor executed a satisfaction of judgment on a standard form, ¹ which ICNA then filed in district court on September 17, 1986.

ICNA now moves this court to dismiss the appeal, as the underlying judgment has been satisfied. It argues that when the action was dismissed, only one judgment remained, that of June 30th, which it paid in full. ICNA notes that the bulk of that amount ($42,822.00) was for attorneys' fees incurred by Fidelcor in federal court when fighting chiefly over coverage on the $200,000 punitive damage claim. ICNA also points out that the judgment was satisfied after the notice of appeal was filed, so that Fidelcor cannot claim it wanted to preserve separate issues for appeal "despite" accepting satisfaction of the district court judgment.

In response, Fidelcor argues that it is appealing separate judgments. It claims that the January 23rd judgment disposed of the claims for punitive damages and fraud, and that it is separate from the June 30th judgment. Thus, while ICNA satisfied the June 30th judgment dealing with attorneys' fees and the slander claim, Fidelcor claims it is still entitled to pursue an appeal on the district court's January 23rd denial of reimbursement for the amount Fidelcor paid to the third party in state court in punitive damages and for fraud.

We find this argument unpersuasive. Fidelcor's position does not take account of the fact that the January 23rd judgment was vacated. The court's January 23rd order was used to support its June 30th order as well as the June 30th final judgment but there was only one remaining final judgment. The court clarified this in its order of July 14th, when it denied Fidelcor's motion to amend the lone remaining judgment of June 30th.

Alternatively, Fidelcor argues that this case comes within an exception to the general rule that one who accepts the fruits of a judgment may not appeal from that judgment. See e.g., Price v. Franklin Investment Co., Inc., 574 F.2d 594 (D.C.Cir.1978) (where a court "adjudicates separable or divisible controversies," the appealing party may accept the benefit of the divisible feature in his favor and challenge the portion adverse to him). Fidelcor argues that the claims it seeks to appeal are separable, even if the judgments are not. It argues that the court's January 23rd order operated as a separate disposition of the fraud and punitive damage claims, distinct from the court's June 30th disposition of the slander issue and attorneys' fees. It also argues that it specifically preserved these claims as distinct in its notice of...