Financial Services Corp. of Midwest v. Weindruch

• Citation: 764 F.2d 197
• Decision Date: 10 June 1985
• Docket Number: Nos. 83-2984,83-3076,s. 83-2984
• Parties: FINANCIAL SERVICES CORPORATION OF the MIDWEST, Plaintiff-Appellee-Appellant, v. Bernard F. WEINDRUCH, et al., Defendants-Appellants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 197

764 F.2d 197

2 Fed.R.Serv.3d 558

FINANCIAL SERVICES CORPORATION OF the MIDWEST, Plaintiff-Appellee-Appellant, v. Bernard F. WEINDRUCH, et al., Defendants-Appellants-Appellees.

Nos. 83-2984, 83-3076.

United States Court of Appeals, Seventh Circuit.

Submitted Jan. 21, 1985.

Decided June 10, 1985.

William A. Montgomery, P.C., Schiff, Hardin & Waite, Chicago, Ill., Herbert M. Spector, Spector, Tappa, Kopp & Nathan, Rock Island, Ill., for plaintiff-appellee-appellant.

A. Daniel Feldman, Isham, Lincoln & Beale, Chicago, Ill., Robert J. Noe, Bozeman, Neighbour, Patton & Noe, Moline, Ill., for defendants-appellants-appellees.

Before ESCHBACH, POSNER and COFFEY, Circuit Judges.

PER CURIAM.

Financial Services Corporation has moved to dismiss the Weindruchs' appeal as untimely, and we have decided to dispose of the motion by published opinion because it raises a significant procedural issue relating to the time for appealing a preliminary-injunction order based on oral findings that are later supplemented with written ones.

The Weindruchs made a tender offer for the common stock of FSC, which responded by suing the Weindruchs in a federal district court in this circuit, and by moving for a preliminary injunction. At the conclusion of a hearing on the motion, on June 16, 1983, the judge issued oral findings of fact and conclusions of law in favor of FSC, the movant for the preliminary injunction. One week later, on June 23, the judge issued the preliminary injunction itself. And one week after that, on June 30, the district judge issued written findings of fact and conclusions of law.

The Weindruchs did not file their notice of appeal until November 7, 1983, which was, of course, much too late, unless they succeeded in arresting the running of the 30-day period for appealing in a private case by the motion for reconsideration that they filed on July 11. A Rule 59(e) motion to alter or amend judgment, if filed within 10 days of the judgment, tolls the 30-day appeal time; and a motion to reconsider is a motion to alter or amend within the meaning of Rule 59(a), A.D. Weiss Lithograph Co. v. Illinois Adhesive Products Co., 705 F.2d 249 (7th Cir.1983) (per curiam). We may also assume without having to decide that the motion to reconsider which the Weindruchs filed on July 11 was within 10 days of June 30. However, that was not the date of the judgment; it was the date of the judge's supplemental findings of fact and conclusions of law. The Weindruchs filed too late; hence the filing did not toll the time for appeal, and their appeal must be dismissed as untimely.

Rule 59(e) requires that the motion to alter or amend be filed within 10 days of the judgment, and an order granting a preliminary injunction is a judgment within the meaning of the rule, see Rule 54(a). The preliminary injunction was granted by an order unmistakably so doing on June 23. It is true that no written findings of fact or conclusions of law were issued at that time, and that Rule 52(a) requires findings of fact and conclusions of law when a preliminary injunction is granted or refused. But Rule 52(a) expressly states that the findings of fact and conclusions of law may be oral, and the judge's order granting the preliminary injunction directed the Weindruchs to furnish FSC's shareholders a summary of his findings of fact and conclusions of law as made orally at the hearing on June 16. Moreover, even if the judge had issued no findings and conclusions, that would not have delayed the entry of his order or deprived him of jurisdiction to enter it, see Swanson & Youngdale, Inc. v. Seagrave, 561 F.2d...