Foiles v. United States
| Decision Date | 05 July 1972 |
| Docket Number | No. 71-1515.,71-1515. |
| Citation | 465 F.2d 163 |
| Parties | Harry H. FOILES, Plaintiff-Appellee, v. UNITED STATES of America, Defendant and Third-Party Plaintiff-Appellant, v. Alphonse T. INDRELUNAS, Third-Party Defendant-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
James R. Thompson, Chicago, Ill., Johnnie M. Walters, Richard Halberstein, Attys., Tax Div., Dept. of Justice, Washington, D. C., Fred B. Ugast, Acting Asst. Atty. Gen., Meyer Rothwacks, Richard W. Perkins, Attys., Tax Div., Dept. of Justice, Washington, D. C., for defendant and third-party plaintiff-appellant.
Edward J. Calihan, Jr., Chicago, Ill., for plaintiff-appellee.
Before KILEY and STEVENS, Circuit Judges, and LARAMORE,* Senior Judge.
This is an appeal by the United States of America, originally the third-party plaintiff, from the jury verdict and judgment in the District Court for the Northern District of Illinois, in favor of Alphonse T. Indrelunas, originally the third-party defendant. The decision of the lower court, pursuant to the verdict of the jury, was that defendant, the president of A. T. I. Trucking Corporation, was not liable for the 100 percent penalty assessed against him for his alleged willful failure to pay over withholding taxes due for 1960-1962 from the said A. T. I. Trucking Corporation. The assessment was made under sections 6671 and 6672 of the Internal Revenue Code of 1954, alleging that defendant was the responsible party and that the failure to pay over the withholding taxes was willful. The original decision in this case also included reference to Harry H. Foiles, the original complainant in the case, who was the treasurer and vice president of A. T. I. Corporation and who was also found not liable under the same statute. Said verdict, which was in reference to liability only, the amount in controversy having been stipulated by the parties, was rendered on March 21, 1969. On that same day the District Court Clerk entered the decision of the jury on the appropriate docket for this case pursuant to oral instructions from the bench that the verdicts be entered of record and that there be judgment on the verdicts so entered. As noted, this verdict was with reference to Foiles, the original complainant, and Indrelunas, the third-party defendant; however, following rendition of the verdict, the government initially decided only to appeal the case as to Harry H. Foiles. Thus, on July 9, 1970, the government filed a notice of appeal as to Harry Foiles but, as the title of this case indicates, that appeal was eventually abandoned when the government chose to pursue its avenues of recovery with reference only to Alphonse T. Indrelunas instead of Mr. Foiles. The specifics of why that decision was made is unknown to the court but the mechanics of putting that decision into effect has caused this court and the lower court no little concern.
Following the notice of appeal on July 9, 1970, it appears that no further significant action was taken by the government until February 23, 1971, some 23 months following the original decision. At that time a motion was filed by the United States to direct entry of judgment in the original case against the United States and in favor of Harry H. Foiles and Alphonse T. Indrelunas. It appears, and the government so admits (page 7, government brief, footnote 6), that the motion was made solely for the purpose of allowing the appeal against Alphonse T. Indrelunas. In that motion the government contended that the docket entry of judgment made by the clerk at the behest of the District Court following the jury verdict was not the type of formal judgment required by Rule 58, Fed.R.Civ.P., to start the statute of limitations for appeals running (Rule 4, Fed.R. of App.Pro.). The government pointed out that Rule 58 contains the sentence "every judgment shall be set forth on a separate document." Therefore, contends the government, since the files in this case did not contain such a separate document referring to final judgment in favor of Foiles and Indrelunas, as so required by Rule 58, such a separate document should be included forthwith. And, it is not until the inclusion thereof that the applicable time limits for appeal would begin.
On February 25, 1971, pursuant to the motions described above, the District Court ordered that formal judgments be entered in favor of Foiles and Indrelunas. This action was taken following the court's Memorandum Opinion and Order wherein Judge Parsons set forth his decision to grant the government's motion with respect to the formal requirements of entering judgment. It is that decision which will hereinafter be reviewed and because we cannot agree with the District Court as to the procedural issue heretofore described, we do not address ourselves to the merits of this case.
His reasoning for doing so included reference to Moore's Federal Practice, in general, and the case of United States v. F. & M. Schaefer Brewing Co., 356 U.S. 227, 78 S.Ct. 674, 2 L.Ed.2d 721 (1958), to be discussed infra. However, as it appears to this court, greatest reliance for the decision below was placed upon a decision of this circuit in Funk v. Franklin Life Insurance Company, 392 F.2d 913, 915 (7th Cir. 1968); Home Fed. Savings & Loan Ass'n v. Republic Ins. Co., 405 F.2d 18 (7th Cir. 1968), wherein it was held that a docket entry and minute order containing the language, "enter judgment on the verdict for plaintiffs for the sum due under the policy of insurance, to be computed," was not a final appealable order.
Upon carefully considering the Funk case it will be noted that the issue concerning the docket entry was in reference to finality not an issue relating to sufficiency of the entry for purposes of starting the time limits for appeal. Indeed, the Funk decision refers to Cohen v. Beneficial Industrial Loan Corporation, 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1948), as supporting authority. The Cohen case, however, speaking generally of appealability at the portion cited by Funk, merely recites the well-founded principle that only final judgments are appealable and "so long as the matter remains open, unfinished or inconclusive, there may be no * * * appeal." There can be no dispute with this general proposition and indeed the court in Funk was correct in so citing Cohen. However, both Funk and Cohen were referring to an incomplete verdict and in the Funk case the decision of the jury was neither final nor conclusive since it left open the amount of recovery for further proceedings. However, that is not our case here. In this case there can be no question that the case was complete upon the rendering of the verdict. The terms of that verdict are clear and unequivocal and nothing remained to be resolved following its rendition and entry since the amount of recovery had been stipulated and the sole issue for determination by the jury was that of liability. Thus, we have no problem with finality as was the case in Funk and for that reason we think Funk is not applicable to the case at bar. Nevertheless, the problem presented is far from being resolved once Funk is repudiated as authority for the District Court's decision below.
The real problem raised by this case, i. e., interpreting Rule 58, Fed.R.Civ.P., results from the 1963 revision of Rule 58. Prior to that time the problem presented herein would not have arisen since Rule 58 did not make reference to a separate document setting forth every judgment. This again emphasizes our dilemma here, which is, does the Rule as it now reads require that in every case a separate document must be on file before the time limits for appeal begin to run? Further isolating the issue, we are not concerned with the sufficiency of the docket entry and minute order because there is no dispute that the court ordered such and the clerk entered the verdict on the appropriate docket (See Rule 79(a), Fed.R.Civ.P.).
As mentioned above, Federal Rule 58 was amended in 1963. It now reads as follows:
The changes made by the 1963 revision1 were designed, according to the Notes of the Advisory Committee on Rules, to emphasize the difference between the type of verdicts referred to in clause (1) of the Rule, i. e., those that involve uncomplicated, straightforward decisions of the jury or the court, and those described in clause (2) of the Rule which are of a more complicated nature. See, 28 U.S.C.A., Rules 52 to 58 (1971). Thus, in speaking of the clause (1) type judgments, the Notes recite:
In the first situation, it is clear that the clerk should enter the judgment without awaiting a direction by the court unless the court...
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United States v. Indrelunas 8212 805
...February 25, 1971, and that therefore the Government's appeal was untimely under the provisions of Fed.Rule App.Proc. 4. Foiles v. United States, 465 F.2d 163 (CA7 1972). Since both parties implicitly concede that the jurisdiction of the Court of Appeals was based on the provisions of 28 U.......
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Gregson & Associates Architects v. Government of the Virgin Islands
...fact that all parties involved believed the case to be at an end. We, therefore, dismiss the defendant's appeal. Foiles v. United States, 465 F.2d 163, 168-69 (7th Cir. 1972), rev'd sub nom. United States v. Indrelunas, 411 U.S. 216, 93 S.Ct. 1562, 36 L.Ed.2d 202 (1973) (footnote omitted). ......
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UNITED STATES V. INDRELUNAS
...25, 1971, and that, therefore, the Government's appeal was untimely under the provisions of Fed.Rule App.Proc. 4. Foiles v. United States, 465 F.2d 163 (CA7 1972). Since both parties implicitly concede that the jurisdiction of the Court of Appeals was based on the provisions of 28 U.S.C. § ......