Harrell v. Dixon Bay Transp. Co.

• Decision Date: 28 October 1983
• Docket Number: No. 80-3490,80-3490
• Parties: Edgar Allen HARRELL, Plaintiff-Appellant Cross-Appellee, v. DIXON BAY TRANSPORTATION COMPANY, Defendant-Appellee Cross-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 123

718 F.2d 123

1985 A.M.C. 2407

Edgar Allen HARRELL, Plaintiff-Appellant Cross-Appellee, v. DIXON BAY TRANSPORTATION COMPANY, Defendant-Appellee Cross-Appellant.

No. 80-3490.

United States Court of Appeals Fifth Circuit.

Oct. 28, 1983.

Frank S. Bruno, New Orleans, La., for plaintiff-appellant cross-appellee.

James A. Cobb, Jr., New Orleans, La., for defendant-appellee cross-appellant.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before TUTTLE ^*, POLITZ and GARWOOD, Circuit Judges.

GARWOOD, Circuit Judge:

Edgar Allen Harrell ("Harrell"), a Jones Act seaman, appeals from that part of an otherwise favorable judgment, which set aside, for lack of sufficient evidentiary support, a jury award of damages for the asserted arbitrary and capricious refusal of his employer, Dixon Bay Transportation Company ("Dixon Bay"), to pay him additional maintenance and cure benefits. Dixon Bay cross-appeals from that part of the judgment, based on jury findings, which awarded Harrell damages, and maintenance and cure, for personal injuries sustained while a member of the crew on board one of Dixon Bay's vessels. The primary question before us is whether we have appellate jurisdiction of Harrell's appeal. The answer to that question depends on whether Harrell's post-judgment motion, which asked the district court to reconsider and withdraw a judgment notwithstanding the verdict rendered for Dixon Bay setting aside that part of the original judgment for damages based on Dixon Bay's arbitrary and capricious refusal to pay Harrell maintenance and cure benefits, was "a motion to alter or amend the judgment" within the purview of Fed.R.Civ.P. 59(e); and if so, then whether Harrell's motion for reconsideration suspended the commencement of the thirty-day time period for filing a notice of appeal until after entry of the district court's order denying his motion. Finding that we have appellate jurisdiction, and that the final judgment of the district court is correct, we affirm.

I.

Harrell's Jones Act and general maritime law claims were tried to a jury, which returned a verdict for him on January 29, 1980. The jury found that Dixon Bay was negligent; that its vessel, the M/V DIXON BAY, was unseaworthy; and that Dixon Bay's negligence and the unseaworthiness of its vessel were the producing and proximate causes, respectively, of Harrell's personal injuries. Based on these findings, the jury awarded Harrell $60,000 in damages. The jury further found that Harrell was entitled to receive maintenance at the rate of $14 a day from July 2, 1974, the day of his injury, until January 20, 1980, the day the jury found that Harrell had achieved maximum medical cure; that Dixon Bay had stopped paying Harrell maintenance and cure benefits before he reached maximum recovery; and that Dixon Bay had arbitrarily and capriciously refused to pay Harrell maintenance and cure benefits. Based on these findings, the jury awarded Harrell $28,392 in maintenance and cure benefits and $28,910 in damages for Dixon Bay's arbitrary and capricious refusal to furnish such benefits.

Immediately after receipt of the jury verdict, Harrell moved for a judgment on the verdict, which the district court orally granted. Thereafter, on February 7, 1980, the district court rendered a written judgment, which was entered on the same day, based on the jury verdict, awarding Harrell judgment against Dixon Bay for $60,000 on his negligence and unseaworthiness claims, $28,392 on his maintenance claim, and $28,910 on his claim for arbitrary and capricious failure to provide maintenance and cure, together with interest from date of judicial demand and costs of suit. On February 15, 1980, Dixon Bay filed a motion to set aside the February 7, 1980 judgment and to render a judgment for it notwithstanding the verdict ("judgment n.o.v."). After a hearing thereon, the district court, on April 18, 1980, rendered an order, entered on April 21, 1980, granting in part and denying in part Dixon Bay's motion. The district court in this connection held that, as a matter of law, Dixon Bay did not arbitrarily and capriciously refuse to pay Harrell maintenance and cure benefits, and the court accordingly set aside the jury's $28,910 award for such claimed arbitrary refusal, and ordered entry of judgment n.o.v. "dismissing with prejudice" Harrell's claim for alleged arbitrary and capricious failure to provide maintenance and cure. However, the court further held that there was ample evidence to support the jury's award against Dixon Bay for Harrell's personal injuries. ¹

Within ten days after the entry of this order, Harrell, on May 1, 1980, filed a "Motion for Reconsideration of Judgment Notwithstanding the Verdict," praying that the district court withdraw its judgment n.o.v. for Dixon Bay. After a hearing thereon, the district court, on May 22, 1980, denied Harrell's motion for reconsideration. Thereafter, on June 19, 1980, Harrell filed a notice of appeal

"... from the decision ... rendered on April 18, 1980 [entered April 21], Reconsideration denied May 22, 1980, granting Defendant's motion for judgment notwithstanding the verdict and reversing the determination of the jury verdict of February 7, 1980, awarding Plaintiff damages for Defendant's arbitrary and capricious failure to pay maintenance and cure to Plaintiff."

On July 2, 1980, Dixon Bay filed its own notice of appeal.

II.

Dixon Bay has moved to dismiss Harrell's appeal as untimely filed, contending that Harrell's motion for reconsideration of the district court's order entered April 21, 1980, which set aside the jury's award of damages for Dixon Bay's arbitrary and capricious refusal to pay Harrell maintenance and cure benefits, did not further postpone the commencement of the time period for filing a notice of appeal until after entry of the order denying his motion.

Rule 4(a), Fed.R.App.P., provides, in part, that:

"(1) In a civil case in which an appeal is permitted by law as of right from a district court to a court of appeals the notice of appeal required by Rule 3 shall be filed with the clerk of the district court within 30 days after the date of entry of the judgment or order appealed from ...."

However, the Rule further provides that:

"(4) If a timely motion under the Federal Rules of Civil Procedure is filed in the district court by any party: (i) for a judgment under Rule 50(b); (ii) under Rule 52(b) to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted; (iii) under Rule 59 to alter or amend the judgment; or (iv) under Rule 59 for a new trial, the time for appeal for all parties shall run from the entry of the order denying a new trial or granting or denying any other such motion. A notice of appeal filed before the disposition of any of the above motions shall have no effect. A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion as provided above. No additional fees shall be required for such filing."

A judgment favorable in all respects to Harrell was entered on February 7, 1980. Under Rule 4, Dixon Bay's timely motion for judgment n.o.v. (under Fed.R.Civ.P. 50(b)) suspended commencement of the thirty-day time period for filing a notice of appeal until the day after April 21, 1980, when the district court's order granting in part and denying in part Dixon Bay's motion was entered. Hammond v. Public Finance Corp., 568 F.2d 1362, 1363 (5th Cir.1978). On May 1, 1980, within ten days after the entry of this order, Harrell filed his motion for reconsideration, which the district court subsequently denied on May 22, 1980.

The crucial issue before us is whether Harrell's motion for reconsideration further postponed the commencement of the time period for filing his notice of appeal until after entry of the order denying this motion. If not, then Harrell's notice of appeal, filed on June 19, 1980, was clearly untimely, and we would therefore be without jurisdiction to consider it. ² Meggett v. Wainwright, 642 F.2d 95, 96 (5th Cir.1981). We hold, however, for the following reasons, that Harrell's notice of appeal was timely filed.

The granting of Dixon Bay's motion for judgment n.o.v., which set aside that part of the original judgment awarding Harrell damages for Dixon Bay's arbitrary and capricious refusal to pay him maintenance and cure benefits, resulted in the entry of a new judgment on April 21, 1980, from which the time for filing a notice of appeal commenced to run anew. Federal Trade Commission v. Minneapolis-Honeywell Regulator Company, 344 U.S. 206, 211-12, 73 S.Ct. 245, 248-249, 97 L.Ed. 245 (1952); Ray v. United States, 121 F.2d 416, 418 (7th Cir.1941). Cf. Gila River Ranch, Inc. v. United States, 368 F.2d 354, 357 (9th Cir.1966). Confronted for the first time with an unfavorable judgment from the district court, Harrell, within ten days after its entry, filed a motion for reconsideration. Although this motion does not recite that it was filed pursuant to Rule 59, we hold that it was, in effect, "a motion to alter or amend the judgment." ³ Woodham v. American Cystoscope Company of Pelham, New York, 335 F.2d 551, 554-55 (9th Cir.1964); Richerson v. Jones, 572 F.2d 89, 93 (3d Cir.1978); Stephenson v. Calpine Conifers II, Ltd., 652 F.2d 808, 811 (9th Cir.1981); Dove v. Codesco, 569 F.2d 807, 809 (4th Cir.1978); Consor v. Occidental Life Insurance Company, 469 F.Supp. 1110, 1117 (N.D.Tex.1979). See also 9 Moore's Federal Practice and Procedure p 204.12.

Relying on Wansor v. George Hantscho Company, Inc., 570 F.2d 1202, 1206 (5th Cir.1978), cert. denied, 439 U.S. 953, 99 S.Ct. 350, 58 L.Ed.2d 344 (1978), and Dockery v. Travelers Company of Hartford, Connecticut, 349 F.2d 1017, 1018 (5th Cir.1965), Dixon Bay argues that even if Harrell's motion for reconsideration is considered "a motion to alter or amend...