Howell v. Marmpegaso Compania Naviera, S.A.

Citation566 F.2d 992
Decision Date11 January 1978
Docket NumberNo. 77-2901,77-2901
PartiesHassie Duran HOWELL, Plaintiff-Appellee, v. MARMPEGASO COMPANIA NAVIERA, S.A. and A.B.C. Company, Defendants-Appellees. J. P. Florio & Co., Inc., Third-Party Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Stuart A. McClendon, W. Frederick Denkman, Metairie, La., for Florio.

Melvyn J. Perez, Chalmette, La., Charles J. Ferrara, Metairie, La., for Hassie Duran Howell.

William A. Ransom, III, New Orleans, La., for Marmpegaso.

Charles R. Maloney, New Orleans, La., for plaintiff-appellee.

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

Before THORNBERRY, RONEY and RUBIN, Circuit Judges.

BY THE COURT:

Plaintiff Howell seeks an order dismissing the appeal of third-party defendant J. P. Florio & Co., Inc., contending, inter alia, that notice of appeal was not timely filed. Finding no merit in Howell's contentions, we deny the motion.

This is Florio's second appeal in this case. In his original appeal, this Court found the $150,000 jury award excessive and directed the district court to require a remittitur to the outer limits of the proof or, at the option of plaintiff Howell, to grant a new trial. Howell v. Marmpegaso Compania Naviera, S.A., 536 F.2d 1032 (5th Cir. 1976). Pursuant to these instructions, the district court entered a reduced judgment on May 31, 1977.

On its face the May 31 judgment would appear to be a final decision of the district court, appealable to this Court under 28 U.S.C.A. § 1291. Under the terms of this Court's mandate, however, Howell was authorized to reject the remittitur and insist on a new trial. Until he accepted the remittitur, the judgment remained "open, unfinished (and) inconclusive." Cohen v. Beneficial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Thus, Howell's June 13 acceptance of the remittitur rendered the judgment final and appealable, and actuated the 30-day time limit within which notice of appeal must be filed. Fed.R.App.P. 4(a). See United States v. Schaefer Brewing Co., 356 U.S. 227, 232-233, 78 S.Ct. 674, 2 L.Ed.2d 721 (1958).

On June 23, 1977, Florio served within the 10 days of the judgment becoming final, as required by Fed.R.Civ.P. 59(e), a motion to amend the judgment, which terminated the running of the 30-day time limit. Fed.R.App.P. 4(a). The motion to amend was granted in part and denied in part, and the court's order was entered on July 22, 1977.

Although under Fed.R.App.P. 4(a) Florio had but 30 days from July 22 in which to file his notice of appeal, Fed.R.App.P. 26(a) requires...

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9 cases
  • Higgins v. Smith Intern., Inc.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 21 September 1983
    ...confer finality on the judgment entering the remittitur? The first and last questions are answered by Howell v. Marmpegaso Compania Naviera, S.A., 566 F.2d 992 (5th Cir.1978). That decision was the second appellate ruling in the course of that case. In the first appeal, this Court decided t......
  • Richardson v. Oldham
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 28 January 1994
    ...Oil Co., 784 F.2d 706 (5th Cir.1986) (en banc), dismissing appeal of 746 F.2d 1041 (5th Cir.1984); Howell v. Marmpegaso Compania Naviera, S.A., 566 F.2d 992 (5th Cir.1978) (per curiam).13 Fed.R.Civ.P. 61. "[T]he erroneous admission or exclusion of an affidavit that does not meet the Rule 56......
  • Mauriello v. University of Medicine and Dentistry of New Jersey
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 14 January 1986
    ...for determining the amount." Id. at 233, 78 S.Ct. at 678. An issue similar to the one here was decided in Howell v. Marmpegaso Compania Naviera, S.A., 566 F.2d 992, 993 (5th Cir.1978). The court held that until the plaintiff consented to the "remittitur, the judgment remained open, unfinish......
  • Vil Laser Sys., L.L.C. v. Shiloh Industries
    • United States
    • United States State Supreme Court of Ohio
    • 13 August 2008
    ...... plaintiff's acceptance, and therefore was timely"); Howell v. Marmpegaso. 894 N.E.2d 307. Compania Naviera, S.A. ......
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1 books & journal articles
  • An Analysis of Remittitur's Effects on the Timing to File a Notice of Appeal.
    • United States
    • Suffolk University Law Review Vol. 53 No. 3, June 2020
    • 22 June 2020
    ...(determining plaintiff's filing to accept remittitur commences appeal time computation), and Howell v. Marmpegaso Compania Naviera, S.A., 566 F.2d 992, 993 (5th Cir. 1978) (holding time limit begins at plaintiff's filing of remittitur acceptance), with Anderson v. Roberson, 249 F.3d 539, 54......

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