Insurance Co. of North America v. Bay, s. 85-1036
| Decision Date | 26 February 1986 |
| Docket Number | 85-1163,Nos. 85-1036,s. 85-1036 |
| Parties | INSURANCE COMPANY OF NORTH AMERICA, v. Miles E. BAY, United States of America by and through its agency the Internal Revenue Service, Centerre Bank National Association, Appellee, James L. Anding. INSURANCE COMPANY OF NORTH AMERICA, v. Miles E. BAY, United States of America by and through its agency the Internal Revenue Service; Centerre Bank National Association; J.D. Streett & Company, Inc.; Ibur & Associates Company, Inc., Appellees, James L. Anding, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Frank Carlson, Union, Mo., for appellant.
David L. Baylard, Union, Mo., for appellee.
Before McMILLIAN, Circuit Judge, HENLEY, Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.
Miles E. Bay and James L. Anding appeal from a final order entered in the District Court 1 for the Eastern District of Missouri granting summary judgment in favor of Centerre Bank National Association (Centerre) on Centerre's cross claim in an interpleader action. For reversal Bay argues that the district court erred in granting summary judgment because the state court judgment, on which the motion for summary judgment was based, was not final and was void for lack of jurisdiction. For reversal Anding argues that (1) he is entitled to compensation for services rendered to Bay either under the contingency fee contract or in quantum meruit and (2) Centerre did not have standing to challenge his attorney's lien in the interpleaded fund. Centerre has filed a motion to dismiss Anding's appeal for lack of jurisdiction. Centerre also alleges that Anding's and Bay's appeals are frivolous and requests damages pursuant to Fed.R.App.P. 38. For the reasons discussed below, we affirm the district court judgment in favor of Centerre, dismiss Anding's appeal, and deny Centerre's request for damages.
This action was originally brought in August 1983 by the Insurance Company of North America (INA) in the Circuit Court of Franklin County, Missouri, as an interpleader action to determine the rights and claims of creditors of Bay to the sum of $82,176.96. INA named as defendants Centerre, Bay, Anding, the Internal Revenue Service (IRS), and two others.
INA deposited the interpleaded fund in the registry of the court to satisfy a state court judgment Bay had secured against INA. INA had originally brought an action against Bay in a case involving a fire loss. INA v. Halim, No. CV18-813CC (Mo.Cir.Ct. June 22, 1982). Bay, who was represented by Anding under a contingency fee contract, counter-claimed for damages. The insurance case was submitted to the court on February 10, 1983, and judgment was entered on June 22, 1983. INA's motion for a new trial was denied on August 16, 1983, and no appeal was taken.
In March 1983 (approximately one month after the submission of the INA v. Bay case to the state court), Anding was convicted of a class D felony, tampering with a witness. State v. Anding, 689 S.W.2d 745 (Mo.Ct.App.1985). On April 26, 1983, Anding was suspended from the practice of law in Missouri.
Anding claims a portion of the interpleaded fund based on his representation of Bay in the state court action against INA. Anding had entered into a contingency fee contract with Bay on November 24, 1981; the contract required Bay to pay Anding 60% of all sums recovered after trial on claims arising out of the fire and reasonable expenses, or 40% of the proceeds plus reasonable expenses should the case be settled. It was further agreed that appeals, extraordinary remedies and collateral suits were to be treated as expenses.
Centerre claimed the entire interpleaded fund, based on a prior judgment against Bay for $103,113.75. Centerre Bank v. Bay, No. CV182-445CC (Mo.Cir.Ct., Sept. 21, 1982). This action was based on a note executed by Bay. Bay failed to file any pleadings after being served and the state court entered a default judgment.
Centerre cross-claimed against Bay and Anding in this interpleader action. Centerre asserted that its interest was superior to Bay's. Centerre alleged that Anding did not have a lien against the fund because he had been suspended from the practice of law in Missouri.
The IRS, a claimant to the interpleaded fund, removed the case to the federal district court in November 1983. The IRS was subsequently dismissed at its request.
On July 31, 1984, the district court entered partial summary judgment against Anding and in favor of Centerre. 2 On October 29, 1984, partial summary judgment was entered against Bay and in favor of Centerre. On December 6, 1984, the other defendants were voluntarily dismissed, Centerre's motion for pay out was granted and the clerk was ordered to pay the fund to Centerre. On December 12, 1984, the district court set a trial date for March 11, 1985. On January 17, 1985, the district court vacated the order setting the trial for March 1985.
Bay filed his notice of appeal on January 4, 1985, within 30 days following entry of the pay out order. Anding's notice of appeal was filed on January 25, 1985, more than 30 days after entry of the pay out order, but within 30 days after entry of the January 17, 1985, order vacating the trial setting.
We consider first Centerre's motion to dismiss Anding's appeal as untimely filed. Centerre argues that Anding's appeal was untimely because the December 6, 1984, order was the final judgment in the interpleader case because it disposed of the remaining issues and parties to the litigation. 3
Fed.R.App.P. 4(a) provides that a "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." Fed.R.Civ.P. 6(b) permits the district court to enlarge the time for filing notices of appeal "upon motion made after the expiration of the specified period ... where the failure to act was the result of excusable neglect." Even where Fed.R.Civ.P. 6(b) prohibits an enlargement of time for certain actions, unique circumstances may justify the granting of an untimely appeal. A party's reasonable reliance on the erroneous action of a district court which causes the party to file an untimely notice of appeal will justify the enlargement of the time period for filing an appeal. Harris Truck Line, Inc. v. Cherry Meat Packers, Inc., 371 U.S. 215, 83 S.Ct. 283, 9 L.Ed.2d 261 (1962) (); see Thompson v. INS, 375 U.S. 384, 84 S.Ct. 397, 11 L.Ed.2d 404 (1964) (); Eady v. Foerder, 381 F.2d 980 (7th Cir.1967) ().
Anding argues that the appeal was timely because the December 6, 1984, order was not final. We do not agree. A judgment is final in an interpleader action when the court determines the claimants entitled to the money and the amount due each claimant. Diamond Shamrock Oil & Gas Corp. v. Commissioner 422 F.2d 532, 533 (8th Cir.1970). In the present case the December 6, 1984, order...
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