Latham v. Wells Fargo Bank, N.A.

• Decision Date: 13 April 1993
• Docket Number: No. 92-4754,92-4754
• Citation: 987 F.2d 1199
• Parties: James A. LATHAM, Plaintiff, Marian E. Latham, Movant-Appellant, v. WELLS FARGO BANK, N.A., et al., Defendants-Appellees. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1199

987 F.2d 1199

25 Fed.R.Serv.3d 550

James A. LATHAM, Plaintiff Marian E. Latham, Movant-Appellant, v. WELLS FARGO BANK, N.A., et al., Defendants-Appellees.

No. 92-4754

Summary Calendar.

United States Court of Appeals Fifth Circuit.

April 13, 1993.

Joseph M. Clark, Sr., Bossier City, for movant-appellant.

Glenn L. Langley, Julia E. Blewer, Cook, Yancey, King & Galloway, Shreveport, La., for Wells Fargo.

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

Before GARWOOD, JONES and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:

Movant-appellant Marian E. Latham (Latham) is a would-be intervenor in a suit instituted by her husband against defendants-appellees. Because the suit had already been settled by the parties and dismissed with prejudice, the district court rejected Latham's attempted intervention. Due allegedly to the failure of her counsel to receive notice of the entry of the court's order, Latham failed to make a timely appeal. She thus moved to have the district court set aside its order or to extend the appeals period. It is from the denial of these two motions that Latham now appeals. We affirm.

Facts and Proceedings Below

The suit that underlies this appeal is a lender-liability action commenced in 1987 by appellant's husband, James A. Latham (the debtor). ¹ Following a compromise and settlement agreement executed between the debtor's trustee in bankruptcy and appellees Wells Fargo Bank, N.A. and First Security Bank of Utah, N.A. (the banks), ² the district court on July 30, 1990, ordered the dismissal of the suit with prejudice.

On August 14, 1990, Latham, who was not a party to original litigation, filed two motions in the district court, one seeking leave to intervene or be substituted as a party in the suit and another couched as a "motion to set aside order of dismissal." The theory of both motions was that Latham's intervention in the litigation was necessary because the cause of action asserted in the lender liability suit, and dismissed in the court's July 30 order, was community property. ³ Reasoning that Latham's community property could properly be sold or compromised by the trustee with the bankruptcy court's approval, and that Latham had expressly renounced her right to concur in the sale or encumbrance of her community assets, the court denied her motion to set aside the July 30, 1990, dismissal order. The court also denied Latham's motion to intervene on the ground it was too late to intervene once judgment had been rendered. These motions were denied on December 20, 1991, and the court's order was docketed on December 26, 1991.

Latham's counsel claims that the denial order was mailed to the wrong address and thus was not received by him until January 24, 1992, just three days before the time for filing a notice of appeal of that order would expire. ⁴ In reaction, Latham, on February 21, 1992, filed two more motions: a "motion to extend time for filing of appeal" and a second "motion to set aside order of dismissal." The district court denied both motions on June 18, 1992, and Latham thereafter timely appealed that order to this Court.

Discussion

At the outset, we emphasize that the only matters before this Court are Latham's two motions of February 21 and the district court's denial of them. Latham brought no timely appeal from the December 26, 1991, denial of her August 14, 1990, motions.

I. The Motion to Extend the Time for Filing an Appeal

Latham argues that, because her counsel did not receive notice of the district court's December 26, 1991, order until just before the expiration of time to file notice of appeal therefrom, it was error for the district court to deny her request, brought under Federal Rules of Appellate Procedure 4(a), to extend the time for filing a notice of appeal. We disagree. It is true that the clerk of the court is required to serve notice of the entry of an order or judgment by mail to the parties immediately upon its entry. See Fed.R.Civ.P. 77(d). Nevertheless, Rule 77(d) also provides:

"Lack of notice of the entry by the clerk does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed, except as permitted in Rule 4(a) of the Federal Rules of Appellate Procedure." Fed.R.Civ.P. 77(d).

Thus, Rule 77(d) clearly states that a party must make a timely appeal whether or not he receives notice of the entry of an order. Implicit in this rule is the notion that parties have a duty to inquire periodically into the status of their litigation. See, e.g. Jones v. Estelle, 693 F.2d 547, 549 (5th Cir.1982) (per curiam), cert. denied, 460 U.S. 1072, 103 S.Ct. 1528, 75 L.Ed.2d 950 (1983). As the text of Federal Rules of Civil Procedure 77(d) indicates, the only exception to its rule is Federal Rules of Appellate Procedure 4(a).

Two provisions of Federal Rules of Appellate Procedure 4(a) are potentially applicable in circumstances such as these. The first, Federal Rules of Appellate Procedure 4(a)(6), as amended effective December 1, 1991, was specifically designed to deal with cases of late notice. It provides:

"The district court, if it finds (a) that a party entitled to notice of the entry of a judgment or order did not receive such notice from the clerk or any party within 21 days of its entry and (b) that no party would be prejudiced, may, upon motion filed within 180 days of entry of the judgment or order or within 7 days of receipt of such notice, whichever is earlier, reopen the time for appeal for a period of 14 days from the date of entry of the order reopening the time for appeal." ⁵ Fed.R.App.P. 4(a)(6).

Rule 4(a)(6) thus allows a court to extend the filing period for a party that receives notice of an order more than three weeks (but less than six months) after its entry. Assuming that Latham, as she claims, did not receive notice of the court's order until January 24, 1992, she could have sought an extension under Rule 4(a)(6) on that date. However, that Rule requires a party to seek an extension "within 7 days of receipt of such notice." Latham did not seek any extension until February 21, 1992--almost a month after receiving notice. Therefore, Latham is not entitled to relief under Federal Rules of Appellate Procedure 4(a)(6).

Latham's only other potential avenue of relief under Rule 4(a) is Rule 4(a)(5), which provides:

"The district court, upon a showing of excusable neglect or good cause, may extend the time for filing a notice of appeal upon motion filed not later than 30 days after the expiration of the time prescribed by this Rule 4(a)." Fed.R.App.P. 4(a)(5).

We note initially that Latham's application for an extension was within the time permitted by Rule 4(a)(5). As noted, see supra note 4, the deadline for filing an appeal of the court's December 26, 1991, order was January 27, 1992. Thirty days from that time would be February 26, 1992. Latham's motion was filed on February 21, 1992. Therefore, her application for an extension, while not within the appeals period itself, was within thirty days after its expiration. It thus became necessary for the district court to determine whether Latham had demonstrated that her failure to file a timely appeal was due to excusable neglect. ⁶ Latham, of course, offers as justification her failure to receive prompt notice of entry of the court's order. The district court rejected this argument. We have said both that the excusable neglect standard is a strict one and that a district court's decision to grant or deny relief under Rule 4(a)(5) is reviewed only for abuse of discretion. See, e.g., Allied Steel v. City of Abilene, 909 F.2d 139, 142-43 (5th Cir.1990) (per curiam).

We now hold that no such abuse was committed. There is some dispute over whose fault it was that the notice was sent to the wrong address; however, we see no need to resolve it. A sufficient reason for denying Latham's request was offered by the district court: her counsel received the order within the time for filing an appeal yet waited almost a month before requesting an extension. A related sufficient reason, we think, is that Latham failed to avail herself of Rule 4(a)(6). That rule was designed to handle cases just such as this one. Yet, as we have seen, Latham waited too long to seek relief under that provision. This fact is fatal to her claim of excusable neglect under Rule 4(a)(5). We cannot say that it was an abuse of discretion to deny Latham relief under the general provisions of Rule 4(a)(5) where but for her own delay she could have sought an extension under Rule 4(a)(6).

In sum, we are unable to conclude that the district court erred in denying Latham's motion to extend the time for filing an appeal.

II. The Motion to Set Aside the Court's Order

We now consider Latham's other February 21, 1992, motion, which was styled as a "motion to set aside order of dismissal." This February 21 motion, which attacked the court's denial of Latham's August 14, 1990, motions, is obviously a Rule 60(b) motion for relief from an order (indeed, Latham cited Rule 60(b) in support of that motion). See Harcon Barge Co. v. D & G Boat Rentals, Inc., 784 F.2d 665, 669 (5th Cir.) (en banc), cert. denied, 479 U.S. 930, 107 S.Ct. 398, 93 L.Ed.2d 351 (1986).

We review the denial of Latham's February 21, 1992, Rule 60(b) motion only for abuse of discretion. Although the grounds offered in support of that motion are rather murky, one can find in the motion three arguments in favor of setting aside the district court's December 26, 1991, order (which, again, denied Latham's August 14, 1990, motions). First, she reiterates the arguments that she made in support of her August 14, 1990, attack on the dismissal of the lender-liability suit. Second, she cites her failure to receive notice of the court's December 26 order. Third, she complains that she failed to receive the banks' oppositions to her August 14 motions....