Martin v. Campbell, No. 80-7918

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Writing for the CourtBefore GODBOLD; GODBOLD
Citation692 F.2d 112
PartiesShayne Degraw MARTIN, Plaintiff-Appellant, v. R. E. CAMPBELL, M.D., Defendant-Appellee.
Docket NumberNo. 80-7918
Decision Date08 November 1982

Page 112

692 F.2d 112
Shayne Degraw MARTIN, Plaintiff-Appellant,
v.
R. E. CAMPBELL, M.D., Defendant-Appellee.
No. 80-7918.
United States Court of Appeals,
Eleventh Circuit.
Nov. 8, 1982.
As Corrected Nov. 29, 1982.

Page 113

Oren R. Lewis, Jr., Stephen A. Horvath, Arlington, Va., for plaintiff-appellant.

A. Stewart O'Bannon, Jr., Walker & Musgrove, William T. Musgrove, Jr., Florence, Ala., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before GODBOLD, Chief Judge, HENDERSON and MERRITT *, Circuit Judges.

GODBOLD, Chief Judge:

This is an appeal from a jury verdict in favor of a doctor in a malpractice case.

Appellant sued a hospital and Dr. R. E. Campbell. She alleged that the hospital had negligently extended staff privileges to Dr. James B. Anderson, Jr. who, she asserted, had performed unnecessary surgery on her. Dr. Anderson was not, however, made a party to the suit. She charged that Dr. Campbell, as a member of the hospital executive committee, should have taken action to suspend the hospital privileges of Dr. Anderson, because, first, he (Dr. Campbell) knew that Dr. Anderson had previous difficulties and failures in the practice of medicine; and, second, because the stated purpose of the surgery performed on plaintiff was that she had a tumor, and allegedly Dr. Campbell, as hospital pathologist, knew from examination of tissue taken from plaintiff by Dr. Anderson that the diagnosis of a tumor was unsupported.

The jury returned a substantial verdict against the hospital and a verdict in favor of Dr. Campbell. What is before us is the appeal from the judgment in favor of Dr. Campbell. Separate judgments were entered on the two verdicts October 6, 1980. The hospital moved for a judgment n. o. v. or a new trial on October 15. While this motion was pending, on November 3, plaintiff filed a notice of appeal from the judgment in favor of Dr. Campbell. The appeal was docketed in this court. The record on appeal, including the reporter's transcript of testimony, was filed in this court March 3, 1981. The time for filing briefs then began to run, and appellant's brief should have been filed by June 12. Appellant, however, requested an extension to after the trial court acted on the hospital's motion for a new trial.

On June 5, 1981, seven months after it was filed, the district court granted the hospital's motion for a new trial.

Appellant's brief was filed July 24. The record was supplemented July 27, to include refused requests for jury instructions. Appellee's brief was filed August 27. Then, on

Page 114

September 15, in the district court, before a new trial was held, the suit against the hospital was dismissed with prejudice. Appellant's reply brief was filed October 26. On November 3 the record was again supplemented, this time to reflect the September 15 dismissal of the suit against the hospital.

On our own motion we have raised, as we must, the matter of whether we have jurisdiction of the appeal. We conclude that we do not and dismiss the appeal.

The district court did not enter a Rule 54(b) certificate permitting the appeal of the judgment against Dr. Campbell, which was taken when no appeal had been taken from the judgment against the hospital and the hospital's motion for new trial or judgment n. o. v. was pending in the district court. The lack of a 54(b) certificate was, however, cured by the dismissal of the claim against the hospital. The former Fifth Circuit held that there is an exception to the requirements of Rule 54(b) that allows the separate appeal of a nonfinal judgment where a subsequent judgment of the district court effectively terminates the litigation. Jetco Electronic Industries, Inc. v. Gardiner, 473 F.2d 1228, 1231 (5th Cir. 1973); Tower v. Moss, 625 F.2d 1161, 1164-65 (5th Cir. 1980). These decisions are controlling on us. 1 In each of these cases the appellant filed his notice of appeal prematurely before all claims had been adjudicated, but the pending claims were later decided. The court held that, considering together the judgment being appealed and the later judgments, the litigation was effectively terminated and, therefore, there was no longer a Rule 54(b) defect in the appeal. Likewise, here, the judgment in favor of Dr. Campbell and the later order dismissing the claim against the hospital, taken together, effectively terminated the litigation. Therefore, Rule 54(b) is not a bar to our jurisdiction over the appeal from the judgment in favor of Dr. Campbell.

Nevertheless, the appeal must be dismissed because plaintiff did not file a new notice of appeal after the hospital's motion for new trial was granted. FRAP 4(a)(4) renders ineffective a notice of appeal filed during the pendency of specified...

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28 practice notes
  • Kleiner v. First Nat. Bank of Atlanta, No. 83-8794
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • 31 Enero 1985
    ...terminates the litigation. Jetco Elec. Indus., Inc. v. Gardiner, 473 F.2d 1228, 1231 (5th Cir.1973); accord Martin v. Campbell, 692 F.2d 112, 114 (11th 14 We note further that the brand of disqualification was not lifted at the close of the proceedings. The disciplinary action and consequen......
  • Kilgo v. Bowman Transp., Inc., Nos. 84-8105
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • 15 Mayo 1986
    ...of the motion as provided above. Fed.R.App.P. 4(a)(4); see also Bolden v. Odum, 695 F.2d 549, 550 (11th Cir.1983); Martin v. Campbell, 692 F.2d 112, 114 (11th Cir.1982). Bowman contends that its motion for a new trial did not nullify its first notice of appeal because Rule 4(a)(4) applies o......
  • Gillis v. U.S. Dept. of Health and Human Services, No. 82-1860
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 19 Abril 1985
    ...v. Allstate Insurance Co., 630 F.2d 677, 681 (9th Cir.1980); Baker v. Limber, 647 F.2d 912, 916 (9th Cir.1981); Martin v. Campbell, 692 F.2d 112 (11th Cir.1982). 4 A contrary holding would create a split in the circuits, which we are reluctant to do on an issue such as this. Although we do ......
  • Robinson v. Tanner, No. 85-7456
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • 9 Septiembre 1986
    ...F.2d 1010, 1011 (11th Cir.1985); Kleiner v. First National Bank of Atlanta, 751 F.2d 1193, 1199 n. 13 (11th Cir.1985); Martin v. Campbell, 692 F.2d 112, 114 (11th Cir.1982); Mesa Petroleum Co. v. Coniglio, 629 F.2d 1022, 1029 n. 7 (5th Cir.1980); Tower v. Moss, 625 F.2d 1161, 1164-65 (5th C......
  • Request a trial to view additional results
28 cases
  • Kleiner v. First Nat. Bank of Atlanta, No. 83-8794
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • 31 Enero 1985
    ...terminates the litigation. Jetco Elec. Indus., Inc. v. Gardiner, 473 F.2d 1228, 1231 (5th Cir.1973); accord Martin v. Campbell, 692 F.2d 112, 114 (11th 14 We note further that the brand of disqualification was not lifted at the close of the proceedings. The disciplinary action and consequen......
  • Kilgo v. Bowman Transp., Inc., Nos. 84-8105
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • 15 Mayo 1986
    ...of the motion as provided above. Fed.R.App.P. 4(a)(4); see also Bolden v. Odum, 695 F.2d 549, 550 (11th Cir.1983); Martin v. Campbell, 692 F.2d 112, 114 (11th Cir.1982). Bowman contends that its motion for a new trial did not nullify its first notice of appeal because Rule 4(a)(4) applies o......
  • Gillis v. U.S. Dept. of Health and Human Services, No. 82-1860
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 19 Abril 1985
    ...v. Allstate Insurance Co., 630 F.2d 677, 681 (9th Cir.1980); Baker v. Limber, 647 F.2d 912, 916 (9th Cir.1981); Martin v. Campbell, 692 F.2d 112 (11th Cir.1982). 4 A contrary holding would create a split in the circuits, which we are reluctant to do on an issue such as this. Although we do ......
  • Robinson v. Tanner, No. 85-7456
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • 9 Septiembre 1986
    ...F.2d 1010, 1011 (11th Cir.1985); Kleiner v. First National Bank of Atlanta, 751 F.2d 1193, 1199 n. 13 (11th Cir.1985); Martin v. Campbell, 692 F.2d 112, 114 (11th Cir.1982); Mesa Petroleum Co. v. Coniglio, 629 F.2d 1022, 1029 n. 7 (5th Cir.1980); Tower v. Moss, 625 F.2d 1161, 1164-65 (5th C......
  • Request a trial to view additional results

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