McGoldrick Oil Co. v. Campbell, Athey & Zukowski
| Decision Date | 03 July 1986 |
| Docket Number | No. 85-2840,85-2840 |
| Citation | 793 F.2d 649 |
| Parties | McGOLDRICK OIL COMPANY, A Louisiana Limited Partnership, Plaintiff-Appellant, v. CAMPBELL, ATHEY & ZUKOWSKI, A Texas General Partnership, Defendant-Appellee. Summary Calendar. |
| Court | U.S. Court of Appeals — Fifth Circuit |
George M. Bishop, Houston, Tex., for plaintiff-appellant.
Campbell, Athey & Zukowski, John M. Zukowski, Houston, Tex., for defendant-appellee.
Appeal from the United States District Court for the Southern District of Texas.
Before POLITZ, GARWOOD, and JOLLY, Circuit Judges.
McGoldrick Oil Company appeals an adverse summary judgment dismissing its complaint and awarding Campbell, Athey & Zukowski (CAZ) $7,500 for attorney's fees and costs. McGoldrick also appeals a $5,000 sanction imposed under Fed.R.Civ.P. 11 against George M. Bishop, McGoldrick's attorney. Finding that we lack jurisdiction over the appeal from the judgment imposing Rule 11 sanctions, we dismiss that part of the appeal. Concluding that summary judgment was in order, including the award of attorney's fees and costs, we affirm. We assess additional sanctions for a frivolous appeal.
The evidence in this record discloses an action which bears all of the hallmarks of a suit designed not to secure the relief sought but to harass and coerce the defendant law firm. This case is a prime example of an abuse of the judicial process, and we treat it as such.
The genesis of McGoldrick's claims against CAZ was the less-than-professional-and-amicable 1984 dissolution of a small Houston law partnership. James P. Barnett, Jr. withdrew from the firm. While at CAZ, Barnett had rendered oil and gas title opinions to McGoldrick. No one else at CAZ performed any legal services for McGoldrick, and when Barnett left CAZ the McGoldrick account followed him. When Barnett departed CAZ there was no outstanding work being done for McGoldrick. Barnett did not take any title opinion files with him although there is nothing to indicate that he was not free to do so.
Shortly after Barnett's departure, McGoldrick's land manager contacted CAZ and requested that all McGoldrick materials in CAZ's possession be turned over to Barnett. CAZ complied and delivered all but the originals of Barnett's work notes, correspondence to and from McGoldrick, and copies of Barnett's title opinions. CAZ offered to give Bishop access to those papers to be copied, provided that the originals were returned. CAZ was reluctant to surrender its only copies of Barnett's work notes because of its potential legal exposure for any errors Barnett might have made.
The arrangement for copying was originally considered acceptable by Bishop and copies were made and the originals were returned to CAZ. Subsequently, Bishop rejected CAZ's initiative and demanded production of the originals of many documents CAZ allegedly had withheld. This demand by Bishop was made without McGoldrick's knowledge and authorization. Bishop made formal demand for a broad variety of documents; he made no effort to determine which documents, if any, were actually in CAZ's possession. When CAZ could not respond to his demands, Bishop filed the instant suit, doing so without the prior knowledge and approval of McGoldrick, although McGoldrick subsequently confirmed his action.
After filing suit, McGoldrick and Bishop did little to prosecute McGoldrick's claims against CAZ. No further filings were made, initially or in response to CAZ's motions. No attempt was made at discovery. McGoldrick's representative missed two scheduled depositions, one on a date and time suggested by Bishop. The representative finally appeared for the third scheduled deposition, after the issuance of two certificates of non-attendance and following the filing of a motion to dismiss. Documents identified in the notices of deposition had not been produced even as of the time of briefing herein. It is apparent that McGoldrick and Bishop paid little attention to the Federal Rules of Civil Procedure at the outset, and later to the Federal Rules of Appellate Procedure.
Bishop did not appear at the pre-trial scheduling conference on June 27, 1985, sending instead an associate unfamiliar with the case. Bishop did not appear, and sent no associate to the docket call on October 28, 1985, at which time the court made known its intention to grant CAZ's motion for summary judgment, together with sanctions against McGoldrick. At that time the trial judge scheduled a hearing to consider Rule 11 sanctions against Bishop. 1 On November 6, 1985, formal judgment was entered granting CAZ's summary judgment motion, awarding CAZ $7,500 in attorney's fees and costs, and noticing the Rule 11 hearing for November 22, 1985.
On November 22, 1985, after hearing from CAZ, Bishop, and Barnett, the court found that Bishop had violated Fed.R.Civ.P. 11 and imposed a $5,000 sanction on him. On December 6, 1985, judgment on the November 22 ruling was entered. That judgment imposed the sanction on Bishop and provided for the copying by Bishop of any documents retained by CAZ. This reproduction was to be done by a copier of Bishop's choosing and the originals were to be returned to CAZ. Bishop never requested access to the papers. McGoldrick obviously had no desire to secure copies of title opinions and correspondence; it already had those, and it considered adequate the originally offered copies of Barnett's work notes.
There was never any justiciable dispute between CAZ and McGoldrick. The complaint was dismissed on CAZ's unopposed motion for summary judgment. The sanctions were imposed on McGoldrick and Bishop because the complaint had no merit, and, after its filing, it became apparent that neither McGoldrick nor Bishop actually intended to pursue the matter. Notwithstanding this cavalier attitude toward the action, on December 6, 1985, McGoldrick filed a notice of appeal from the judgment of November 6, 1985, which dismissed its claim and cast it in judgment for $7,500, as well as from the order announced November 22, 1985, which imposed sanctions in the amount of $5,000 against Bishop personally. On December 11, 1985, McGoldrick filed a motion for reconsideration of both rulings. Referring to the notice of appeal, the trial court declined to consider this motion. No new notice of appeal was filed after the trial court's response to the motion for reconsideration.
As a court of limited jurisdiction, we must examine, sua sponte, the basis of our jurisdiction. We find that we lack jurisdiction of the appeal from the award of Rule 11 sanctions against Bishop; that portion of the appeal is accordingly dismissed.
We do have jurisdiction over the appeal from the judgment rendered against McGoldrick. That judgment was entered on November 6, 1985, and the appeal was lodged on the very last day allowed, December 6, 1985. See Fed.R.App.P. 4(a)(1) and 26(a).
The appeal of the Rule 11 sanctions was noticed two days after judgment was entered, albeit at that time McGoldrick and Bishop apparently were unaware that formal judgment had been entered. The notice of appeal states: "George M. Bishop would appeal from the Order of November 22, 1985 not yet entered by the court...." The order had been entered. Timely when filed, this notice lost its vitality when the motion for reconsideration was filed on December 11, 1985. Since this motion was filed within ten days of the Rule 11 order, it must be considered a Fed.R.Civ.P. 59 motion. See our en banc decisions in Harcon Barge Co., Inc. v. D & G Boat Rentals, Inc., 784 F.2d 665 (1986), and Willie v. Continental Oil Co., 784 F.2d 706 (1986).
A timely Rule 59 motion voids any previously-filed notice of appeal. Fed.R.App.P. 4(a)(4). It is necessary that another notice of appeal be filed after the ruling on the Rule 59 motion, for the earlier notice of appeal loses all legal effect. " 'The appeal simply self-destructs.' " Griggs v....
To continue reading
Request your trial
-
Coghlan v. Starkey
...in order to regulate their docket, promote judicial efficiency, and deter frivolous filings.").22 See McGoldrick Oil Co. v. Campbell, Athey & Zukowski, 793 F.2d 649, 653 (5th Cir.1986); Hale v. Harney, 786 F.2d at 692; Alter Fin. Corp. v. Citizens & S. Int'l Bank, 817 F.2d at 350; Reliance ......
- US v. State of La.
-
Brown v. United Ins. Co. of America
...does not vitiate a notice of appeal filed while a pending Rule 60(b) motion remains undisposed of. McGoldrick Oil Co. v. Campbell, Athey & Zukowski, 793 F.2d 649, 652-53 (5th Cir.1986); Fisher v. United States Department of Justice, 759 F.2d 461, 465-66 (5th Cir.1985); Lapeyrouse v. Texaco,......
-
Wesolek v. Layton
...court is required to conclude that the actions were taken recklessly or for some improper purpose. See McGoldrick Oil Co. v. Campbell, Athey & Zukowski, 793 F.2d 649, 653 (5th Cir. 1986). Nevertheless, "[§] 1927 only authorizes shifting fees that are associated with 'the persistent prosecut......