Oliver v. Home Indemnity Company

• Decision Date: 07 December 1972
• Docket Number: No. 72-2781.,72-2781.
• Citation: 470 F.2d 329
• Parties: C. J. OLIVER et al., Plaintiffs-Appellees, v. HOME INDEMNITY COMPANY, Intervenor, MONSANTO COMPANY, Defendant-Third-Party Plaintiff-Appellant, v. A. A. PRUITT, Third-Party Defendant-Appellee, v. HYDROCARBON CONSTRUCTION COMPANY et al., Third-Party Defendants.
• Court: U.S. Court of Appeals — Fifth Circuit

470 F.2d 329 (1972)

C. J. OLIVER et al., Plaintiffs-Appellees, v. HOME INDEMNITY COMPANY, Intervenor, MONSANTO COMPANY, Defendant-Third-Party Plaintiff-Appellant, v. A. A. PRUITT, Third-Party Defendant-Appellee, v. HYDROCARBON CONSTRUCTION COMPANY et al., Third-Party Defendants.

No. 72-2781.

United States Court of Appeals, Fifth Circuit.

December 7, 1972.

Robert C. Floyd, Tom Alexander, Houston, Tex., for Monsanto Co. and Home Indemnity Co.

Walter E. Workman, Houston, Tex., for Monsanto Co.

David H. Burrow, Houston, Tex., for Oliver and Evans.

John T. Golden, W. Bryant Russell, Houston, Tex., Henry G. Dalehite, Jr., Galveston, Tex., Don Hallmark, Houston, Tex., for other interested parties.

Before JOHN R. BROWN, Chief Judge, and GOLDBERG and MORGAN, Circuit Judges.

LEWIS R. MORGAN, Circuit Judge:

Appellant Monsanto Company has filed a motion requesting this court to determine whether any final appealable judgment has been entered in this cause. After due consideration, we find that no final order has yet been entered.

The original action in this case has grown into a complex, multiparty affair and has been dragging through the district court since 1966. Basically it involves personal injury actions by several construction workmen injured in a fire at a Monsanto chemical plant. The suit has involved the application of the somewhat complex Texas law on indemnity clauses in construction contracts. During an early phase of this litigation, on January 31, 1969, the district court entered an order holding that Pruitt was obligated under its contract with Monsanto to assume Monsanto's defense and to indemnify any loss by Monsanto to the injured employees who were employees of Pruitt. On April 20, 1972, the district court entered an order denominated "Final Judgment", which, of course, presumably made all earlier rulings, such as the indemnity holding, final and appealable.

After the normal ten-day period for amending final judgments had elapsed, but before the expiration of the thirty-day period for filing notice of appeal, Pruitt filed with the district court a motion for reconsideration of the January 1969 ruling which had held that Pruitt was obligated to indemnify Monsanto, alleging that relatively recent Texas decisions had changed the law applicable to this determination and that the 1969 ruling was now incorrect. The district court held that it could entertain this motion for reconsideration and amend the "final judgment" under the provisions of Rule 60(b) of the Federal Rules of Civil Procedure. Having made this determination, the district court entered a "Memorandum and Order" on August 15, 1972, which reversed the indemnity ruling of January 1969, and held Monsanto not entitled to indemnity from Pruitt. Monsanto then filed a motion for a new trial which was denied in an "Amended Memorandum and Order", basically restating the order of August 15th with the addition of the reasons for denial of Monsanto's motion, on September 19, 1972, D.C., 56 F.R.D. 370. In both of these last orders, the court indicated that an "Amended Final Judgment" in line with those orders should be prepared for entry. As of the time this matter was presented to this court, no such "Amended Final Judgment" had been entered.

During the period after this "Final Judgment" of April 20, 1972, appeal proceedings were initiated in at least two instances. The first was a notice of appeal filed by Pruitt in Monsanto's name prior to the reconsideration of the indemnity issue by the district court. The second was an appeal filed by Monsanto after the orders of August 15th and September 19th which changed the indemnity result. Monsanto is at a loss to know which appeal, if either, should be pursued. This motion was filed to obtain an answer and avoid the costly waste of briefing and printing an appeal which may be premature.

At the outset it seems incumbent on this court to determine if the district court was correct in entertaining Pruitt's motion for reconsideration made after the normal period for amending final judgments but prior to the expiration of the period for filing notice of appeal. If it was improper for the district court to entertain that motion, then presumably the orders of August 15th and September 19th were improper and the April 20, 1972, judgment is the only one subject to appeal. If the reconsideration was permissible, then any appeal of the April judgment is now moot but there still would remain the question of whether either or both of the orders entered on August 15th or September 15, 1972, were intended to be the "final act" of the district court and are therefore appealable.

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