Osterberger v. Relocation Realty Service Corp., 90-3151

Citation921 F.2d 72
Decision Date18 January 1991
Docket NumberNo. 90-3151,90-3151
PartiesJames OSTERBERGER, Jr. and Patricia Osterberger, Plaintiffs-Appellants, v. RELOCATION REALTY SERVICE CORPORATION, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Chapman L. Sanford and Roy M. Lilly, Baton Rouge, La., for plaintiffs-appellants.

Shelly D. Dick, Gary, Field, Landry, & Dornier, Baton Rouge, La., for defendant-appellee.

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

Before THORNBERRY, JOHNSON, and DAVIS, Circuit Judges.

THORNBERRY, Circuit Judge:

On May 14, 1986, the purchasers of a house, Dr. James Osterberger and his wife, Patricia Osterberger, sued the seller of the house, Relocation Realty Service Corporation (Relocation Realty), for a reduction in the purchase price because the house allegedly was sold with hidden defects. The Osterbergers filed their suit in federal court; jurisdiction was based on diversity of citizenship, see 28 U.S.C.A. Sec. 1332 (West Supp.1990). Applying Louisiana law, the district court held that most of the defects were either apparent or disclosed by Relocation Realty, and it awarded the Osterbergers only $1,777.67.

The Osterbergers moved for a new trial. The district court denied that motion. The Osterbergers then filed a Notice of Appeal with this court, stating that they were appealing "from denial of a Ruling on Motion for New Trial." Relocation Realty moved to dismiss the appeal, contending that a denial of a motion for new trial is not appealable and that the Osterbergers had failed to appeal the underlying judgment. In an unpublished opinion, a prior panel of this court found that the notice of appeal was sufficient and dismissed Relocation Realty's motion.

We find that the "judgment of the District Court is based on findings of fact which are not clearly erroneous," and, therefore, we affirm its decision. See Loc.R. 47.6. We write, however, to explain why this court has jurisdiction over the Osterbergers' appeal.

Rule 3(c) of the Federal Rules of Appellate Procedure states that "[t]he notice of appeal shall specify the party or parties taking the appeal; shall designate the judgment, order or part thereof appealed from; and shall name the court to which the appeal is taken." The Osterbergers filed a notice of appeal stating that they were appealing from the district court's denial of their motion for new trial. Although it is reviewable, an order denying a motion for new trial is not appealable. See Youmans v. Simon, 791 F.2d 341, 349 (5th Cir.1986). Consequently, the notice of appeal filed by the Osterbergers did not "designate the judgment ... appealed from." See Fed.R.App.P. 3(c).

It was clear, however, that the Osterbergers intended to appeal from the judgment, and in this situation, every Circuit, including the Fifth, has treated an appeal from an order denying a motion for new trial as an appeal from the adverse judgment itself. 1 The Supreme Court also has indicated that a party does not forfeit the right to appeal by designating the wrong judgment if it is clear which judgment he is appealing. See Foman v. Davis, 371 U.S. 178, 181, 83 S.Ct. 227, 229-30, 9 L.Ed.2d 222 (1962). In Foman, the district court had entered a judgment dismissing the petitioner's complaint. The petitioner filed two motions: one to vacate that judgment and another to amend the complaint. The petitioner then filed a notice of appeal from the judgment. The district court denied the motions, and the petitioner filed a second notice of appeal from the order denying the motions. The Court of Appeals dismissed the petitioner's appeal, holding that the first notice of appeal was premature and the second failed to specify that the appeal was being taken from the underlying judgment. See id. at 180, 83 S.Ct. at 229. The Supreme Court held that the Court of Appeals should have granted the second notice of appeal.

[T]he Court of Appeals should have treated the appeal from the denial of the motions as an effective, although inept, attempt to appeal from the judgment sought to be vacated. Taking the two notices and the appeal papers together, petitioner's intention to seek review of both the dismissal and the denial of the motions was manifest....

It is too late in the day and entirely contrary to the spirit of the Federal Rules of Civil Procedure for decisions on the merits to be avoided on the basis of such mere technicalities.

Id. 371 U.S. at 181, 83 S.Ct. at 229-30. Cf. Bankers Trust Co. v. Mallis, 435 U.S. 381, 387-88, 98 S.Ct. 1117, 1121-22, 55 L.Ed.2d 357 (1978) (applying Foman and holding that Court of Appeals had jurisdiction even though the district court judgment was not set forth on a "separate document").

In 1988, the Supreme Court cast doubt on the ability of courts to interpret Rule 3(c) liberally by holding that one portion of Rule 3(c) was jurisdictional and, therefore, must be followed without considering the intent of the parties. See Torres v. Oakland Scavenger Co., 487 U.S. 312, 315, 108 S.Ct. 2405, 2408, 101 L.Ed.2d 285 (1988). In Torres, the petitioner was one of sixteen individual plaintiffs who intervened in an employment discrimination suit against the respondent. See id. at 313, 108 S.Ct. at 2407. The district court dismissed all sixteen complaints for failure to state a claim, and a notice of appeal was filed with the Ninth Circuit. Because of a clerical error, the petitioner's name was omitted from the notice of appeal. See id. Because Rule 3(c) requires that "[t]he notice of appeal shall specify the party or parties taking the appeal," the Ninth Circuit held that it did not have jurisdiction over the petitioner, and the Supreme Court affirmed.

In Torres, the Court distinguished Foman:

Foman did not address whether the requirement of rule 3(c) at issue in that case was jurisdictional in nature; rather, the Court simply concluded that in light of all the circumstances, the rule had been complied with. We do not dispute the important principle for which Foman stands--that the requirements of the rules of procedure should be liberally construed and that "mere technicalities" should not stand in the way of consideration of a case on its merits. Thus, if a litigant files papers in a fashion that is...

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12 cases
  • In re Smith
    • United States
    • U.S. District Court — Northern District of Texas
    • December 5, 1991
    ...denying a motion for new trial does not specify the judgment appealed from as required by Rule 3(c). See Osterberger v. Relocation Realty Serv. Corp., 921 F.2d 72, 73 (5th Cir.1991). This is because an order denying a motion for new trial is reviewable but not appealable. Id. (citing Youman......
  • Trust Co. Bank v. U.S. Gypsum Co.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • January 21, 1992
    ...under Rule 3(c)--where it is clear that the appealing party intended to appeal the entire case. See Osterberger v. Relocation Realty Service Corp., 921 F.2d 72, 73 (5th Cir.1991); Cates v. International Telephone & Telegraph Corp., 756 F.2d 1161, 1173 n. 18 (5th Cir.1985); Atlantic Coast Li......
  • U.S. v. Knowles, 93-1557
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • August 10, 1994
    ...178. We reached an identical result in United States v. Lopez-Escobar, 920 F.2d 1241 (5th Cir.1991) and in Osterberger v. Relocation Realty Serv. Corp., 921 F.2d 72 (5th Cir.1991). Our opinion in Ramirez, supra, is particularly instructive in this case. In that case, the appellant prepared ......
  • Shirley v. Chrysler First, Inc.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • August 27, 1992
    ...as one from the underlying judgment. See Hogue v. Royse City, Tex., 939 F.2d 1249, 1251-52 (5th Cir.1991); Osterberger v. Relocation Realty Serv. Corp., 921 F.2d 72, 73 (5th Cir.1991).5 The ADEA anti-retaliation provision is related to the anti-retaliation provision of Title VII, and cases ......
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