Plain v. Murphy Family Farms

• Decision Date: 16 July 2002
• Docket Number: No. 01-6257.,01-6257.
• Citation: 296 F.3d 975
• Parties: Beulah PLAIN, an individual, as personal representative of the estate of Donald Jack Plain, deceased, Plaintiff-Appellee, v. MURPHY FAMILY FARMS, a North Carolina corporation, Defendant-Appellee. A.R. Plain; Donna Kenneth; Glenna White, Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

296 F.3d 975

Beulah PLAIN, an individual, as personal representative of the estate of Donald Jack Plain, deceased, Plaintiff-Appellee, v. MURPHY FAMILY FARMS, a North Carolina corporation, Defendant-Appellee A.R. Plain; Donna Kenneth; Glenna White, Appellants.

No. 01-6257.

United States Court of Appeals, Tenth Circuit.

July 16, 2002.

COPYRIGHT MATERIAL OMITTED

Submitted on the briefs:^*

Shannon F. Davies, Andrew W. Lester, and R. Scott Thompson of Lester, Loving & Davies, P.C., Edmond, OK, for Plaintiff-Appellee.

E.W. Keller of Keller, Keller & Dalton, Oklahoma City, OK, for Appellants.

Before SEYMOUR, PORFILIO, and BALDOCK, Circuit Judges.

BALDOCK, Circuit Judge.

Donald Jack Plain died after his truck slid into a hog waste pond owned and maintained by Defendant Murphy Family Farms. The decedent's widow, Plaintiff Beulah Plain, as named personal representative of the estate, filed this diversity action, 28 U.S.C. § 1332, under Oklahoma law against Defendant for wrongful death. See 12 Okla. Stat. § 1053. A jury awarded Plaintiff $3.5 million in damages. The district court reduced the damage award to $1.9 million based on the jury's finding of comparative negligence. The district court distributed the award as follows: (1) $50,000 to decedent's son, A.R. Plain; (2) $40,000 to decedent's daughter, Donna Kenneth; (3) $40,000 to decedent's daughter, Glenna White; (4) $600,000 to decedent's estate for distribution through the probate court; and (5) the remainder to Plaintiff. Decedent's three adult children, all of whom repeatedly but unsuccessfully attempted to intervene in the district court, now seek to appeal from the denial of their motion for a new trial, or in the alternative, relief from judgment. Specifically, the children argue the district court erred by (1) denying their requests to intervene, and (2) rejecting their proposal to apportion damages. We affirm in part and dismiss in part.

I.

Plaintiff is the children's stepmother. According to the children, they "enjoy[] an unusually acrimonious relationship with Mrs. Plain." Apparently the children enjoyed a similar relationship with their father as he did not provide for them in his will. Initially, the children unsuccessfully contested in Oklahoma state court Plaintiff's appointment as named representative of their father's estate. Subsequently, seven months before trial, the children moved to intervene as of right in the wrongful death action before the district court. See Fed.R.Civ.P. 24(a).¹ Less than three weeks later, the district court denied their motion reasoning that Oklahoma law only permits the representative of an estate to pursue a wrongful death claim.²

Three months prior to trial, the children filed a motion to reconsider, or, in effect, a second motion to intervene. The district court denied the motion the next day. The children next filed a timely appeal with this Court. Plain v. Murphy Family Farms, No. 01-6069 (10th Cir., filed March 6, 2001).³ When the district court refused to stay the trial, however, the children moved to voluntarily dismiss their appeal because, according to the children, the trial "will render the issues moot." We dismissed the appeal. See Fed. R.App. P. 42(b).

At trial, Plaintiff called each of decedent's children to testify briefly. Plaintiff did not question the children in any detail about their relationship with her. After the jury rendered its verdict, the district court invited the children to file an amicus brief on the issue of the damage award's distribution. In response, the children filed a motion for a new trial. In the alternative, the children proposed a division of the damage award.⁴ The district court denied their motion for a new trial, rejected their proposed division of the damage award, and entered an order dividing the award as indicated. In denying the children's request for a new trial, the court reasoned that Plaintiff's counsel had ably represented the estate, obtaining a multi-million dollar verdict. The court based its limited damage award to the children upon undisputed evidence that the children had only minimal contact with their father for over a decade prior to his death. Following entry of final judgment, the children filed a second motion for a new trial or, in the alternative, relief from judgment. The district court denied the motion and the children appealed.

II.

At the outset, Plaintiff suggests we lack jurisdiction over the children's appeal because they were "nonparties" in the district court. According to Plaintiff, the children's failure to pursue their original appeal leaves them without a remedy. To be sure, the children's, or more specifically, their counsel's unremitting and repetitive motion practice in the district court has created a jurisdictional thicket. We conclude our jurisdiction over this appeal is limited to a review of the district court's order apportioning the damages.⁵

A.

To support her argument, Plaintiff relies on Marino v. Ortiz, 484 U.S. 301, 108 S.Ct. 586, 98 L.Ed.2d 629 (1988) (per curiam). In Marino, the Supreme Court held that "only parties to a lawsuit, or those that properly become parties, may appeal an adverse judgment." Id. at 304, 108 S.Ct. 586. The Supreme Court's recent decision in Devlin v. Scardelletti, ___ U.S. ___, ___, 122 S.Ct. 2005, 2009, 153 L.Ed.2d 27 (2002), explained, however, that the Court had "never ... restricted the right to appeal to named parties to the litigation." Instead, the label "party" indicates not "an absolute characteristic, but rather a conclusion about the applicability of various procedural rules that may differ based on context." Id. at 2010. In Devlin, the Court held that a nonnamed member of a class who objects in a timely manner at a fairness hearing to the approval of a settlement may bring an appeal without first intervening in the underlying class action suit. Id. at 2013. The Court explained:

To hold otherwise would deprive nonnamed class members of the power to preserve their own interests in a settlement that will ultimately bind them, despite their expressed objections before the trial court.... [A]ppealing the approval of the settlement is petitioner's only means of protecting himself from being bound by a disposition of his rights he finds unacceptable and that a reviewing court might find legally inadequate.

Id. at 2011; see also Dietrich Corp. v. King Res. Co., 596 F.2d 422, 423-24 (10th Cir.1979) (exercising jurisdiction over trial consultant's appeal from district court order directing law firms to pay him a sum certain from fee award contrary to prior fee agreements).

Devlin undoubtedly directs us to exercise jurisdiction over that portion of the children's appeal challenging the district court's apportionment of damages. As decedent's heirs, the children have a unique interest (not unlike unnamed members of a class) under Oklahoma law in the distribution of the wrongful death damage award. Oklahoma law provides that the children are entitled to recover for "mental pain and anguish suffered by the decedent," "pecuniary loss to the survivors," and the "grief and loss of companionship of the children." 12 Okla. Stat. § 1053(B).⁶ To deny the children the right of appellate review would be, in effect, to deny them the right to challenge a binding division of damages which they timely opposed by invitation in the district court, and appealed at the earliest opportunity. Appealing the district court's final judgment as it pertains to the apportionment of damages is the appropriate means of seeking review of this disposition. See Devlin, 122 S.Ct. at 2011.⁷

B.

In contrast, we conclude we lack jurisdiction to review the children's challenge to the district court's denial of their second motion for a new trial. Notwithstanding Devlin, allowing "nonparties" in the district court to appeal a district court judgment remains an exception to the general rule established in Marino. See Castillo v. Cameron County, 238 F.3d 339, 349 (5th Cir.2001). Those seeking to participate in the underlying resolution of the merits of a lawsuit must make "timely application" to intervene under Fed. R.Civ.P. 24. See Utah Ass'n of Counties v. Clinton, 255 F.3d 1246, 1250 (10th Cir. 2001) (discussing "timeliness" within the meaning of Rule 24). If the district court denies that motion, the proper procedure is to pursue an immediate appeal, and not to file repetitive motions pestering the district court. This is true regardless of how the motions are labeled where the substance of the motions and purported justification for intervention remain unchanged. As we stated in Hutchinson v. Pfeil, 211 F.3d 515, 518 (10th Cir.2000):

An order denying intervention is final and subject to immediate review if it prevents the applicant from becoming a party to an action. This is because denial of intervention precludes the proposed intervenor's ability to appeal the later judgment (and at that time to challenge the earlier denial of intervention). Thus, an appeal from the denial of intervention cannot be kept in reserve; it must be taken within thirty days of the entry of the order, or not at all.

(internal quotations and citations omitted). The reason for the rule is simple: considering an immediate appeal from a timely pretrial motion to intervene is more efficient and less costly than permitting a proposed intervenor to wait and see if the trial's outcome leaves intervention desirable with its attendant risk of undoing what the trial court has already done. See 15A Charles A. Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice and Procedure § 3902.1 at 113 (1992).

In this case, the children timely initiated an appeal after the district court denied their pretrial motion to reconsider their first motion to intervene. The children argued then, as they do now, that Plaintiff could not adequately represent their interests and the court should permit counsel of their own choosing to participate in...