Van Wyk El Paso Inv., Inc. v. Dollar Rent-A-Car Systems, Inc.

• Decision Date: 14 November 1983
• Docket Number: RENT-A-CAR,No. 83-1367,83-1367
• Parties: VAN WYK EL PASO INVESTMENT, INC., a corporation, Plaintiff-Appellee, v. DOLLARSYSTEMS, INC., a corporation, Defendant-Appellant. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 806

719 F.2d 806

VAN WYK EL PASO INVESTMENT, INC., a corporation, Plaintiff-Appellee, v. DOLLAR RENT-A-CAR SYSTEMS, INC., a corporation, Defendant-Appellant.

No. 83-1367

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Nov. 14, 1983.

Ronald J. Stading, El Paso, Tex., for defendant-appellant.

Raymond C. Caballero, El Paso, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before CLARK, Chief Judge, RUBIN and JOLLY, Circuit Judges.

PER CURIAM:

Van Wyk El Paso Investments, Inc. seeks to dismiss the appeal of Dollar Rent-a-Car Systems, Inc. (Dollar Rent-a-Car), for lack of a timely notice of appeal. The motion to dismiss is granted.

On April 29, 1983, the trial court entered the judgment which is the subject of this appeal. On May 12, 1983, Dollar Rent-a-Car filed a Rule 52 motion for reconsideration of the judgment. Counsel for Dollar Rent-a-Car spoke with a law clerk by telephone on May 27 and was informed that the trial court had decided to deny the motion for reconsideration. On May 31, Dollar Rent-a-Car filed a notice of appeal of the April 29 order. The trial court's order denying the motion for reconsideration was entered June 8. Dollar Rent-a-Car filed no subsequent notice of appeal.

Rule 4(a)(4) of the Federal Rules of Appellate Procedure provides:

If a timely motion under the Federal Rules of Civil Procedure is filed in the district court by any party: ... (ii) under Rule 52(b) to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted; ... the time for appeal for all parties shall run from the entry of the order denying a new trial or granting or denying any other such motion. A notice of appeal filed before the disposition of any of the above motions shall have no effect. A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion as provided above.

The Supreme Court has held that under this rule a premature notice of appeal is ineffective. Without a timely notice of appeal, the appellate court lacks jurisdiction. Griggs v. Provident Consumer Discount Co., --- U.S. ----, 103 S.Ct. 400, 403, 74 L.Ed.2d 225 (1982).

Likewise, this court has held that under the inflexible language of Rule 4(a)(4), a notice of appeal filed before the disposition of a Rule 59 motion to alter or amend the judgment cannot be the predicate for appellate review. Williams v. Bolger, 633 F.2d 410, 412-13 (5th Cir.1980). Accord Beam v. Youens, 664 F.2d 1275 (5th Cir.1982).

Dollar Rent-a-Car contends that it constructively gave notice of appeal after the June 8 entry of the order denying its motion. To support this contention, it points to numerous items that were filed with or received from the district court or appellate court in the course of attempting to perfect its May 31 notice of appeal. Only four of these items, however, fall within the Rule 4(a)(1) 30-day appeals period terminating on July 8, 1983: (1) a "Form of Appearance for Counsel" submitted to this court on June 9, 1983; (2) the district court's record of filing the transcript with this court on July 5, 1983; (3) this court's record of receipt and filing of the transcript on July 7, 1983; and (4) a July 8, 1983, letter from the clerk of this court transmitting the original record to Dollar Rent-a-Car's counsel.

This court has recognized that "the timely filing of a document, which is the equivalent of a notice of appeal, will satisfy the requirements of Rule 3 ...." Stevens v. Heard, 674 F.2d 320, 322 (5th Cir.1982). The document should accomplish the dual objectives of (1) notifying the court and (2) notifying opposing counsel of the taking of an appeal. Cobb v. Lewis, 488 F.2d 41, 45 (5th Cir.1974). Thus, in Stevens, a prisoner's motion for a Certificate of Probable Cause was held to be a legally sufficient document to constitute a notice of appeal. In Cobb, a petition for leave to appeal under 28 U.S.C. Sec. 1292(b) was held to constitute a sufficient notice of appeal. In each of these cases, the new document was sufficient to accomplish the required notice functions within the proper time period. The documents filed in the case at bar, on the other hand, could be read as no more than steps in the perfection of the prematurely noticed appeal. For example, one court has recently rejected an appellate brief as a substitute for notice of appeal in a civil case. See Florida Women's Medical Clinic, Inc. v. Smith, 706 F.2d 1172, 1173 (11th Cir.1983).

A liberal construction of the requirements of Rule 3(a) cannot be allowed to nullify the plain provision of Rule 4(a)(4) that a premature notice of appeal "shall have no effect."

In light of the 1979 amendments which put Rule 4(a)(4) in its present form, Griggs rejected the proposition that the appellate court retains discretion to waive the conceded defect of a premature notice...