Opposition — Quality Ford, Inc. v. Ford Motor Co.

JU

No. 82-2064

IN THE SUPREME COURT! _

OF THE UNITED STATES :

OCTOBER TERM, 1982

ig

QUALITY FORD, INC., a

Utah corporation, THOMAS

REDD and VIOLET REDD,

Petitioners,

vs.

FORD MOTOR COMPANY, a

Delaware Corporation and

FORD MOTOR CREDIT COMPANY,

a Delaware corporation,

Respondents.

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF

APPEALS FOR THE TENTH CIRCUIT

SNOW, CHRISTENSEN & MARTINEAU

Harold G. Christensen*

R. Brent Stephens

10 Exchange Place, llth Floor

Post Office Box 3000

Telephone: (801) 521-9000

Salt Lake City, Utah 84110

Attorneys for Respondents

*Counsel of Record

No. 82-2064

IN THE SUPREME COURT

OF THE UNITED STATES

OCTOBER TERM, 1982

QUALITY FORD, INC., a

Utah corporation, THOMAS

REDD and VIOLET REDD,

Petitioners,

vs.

FORD MOTOR COMPANY, a

Delaware Corporation and

FORD MOTOR CREDIT COMPANY,

a Delaware corporation,

Respondents.

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF

APPEALS FOR THE TENTH CIRCUIT

QUESTION PRESENTED

Does a notice of appeal from a non-

final order invoke the jurisdiction of

the Circuit Court of Appeals when there

is no appeal from the final order?

a2—

TABLE OF CONTENTS

Page

QUBSTION PRESENTED . . «© se ee eo z

wee OF CORTE e «© tht we ew tlk

TABLE OF AUTHORITIES . « «© © we 8 a

STATUTES AND RULES INVOLVED ... 5

STATEMENT OF THE CAGE ..«-e«-ee-e 5

SUMMARY OF ARGUMENT . . «© «© © © « 10

ARGUMENT

PETITIONERS HAVE FAILED

TO ESTABLISH THAT THE

DECISION OF THE TENTH

CIRCUIT COURT OF APPEALS

IS IN CONFLICT WITH

DECISIONS OF OTHER COURTS

OF APPEALS ON THE

QUESTION PRESENTED, AND

TO THE EXTENT THERE WAS

ANY CONFLICT, IT WAS

ELIMINATED BY GRIGGS .... . ii

CONCLUS ION * ° e ° * e * & s « e ° 18

APPENDIX A - STATUTES AND RULES

INVOLVED, VERBATIM * © © © © @ & A-l

APPENDIX B - RULE 28 LISTING OF

a Bar

TABLE OF AUTHORITIES

Cases Page(s)

A. O. Smith Corporation v. Sims

Consolidated, Ltd., 647 F.2d

ake ChGte Cle. £9GL) - ww ow ws 7

Blunt v. United States, 244

Pega Sao (esCe Civ. 1957) « « s 16

Browder v. Director, Ill.

Dept. of Corrections,

Be Ng ee | ee

Burdix v. United States, 231

F.2d 893 (9th Cir. 1956),

cert. denied, 351 U.S. 975

Ceeoee 6b eh ee wl tl tll 16

Crump v. Hill, 104 F.2d 36

(5th Cir. 1939) * ° a . ° o * e 16

Firchau v. Diamond National

Corp., 345 F.2d 269 (9th

Cir. 1965) * x * ° J a oe * te * * 13

Golden Villa Spa, Inc. v.

Health Industries, Inc.,

549 F.24¢ 1363 (10th Cir.

Pog 7

Griggs v. Provident Consumer

Discount Company, 103 S.Ct.

400 (1962) (per curiam) .. .- «16,17,

Hoiness v. United States, 335

U.S. 297 (1948) e * bed * * * > e 15

ny a

Jordan v. United States

District Court for the Dis-

trict of Columbia, 233 F.2d

Bean (oC. Cle. L956) « « + ss

Koehane v. Swarco, Inc., 320

7.20 629 (6th Cit. i963) . « «

Lamp v. Andrus, 657 F.2d 1157

PRGGh Cie. 19G5) « ow et et ls

Lemke v. United States, 346 U.S.

S29 (5953) (per ceriam) ..« -;+

Maddox v. Black, Raber-Kief

& Assoc., 303 F.2d 910 (9th

Cir. 1962) * ca * * & e * * e

Markham v. Holt, 369 F.2d 940

pe Ee IN

Ruby v. Secretary of United

States Navy, 365 F.2d 385

es OT ee

Song Jook Suh v. Rosenberg,

637 F.2G i098 (Sth Cir.

1971) e e * te ° ° o e * ° * s

State Farm Mutual Automobile

Insurance Co. v. Palmer,

350 U.S. 944 (1956) (mem.),

opinion below, 225 F.2d

Bre (ptm Gee. 1955) « 2 at ew

United States v. Arizona, 346

U.S. 907 (1953) (mem.),

opinion below, 206 F.2d

aoe teem Che. 3954) « we

° 16

® i?

a7 7

e iz

. 16

‘ a3

: i3

. a?

-15,16

° 15

oS.

United States v. Ellicott,

"eee SAO Cheeee lk lk 16

United States v. Robinson,

Bet Uste 220 Ciseet 6 th thc hl 9

Williams v. Town of Okoboji,

399 F.2G 236 (8th Cir. 1979) . . 17

Statutes

28 U.6.Ce § 1291 * * * ® e ° ° * e 5

28 U.8.C. § 2107 we * * e e 7 * e * 5

Wea. Bs Ae. FP. SUR) « tt lt tl CBee,

13,14,

17,18

STATUTES AND RULES INVOLVED

The statutes and rules involved in

this case are 28 U.S.C. §§ 1291 and

2107, and Fed. R. App. P. 4(a), set out

in full in Appendix A.

STATEMENT OF THE CASE

28 U.S.C. § 1291 provides for ap-

peals from final orders. This provi-

sion is jurisdictional. Browder v.

Director, Ill. Dept. of Corrections,

~6«

434 U.S. 257, 264 (1978). Petitioners

attempted to appeal from a nonfinal

order, i.e., the granting of respon-

dents' Motion for Summary Judgment.

That order dismissed only as to Ford

Motor Company and Ford Motor Credit

Company. It did not dismiss as to two

other individual defendants, Bambrough

and Van Keuren. While it is true that

petitioners had, for all practical pur-

poses, settled the case with Bambrough

and Van Keuren, the trial court had

never approved the settlement, had

never entered an order dismissing Van

Keuren or Bambrough, and had never

issued an order approving the filing of

an amended Complaint deleting them as

defendants.

The Clerk of the Tenth Circuit

Court of Appeals informed the parties

ee

that the court was considering summary

dismissal of the appeal for lack of

jurisdiction because it appeared _ the

order appealed from was nonfinal in

that other defendants remained in the

case. The Clerk of the Tenth Circuit

Court of Appeals specifically referred

petitioners to Golden Villa Spa, Inc.

v. Health Industries, Inc., 549 F.2d

2363 {10th Cie. i877), and Lamp vy.

Andrus, 657 7.26 1157 (10th Cir.

1981). Lamp v. Andrus, in turn, cites

A. O. Smith Corporation v. Sims Con-

soligated, ULtd., 647 F.2€ 118 (10th

Cir. 1981), wherein the Tenth Circuit

Court of Appeals dismissed an appeal

from a nonfinal judgment. Petitioners

returned to the District Court and

obtained a final order dismissing the

other defendants, but did not appeal

~~

from the final order. The Tenth Cir-

cuit then dismissed the attempted

appeal of the nonfinal order for lack

of jurisdiction.

In response to the Tenth Circuit's

finding of lack of jurisdiction, peti-

tioners have attempted to justify their

failure to appeal the final order in

this case by claiming that a law clerk

working for the firm representing peti-

tioners prepared and filed the Motion

and Order dismissing other defendants

which became the final order from which

no appeal was taken. Petitioners fur-

ther claim that after the order was

signed, that fact was not brought to

the attention of counsel for peti-

tioners.

Petitioners now ask the Court, as

they asked the Tenth Circuit, to ignore

~9-

the following facts: First, the Tenth

Circuit noted in its Order denying the

appellants’ Petition for Rehearing and

Suggestion for Rehearing En Banc that

"A reading of these decisions should

have made the requirement for filing a

second notice of appeal apparent."

Second, the motion seeking the dismis-

sal of the other defendants was signed

by the attorney for the petitioners.

Third, the Order signed by the District

Court dismissing the Complaint against

the other defendants was mailed to

counsel for the petitioners. Under

these circumstances, Petitioners cannot

claim that their failure to file a new

notice of appeal from the final order

is excuseable. United States v. Robin-

son, 361 U.S. 220 (1960).

15.

SUMMARY OF ARGUMENT

The petitioners have failed to

demonstrate a conflict between’ the

decision of the Tenth Circuit Court of

Appeals in this case and decisions of

other courts of appeals in similar

cases. The cases cited by the peti-

tioners as conflicting with the holding

of the Tenth Circuit Court of Appeals

in this matter are not applicable to

the facts of this case. To the extent

there was any conflict between deci-

sions of the courts of appeals on this

issue, that conflict was resolved by

this Court's holding in Griggs v. Pro-

vident Consumer Discount Company, 103

$.Ct. 400 (1982) (per curiam). There

being no demonstrated conflict between

the decisions of the courts of appeal,

the Court should deny the Petition for

a Writ

a)

Of Certiorari to the

United

States Court of Appeals for the Tenth

Circuit.

The

tioners

applied

Appeals

ARGUMENT

PETITIONERS HAVE

FAILED TO ESTABLISH

THAT THE DECISION OF

THE TENTH CIRCUIT

COURT OF APPEALS IS

IN CONFLICT WITH

DECISIONS OF OTHER

COURTS OF APPEALS ON

THE QUESTION PRE-

SENTED, AND TO THE

EXTENT THERE WAS ANY

CONFLICT, at WAS

ELIMINATED BY GRIGGS.

authorities cited by the peti-

are not contrary to the rule

by the Tenth Circuit Court of

in dismissing the appeal be-

low. None of the cases cited supports

the proposition that a notice of appeal

from a nonfinal order invokes the jur-

~1 2~

isdiction of the court of appeals when

a final order is entered.

The petitioners claim that in sev-

eral courts of appeals premature

notices of appeal invoke the jurisdic-

tion of the courts. The authorities

cited by the petitioners relate to

types of premature appeals not raised

by the facts of this case, and fail to

establish that their notice of appeal

was anything other than a nullity.

The cases cited by petitioners fall

into three general categories. First,

the petitioners cite cases within the

purview of Fed.R.App.P. 4(a)(2), i.e.,

notices of appeal filed after announce-

ment of a final order, but before entry

of the final order. For example, in

Lemke v. United States, 346 U.S. 325

(1953) (per curiam), the petitioner's

i

notice of appeal was filed after sen-

tencing, but before a formal judgment

was entered. The Supreme Court re-

versed the Ninth Circuit's dismissal of

the appeal, holding that the irregular-

ity should be disregarded. This hold-

ing was later codified as Fed.R.App.P.

4(a) (2), which states, "Except as pro-

vided in (a)(4) of this Rule 4, a

notice of appeal filed after the

announcement of a decision or order but

before the entry of the judgment or

order shall be treated as filed after

such entry and on the day thereof."

See also Markham v. Holt, 369 F.2d 940

Sth Cir. i955). In both Firchau v.

Diamond National Corporation, 345 F.2d

269 (9th Cir. 1965), and Ruby v. Secre-

tary of United States Navy, 365 F.2d

385 (9th Cir. 1966), the court of ap-

~1 do

peals held that it would construe the

notices of appeal of orders dismissing

complaints as applying to the final

Orders dismissing the actions, rather

than the nonappealable orders dismis-

sing the complaints. These cases are

Similar to cases encompassed by the

Fed.R.App.P. 4(a)(2), since the inten-

tions of the district courts to dismiss

the actions in the event amended com-

plaints were not filed were apparent,

and later ripened into final orders of

dismissal. All these cases differ

materially from the case at hand, in

that the district courts had announced

their final orders, but had not yet

entered the judgments. In this case,

petitioners attempted to appeal a non-

final order before the final order had

ever been announced.

1s.

The second category of cases cited

by the petitioners deal with instances

where final orders actually exist and

notices of appeal have been liberally

construed to apply to the existing

final orders. For example, in Hoiness

the Supreme Court interpreted a peti-

tion for appeal as referring to a final

and appealable order, even though the

petition for appeal specifically refer-

red to a subsequent, non-appealable

Order. Thus, in Hoiness, there was, at

the time the petition for appeal was

filed, a final order from which an

appeal could timely have been taken.

See also United States v. Arizona, 346

U.S. 907 (1953) (mem.), opinion below,

70S F.20 159 (9th Cir. 1953); State

Farm Mutual Automobile Insurance Co. v.

~16-

Palmer, 350 U.S. 944 (1956) (men.),

opinion below, 225 F.2d 876 (9th Cir.

1955); United States v. Ellicott, 223

U.S. 526 ([29.2)% Weddox vv. Bilack,

Raber-Kief & Assoc., 303 F.2d 910 (9th

Cir. 1962); Crump v. Hill, 104 F.24 36

(Sth Circ. 1939); Jordan vy. United

States District Court for the District

OF Columbia, 233 ¥F.24 362 (D.C. Cir.

1956); Blunt v. United States, 244 F.2d

oom «60h. «6. 63857): and Burdix vy.

United States, 231 F.2d 893 (9th Cir.

1956), cert. denied, 351 60.8. 975

(1956). In the foregoing cases, each

appellate court liberally construed a

notice of appeal as encompassing an

existing final order other than that

specifically mentioned in the notice,

Or construed an inartfully captioned

document as a notice of appeal. In any

at Jo

event, in each of the foregoing cases,

contrary to this case, there was a

final and appealable judgment.

Finally, the petitioners cite a

group of cases which have been over-

ruled by Fed.R.App.P. 4(a) and_ the

Court's ruling in Griggs v. Provident

Consumer Discount Company, 103 Sup.Ct.

400 (1982) (per curiam). These cases

hold that a notice of appeal filed

after judgment, but prior to disposi-

tion of post-trial motions, effectively

appeals the final judgment. See Song

Jook Suh v. Rosenberg, 437 F.2d 1098

(9th Cir. 1971); Williams v. Town of

Okoboji, 599 F.2d 238 (8th Cir 1979);

and Keohane v. Swarco, Inc., 320 F.2d

429 (6th Cir. 1963). In Griggs v. Pro-

vident Consumer Discount Company,

supra, this Court held that a notice of

=18~

appeal filed after judgment, but prior

to a disposition of a post-trial motion

to alter or amend the judgment, was a

nullity. Since the holdings in the

cases cited by petitioners have been

overruled by Fed.R.App.P. 4(a) and

Griggs v. Provident Consumer Discount

Company, supra,

a conflict between those decisions and

there no longer can be

the decision of the Tenth Circuit Court

of Appeals in this case.

CONCLUSION

The petitioners have sought’ to

establish a conflict of authority

between the circuit courts of appeal,

but have failed to evidence such con-

flict.

The claimed conflict among deci-

sions of the various circuit courts of

-19-

appeal relied upon by the petitioners

is non-existent when the facts of the

cases are examined. Each "premature"

notice of appeal in these cases differs

materially from the petitioners’ situa-

tion. In the instant case, the peti-

tioners attempted to appeal from a non-

final order. When informed of the jur-

isdictional problem, the petitioners

procured a final order, then failed to

appeal from it. There are no special

circumstances justifying a result dif-

ferent from the Tenth Circuit's hold-

ing, and no cases have been cited by

petitioners in which other courts of

appeal have held differently on the

same facts. Further, to the extent a

conflict did exist, it has been elimi-

nated by Griggs.

=20<

For the foregoing reasons,’ the

Court should deny the Petition for a

Writ of Certiorari to the Tenth Circuit

Court of Appeals.

Respectfully submitted,

SNOW, CHRISTENSEN & MARTINEAU

Harold G. Christensen*

R. Brent Stephens

Attorneys for Respondents

*Counsel of Record

A-1

APPENDIX A

28 U.S.C. § 2107. Time for appeal to

court of appeals.

Except as otherwise provided in

this section, no appeal shall bring any

judgment, order or decree in an action,

suit or proceeding of a civil nature

before a court of appeals for review

unless notice of appeal is filed,

within thirty days after the entry of

such judgment, order or decree.

In any such action, suit or pro-

ceeding in which the United States or

an officer or agency thereof is a

Party, the time as to all parties shall

be sixty days from such entry.

In any action, suit or proceeding

in admiralty, the notice of appeal

shall be filed within ninety days after

A-2

the entry of the order, judgment or

decree appealed from, if it is a final

decision, and within fifteen days after

its entry if it is an interlocutory

decree.

The district court may extend the

time for appeal not exceeding thirty

days from the expiration of the ori-

ginal time herein prescribed, upon a

showing of excusable neglect based on

failure of a party to learn of the

entry of the judgment, order or decree.

This section shall not apply to

bankruptcy matters or other proceedings

under Title ll.

ae U.8.C. € 129i. Final decisions of

district courts.

The courts of appeals (other than

the United States Court of Appeals for

A-3

the Federal Circuit) shall have juris-

diction of appeals from all final deci-

sions of the district courts of the

United States, the United States Dis-

trict Court for the District of the

Canal Zone, the District Court of Guam,

and the District Court of the Virgin

Islands, except where a direct review

may be had in the Supreme Court. The

jurisdiction of the United States Court

of Appeals for the Federal Circuit

shall be limited to the jurisdiction

described in sections 1292(c) and (d)

and 1295 of this title.

RULE 4, Fed. R. App. P. Appeal as of

Right -- When Taken.

(a) Appeals in Civil Cases.

(1) In a civil case in which an

appeal is permitted by law as of right

from a district court to a court of

A-4

appeals the notice of appeal required

by Rule 3 shall be filed with the clerk

of the district court within 30 days

after the date of entry of the judgment

or order appealed from; but if the

United States or an officer or agency

thereof is a party, the notice of

appeal may be filed by any party within

60 days after such entry. If a notice

of appeal is mistakenly filed in the

court of appeals, the clerk of the

court of appeals shall note thereon the

date on which it was received and

transmit it to the clerk of the dis-

trict court and it shall be deemed

filed in the district court on the date

so noted.

(2) Except as provided in (a) (4)

of this Rule 4, a notice of appeal

filed after the announcement of a deci-

A-5

sion or order but before the entry of

the judgment or order shall be treated

as filed after such entry and on the

day thereof.

(3) If a timely notice of appeal

is filed by a party, any other party

may file a notice of appeal within 14

days after the date on which the first

notice of appeal was filed, or within

the time otherwise prescribed by this

Rule 4(a), whichever period last

expires.

(4) If a timely motion under the

Federal Rules of Civil Procedure is

filed in the district court by any

party: (i) for judgment under Rule

50(b); (ii) under Rule 52(b) to amend

or make aditional findings of fact,

whether or not an alteration of the

judgment would be required if the

A-6

motion is granted; (iii) under Rule 59

to alter or amend the judgment; or (iv)

under Rule 59 for a new trial, 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

must be filed within the prescribed

time measured from the entry of the

order disposing of the motion as pro-

vided above. No additional fees shall

be required for such filing.

(S) The district court, upon a

showing of excusable neglect or good

cause, may extend the time for filing a

notice of appeal upon motion filed not

later than 30 days after the expiration

of the time prescribed by this Rule

4(a). Any such motion which is filed

before expiration of the prescribed

A-7

time may be ex parte unless the court

otherwise requires. Notice of any such

motion which is filed after expiration

of the prescribed time shall be given

to the other parties in accordance with

local rules. No such extension shall

exceed 30 days past such prescribed

time or 10 days from the date of entry

of the order granting the motion,

whichever occurs later.

(6) A judgment or order is entered

within the meaning of this Rule 4(a)

when it is entered in compliance with

Rules 58 and 79(a) of the Federal Rules

of Civil Procedure.

B-1

APPENDIX B

RULE 28 LISTING OF

CORPORATE AFFILIATIONS

Respondent Ford Motor Company is

the parent company.

Respondent Ford Motor Credit Com-

Pany is a wholly owned subsidiary of

Ford Motor Company.

The following are non-wholly-owned

Subsidiaries and affiliates of Ford

Motor Company in the United States:

Eveleth Taconite Company

Renaissance Center Partnership

Fairlane Town Center (a partnership)

Ford Motor Company has other consoli-

dated and unconsolidated subsidiaries

which are located in the United States

and in foreign countries, the majority

of which have the Ford name incorpor-

ated therein or do not involve private

financial interests,