Opposition Brief — Stockstill v. Shell Oil Co.

QE FHE CLERK |

No.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1992

KENDALL STOCKSTILL AND

MANUEL T. MAYEUX,

Petitioners,

V.

SHELL OIL COMPANY AND

COASTLINE CONSTRUCTION COMPANY,

Respondents.

Petition For Writ Of Certiorari To

The United States Court Of Appeals

For The Fifth Circuit

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

L. Chris Butler

P. O. Box 2463

4760 One Shell Plaza

Houston, Texas 77252

(713) 241-3027

Attorney for Respondent

Shel/ Oi] Company

Alpha Law Brief Co.* 6113 Aletha Lane* Houston, Texas 77081 (713)981-9000

i

QUESTIONS PRESENTED FOR REVIEW

l. Did the United States Court of Appeals for the

Fifth Circuit act correctly in dismissing this appeal for want

of jurisdiction?

2. Is a Notice of Appea! filed prior to the entry

of a Fed. R. Civ. Pro. 54(b) order effective to properly

appeal a case?

+H Does a Notice of Appeal which fails to

designate the party taking the appeal contain a jurisdictional

defect?

li

PARTIES TO THE PROCEEDING

As Kendall Stockstill, Plaintiff in the District

Court and Petitioner

ya Manuel T. Mayeux, Plaintiff in the District

Court and Petitioner

3. Shell Oil Company,’ Defendant in the District

Court and Respondent (hereinafter referred to

as "Shell")

4, Coastline Construction Inc., Defendant in the

District Court and Respondent (hereinafter

referred to as "Coastline”)

‘ Shell Oil Company is wholly owned by Shell Petroleum Inc. Shell

Petroleum Inc. is directly or indirectly owned 60% by Royal Dutch

Petroleum and 40% by The “Shell” Transport and Trading Company,

p.l.c., which are publicly traded companies. Sheil Oil Company has no

subsidiaries which are less than wholly owned.

ee

ill

TABLE OF CONTENTS

Page

Questions Presented For ON Pe ee ee ee oe i

Did the United States Court of Appeals

for the Fifth Circuit act correctly in

dismissing this appeal for want of

eS i

Is a Notice of Appeal filed prior to

the entry of a Fed. R. Civ. Pro. 54(b)

order effective to properly appeal a

I ee ea ga ek ee ke Ao eS 8 i

Does a Notice of Appeal which fails to

designate the party taking the appeal

contain a jurisdictional defect?.......---+-- i

Parties to the Proceeding .......-----++eeee3> il

ee eer ee ee ill

SS SEEN rae ee ee Vv

Poeetionh OF COERIORS . ww tenes |

Jurisdictional Statement... ....---- eee eee 2

Applicable Rules... ..---- 2+ eee eccrrecre 2

Statement of the Case... ...--- ee ee eee tees 4

Summary of the Argument... .---- e+e errr 7

1V

ree a a ee Se ee ee ee eee ee 8

The Court of Appeals acted correctly

in dismissing this appeal for want of

Ds 6 oe ee a ee aes 6

(a) The summary judgments were not

final decisions at the time a

Notice of Appeal was filed.......... 7

(b) The Notice of Appeal contained a

jurisdsctional Gefect .. 0... ee 12

So ne, Pate, bees, A ELE AM TOT ie Ae RANE RA 18

Vv

TABLE OF AUTHORITIES

CASES Page

A.O. Smith Corp. v. Sims Consol. Ltd.

GOT Fae 138 Ce OM... BSE) no we ees 9,12

Barnett v. Petro-Tex Chem. Corp.,

O93 F.2d BOO (5 Cir. 19D. 6 ee cee ees 16

Dibidale of Louisiana, Inc. v. American Bank

& Trust Co., New Orleans, 916 F.2d 300

CO CAE. Tees evs eee ee ee 9, 12

Southern Methodist Univ. Ass’n. of Women

Law Students v. Wynne & Jaffe, 599 F.2d 707

Ce Cae Se oe ee ae ee ee 8

Torres v. Oakland Scavenger Co..,

ORT Ue Dee Ce hoe a ee ee ee 14, 15

STATUTES

a USA. & TE «ss ee ee eee 2

MUSCEOM...0.. eee 8, 12

29 U.S.C. § 1000, et seq., The Employee

Retirement Income Security Act (ERISA)...... 4

29 U.S.C. § 621, et seq., Age Discrimination

in Employment Act (ADEA)............-.-. 4

vi

42 U.S.C. § 2000e, et seq., Title VII of the

Civil Rights Act of 1964 (Title VII)......... 4

RULES

Fem. AGM POO. GP eso oe nee eee 3, 13

Fog. &. Amp. PO. Gy GY oko 5 se tacks eee 3, 12

red. R. Gavi Pa SO ok os Ss 0 eee passim

TREATISES

) Moore’s Federal Practice 4 204.14............. 12

NO.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1992

KENDALL STOCKSTILL AND

MANUEL T. MAYEUX,

Petitioners,

Vv.

SHELL OIL COMPANY AND

COASTLINE CONSTRUCTION COMPANY,

Respondents.

Petition For Writ of Certiorari

To The United States Court of Appeals

For The Fifth Circuit

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

CITATION OF OPINIONS

The Minute Entry granting Summary Judgment

entered on September 5, 1991 and the Partial Judgment

under Rule 54(b) entered on November 8, 1991 by the

2

United States District Court for the Eastern District of

Louisiana have not been reported.

The opinion dismissing the appeal for want of

jurisdiction dated February 28, 1992 by the United States

Court of Appeals for the Fifth Circuit has not been reported.

A copy of the opinion is included in the appendix attached to

the Petition for Writ of Certiorari.

JURISDICTIONAL STATEMENT

The Supreme Court has jurisdiction to consider the

Petition for Writ of Certiorari under 28 U.S.C. § 1254(1).

APPLICABLE RULES

This case involves Fed R. Civ. Pro. 54(b) and Fed.

R. App. Pro. 3(c) and 4(a) (2).

FED. R. CIV. PRO. 54. JUDGMENT; COSTS

(b) Judgment Upon Multiple Claims or

Involving Multiple Parties. When more than one claim for

relief is presented in an action, whether as a claim,

counterclaim, cross-claim, or third-party claim, or when

multiple parties are involved, the court may direct the entry

of a final judgment as to one or more but fewer than all of

the claims or parties only upon an express determination that

there is no just reason for delay and upon an express

direction for the entry of judgment. In the absence of such

determination and direction, any order or other form of

decision, however designated, which adjudicates fewer than

all the claims or the nights and liabilities of fewer than all the

parties shall not terminate the action as to any of the claims

or parties, and the order or other form of decision is subject

to revision at any time before the entry of judgment

3

adjudicating all the claims and the rights and liabilities of all

the parties.

FED. R. APP. PRO. 3

(c) Content of the Notice of Appeal. The 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.

Form 1 in the Appendix of Forms is a suggested form of a

notice of appeal. An appeal shall nox be dismissed for

informality of form or title of the notice of appeal.

FED. R. APP. PRO. 4

(a) Appeals in Civil Cases.

(2) Except as provided 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.

STATEMENT OF THE CASE

Kendall Stockstill and Manuel T. Mayeux are former

employees of Coastline, an independent contractor who

supplies welding services to Shell under written agreements.

In September, 1988, Shell informed Coastline that Manuel T.

Mayeux would not be allowed to work at a Shell facility until

he passed a physical exam. In October, 1988, Shell

informed Coastline that Kendall Stockstill would no longer be

allowed on Shell facilities. Shell had reason to believe that

Stockstill had sexually harassed a female employee.

On September 11, 1990, Kendall Stockstill filed Civil

Action No. 90-3259 in the United States District Court for

the Eastern District of Louisiana against Shell and Coastline.

(R.vol.1 nr.1 p.333). On September 11, 1990, Manuel T.

Mayeux filed Civil Action No. 90-3260 in the United States

District Court for the Eastern District of Louisiana against

Shell and Coastline. (R.vol.3 nr.1 p. 297).

Both actions alleged violations of the Age

Discrimination in Employment Act (ADEA), 29 U.S.C. §

621, et seq, The Employee Retirement Income Security Act

(ERISA), 29 U.S.C. § 1000, et seq, and Title VII of the

Civil Rights Act of 1964, (Title VII), 42 U.S.C. § 2000e, et

seq. By Order dated April 19, 1991, the cases were

consolidated. (R.vol.1 nr.11 p.303).

On June 5, 1991, Coastline filed a Motion for

Summary Judgment on the ADEA, ERISA, and Title VII

claims in consolidated Civil Actions No. 90-3259 and No.

90-3260. (R.vol.1 nr. 17 p.256.). On June 18, 1991,

Stockstill and Mayeux filed a Memorandum in opposition to

Coastline’s Motion for Summary Judgment (R.vol.1 nr.21

p.238).

5

Meanwhile, on June 24, 1991, Kendall Stockstill filed

a new suit based on the same facts against Shell in state

court. This new suit (Kendall Stockstill v. Shell Oil Co..,

No. 91-11914; in the Civil District Court for the Parish of

Orleans, State of Louisiana) was removed to the United

States District Court for the Eastern District of Louisiana and

assigned Civil Action No. 91-2527. The new suit alleged

defamation. By Order dated July 24, 1991, Civil Action No.

91-2527 was consolidated with Civil Action No. 90-3529

(R.vol. 1 nr.35 p. 163).

On July 2, 1991, Stockstill anc Mayeux filed a

Motion to Dismisss the Title VII claims in consolidated Civil

Actions No. 90-3259 and No. 90-3260. (R.vol.l nr. 25

p.230). The motion was granted on the same day. (R.vol.1

nr.25 p.232). ‘

On July 16, 1991, Shell filed a Motion for Summary

Judgment on the ADEA and ERISA claims in consolidated

Civil Actions No. 90-3259 and No. 90-3260. (R.vol.1

nor.31 p.169). On July 26, 1991, Stockstill and Mayeux

filed a Memorandum in Opposition to Shell’s Motion for

Summary Judgment. (R.vol.1 nr.38 p.1).

On September 5, 1991, the District Court issued a

Minute Entry granting Summary Judgment in favor of Shell

and Coastline on the ADEA and ERISA claims in

consolidated Civil Actions No. 90-3259 and No. 90-3260.

(R.vol.2 nr.41 p.576). Separate judgments were signed on

the same day in favor of Shell and Coastline dismissing all

claims made by Stockstill and Mayeux in Civil Actions No.

90-3259 and No. 90-3260. (R.vol.2 nr.42 and 43 p.574-

575). a

6

On September 19, 1991, Stockstill and Mayeux filed

a "Petition for Rehearing.” (R.vol.2 nr.45 p.424). Shell

and Coastline responded to the petition. (R.vol.2 nr.46 and

47 p. 408-423). On October 10, 1991, the District Court

issued a Minute Entry denying the petition. (R.vol.2 nr.50

p.357).

On October 16, 1991, a Notice of Appeal was filed

in Civil Actions No. 90-3259 and No. 90-3260, even though

these cases were still consolidated with Civil Action No. 91-

2527. (R.vol.2 nr.51 p.356)}.

The docket for this appeal was completed and

certified on November 7, 1991. On November 8, 1991,

separate Partial Judgments under Rule 54(b) were entered in

Civil Actions No. 90-3259 and No. 90-3260. Stockstill and

Mayeux did not file Notices of Appeal from the Partial

Judgments.

On February 26, 1992 the United States Court of

Appeals for the Fifth Circuit issued an order dismissing the

appeal for want of jurisdiction. The order noted that the

Notice of Appeal failed to designate the party taking the

appeal and was filed prior to the entry of a Fed. R. Civ. Pro.

54(b) order that provided the parties with an appealable

judgment.

On March 30, 1992 the Fifth Circuit denied a Petition

for Rehearing.

Cia June 29, 1992 Stockstill and Mayeux filed a

Petition for Writ of Certiorari with this Court.

SUMMARY OF THE ARGUMENT

The Court of Appeals acted correctly in dismissing

this appeal for want of jurisdiction. The Notice of Appeal

was prematurely filed. It was filed after entry of summary

judgments which did not dispose of all of the issues in the

case. Later, the District Court filed Partial Judgments under

Rule 54(b). However, the Petitioners did not file a second

Notice of Appeal.

Additionally, the Notice of Appeal did not specify the

party taking the appeal. This is a jurisdictional defect.

ARGUMENT

1. The Court of Appeals acted correctly in

dismissing this appeal for want of jurisdiction.

(a) The summary judgments were not

final decisions at the time a Notice of Appeal was filed.

The Petitioners sought review of summary judgments

entered on September 5, 1991. The Petitioners asserted that

the Court of Appeals had jurisdiction to hear their appeal

under 28 U.S.C. § 1291. However, this statute confers

jurisdiction only in the case of any appeal from a "final

decision."

A final decision is one which ends the litigation on

the merits and leaves nothing for the Court to do but execute

the Judgment. Southern Methodist Univ. Ass’n. of Women

Law Students v. Wynne & Jaffe, 599 F.2d 707 (Sth Cir.

1979). If a decision does not adjudicate all claims, the

District Court must make an express determination that there

is no just reason for delay and direct the entry of a Judgment

in accordance with FED. R. CIV. PRO. 54(b) in order to

allow an appeal.

The summary judgments entered on September 5,

1991 did not dispose of all issues in this case. At the time

the summary judgments were issued, three Civil Actions

(No. 90-3259, No. 90-3260 and No. 91-2527) had been

consolidated. The summary judgments addressed claims

raised in two of those actions (No. 90-3259 and No. 90-

3260) but did not addressed the claims raised in No. 91-

2527. Therefore, these summary judgments were not "final

9

decisions" within the meaning of 28 U.S.C. § 1291.

Nevertheless, on October 16, 1991, a Notice of Appeal was

filed.

The District Court did make an express determination

that there was no just reason for delay and directed entry of

a final judgment in accordance with Rule 54(b). However,

this occurred on November 8, 1991, after the Petitioners had

filed the Notice of Appeal. The Petitioners did not file a

Notice of Appeal from the November 8, 1991 Partial

Judgments.

The Court of Appeals acted correctly in dismissing

the appeal for want of jurisdiction. A Notice of Appeal filed

prior to the entry of a Rule 54(b) order is ineffective. The

order dismissing the appeal is consistent with prior decisions

of the Fifth Circuit and other Courts of Appeals.

A.O. Smith Corp. v. Sims Consol. Lid. , 647 F.2d 118

(10th Cir. 1981), involved claims, counter-claims, and cross

motions for summary judgments. One Motion for Summary

Judgment was granted and one was denied, leaving a claim

for malicious prosecution pending in the District Court.

Nevertheless the plaintiff filed a Notice of Appeal. The

Tenth Circuit advised all parties that it was considering a

dismissal for lack of appellate jurisdiction. The plaintiff then

requested that the appeal be held in abeyance pending a

request for a Rule 54(b) certification. The District Court

made a Rule 54(b) certification and the plaintiff filed a

Second Notice of Appeal within 30 days thereof. The filing

of the Second Notice of Appeal saved the plaintiff's appeal.

Had the plaintiff not filed the second notice, the Court of

Appeals would have lacked jurisdiction to hear the appeal.

Dibidale of Louisiana, Inc. y. American Bank & Trust

Co., New Orleans, 916 F.2d 300 (Sth Cir. 1990), involved

10

multiple suits arising from the default on a large construction

loan. Dibidale filed suit in federal court against the two

lending banks and various individuals for violation of various

banking regulations. Dibidale Security Establishment (DSE),

the parent of Dibidale, filed a similar suit. One of the banks

filed a state court action against an agent of Dibidale as a

guarantor of the loan. The state case was removed to federal

court and all three cases were consolidated. The District

Court granted summary judgment in favor of the defendants

on the suits filed by Dibidale and DSE but did not certify the

judgment in accordance with Rule 54(b). Dibidale filed a

Notice of Appeal.

While the case was on appeal and after oral

arguments to the Fifth Circuit, the District Court issued an

appropriate Rule 54(b) Judgment. Dyibidale then filed a

second Notice of Appeal.

The Fifth Circuit raised the question of whether it had

appellate jurisdiction prior to certification. The decision

makes clear that the first Notice of Appeal was ineffective

because there was no "final decision" absent certification.

Dibidale’s appeal was saved only by the filing of the second

notice within 30 days of the entry of the Rule 54(b)

judgment.

“Subsequent to the filing of

briefs on the merits of this case

we requested supplemental

letter briefing on appeliate

jurisdiction. Specifically, we

inquired whether certification

of the judgment from which

Dibidale had appealed was

required under FED. R. CIV.

P. 54(b) and, if certification

11

was not required or was

otherwise obtained, whether

Dibidale’s motion for

reconsideration rendered __ its

earlier notice of appeal

ineffective under F.R.A.P. 4(a)

(4). As noted, the district

court’s subsequent issuance of

a certified judgment pursuant to

Rule _54(b), and __Dibidale’s

Subsequent timely appeal have

rendered the first portion of

this issue moot. ra

The appellees contend

nonetheless that the Rule 54(b)

certification must apply

retroactively to the district

court’s original judgment, thus

rendering Dibidale’s earlier

notice of appeal premature and

its most recent notice of appeal

untimely. We are not

persuaded. Until the issuance

of the qualifying Rule 54(b)

judgment, no final judgment

existed from which Dibidale

could take an __ appeal.

Accordingly, Dibidale’s notice

of appeal from the district

court’s post-argument judgment

Properly has invoked our

jurisdiction." 916 F.2d at 304

(emphasis added).

The present case is similar to Dibdale. This case also

involves two cases filed in federal court and one filed in State

12

court. The state court claim was removed to federal court

and all three cases were consolidated. The summary

judgments dealt with issues raised in the cases originally filed

in federal court but did not dispose of the issues raised in the

removed case. The summary judgments were not "final

decisions" and no Rule 54(b) certification was made prior to

the Notice of Appeal. Therefore, at the time the notice was

filed, no final judgment existed from which the Petitioners

could take an appeal.

A Rule 54(b) certification was made in this case.

However, it was issued after the Notice of Appeal. The

Petitioners failed to file a Notice of Appeal from the Partial

Judgments under Rule 54(b). Therefore, The Fifth Circuit

had no jurisdiction to hear this appeal.

The Petitioners could have saved their appeal by filing

a second Notice of Appeal after entry of the partial

judgments as was done in A.O. Smith Corp. v. Sims

Consolidated Ltd., supra, and Dibidale of Louisiana, Inc. v.

American Bank & Trust Co., New Orleans, supra. However

since the Petitioners failed to file a second Notice of Appeal,

this appeal was properly dismissed.

The Petitioners attempt to excuse the premature filing

of the Notice of Appeal by pointing to Fed. R. App. Pro.

4(a) (2) which provides that a notice of appeal filed after an

announcement of a decision but before entry of judgment

shall be treated as filed after the entry of judgment.

However, Rule 4(a) (2) relates to a decision that will

be final on entry. It does not make appealable an order that

is not appealable under 28 U.S.C. § 1291. 9 Moore’s

Federal Practice 4 204.14.

"Nor does Rule 4(a) (2) save

13

an appeal that is taken from an

order appealable only on a

finding under Rule 54(b).” Jd.

at p. 4-129 (footnote omitted).

The Court of Appeals acted correctly in dismissing

this appeal for failure to timely file a notice of appeal after

entry of the partial judgments under Rule 54(b).

(b) The Notice of Appeal contained a

jurisdictional defect.

Under Rule 3(c) of the Federal Rules of Appellate

Procedure, there are only three requirements for the contents

of a Notice of Appeal.

"The 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 Notice of Appeal filed by the Petitioners met

none of these requirements. (R.vol.1 nr.5] p.356). The

notice did not specify the party or parties taking the appeal,

did not designate the judgment or order appealed from and

did not name the court to which the appeal was taken.

The defects regarding designation of the judgment

appealed from and the court to which the appeal is taken

were not fatal because of the last sentence of Rule 3(c).

"An appeal shall not be

14

dismissed for informality of

form or title of the notice of

appeal."

However, the failure to specify the party taking the

appeal was a jurisdictional defect which resulted in the

dismisssal of this appeal. The order dismissing the appeal is

consistent with prior decisions of the Supreme Court and the

Fifth Circuit.

In Torres v. Oakland Scavenger Co., 487 U.S. 312

(1988), Torres was one of sixteen plaintiffs who intervened

in an employment discrimination suit. The District Court

dismissed the complaint for failure to state a claim upon

which relief may be granted. The plaintiffs appealed but the

Notice of Appeal omitted Torres’ name due to a clerical

error. The United States Court of Appeals for the Ninth

Circuit reversed the dismissal and remanded the case.

Upon remand, the defendant moved for a partial

summary judgment against Torres on the grounds that the

prior judgment of dismissal was final as to Torres for his

failure to appeal. The District Court granted the motion and

the Ninth Circuit affirmed.

The Supreme Court held that the failure to specifically

name a party in the Notice of Appeal was a jurisdictional

defect that did not allow the Court of Appeals to exercise

jurisdiction over the unnamed party. Justice Marshall,

writing for the majority, explained the Supreme Court’s

reasoning as follows:

"We believe that the mandatory

nature of the time limits

contained in Rule 4 would be

vitiated if courts of appeals

15

were permitted to exercise

jurisdiction over parties not

named in the notice of appeal.

Permitting courts to exercise

jurisdiction over unnamed

parties after the time for filing

a notice of appeal has Passed is

equivalent to permitting courts

to extend the time for filing a

notice of appeal. Because the

rules do not grant courts the

latter power, we hold that th

rules likewise withhold the

former." 487 U.S. at 315.

"Applying these Principles to

the instant case, we find that

petitioner failed to comply with

the specificity requirement of

Rule 3(c), even liberally

construed. Petitioner did not

file the functional equivalent of

a notice of appeal; he was

never named or otherwise

designated, however inartfully,

in the notice of appeal filed by

the 15 other intervenors. Nor

did petitioner seek leave to

amend the notice of appeal

within the time limits set by

Rule 4. Thus, the Court of

Appeals was correct that it

never had jurisdiction over

petitioner’s appeal." 487 U.S.

at 317.

16

- Torres argued that the Notice of Appeal was not

defective as to him since it included the phrase "et al." The

Supreme Court rejected this argument.

"Petitioner urges that the use of “et

al." in the notice of appeal was

sufficient to indicate his intention to

appeal. We cannot agree. The

purpose of the specificity requirement

of Rule 3(c) is to provide notice both

to the opposition and to the court of

the identity of the appellant or

appellants. The use of the phrase “et

al.," which literally means “and

others,” utterly fails to provide such

notice to either intended recipient.

Permitting such vague designation

would leave the appellee and the court

unable to determine with certitude

whether a losing party not named in

the notice of appeal should be bound

by an adverse judgment or held liable

for costs or sanctions. The specificity

requirement of Rule 3(c) is met only

by some designation that gives fair

notice of the specific individual or

entity seeking to appeal." 487 U.S. at

317-18.

The Fifth Circuit applied Torres v. Oakland

Scavenger Co., supra, to determine that it had jurisdiction

only over the specifically named appellants in a Notice of

Appeal in Barnett v. Petro-Tex Chem. Corp., 893 F.2d 800

(Sth Cir. 1990), even though the notice named the first

appellant followed by "et al." Strict compliance with the

first provision of Rule 3(c) is a jurisdictional requirement.

17

In the present case the Notice of Appeal failed to

specify any party whatsoever. The notice reads in its

entirety are follows:

"I hereby request an appeal be

noticed in the above Captioned

matter."

There was no attempt to identify "I". The attorney

who signed the notice did not even State who he represented.

The Notice of Appeal was defective for failure to specify the

Party appealing. This defect was Jurisdictional and the

appeal was properly dismissed.

The Petitioners acknowledge that the notice was not

“technically correct" but seek to excuse their lack of

compliance with the rules of procedure by pointing out that

the notice included the following statement.

"This notice relates to Civil

Action No. 90-3259 and 90-

3260 only."

This statement hardly clarifies the confusion. The

two civil actions had been consolidated. There were two

plaintiffs. The statement does nothing to identify which of

the two plaintiffs was the "I" requesting the appeal.

The Petitioners also point out that their lawyer had

previously filed an identical Notice of Appeal in another

case. No one complained in that case. However, there was

only one plaintiff. Therefore there was no confusion as to

the party requesting the appeal. Such is not the case where,

as here, there is more than one plaintiff.

18

CONCLUSION

This case does not involve a conflict with any

decision of the Supreme Court. Nor does it involve a

conflict between decisions of the Court of Appeal.

This case involves a failure to follow the applicable

rules of procedure in noticing an appeal.

The Court of Appeals acted correctly in dismissing

this appeal for want of jurisdiction. The Petition for Writ of

Certiorari should be denied.

Respectfully submitted,

L. Chris Butler

Texas Bar No. 03527300

P. O. Box 2463

4760 One Shell Plaza

Houston, Texas 77252

(713) 241-3027

Attorney for Respondent

Shell Oil Company