Petition for Writ of Certiorari — Biddle Street Bistro, Inc. v. TLJ Co.
Supreme Court brief2003
Ask Donna
What actually matters in this document.
Text
he Suprewress (Claaw, Cus, :
i\ \ FILER
021791 JUN 6 - 2003
No.
In THE
Supreme Court of the Anited States
BIDDLE STREET BIstTRO, INC. ,
Petitioner
Vs.
TLJ Company, L.L.C. AND
BREMEN BANK AND TRUST COMPANY,
Respondents
On Petition For Writ Of Certiorari
To The United States
Court Of Appeals For The Eighth Circuit
PETITION FOR WRIT OF CERTIORARI
Gary P. PAUL
Counsel of Record
BRINKER & Doyen, L.L.P.
120 SoutH CENTRAL AVENUE,
SulTEe 700
CLayTON, Missouri 63105
(314)-863-6311
eo
St. Louis Law Printing, Inc. 14239 Manchester Rd. Manchester, MO 63011 314-231-4477
(1)
(2)
QUESTIONS PRESENTED
Whether the Federal Rules of Appellate Procedure
require that a notice of appeal be signed for a
United States Court of Appeals to have jurisdic-
tion.
Whether the filing of a timely Notice of Appeal
signed only by pro se shareholders on behalf of
their corporation is a fatal error that requires the
corporation’s appeal to be dismissed.
a yo
PARTIES IN THE COURT BELOW
Petitioner, Biddle Street Bistro, Inc., was a Defen-
dant below. Biddle Street Bistro, Inc. has no
parent companies or subsidiaries not wholly owned
by the corporation. No publicly held company owns
ten percent or more of the corporation’s stock. The
corporation was wholly owned by shareholders
Jeffery Eilers and Janet Y. Tennant. :
Respondent, TLJ Company, L.L.C., was a Defen-
dant below. TLJ Company, L.L.C. has no parent
companies or subsidiaries not wholly owned by the
corporation. No publicly held company owns ten
percent or more of the TLJ Company, L.L.C.
Respondent, Bremen Bank and Trust Company,
was a Defendant below. The parent company of
Bremen Bank and Trust Company is Bremen
Bancorp, Inc. Bremen Bank and Trust Company
has no subsidiaries not wholly owned by it and no
publicly held company owns ten percent or more of
it.
No review is sought here as to the Plaintiff below,
Allstate Insurance Company.
— il—
TABLE OF CONTENTS
Questions Presented For Review .................00000.
Parties in the Court Below ................c.ccccccssssscess
Reference to Official and Unofficial Report of
AES N ES OR a
Jurisdictional Statement .................ccccccceeceeceeese
Constitutional Provisions, Statutes and
Regulations Involved .................cccccccssesesseees
ROR MNIINS OE GINO CORIO... :0scscccsccscnvevecesvncosccsvosecess
The United States Court of Appeals for
the Eighth Circuit erred in dismissing
Biddle Street Bistro’s notice of appeal
for lack of jurisdiction for failure to file a
valid notice of appeal because the notice
of appeal met the requirements of Fed-
eral Rule of Appellate Procedure 3(a) in
that it specified the parties taking the
appeal, designated the judgment being
appealed, and named the Court to which
the appeal was taken; Federal Rule of
Appellate Procedure 3(a) contains no
jurisdictional mandate that a notice of
appeal contain any signature to be valid
II.
—_ pew
The United States Court of Appeals for
the Eighth Circuit erred in denying
Biddle Street Bistro’s motion to submit
corrected notice of appeal and adopt
pleadings previously filed pro se because
Biddle Street Bistro promptly sought to
correct the omission of a signature of
counsel after the Clerk called to the
attention of Biddle Street Bistro the
alleged defect in the notice of appeal in
that Federal Rule of Civil Procedure
11(a) provides that an unsigned paper
shall be stricken unless the omission of
the signature is corrected after being
called to the attention of the attorney or
— V-—
Appendix
Plaintiff Allstate Insurance Company’s
Complaint for Interpleader Pursuant to
RENEE DF enevsnniiosnniiesiibedtiandna ican tcmne tara A-1
United States District Court, Eastern District
of Missouri, Eastern Division’s Order
Granting Bremen’s and TLJ’s Motions for
Summary Judgment ...............ccsccccesseeessseeees A-5
Biddle Street Bistro’s Notice of Appeal to a
Court of Appeals from a Judgment or
Order of a District Court ..............ccccscsscssoree A-8
November 18, 2002 letter from the Clerk of the
Eighth Circuit Court of Appeals to Jeffery
Eilers and Janet Y. Tennant...................... A-10
Appellant Biddle Street Bistro’s Motion for
Leave to File Pleadings and Briefs
Previously Filed Pro Se .............cccccsssessseeees A-12
Appellant Biddle Street Bistro’s Motion to
Submit Corrected Notice of Appeal and
Adopt Pleadings Previously Filed Pro Se... A-15
Memorandum in Support of Appellant Biddle
Street Bistro’s Motion to Submit Corrected
Notice of Appeal and Adopt Pleadings
Previously Filed Pro Se ...............ccccssessseeeees A-77
TLJ Company L.L.C. and Bremen Bank and
Trust Company’s Memorandum in
Opposition to Biddle Street Bistro, Inc.’s
NS SE RAID su nnkskaiicncsncusenisdcaleciininn A-85
Biddle Street Bistro, Inc.’s Reply to TLJ and
Bremen’s Memorandum in Opposition to
BSB’s Motion for Leave .............ccccccccceseeesees A-91
ame YY} ame
United States Court of Appeals for the Eighth
Circuit’s Judgment dated February 12,
PEE Kécdtiencesnceetareesiieecaaeemaaia A-95
Petition for Rehearing by Panel......................04. A-96
United States Court of Appeals for the Eighth
Circuit’s Denial of Petition for Rehearing
by Panel dated March 12, 2008 .................. A-110
— vii—
TABLE OF AUTHORITIES
Cases Page
AAA Venetian Blind Sales. Inc. v. Beaufieu of
America. Inc., 124 F.3d 196 (6% Cir. 1997). 13
Anunicaion v. West Capital Financial Services,
97 F.3d 1458 (9™ Cir. 1996)..............ccccecceees 13
Becker v. Montgomery, 532 U.S. 757, 121 S.Ct.
EE SED snensndessiecbislenintvenniiiinnbbacendsentes 10, 11
Bigelow v. A & A Reality Limited, 170 F.3d
BAGS (GER Cir. 190B)....c..cnrereescorcescccsscoves 12, 13
Instituto De Educacion Universal Corp. v.
United States Department of Education,
Oe FG 1G (1% Cir, BCD) nciccoroccocesocevesevecsses 13
K.M.A., Inc. v. General Motors Acceptance Corp.,
652 F.2d 398 (5 Cir. 1981)..............ccc..00008 13
Lewis v. Lenc-Smith Manufacturing Co., 784
Fe ee CE GA TI) vcnnesventitenvevsenensononenanen 13
Smith v. Barry, 502 U.S. 244, 112 S.Ct. 678
GE cosivivssiiciesiniichclidiekunlesiniedeclarbatiane leona 10
Statutes
Federal Rules of Appellate Procedure; Rule 3
(idiiiiiaaaidtaainitiaindhehaldaiaiadaaiiinasteaibiaaaaiie 1,2, 10, 11
Federal Rules of Civil Procedure; Rule 11
siantetnenenesiaieaaeaeaeadiniseaaeidanaaammeenamnaaiandadais 2-5, 10, 11, 12
REFERENCE TO OFFICIAL AND UNOFFICIAL
REPORT OF OPINIONS
There is no official report of the opinions or orders
entered in this case. The order of the Eighth Circuit
Court of Appeals denying rehearing is set forth in the
appendix at page A-110. The judgment of the Eighth
Circuit Court of Appeals denying appellants motion for
leave to submit a corrected notice of appeal and to adopt
pleadings previously filed pro se, and dismissing ap-
peal for lack of jurisdiction for failure to file a valid
notice of appeal is set forth in the appendix at page
A-95.
JURISDICTION
The Petitioner filed its Petition for Rehearing by
Panel on February 25, 2003. The Eighth Cir¢uit denied
Petitioner’s Petition for Rehearing on March 12, 2003.
This petition is being filed within 90 days of the Eighth
Circuit’s order denying the petition for rehearing by
panel pursuant to Supreme Court Rule 13.
Jurisdiction of this Court is invoked pursuant to 28
U.S.C. Section 1254.
STATUTORY AND CONSTITUTIONAL
PROVISIONS INVOLVED
Federal Rule of Appellate Procedure 3(c)
provides.
(1) The notice of appeal must:
(A) specify the party or parties taking the
appeal by naming each one in the caption
or body of the notice, but an attorney
representing more than one party may
describe those parties with such terms as
“all plaintiffs,” “the defendants,” “the plain-
—
tiffs A, B, et al.,” or “all defendants except
bt
(B) designate the judgment, order, or part
thereof being appealed; and
(C) name the court to which the appeal is
taken.
(2) Apro se notice of appeal is considered filed on
behalf of the signer and the signer’s spouse
and minor children (if they are parties), unless
the notice clearly indicates otherwise.
(3) In aclass action whether or not the class has
been certified, the notice of appeal is sufficient
if it names one person qualified to bring the
appeal as representative of the class.
(4) An appeal must not be dismissed for informal-
ity of form or title of the notice of appeal, or for
failure to name a party whose intent to appeal
is otherwise clear from the notice.
(5) Form 1 in the Appendix of Forms is a sug-
gested form of a notice of appeal.
Federal Rule of Civil Procedure 11 provides:
(a) Signature. Every pleading, written motion
and other paper shall be signed by at least one
attorney of record in the attorney’s individual name,
or, if the party is not represented by an attorney,
shall be signed by the party. Each paper shall state
the signer’s address and telephone number, if any.
Except when otherwise specifically provided by
rule or statute, pleadings need not be verified or
accompanied by affidavit. An unsigned paper shall
be stricken unless omission of the signature is
—_
corrected promptly after being called to the atten-
tion of the attorney or party.
(b) Representations to the Court. By present-
ing to the court (whether by signing, filing, submit-
ting, or later advocating) a pleading, written mo-
tion, or other paper, an attorney or unrepresented.
party is certifying that to the best of that person’s
knowledge, information, and belief, formed after
an inquiry reasonable under the circumstances,
(1) it is not being presented for any improper
purpose, such as to harass or to cause unnec-
essary delay or needless increase in the cost of
litigation;
(2) the claims, defenses, and other legal con-
tentions therein are warranted by the existing
law or by a nonfrivolous argument for the
extension, modification, or reversal of existing
law or the establishment of new law;
(3) the allegations and other factual conten-
tions have evidentiary support or, if specifi-
cally so identified, are likely to have eviden-
tiary support after a reasonable opportunity
for further investigation or discovery; and
(4) the denials of factual contentions are war-
ranted on the evidence or, if specifically so
identified, are reasonably based on a lack of
information or belief.
(c) Sanctions. If, after notice and a reasonable
opportunity to respond, the court determines that
subdivision (b) has been violated, the court may,
subject to the conditions stated below, impose an
appropriate sanction upon the attorneys, law firms,
—_ oo
or parties that have violated subdivision (b) or are
responsible for the violation.
(1)
How Initiated
(A) By Motion. A motion for sanctions
under this rule shall be made separately
from other motions or requests and shall
describe the specific conduct alleged to
violate subdivision (b). It shall be served
as provided in Rule 5, but shall not be filed
with or presented to the court unless,
within 21 days after service of the motion
(or such other period as the court may
prescribe), the challenged paper, claim,
defense, contention, allegation, or denial
is not withdrawn or appropriately cor-
rected. If warranted, the court may award
to the party prevailing on the motion the
reasonable expenses and attorney’s fees
incurred in presenting or opposing the
motion. Absent exceptional circumstances,
a law firm shall be held jointly responsible
for violations committed by its partners,
associates, and employees.
(B) On Court’s Initiative. On its own ini-
tiative, the court may enter an order de-
scribing the specific conduct that appears
to violate subdivision (b) and directing an
attorney, law firm, or party to show cause
why it has not violated subdivision (b)
with respect thereto.
(2) Nature of Sanction; Limitations. A sanc-
tion imposed for violation of this rule shall be
limited to what is sufficient to deter repetition
of such conduct or comparable conduct by
=
: others similarly situated. Subject to the limi-
tations in subparagraphs (A) and (B), the sanc-
tion may consist of, or include, directives of a
nonmonetary nature, an order to pay a penalty
into court, or, if imposed on motion and war-
ranted for effective deterrence, an order di-
recting payment to the movant of some or all of
the reasonable attorneys’ fees and other ex-
penses incurred as a direct result of the viola-
tion.
(A) Monetary sanctions may not be
awarded against a represented party fora
violation of subdivision (b)(2).
(B) Monetary sanctions may not be
awarded on the court’s initiation unless
the court issues its order to show cause
before a voluntary dismissal or settle-
ment of the claims made by or against the
party which is, or whose attorneys are, to
be sanctioned.
(3) Order. When imposing sanctions, the court
shall describe the conduct determined to con-
stitute a violation of this rule and explain the
basis for the sanction imposed.
(d) Inapplicability to Discovery. Subdivisions
(a) through (c) of this rule do not apply to disclo-
sures and discovery requests, responses, objec-
tions, and motions that are subject to the provi-
sions of Rules 26 through 37.
_—
STATEMENT OF THE CASE
Biddle Street Bistro: (hereafter BSB) was a corpora-
tion created by its sole shareholders Janet Y. Tennant
and Jeffrey Eilers to run a restaurant located at 220
Biddle Street in the City of St. Louis. BSB operating
under the name J. Tennant Construction owned the
property on which the restaurant was located. In 1997,
due to financial difficulties, BSB entered into an agree-
ment with TLJ Company, L.L.C. (hereafter TLJ)
wherein BSB transferred the deed to the property to
TLJ in exchange for a commercial lease with an option
to re-purchase the property. A condition of this lease
was that BSB had to provide premises liability insur-
ance to protect the real estate, and list TLJ and TLJ’s
mortgagee Bremen Bank and Trust Company (hereaf-
ter Bremen) as loss payees. BSB purchased the re-
quired coverage from Allstate Insurance Company.
The premises liability insurance policy provided
$100,000.00 in coverage for personal property damage,
and $500,000.00 in coverage for building damage.
A dispute arose between TLJ and BSB, and TLJ
refused to grant an extension to BSB’s lease. After TLJ
refused to recognize its contract with BSB, BSB con-
tacted its insurance agent and asked for TLJ and Bremen
to be removed as named payees. BSB then filed suit in
the Circuit Court for the City of St. Louis to enforce its
contractual right for an extension of the lease. Unknown
to BSB, representatives of TLJ contacted BSB’s insur-
ance agent and requested to be put back on BSB’s policy
as named payees. The insurance agent complied with
TLJ’s request without notifying BSB.
While BSB’s suit to enforce its lease with TLJ was
pending the property was destroyed by fire. Allstate
Insurance Company filed an interpleader suit in the
oe, poe
United States District Court, Eastern District of Mis-
souri, Eastern Division. BSB was represented by coun-
sel licensed to practice before the Eastern District.
BSB’s counsel filed an answer and motion for partial
summary judgment for the $100,000.00 personal prop-
erty coverage. The district court awarded the entire
$100,000.00 of the personal property coverage to BSB.
After it was awarded $100,000.00 for the personal
property policy limits, despite repeated and diligent
efforts, BSB’s shareholders were unable to contact
their counsel of record. The district court then granted
TLJ’s and Bremen’s motions for summary judgment,
and awarded the entire amount of the $500,000.00
policy for building damage to TLJ and Bremen. Be-
cause of the unresponsiveness of its attorney of record,
BSB’s shareholders were unaware of TLJ’s and Bremen’s
motions for summary judgment and the district court’s
order granting them until August 20, 2002, the day
before that court’s order became final.
BSB filed its Rule 60(b) motion and notice of appeal
to the United States Court of Appeals for the Eighth
Circuit within the time required by FRAP 4(a)(1)(A).
The docket fees required by FRAP 3(e) were also paid in
a timely fashion. At the time BSB filed its notice of
appeal, BSB was still represented by counsel autho-
rized to practice before the Eastern District and Eighth
Circuit. However, due to his unavailability, Eilers and
Tennant filed the notice of appeal on behalf of BSB on
August 21, 2002 as pro se shareholders.
Eilers and Tenant on behalf of BSB subsequently
filed a corporate disclosure statement and a designa-
tion of record in a timely fashion. The Eighth Circuit
Clerk then provided a scheduling order. BSB met all of
the filing deadlines with pleadings that conformed to
—
es
all Federal Rules of Appellate Procedure and Eighth
Circuit Local Rules regarding form and content. BSB
then filed an Appellant’s Brief within the required
time.
Appellees TLJ and Bremen then filed a brief. Appellees
did not contest the Eighth Circuit’s jurisdiction and
responded to BSB’s Brief on its merits. This matter was
then sent to screening for oral argument. BSB’s counsel
of record was then granted leave to withdraw as BSB’s
counsel. Within the time allowed to respond to Appellees’
Brief, Eilers and Tennant filed a Reply Brief on behalf
of BSB as pro se shareholders.
In correspondence received from the Eighth Circuit
Clerk dated November 18, 2002 (A-10), the clerk ac-
knowledged receipt of BSB’s Reply Brief, but indicated
that a corporation cannot proceed pro se by its share-
holders or officers, and that as a result BSB’s notice of
appeal was subject to being stricken, and its appeal was
subject to dismissal. The clerk apologized for not noting
this earlier, but stated that the validity of a notice of
appeal was a jurisdictional issue that the court could
examine at any time. The clerk indicated that as a
courtesy he would hold the appeal in abeyance for thirty
days to permit Eilers and Tennant to retain legal
counsel and validate their prior filings.
Counsel entered an appearance for BSB, and within
thirty days filed a Motion for Leave to File Pleadings
and Briefs Previously Filed Pro Se and a Motion to
Submit Corrected Notice of Appeal and Adopt Plead-
ings Previously Filed Pro Se. With the motions, all
pleadings and briefs previously filed pro se were re-
filed bearing BSB’s new counsel’s signature. The Eighth
Circuit denied BSB’s motions on February 12, 2002 and
dismissed its appeal for lack of jurisdiction for failure to
—_ vn
file a valid notice of appeal. (A-95). Within the required
time BSB filed a petition for panel rehearing. On March
12, 2003 the Eighth Circuit entered its Order denying
BSB’s petition for rehearing. (A-110).
Jeffrey Eilers and Janet Tennant assert that their
civil liberties have been infringed upon in that they
were unable to represent their closely held corporation
because the Eighth Circuit Court of Appeals refused to
recognize their notice of appeal, and dismissed BSB’s
appeal without the opportunity for a hearing on the
merits. Without reference to federal rules or statutes,
the Eighth Circuit added an additional jurisdiction
requirement for the hearing of an appeal as of right. In
so doing the Eighth Circuit denied the right of Jeffrey
Eilers and Janet Tennant to be heard.
ARGUMENT
REASONS FOR GRANTING THE WRIT
I
THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT ERRED IN DIS-
MISSING BIDDLE STREET BISTRO’S NO-
TICE OF APPEAL FOR LACK OF JURISDIC-
TION FOR FAILURE TO FILE A VALID NO-
TICE OF APPEAL BECAUSE THE NOTICE
OF APPEAL MET THE REQUIREMENTS OF
FEDERAL RULE OF APPELLATE PROCE.- -
DURE 3(A) IN THAT IT SPECIFIED THE
PARTIES TAKING THE APPEAL, DESIG-
NATED THE JUDGMENT BEING AP-
PEALED, AND NAMED THE COURT TO
WHICH THE APPEAL WAS TAKEN; FED-
ERAL RULE OF APPELLATE PROCEDURE
3(A) CONTAINS NO JURISDICTIONAL MAN-
— vee
DATE THAT A NOTICE OF APPEAL CON-
TAIN ANY SIGNATURE TO BE VALID.
The Federal Rules of Appellate Procedure do not
require that notices of appeal be signed for an appellate
court to have jurisdiction. This Court has held that the
requirement that a notice of appeal be signed is not
jurisdictional.
Federal Rule of Appellate Procedure 3(a) provides,
in pertinent part, that “[aln appeal permitted by
law as of right from a district court to a court of
appeals shall be taken by filing a notice of appeal
with the clerk of the district court within the time
allowed by Rule 4.” Rule 3(c) governs the content of
notices of appeal: Notices “shall specify the party or
parties taking the appeal; shall designate the judg-
ment, order or part thereof appealed from; and
shall name the court to which the appeal is taken.”
Courts will liberally construe the requirements of
Rule 3. Smith v. Barry, 502 U.S. 244, 247, 112S.Ct.
678, 680 (1992).
This Court in Becker v. Montgomery, 532 U.S. 757,
121 S.Ct. 1801 (2001) also held that Federal Rule of
Appellate Procedure 3(c)(2) does not dislodge the signa-
ture requirement from its Civil Rule 11(a) moorings
and make it an Appellate Rule 3 jurisdictional specifi-
cation. Id. at 5382 U.S. 757, 759, 121 S.Ct. 1801, 1803
(2001). In Becker, this Court reasoned that the require-
ment that a notice of appeal be signed when filed in the
district court only comes from Federal Rule of Proce-
dure 11(a) which provides that every paper filed with
the district court shall be signed. Id. at 532 U.S. 757,
758, 121S.Ct.1801, 1805 (2001). Accordingly, this Court
found that a failure to sign a notice of appeal as required
by Civil Rule of Procedure 11(a) could not require
a ea
dismissal of an appeal because Rule 11(a) itself states
that the omission of a signature may be corrected
promptly after being called to the attention of the
attorney or party. This Court also noted that this
conclusion was in harmony with Federal Rule of Appel-
late Procedure 3(c)(4) which provides: “An appeal must
not be dismissed for informality of form or title of the
notice of appeal, or for failure to name a party whose
intent to appeal is otherwise clear from the notice.” Jd.
at 532 U.S. 757, 759, 121 S.Ct. 1801, 1807-1808 (2001
citing Smith v. Barry (supra) at 502 U.S. 244, 245, 248-
249, 112 S.Ct. 678, 116 L.Ed.2d 678. ~
Without citing any authority in its Order, the Eighth
Circuit has added is own jurisdictional requirement.
Not only is this action contrary to prior decisions by this
Court on this matter, it is also in violation of the spirit
of the Federal Rules of Appellate Procedure. It is a
hallmark of the Federal Rules of Appellate Procedure
that an appeal not be dismissed for informality of form.
BSB’s notice of appeal complied with the requirements
of Federal Appellate Rule 3(c) to the letter. Its notice of
appeal specified the party taking appeal, designated
the order appealed, and identified the court to which
the appeal was taken. In fact, it was sufficient to allow
Appellees’ counsel to craft the appropriate responsive
pleadings and a brief which argued the merits of BSB’s
appeal.
The Eighth’s Circuit’s dismissal also is in contradic-
tion to the streng public policy argument that appeals
should be heard and decided on their merits. At the
time the Eighth Circuit dismissed BSB’s appeal,
Appellees had already filed their brief that responded
tothe merits of BSB’s appeal. No party would have been
prejudiced, and justice encourages all disputes to be
heard.
— . a
II
THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT ERRED IN DE-
NYING BIDDLE STREET BISTRO’S MOTION
FOR LEAVE TO FILE PLEADINGS AND
BRIEFS PRIVIOUSLY FILED PRO SE AND
MOTION TO SUBMIT CORRECTED NOTICE
OF APPEAL BECAUSE BIDDLE STREET
BISTRO PROMPTLY SOUGHT TO CORRECT
THE OMISSION OF SIGNATURE OF COUN-
SEL AFTER THE CLERK CALLED TO THE
ATTENTION OF BIDDLE STREET BISTRO
THE ALLEGED DEFECT IN THE NOTICE OF
APPEAL IN THAT FEDERAL RULE OF CIVIL
PROCEDURE 11(A) PROVIDES THAT AN
UNSIGNED PAPER SHALL BE STRICKEN
UNLESS OMISSION OF THE SIGNATURE IS
CORRECTED AFTER BEING CALLED TO
THE ATTENTION OF THE ATTORNEY.OR
PARTY.
The majority of Circuit Courts that have considered
the effect of a notice of appeal filed on behalf of corpo-
ration by a corporate officer who is not authorized to
practice law have ruled that a pro se signature is not
fatal to the corporation’s appeal. In Bigelow v. A&A
Reality Limited, 170 F.3d 1164 (9* Cir. 1999), the Ninth
Circuit noted that there is nothing in the Federal Rules
of Appellate Procedure which requires dismissal of an
appeal when a corporate officer who is not licensed to
practice law signs a notice of appeal for a corporation.
Id. at page 1165. “A notice of appeal is just that — a
notice.” Id. The Ninth Circuit in Bigelow failed to see
any compelling reason to refuse to recognize a
corporation’s notice of appeal, so long as a lawyer
promptly thereafter enters a formal appearance on
an, aaa
behalf of the corporation and undertakes the represen-
tation. Id.
The same conclusion was reached by the First Circuit
in Instituto De Educacion Universal Corp. v. United
States Department of Education, 209 F.3d 181 (1* Cir.
2000). The First Circuit recognized that a non-lawyer
could not represent a corporation in ongoing proceed-
ings; however, the court found there was a valid distinc-
tion between ongoing legal representation and the
“essentially ministerial action involved in the filing of
a notice of appeal.” Jd. at page 22. The First Circuit then
held that a corporate officer may sign and file a notice
of appeal on behalf of a corporation, as long as the
corporation then promptly retained counsel. Jd.
Many other Circuits have held that where a
corporation’s notice of appeal is signed by a corporate
officer who is not an attorney, the court may allow the
appeal to proceed as Jong as an attorney admitted to
practice before the appellate court has filed an appear-
ance.!
The Eighth Circuit’s refusal to allow BSB’s notice of
appeal and pleadings to be adopted by counsel was also
inherently contradictory. When the Eighth Circuit first
noticed that BSB’s notice of appeal was signed by non-
attorney shareholders, its clerk held the appeal in
abeyance to allow BSB to get licensed counsel. Within
the time allowed by the clerk, BSB retained licensed
counsel who attempted to cure the signature defect in
BSB’s notice of appeal and adopt the previously filed
1 See e.g., AAA Venetian Blind Sales, Inc. v. Beaufieu of America,
Inc., 124 F.3d 196 (6 Cir. 1997); Anunication v. West Capital
Financial Services, 97 F.3d 1458 (9% Cir. 1996); Lewis v. Lenc-
Smith Manufacuring Company, 784 F.2d 829 (7% Cir. 1986);
K.M.A., Inc v. General Motors Acceptance Corp., 652 F.2d 398 (5"
Cir. 1981).
="
pleadings. No argument was presented to the court
that this action would result in prejudice to any party
because responsive pleadings and briefs had already
been filed. Nevertheless, the Eighth Circuit denied
BSB’s motion and dismissed its appeal without an
opinion.
It should also be noted that BSB is a closely held
corporation. BSB’s notice of appeal was signed by its
only two shareholders. Janet Y. Tennant’s and J effrey
Eilers’ personal interests were directly effected by the
district court’s actions. By signing the notice of appeal
for BSB they were essentially not representing any
interests other then their own.
Due process requires that the court system be acces-
sible to those who are aggrieved. The ridged distinction
between a corporation and its owners should be disre-
garded when that corporation is operated as a de facto
sole proprietorship. To allow BSB’s sole shareholders to
represent their closely held corporation would cause no
more disruptions in the court system than courts cur-
rently permit to allow individuals to appear pro se. In
addition, Tennant and Eilers are not engaged in the
unauthorized practice of law in attempting to represent
their own «orporation because they are neither selling
legal services nor holding themselves out as lawyers.
—
CONCLUSION
For the foregoing reasons, the Petitioner respect-
fully requests that the decision of the Eighth Circuit be
reversed.
Respectfully Submitted,
Gary P. Paul
BRINKER & DOYEN, LLP
1208S. Central Avenue, Suite 700
Clayton, Missouri 63105
(314) 863-6311
Attorney for Petitioner
APPENDIX
+:
—_ .
Appendix A
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURL
EASTERN DIVISION
FILED
SEP, 20 2001
U.S. DISTRICT COURT
EASTERN DISTRICT OF MO
ST. LOUIS
4:01CVO1513SNL
ALLSTATE INSURANCE COMPANY,
Plaintiff,
VS.
BIDDLE STREET BISTRO, INC.,
TLJ COMPANY L.L.C. and,
BREMEN BANK AND TRUST COMPANY,
Defendants.
PLAINTIFF ALLSTATE INSURANCE
COMPANY’S COMPLAINT FOR INTER-
PLEADER PURSUANT TO RULE 22
Comes now plaintiff, Allstate Insurance Company,
and Pursuant to Rule 22, and 28 USC 1332, states as
follows:
—_ =e
Plaintiff Allstate Insurance Company (“Allstate”)
is an Illinois Corporation with its principle place of
business in Ilinois, and for the purposes of juris-
diction is a resident and citizen of the State of
Illinois.
Defendant Biddle Street Bistro, Inc., (“Biddle
Street”) is a Missouri Corporation with its prin-
ciple place of business located in St. Louis, Mis-
souri, and for the purposes of jurisdiction is a
resident and citizen of the State of Missouri.
TLJ Company L.L.C. (“TLJ”) is a Missouri Corpo-
ration with its principle place of business .in the
State of Missouri and for the purposes of jurisdic-
tion, is a resident and citizen of the State of Mis-
souri
Bremen B&nk and Trust Company (“Bremen”) is a
Missouri Corporation with its principle place of
business in the State of Missouri and for the pur-
poses of jurisdiction, is a resident and citizen of the
State of Missouri.
Diversity of citizenship exists and that the amount
in controversy is in excess of Seventy-Five Thou-
sand Dollars ($75,000.00), exclusive of interest
and costs, and jurisdiction is proper pursuant to 28
USC 1332.
Allstate issued to Biddle Street a policy of insur-
ance, effective November 10, 2000, through No-
vember 10, 2001, policy number 50 343927, which
insured Biddle Street for building damage up to a
limit of $500,000.00 and insured Biddle Street for
personal property damage up to a limit of
$100,000.00. A copy of the policy is attached hereto
and marked exhibit no. 1.
=" ee
7. On November 14, 2000, Biddle Street claims a loss
covered under the policy occurred and is making a
claim against Allstate for proceeds under the policy
of insurance.
8. Defendant TLJ, Inc. is identified as a loss payee
under the policy of insurance issued by Allstate.
9. Defendant Bremen is identified as the mortgagee
in the policy of insurance issued by Allstate. Plain-
tiff Allstate has deposited into the registry of this
court a sum equal to $600,000.00.
11. Biddle Street, TLJ and Bremen have each made
claims for proceeds under the policy of insurance
- issued by Allstate.
12. Biddle’ Street’s, TLJ’s and Bremen’s claims are in
excess of the limits available under the policy of
insurance exposing this plaintiff to double liabil-
ity.
12. Allstate seeks the court’s determination of the
allocation of the sums owed to defendants Biddle
Street, TLJ and/or Bremen.
WHEREFORE, Allstate prays this court to require
defendant to interplead their claims in this court, find
and adjudge that plaintiff is a disinterested party in
regard to the dispute between defendants, bar all claims
against this plaintiff by defendants, apportion the fund
between defendants and award plaintiff its attorneys
fees and costs related to the filing of this Interpleader
action from the funds deposited herein as well as any
further relief the court deems just and proper.
— =
Michael B. Maguire, #3728
David W. Laws, #81708
BROWN & JAMES, P.C.
Attorneys for Plaintiff
705 Olive Street, 11" Floor
St. Louis, Missouri 63101
314-421-3400
DWL/7239794
—_ <a
APPENDIX B
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JUL 22 2002
U.S. DISTRICT COURT
EASTERN DISTRICT OF MO
Case No. 4:01CV1513
ALLSTATE INSURANCE COMPANY,
Plaintiff,
VS.
BIDDLE STREET BISTRO, INC.,
TLJ COMPANY L.L.C. and,
BREMEN BANK AND TRUST COMPANY,
Defendants.
ORDER
This matter is before the Court on Bremen Bank and
Trust Company’s motion for summary judgment and
TLJ Company, L.L.C.’s motion for summary judgment
(#30) filed May 13, 2002. On June 26, 2002, the Court
granted the parties’ motion to file an incomplete motion
package because Biddle Street Bistro, Inc., had not
responded to the motion.
a On
Allstate Insurance Company filed this interpleader
action on September 20, 2001. It deposited into the
Court’s registry $500,000 for building coverage and
$100,000 for the contents coverage. Allstate was subse-
quently dismissed from the action. On October 18,
2001, defendant TLJ and defendant Bremen Bank each
filed a eross-claim against Biddle Street Bistro. Biddle
Street never filed a cross-claim, nor did it file an answer
to the cross-claims against it. Biddle Street Bistro was
paid $100,000 from the Court’s registry which repre-
sented the proceeds from the personal property compo-
nent of the policy because neither TLJ, nor Bremen
Bank claimed any interest in the contents coverage.
TLJ and Bremen Bank have both filed motions for
summary judgment. TLJ states it is entitled to $100,000
of the building damage proceeds, and Bremen Bank
and Trust claims it is entitled te $400,000 of the
building damage proceeds. Biddle Street did not file a
response, and has not objected to these assertions. The
Court has reviewed the summary judgment motions
and finds they are with merit.
Accordingly,
IT IS HEREBY ORDERED that Bremen Bank and
Trust Company’s motion for summary judgment and
TLJ Company L.L.C’s motion for summary judgment
(#30) are GRANTED.
_ IT IS FURTHER ORDERED that judgment is
entered in favor of Bremen Bank and Trust Company
and TLJ Company, L.L.C., and against Biddle Street
Bistro, Inc.
IT IS FURTHER ORDERED that the Clerk of the
Court pay $400,000 of the interpleader funds to Bremen.
Bank and Trust Company.
— =,
IT IS FURTHER ORDERED that the Clerk of the
Court pay $100,000 of the interpleader funds to TLJ
Company, L.L.C.
IT IS FINALLY ORDERED that this cause of
action is dismissed with prejudice.
Dated this 22nd day of July, 2002.
s/
SENIOR UNITED STATES
DISTRICT JUDGE
— = nen
APPENDIX C
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
FILED
AUG 21 2002
U.S. DISTRICT COURT
EASTERN DISTRICT 0F MO
File No. 4-01CV1513
NOTICE OF APPEAL
ALLSTATE INSURANCE COMPMANY,
Plaintiff,
VS.
BIDDLE STREET BISTRO, INC., TLJ COMPANY
and BREMEN BANK AND TRUST COMPANY,
Defendants.
NOTICE OF APPEAL TO A COURT OF
APPEALS FROM A JUDGMENT OR ORDER OF
A DISTRICT COURT
Notice is hereby given that Biddle Street Bistro, Inc.,
defendants in the above-named case, hereby appeal to
the United States of Court Appeals for the Eighth
Circuit from an Order granting defendant Bremen
Bank and Trust Company’s motion for summary judg-
ment and defendant TLJ Company, LLC’s motion for —
—_ s we
summary judgment; Order that judgment is entered in
favor of Bremen Bank and Trust Company and TLJ
Company, LLC; Order that the Court of the Court pay
$400,000.00 (Four Hundred Thousand Dollars) of the
interplead funds to Bremen Bank and Trust Company;
Order that the Court of the Court by $100,000.00 (One
Hundred Thousand Dollars) of the interplead funds to °
TLJ Company, LLC, and the Order dismissing this
cause of action with prejudice all of which were entered
in this action on the 22nd day of July, 2002. A copy of
the Court Order is attached.
“s/ Janet Tennant” “s/ Jeff Eilers”
Janet Tennant Jeff Eilers
400 North 4th Street 5506 Grace Avenue
St. Louis, Missouri 63102 St. Louis, Missouri 63116
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and
correct copy of the foregoing was mailed, via first-class
United States mail, postage pre-paid, this 21" day of
August 2002, to:
Michael B. Maguire
720 Olive Street, Suite 1100
St. Louis, Missouri 63 101
Michael Hunter
10 S. Broadway, Suite 1600
St. Louis, Missouri 63102
s/ Janet Tennant
— A-10 —
APPENDIX D
United States Court of Appeals
For the Eighth Circuit
Thomas F. Eagleton U.S. Courthouse
111 South 10th Street, Room 24.329
St. Louis, Missouri 63102
Michael E, Gans
Clerk of Court
VOICE (314) 244-2400
FAX (314) 244-2780
www.ca8.uscourts.gov
November 18,2002
Ms. Janet Tennant
400 North 4th Street
#2801
St. Louis, MO
Mr. Jeff Eilers
5506 Grace Avenue
St. Louis, MO 63116
Re: No. 02-3141 Biddle Street Bistro. Inc. v. TJL
Company L.L.C., et al
Dear Ms. Tennant and Mr. Eilers:
This will acknowledge receipt of your “Reply Brief” in
this matter. When we received the Reply Brief, we
reviewed the file and noted your attorney, Mr. Dickhaus,
was granted leave to withdraw on October 4, 2002. This
prompted a review of all of the filings in your appeal,
and it appears that you have made all of the filings
without benefit of counsel.
— A-11—
While an individual may proceed pro se, a corpora-
tion cannot proceed pro se by its shareholders or offic-
ers, U.S. v. Van Shelton 988 F.2d 70 (8th Cir. 1993) and
Cart Enters.inc. v United Staten 698 F.2d 952 (8th Cir.
1985). As a result, your notice of appeal, as well as all
of your subsequent pleadings, are subject to being
stricken and your appeal is subject to being dismissed.
While I apologize for the fact that this was not noted
earlier, the validity of your notice of appeal is ajurisdic-
tional issue which the court may examine at any time.
As a courtesy to you, I will hold the appeal in abey-
ance for 30 days to permit you to consult and retain
legal counsel and for your attorney to determine whether
there is any motion or other legal pleading which could
be filed to validate your prior filings.
At the end of this period of time, I will refer the case
to the court for a determination as to whether the
appeal must be dismissed or should be permitted to
proceed.
Sincereiy,
“s/ Michael E. Gans”
Michael E. Gans
Clerk of Court
MEG/jpp
cc: Mr. Michael B. Hunter
— A-12 —
APPENDIX E
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
Appeal No. 02-3141
Appeal from the United States District Court
Eastern District of Missouri
Eastern Division
ALLSTATE INSURANCE COMPANY,
Interpleader Plaintiff,
VS.
BIDDLE STREET BISTRO, INC.,
Defendant/Appellant
TLJ COMPANY, L.L.C.
and BREMEN BANK AND TRUST COMPANY,
Defendants/Appelleees.
APPELLANT BIDDLE STREET BISTRO’S
MOTION FOR LEAVE TO FILE PLEADINGS
AND BRIEFS PREVIOUSLY FILED PRO SE
COMES NOW, Biddle Street Bistro, by and through
its attorney of record, and for its motion for leave to file
pleadings and briefs previously filed pro se states to the
Court as follows:
1. BSB incorporates by reference its motion to submit
corrected notice of appeal and adopt pleadings previ-
ously filed pro se and its supporting memorandum.
— A-13 —
2. Appellant prays for leave to file an Entry of Ap-
pearance, Appellant’s Form A, Corporate Disclosure
Statement, Appellant’s Designation of Record, Notice
of Method of Preparing the Record on Appeal and
Statement of Issues, Appellant’s Brief, Appendix and
Reply Brief.
3. These pleadings and briefs are identical in form
- and content to those previously filed on behalf of BSB
pro se, with the exception that they are signed by
counsel.
4. Appellees will not be prejudiced, and justice re-
quires that Appellant’s appeal be decided on its merits.
WHEREFORE, Biddle Street Bistro, prays this Court
to allow it to file the above mention pleadings and
briefs.
Respectfully Submitted,
BRINKER & DOYEN, L.L.P.
By: s/ Gary P. Paul
Gary P. Paul, #14579
120 South Central Avenue, Suite 700
Clayton, Missouri 63105
(314)-863-6311
(314)-863-8197
ATTORNEY FOR APPELLANT
BIDDLE STREET Bistro, INc.
— A-14—
CERTIFICATE OF SERVICE
A copy of the foregoing was mailed this 17th day of
December, 2002, to Michael B. Hunter, Attorney for
Appellees TLJ Company, L.L.C. and Bremen Bank and
Trust Company, 10 South Broadway, Suite 1600, St.
Louis, Missouri 63102.
s/n
— A-15 —
Appendix F
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
ALLSTATE INSURANCE COMPANY,
Interpleader Plaintiff,
BIDDLE STREET BISTRO, INC.,
Defendant / Appellant
TLJ COMPANY, L.L.C. and
BREMEN BANK AND TRUST COMPANY,
Defendants / Appelleees.
Appeal No. 02-3141
Appeal from the United States District Court
Eastern District of Missouri
Eastern Division
APPELLANT BIDDLE STREET BISTRO’S
MOTION TO SUBMIT CORRECTED NOTICE
OF APPEAL AND ADOPT PLEADINGS
PREVIOUSLY FILED PRO SE
COMES NOW, Biddle Street Bistro, by and through
its attorney of record, and for its motion to submit a
3 corrected notice of appeal and adopt the pleadings
j previously filed in this matter states as follows:
— A-16 —
1. On August 21, 2002 Jeff Hilers and Janet Tennant
filed a Notice of Appeal with the U.S. District Court for
the Eastern District of Missouri as pro se shareholders
of their corporation Biddle Street Bistro. This notice
was within thirty days of the district court judge’s order
they wished to appeal. (See Notice of Appeal attached
hereto as Exhibit A).
2. At the time of filing, a docket fee of $105.00 was also
paid. (See Minutes from the U.S. District Court at-
tached hereto as Exhibit B). Also, at the time of filing,
Biddle Street Bistro Inc.’s attorney of record, Karl W.
Dickhaus, had not withdrawn his appearance.
3. On August 28, 2002, Ms. Tennant was notified by
the Eighth Circuit Clerk that Biddle Street Bistro’s
Notice of Appeal was received from the Clerk of the
United States District Court together with notification
of payment of the docket fee. A briefing schedule was
attached to this notification. (See Correspondence dated
August 28, 2002 attached hereto as Exhibit C).
4. Biddle Street Bistro subsequently filed in a timely
fashion the appropriate Entry of Appearance Form and
Appeal Information Form. Biddle Street Bistro also
filed its Corporate Disclosure Statement, Designation
of Record, Notice of Method of Preparing the Record on
Appeal and Statement of Issues, and Appellant’s Brief
in accordance with the filing dates set forth on August
28, 2002. (See BSB’s Corporate Disclosure Statement,
Designation of Record, Statement of Issues, and
Appellant’s Brief attached herto as Exhibits D, E, F,
and G)
5. Appellees did not contest this Court’s jurisdiction,
and filed a brief which responded to the merits of
Appellant’s Brief.
— A-17 —
6. On November 18, 2002 the Eighth Circuit Clerk
notified Eilers and Tennant that their Reply Brief had
been received, but that it was noticed for the first time
that they were representing their corporation pro se.
The Clerk indicated that a corporation’s officers could
not represent their corporation, and that since Biddle
Street Bistro’s Notice of Appeal was not signed by an
attorney, this Court may not have jurisdiction.-(See
Eighth Circuit Court Clerk’s Correspondence dated
November 18, 2002 attached hereto as Exhibit H).
7. Neighboring Circuits and the United States Su-
preme Court have ruled that the signature of a notice of
appeal is not a jurisdictional matter.
8. Biddle Street Bistro complied with all jurisdic-
tional requirements for a notice of appeal as set forth by
the Federal Rules of Appellate Procedure.
9. The undersigned counsel has reviewed all of the
pleadings filed on behalf of Biddle Street Bistro, and
has found that they meet with all applicable Federal
Rules of Appellate Procedure and Local Rules, and
wishes to adopt them and their arguments without
amendment.
10. Justice requires that Biddle Street Bistro be
allowed to substitute counsel and that this Court enter
a ruling on the merits of its appeal.
11. Biddle Street Bistro Inc. incorporates by refer-
ence its memorandum in support of motion to submit
corrected notice of appeal and adopt pleadings previ-
ously filed pro se.
WHEREFORE, Biddle Street Bistro, prays this Court
to allow it to amend its notice of appeal to be signed by
the undersigned counsel, and allow the undersigned
— A-18 —
counsel to adopt the pleadings previously submitted
pro se by Mr. Eilers and Ms. Tennant.
Respectfully Submitted,
BRINKER & DOYEN, L.L.P.
By: s/
Gary P. Paul, #14579
120 South Central Avenue, Suite 700
Clayton, Missouri 63105
(314)-863-6311
(314)-863-8197
Attorney for Appellant Biddle Street
Bistro, Inc.
— s'
CERTIFICATE OF SERVICE
A copy of the foregoing was mailed this 17th day of
December, 2002, to Michael B. Hunter, Attorney for
Appellees TLJ Company, L.L.C. and Bremen Bank and
Trust Company, 10 South Broadway, Suite 1600, St.
Louis, Missouri 63102.
s/
— A-20 —
Appendix F
Exhibit A
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
FILED
AUG 21 2002
U.S. DISTRICT COURT
EASTERN DISTRICT MO
File No. 4-01CV1513
NOTICE OF APPEAL
ALLSTATE INSURANCE COMPANY,
Plaintiff,
VS.
BIDDLE STREET BISTRO, INC.,
TLJ COMPANY and
BREMEN BANK AND TRUST COMPANY,
Defendants.
NOTICE OF APPEAL TO A COURT OF APPEALS
FROM A JUDGMENT OR ORDER OF
A DISTRICT COURT
— A-21 —
Notice is hereby given that Biddle Street Bistro, Inc.,
defendants in the above-named case, hereby appeal to
the United States of Court Appeals for the Eighth
Circuit from an Order granting defendant Bremen
Bank and Trust Company’s motion for summary judg-
ment and defendant TLJ Company, LLC’s motion for
summary judgment; Order that judgment is entered in
favor of Bremen Bank and Trust Company and TLJ
Company, LLC; Order that the Court of the Court pay
$400,000.00 (Four Hundred Thousand Dollars) of the
interplead funds to Bremen Bank and Trust Company;
Order that the Court of the Court by $100,000.00 (One
Hundred Thousand Dollars) of the interplead funds to
TLJ Company, LLC, and the Order dismissing this
cause of action with prejudice all of which were entered
in this action on the 22w’ day of July, 2002. Acopy of the
Court Order is attached.
s/
Janet Tennant
400 North 4th Street
St. Louis, Missouri 63102
s/
Jeff Eilers
5506 Grace Avenue
St. Louis, Missouri 63116
— A-22 —
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and
correct copy of the foregoing was mailed, via first-class
United States mail, postage pre-paid, this 21st day of
August 2002, to:
Michael B. Maguire
720 Olive Street, Suite 1100
St. Louis, Missouri 63101
Michael Hunter
10 S. Broadway, Suite 1600
St. Louis, Missouri 63102
s/
— A-23 —
Appendix F
Exhibit B
U.S. District Court
Eastern District of Missouri (Eastern)
CIVIL DOCKET FOR CASE #: 01-CV-1513
Allstate Insurance v. Biddle Street Bistro, et al .
Filed: 09/20/01
Assigned to: Honorable Stephen N. Limbaugh
Demand: $75,000
Nature of Suit: 110
Lead Docket: None
Jurisdiction: Diversity
Dkt# in other court: None
Cause: 28:1332 Diversity-Insurance Contract
ALLSTATE INSURANCE COMPANY
plaintiff
[term 02/27/02}
Michael B. Maguire
_ [term 02/27/02
314-421-3128 fax
[COR LD NTC]
BROWN AND JAMES, P.C.
1010 Market Street
20th Floor
St. Louis, MO 63101
314-421-3400
FTS 421-3128
— A-24 —
David W. Laws
[term 02/27/021
314-726-2360 fax
[COR LD NTC]
BOGGS AND BOGGS, LLC
7912 Bonhomme Avenue
Suite 400
Clayton, MO 63105
‘ 314-726-2310
FTS 726-2360
Vv.
BIDDLE STREET BISTRO, INC.
defendant
Karl W. Dickhaus
314-962-5083 fax
(COR LD NTCI
1750 S. Brentwood Boulevard
Suite 201
St. Louis, MO 63144
314-962-9000
FTS 962-5083
TLJ COMPANY L.L.C.
defendant
Michael B. Hunter
314-345-5055 fax
[COR LD NTC]
WILLIAMS AND VENKER
Ten South Broadway
Suite 1600
St. Louis, MO 63102-2740
314-345-5000
FTS 345-5055
— A-25 —
BREMEN BANK AND TRUST COMPANY
defendant
Michael B. Hunter
(See above)
[COR LD NTC]
TLJ COMPANY L.L.C.
cross-claimant
Michael B. Hunter
314-345-5055 fax
{COR LD NTC]
WILLIAMS AND VENKER
Ten South Broadway
Suite 1600
St. Louis, MO 63102-2740
314-345-5000
FTS 345-5055
V.
BIDDLE STREET BISTRO, INC.
cross-defendant
Karl W. Dickhaus
314-962-5083 fax
[COR LD NTC]
1750 S. Brentwood Boulevard
Suite 201
St. Louis, NO 63144
314-962-9000
FTS 962-5083
— A-26 —
BREMEN BANK AND TRUST COMPANY
cross-claimant
314-345-5055 fax
[COR LD NTCJ
WILLIAMS AND VENKER
Ten South Broadway
Suite 1600
St. Louis, MO 63102-2740
314-345-5000
F’'TS 345-5055
V.
BIDDLE STREET BISTRO, INC.
cross-defendant
314-962-5083 fax
[COR LD NTC}
1750 S. Brentwood Boulevard
Suite 201
St. Louis, MO 63144
314-962-9000
FTS 962-5083
DATE
6/24/02
6/26/02
7/22/02
—_—s a
DOCKET PROCEEDINGS
# DOCKET ENTRY
32 MOTION by defendant TLJ Company
L.L.C., defendant Bremen Bank &
Trust for leave to file incomplete
motion package |
(kxs) [Entry date 06/25/02]
33 RULED DOCUMENT by Honorable
Stephen N. Limbaugh granting
motion for leave to file incomplete
motion package [32-1]
LEAVE GRANTED (ce: all counsel)
(kxs) [Entry date 06/26/02]
34 ORDER by Honorable Stephen N.
_ Limbaugh IT IS HEREBY ORDERED
that Bremen Bank and Trust
Company’s motion for summary
judgment and TLJ Company L.L.C’s
motion for summary judgment are
GRANTED. IT IS FURTHER
ORDERED that judgment is entered
in favor of Bremen Bank and Trust
Company and TLJ Company, L.L.D.,
and against Biddle Street Bistro, Ic.
IT IS FURTHER ORDERED that the
Clerk of the Court pay $400,000 of the
interpleader funds to Bremen Bank
and Trust Company [30-1] [30-1], IT
IS FURTHER ORDERED that the
Clerk of the Court pay $100,00 of the
interpleader funds to TLJ Company,
L.L.C. IT IS FINALLY ORDERED
that this cause of action is dismissed
with prejudice. [30-1] [30-1]
— A-28 —
dismissing case (cc: all counsel) (arl)
[Entry date 07/22/02] ,
MOTION by defendant Biddle Street
Bistro to set aside judgment and relief
from judgment or order w/memo in
support. (lah)
[Entry date 08/21/02]
NOTICE OF APPEAL filed by
defendant Biddle Street Bistro re: the
District Court decision ; [34-2] fee:
$105.00 (lah)
[Entry date 08/21/02]
RECEIPT # S2002-009299 in the
amount of $105.00 for appeal (lah)
[Entry date 08/21/02]
— A-29 —
Appendix F
Exhibit C
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
THOMAS F. EAGLETON COURT HOUSE
ROOM 24.329
1118S. 10TH STREET
ST. LOUIS, MISSOURI 83102
MICHAEL E. GANS
Clerk of Court
VOICE (314) 244-2400
FAX (314) 244-2780
www.ca8.uscourts.gov
August 28, 2002
Ms. Janet Tennant
400 N. Fourth Street
St. Louis, MD 63102
Re: 023141 Riddle Street Bistro vs. TLJ Company
Dear Counsel:
We have received certified copies of the notice of
appeal and docket entries from the Clerk of the United
States District Court, together with notification of
payment of the docket fee. In accordance with the
Federal Rules of Appellate Procedure and the Eighth
Circuit Rules, this appeal has today been assigned the
docket number indicated.
The clerk’s office provides a number of practice aids
and materials to assist you in preparing the record and
briefs. You can download the materials from our website
— A-30 —
at www.ca8.uscourts.gov/newcoa/coaFranie.htrn! The
material is provided to assist counsel in the preparation
and filing of :he record and briefs. Counsel for both sides
must familiarize themselves with the material and
iamediately confer regarding the briefing schedule and -
record requirements (Eighth Circuit Rule 30A). Within
ten days of the date of this letter appellant must file
with this office (1) verification that the transcript ar-
rangements have been satisfactorily completed and (2)
notification of the method of preparation of the appen-
dix jointly selected by counsel. Appeals in which the
appendix and opening brief are not timely filed axe
subject to dismissal pursuant to Eighth Circuit Rule
3C; cases in which appellees do not timely file a brief
axe governed by FRAP Rule 31(c).
Multiple appellants or appellees who axe jointly
represented by a single attorney shall file one brief.
Multiple appellants or apellees who are separately
represented may file separate briefs ox a joint brief. A
party responding to multiple briefs from separately-
represented parties shall file a single responsive or
reply brief. (5052-010199)
Sincerely,
Is
Michael E. Gans
Clerk of Court
11b Enclosure(s)
cc: Jeff Eilers
Karl. W. Dickhaus
Michael B. Hunter
James 0. Woodward, Clerk
District Court/Agency Case Number(s): 4:01-cv-
1513 (SNL)
— A-31 —
August 28, 2002
Case Number: 02341
District Court/Agency Case Number(s):
4:01..cv-1513 (SL)
ALLSTATE INSURANCE COMPANY
Plaintiff
V.
BIDDLE STREET BISTRO, INC.:
Defendant - Appellant
TLJ COMPANY, LL .C.:
BREMEN BANK AND TRUST COMPANY
Defendants - Appellees
(5072-010199)
ape ES Seay oad BN Fis GAP AIA RS OO PTO OOD ID oR RT STDS NT ROM Ra
— A-32 —
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
APPEAL BRIEFING SCHEDULE
Appeal No. 02-3141
Biddle Street Bistro v TLJ Company
Date: August 28, 2002
This schedule has been established in conformity
with 8th Cir. R. 28A & 30A, which is a modification of
the procedure suggested in FRAP. Because this court
has directed that the practice of routinely granting
extensions of time be discontinued counsel and court
personnel must carefully note the dates indicated and
arrange their schedule to insure compliance with this
order.
APPEAL REQUIREMENTS
Complete and file immediately:
a. Appeal Information Form. 8th Cit. R. 3B
b. Corporate Disclosure Statement. 8th Cir. R. 26.1
c. The enclosed Entry of Appearance Form,
NOTE: These dates may be advanced or extended
by court order or a party’s early or late filing of
a brief. Please refer to FRA 31(a).
— A-33 —
FILING DATES:
Method of Appendix Preparation
iii cassie endvsaenivonsene 9/9/02
Designation. of record & Statement of
SUPINE 6 oscccnsosccssssevsescesersvnseees 919/02
Designation of Record-Appellee .................. 9/11/02
ee ated cicckchenederseancarceuisdseesavess N/A
Appendix (3 copies) ................:ccccccsccscecssceeees 10/7/02
Brief-Appellant with Addendum
EER 11/6/02
POLY EHCIGT (ODTIONAD) ..........00.00000s0ssseeesees000ss 11/20/02
ALL BRIEFS AND APPENDICES SHOULD BE FILED
WITH THE ST. LOUIS OFFICE
(5107-010199)
— A-34 —
Appendix F
Exhibit D
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
ALLSTATE INSURANCE COMPANY,
Plaintiff,
VS.
BIDDLE STREET BISTRO, [NC..
Defendant /Appellant
TLJ COMPANY, L.L.C.
and BREMEN BANK AND TRUST COMPANY,
Defendants / Appellees.
Case No.: 02-3141
CORPORATE DISCLOSURE STATEMENT
COMES NOW Appellant, Biddle Street Bistro, Inc.,
and pursuant to Federal Rule of Appellate Procedure
26.1 and Eighth Circuit Rule of Appellate Procedure
26.1 A states as follows:
1. Theparent companies ofthe corporation: None.
2. Subsidiaries not wholly owned by the corpora-
tion: none.
— f-36 ~~
3. Any publicly held company that owns ten
percent or more of the corporation’s stock:
none.
/s
Janet Tennant
400 North 4th Street, 42801
St. Louis, Missouri 63102
314-780-0953
Pro Se Shareholder
/s
Jeff Eilers
5506 Grace Avenue
St. Louis, Missouri 63116
314-580-6729
Pro Se Shareholder
—_e
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and cor-
rec: copy of the foregoing was mailed, via first-class
Urited States mail, postage pre-paid, this day of
September 2002, to:
Michael Hunter
10 S. Broadway, Suite 1600
St. Louis, Missouri 63102
/s
— A-37 —
Appendix F
Exhibit E
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
ALLSTATE INSURANCE COMPANY,
Plaintiff,
VS.
BIDDLE STREET BISTRO, INC.,
Defendant/ Appellant
TLJ COMPANY, L.L.C.
and BREMEN BANK AND TRUST COMPANY,
Defendants / Appellees.
Case No.: 02-3141
APPELLANT’S DESIGNATION OF RECORD
COMES NOW Appellant, Biddle Street Bistro, Inc.
and pursuant to FRAP 30(b)(1) designates that the
following parts of the record will be included in its
appendix.
1. Complaint;
2. Order by Judge Donald J. Stohr entered on Sep-
tember 24, 2001;
13.
14.
— A-38 —
Answer by defendant Biddle Street Bistro, Inc. to
[1-1] plaintiffs complaint;
Answer by defendant TLJ Company L.L.C. to [1-1];
Answer by defendant Bremen Bank and Trust to
[1-1];
Crossclaim by defendant TLJ Company, L.L.C.
against defendant Biddle Street Bistro for De-
claratory Judgment;
Crossclaim by defendant Bremen Bank and Trust
against defendant Biddle Street Bistro for De-
claratory Judgment;
Order and Judgment by Judge Stephen N.
Limbaugh entered February 27, 2002;
Order and Judgment by Judge Stephen Limbaugh
entered on April 22, 2002;
. Order and Judgment by Judge Stephen N.
Limbaugh entered April 29, 200
. Order by Judge Stephen N. Limbaugh entered on
May 7, 2002;
. Motion by defendant Bremen Bank and Trust for
summary judgment with memo in support, state-
ment of facts, and exhibits A through L attached;
Motion by defendant TLJ Company L.L.C. for
summary judgment with memo in support, state-
ment of facts, and exhibits A through L attached;
Motion by defendant TLJ Company L.L.C. defen-
dant Bremen Bank and Trust for leave to file
incomplete motion package;
15.
16.
17.
18.
—
Ruled Document by Judge Stephen N. Limbaugh
granting motion for leave to file incomplete motion
package;
Order by Judge Stephen N. Limbaugh entered on
July 22, 2002;
Motion by defendant Biddle Street Bistro to set
aside judgment and relief from judgment or order
with memo in support;
Notice of Appeal filed by defendant Biddle Street
Bistro regarding the District Court decision.
Janet Tennant
400 North 4th Street, #2801
St. Louis, Missouri 63102
314-780-0953
Pro Se Shareholder
Jeff Eilers
5506 Grace Avenue
St. Louis, Missouri 63116
314-580-6729
Pro Se Shareholder
— A-40 —
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and
correct copy of the foregoing was mailed, via first-class
United States mail, postage pre-paid, this day of
September 2002, to:
Michael Hunter
10 S. Broadway, Suite 1600
St. Louis, Missouri 63102
s/
ers MRL LANIER Sa i a a a
— A-41 —
Appendix F
Exhibit F
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
ALLSTATE INSURANCE COMPANY,
Plaintiff,
VS.
BIDDLE STREET BISTRO, INC.,
Defendant/ Appellant
TLJ COMPANY, L.L.C.
and BREMEN BANK AND TRUST COMPANY,
Defendants / Appellees.
Case No.: 02-3141
NOTICE OF METHOD OF PREPARING THE
RECORD ON APPEAL AND STATEMENT OF
ISSUES
COMES NOW Appellant, Biddle Street Bistro, Inc.,
and pursuant to Eighth Circuit Rule of Appellate Pro-
cedure 30 A(b) notifies the Court and opposing parties
of its method of preparing record on appeal:
1. Appellants wiil dispense with the process of pre-
paring a joint appendix as set forth in Federal Rule
of Appellate Procedure 30(a) and (b) and submit a
separate appendix with the opening brief.
2. Thereisnotranscript. -
— A-42 —
3. The Issues presented to this Court are whether the
District Court erred in granting TLJ Company,
L.L.C.’s motion for summary judgment and Bremen
Bank and Trust Company’s motion for summary
judgment. -
s/
Janet Tennant
400 North 4th Street, p2801
St. Louis, Missouri 63 102
314-780-0953 |
Pro Se Shareholder
s/
Jeff Eilers
5506 Grace Avenue
St. Louis, Missouri 63116
314-580-6729
Pro Se Shareholder
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and
correct copy of the foregoing was mailed, via first-class
United States mail, postage pre-paid, this ___ day of
September 2002, to:
Michael Hunter
10 S. Broadway, Suite 1600
St. Louis, Missouri 63102
s/
— A-43 —
Appendix F
Exhibit G
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
Appeal No. 02-3141
ALLSTATE INSURANCE COMPANY,
Interpleader Plaintiff
V.
BIDDLE STREET BISTRO, INC.
Defendant / Appellant
TLJ COMPANY, L.L.C. and
BREMEN BANK AND TRUST COMPANY,
Defendants / Appellees.
Appeal from the United States District Court
Eastern District of Missouri
Eastern Division
The Honorable Stephen N. Limbaugh,
Senior United States District Judge
— A-44 —
BRIEF OF APPELLANT
BIDDLE STREET BISTRO INC.
Janet Tennant
400 North 4th Street, #2801
St. Louis, Missouri 63102
314/780-0953:
Fax: 314/241-2330
Pro Se Shareholder for Appellant
Jeff Eilers
5506 Grace Avenue
St. Louis, Missouri 63116
314/580-6729
Pro Se Shareholder for Appellant
SUMMARY OF THE CASE AND REQUEST FOR
ORAL ARGUMENT
Allstate Insurance Company (hereafter Allstate) in-
terpleaded the funds of a premises liability insurance
policy. (App 1-3)’. The named insured, owner of the
property, and mortgagee were named as co-defendants.
Biddle Street Bistro (hereafter BSB) occupied the de-
stroyed premises and was the named insured of the
policy. (App. 67). TLJ Company, Inc. (hereafter TLJ)
was the owner of the property, and Bremen Bank and
Trust Company, L.L.C. (hereafter Bremen) was the
mortgagee of the property. BSB, TLJ and Bremen each
made a claim to the insurance proceeds. (App. 12-15,
16-18, 19-21).
The district court granted BSB’s motion for partial
summary judgment and awarded it the entire policy
limits for the personal property coverage. (App. 6-8).
1 Appellant’s separate appendix will be referred to as “App.”
Toe I, eee A oy, ee i Se ee ee ee ee ee
4
.
a
:
;
Be
‘4
A
4
3
&
4
Se”
ia
a
ee
Fe
ss,
ix
Be
eS
&
te
a
&
4
4
a
ae
eS
ba
ED
&
>
S,
“
— A-45 —
The district court then granted TLJ’s and Bremen’s
motions for summary judgment concerning the policy
limits for the building damage. (App. 9-11).
BSB was unable to communicate with their attorney
of record, and was not aware of TLJ’s or Bremen’s
motions and the district court’s order granting their
motions until August 20, 2002. (App. 391-394). BSB
then timely filed its notice of appeal. (App. 399-402).
Appellant requests 15 minutes of oral argument.
CORPORATE DISCLOSURE STATEMENT
Biddle Street Bistro, Inc. has no parent companies or
subsidiaries not wholly owned by the corporation. No
publicly held company owns ten percent or more of the
corporation’s stock.
— A-46 —
TABLE OF CONTENTS
Item Page
Summary Of CaG0 .vicinccnrescoontenmniecanmemnianeinmsass 1
Corporate Disclosure Statement...............0::00 2
Table of Content .2.200:sercsecssssssipsinnrstnnsasssvonioninains 3
Table of Authorities ...ccccscccsssssssessnnensnsonansanenencenne 4
Jurisdictional Statement....................csssescsseses 6
Statement of the Issues ..............-:sssssssssssessesseess 7
Statement of the Case ...<cc-csorscrorsensenssesrassasssnense 8
Statement Of Facts .....<coccscersccvessncnversssessnnneevven pias 9
Summary Of the Argament ....-cccversscsassvesenssresese 12
ATBUMCAE ...000-0cssrererrerevessvereceniversevsenasvqssenseetoneniss 14
COR CBORD ..<cesnersncenesscentevinnvrnaisiaiemahaaaemmanabets 21
AAACN 000 consirssseiesrntensenincenniirnmemeaecmaninntues 22
Certificate of Compliance ...........ccosesssvsccssoosesseess 29
Certificate of Service .......00-scsrssccecsrosssesesssosessees 30
— A-47 —
TABLE OF AUTHORITIES
Cases (alphabetically arranged) Page
Buller v. Buechler, 706 F.2d 844, 846
SIS BOD oicssccssevavvsasewnerensacnvesvorexavenseee 15
G.M. Battery & Boat Co. v L.K.N. Corp.,
747 S.W.2d 624 (Mo. banc 1988).......... (me © Yi
Get Away Club. Inc. v. Coleman, 969 F.2d 664,
I MM BID sc cnusiccnswassctiexessoseeevseuvenss 14
Graves v. Stanton, 621 S.W.2d 524
et sacvssadpuhbenbvenxeiodesseansevanevece 16
M.F.A. Mut. Ins. Co. v. Gulf Ins. Co., :
445 S.W.2d 829 (Mo. 1969)...0... eee eeceeeeeeee 16
Puritan Insurance Company v Yarber,
723 S.W.2d 98 (Mo.App. 1987)............. 7, 13, 19
R.M. Taylor Inc. v General Motors Corp., R
187 F.3d 809, 812 (8th Cir. 1999) .0000.000...... 15
Robert Johnson Grain Co. v Chem. Interchange
Co., 541 F.2d 207, 210 (8th Cir. 1983)........ 15
United Tel Co. V Johnson Publishing Co.,
855 F. 2d 604 (8th Cir. 1988) oo... 7,14
Wilmurth v National Liberty Ins Co. of
America et al., 206 S.W.2d 730
|: 5 En 7, 13, 18
Wrausmann v. Kansas City Fire and Marine
Ins. Co., 477 S.W.2d 741, 743
INS BOTT oescvccesencvscesnnsvesnsrecenssesssssossonns 17
— A-48 —
Statutes
BER TINS. MADR sinrenesiinvacsteesictnieversesnsee
BB UTE AG.. REID seccinccsssntannsensiesvevuiereivn
DOT BSA. 9D ceiacecitisnvnassasesiavensisnensoves
Other Authorities
eeoeeeeeeeeseeesese
eeeeseeseseeseeeee
Federal Rule of Appellate Procedure #4............
Federal Rule of Civil Procedure #56
eeeeseeeseereeseee
15
— A-49 —
JURISDICTIONAL STATEMENT
On or about September 20, 2001 Allstate filed an
interpleader action in the United States District Court,
Eastern District of Missouri. Allstate invoked the dis-
trict court’s jurisdiction pursuant to 28 U.S.C. 1332.
(App. 1-3).
The district court ordered Allstate to deposit into its
registry payment of $500,000 for the building coverage
and $100,000 for the contents coverage, the limit of
liability under Allstate’s policy of insurance. (App. 4).
On or about April 29, 2002 the district court entered
judgment in favor of BSB in the amount of $100,000 on
its partial motion for summary judgment for policy
limits of the Allstate policy’s contents coverage.
(App. 6-8).
On or about July 22, 2002 the district court granted
Bremen’s motion for summary judgment and TLJ’s
motion for summary judgment for the $500,000 of
building coverage. The district court also entered judg-
ment in favor of Bremen and TLJ, and against BSB.
The district court then ordered that the cause of action
be dismissed with prejudice. (App. 9-11).
Notice of Appeal was timely filed on August, 21, 2002.
FRAP 4. The Court has jurisdiction as the district
court’s ruling on TLJ’s and Bremen’s motions for sum-
mary judgment is a final order that disposes of all
parties’ claims. 28 U.S.C. 1291. The United States
District Court, Eastern District of Missouri is within
the territory of the Eighth Circuit Court of Appeals. 20
_ US.C. 41.
— A-50 —
STATEMENT OF THE ISSUES
THE DISTRICT COURT ERRED IN GRANTING
TLJ’S AND BREMEN’S MOTIONS FOR SUM-
MARY JUDGMENT BECAUSE TLJ AND BREMEN
WERE NOT ENTITLED TO JUDGMENT AS A
MATTER OF LAW BECAUSE THERE WERE
GENUINE AND MATERIAL ISSUES OF FACT
WHICH PRECLUDED SUMMARY JUDGMENT
IN THAT:
A.
THE RECORD BEFORE THE DISTRICT COURT
CONTAINED SUFFICIENT FACTS TO
DEMONSTATE THAT BSB HAD AN INSURABLE
INTEREST IN THE BUILDING ON 220 BIDDLE
STREET, AND
B.
THE RECORD BEFORE THE DISTRICT COURT
CONTAINED SUFFICIENT FACTS TO DEMON-
STRATE THAT TLJ AND BREMEN HAD NO
CLAIM TO THE ALLSTATE INSURANCE POLICY
BECAUSE IT WAS NOT THE INTENT OF THE
PARTIES TO THAT POLICY TO INSURE TLJ’S
AND BREMEN’S INTERESTS IN THE BUILDING
ON 220 BIDDLE STREET.
Wilmurth v. National Liberty Ins Co. of America-et al.,
206 S.W.2d 730 (Mo.App. 1947)
Puritan Insurance Company v Yarber, 723 S.W.2d 98
(Mo.App. 1987) ;
G.M. Buttery & Boat Co. v L.K.N Corp., 747 S.W.2d 624
(Mo banc 1988)
United Tel Co. V Johnson Publishing Co., 855 F. 2d 604
(8th Cir. 1988)
# s
;
bi
.
:
j
3
sr
‘
Sao DGD GRE EDR NAAR RGU TITIES N
Rew eeasS
ss fe Lh FSIS REE IY
— A-51 —
STATEMENT OF THE CASE
The case out of which the present appeal arises was
an interpleader action brought by Allstate. (App. 1-3).
Allstate issued a policy of fire insurance to BSB which
listed BSB as the only named insured, and carried
coverage up to a limit of $500,000 for building damage,
and up to $100,000 for personal property damage. (App.
2). Unknown to BSB, TLJ and Bremen were listed as
loss payees on its policy ofinsurance. (App. 68 and 129).
The district court awarded the entire $100,000 for
personal property damage to BSB. (App. 6-8). The
district court then granted TLJ’s and Bremen’s motions
for summary judgment, and awarded the entire amount
of the $500,000 policy for building damage to TLJ and
Bremen. (App. 9-11). BSB was unaware of TLJ’s and
Bremen’s motions for summary judgment and the dis-
trict court’s order granting them until August 20, 2002.
BSB then filed its Rule 60(b) motion and notice of
appeal in a timely fashion. (App. 389-398, and 399-402).
STATEMENT OF FACTS
BSB, operating under the name J. Tennant Con-
struction, once owned property located at 220 Biddle
Street, St. Louis, Missouri, and was running a bistro
called “J’s on the Landing.” (App. 304-305). In 1997 due
to financial difficulties it entered into an agreement
with T.L.J. (App. 305). BSB transferred the deed on 220
Biddle Street to TLJ in exchange for a commercial lease
with an option to re-purchase the property within two
years. (App. 305 and 315-329).
BSB exercised the purchase option on January 29,
1999 by a Notice of Exercise to Option to Purchase Real
Estate. (App. 305 and 330). BSB was ready to close on
the option date of May 29, 1999 at the purchase price
— A-52 —
called for in the 1997 option. (App. 305). TLJ contacted
BSB prior to said closing and offered to renew the
financing on the property subject to the terms and
conditions of a Sales Contract dated June 18, 1999.
(App. 305). As a condition precedent to the execution of
the Sales Contract, BSB requested that TLJ’s offer to
extend the terms of the contract if closing could not be
accomplished in six months be included. (App. 306).
The specific language of that provision being: “In the
event Buyer is unable to close on or before October 28,
1999, Seller agrees to enter into another Sales Contract
along terms similar to this one except the sale price and
other monetary amounts will be agreed upon by the
parties at the time the new contract is executed.” (App.
306 and 333).
BSB was unable to close by October 28, 1999, and TLJ
refused to exercise another sales contract. (App. 306-
307). BSB then sued TLJ in the Circuit Court for the
City of St. Louis to enforce TLJ’s promise of an exten-
sion of the October 29, 1999 agreement. (App. 304-311).
TLJ was granted leave to file a counter claim for
ejectment. (App. 257). BSB’s suit was pending on No-
vember 14, 2000 when the property at 220 Biddle Street
was destroyed by fire. Since the property was lost, the
state court judge entered judgment in favor of TLJ’s
ejectment claim as a matter of law. (App. 234).
The property loss was covered by a premises liability
insurance policy written by Allstate, policy number 50
343927. (App. 2). That policy was purchased by BSB,
and BSB was the sole named insured. (App. 67). Pursu-
ant toits lease agreement, BSB initially named Bremen
and TLJ as loss payees. (App. 344). When TLJ refused
to honor its agreement to grant an extension, BSB
contacted its insurance broker to request that TLJ and
Bremen be removed from their policy as loss payees.
}
i
:
§
s.
&
‘
ra
&
&
2
PNG OREM Sate
—<: o
(App. 368). BSB’s request was honored by Allstate.
(App. 380). When TLJ found out that it was no longer a
loss payee on BSB’s policy, it called BSB’s agent and
demanded to be put back on. (App. 141). The agent
complied. (App. 156).
BSB, TLJ and Bremen all made claims for the insur-
ance proceeds. Allstate Insurance Company filed an
interpleader action in the United States District Court,
Eastern District of Missouri. (App. 1-3). The district
court granted BSB’s motion for partial summary judg-
ment and awarded it the entire policy limits for the
personal property coverage. (App. 6-8). After it’s motion
for partial summary judgment was granted, BSB was
unable to contact its attorney. (App. 392-395). Un-
known to BSB, TLJ and Bremen had filed motions for
summary judgment on the policy coverage for the
building. (App. 392-395). The district court granted
TLJ’s and Bremen’s motions for summary judgment
concerning the policy limits for the building damage.
(App. 9-11). :
SUMMARY OF THE ARGUMENT
The district court erred by granting TLJ’s and
Bremen’s motions for summary judgment because they
were not entitled to judgment as a matter of law.
Material facts were before the district court which
showed that BSB had an insurable interest in the
building, and material facts were before the district
court which showed that TLJ’s and Bremen’s interests
were not intended to be insured by the Allstate policy in
question.
Facts were present in the district court’s record
sufficient to have allowed BSB to show the pecuniary
interest needed to assert an insurable interest. The
definition of an insurable interest was summarized in
— > a
G.M. Battery & Boat Co. v L.K.N Corp., 747 S.W.2d 624,
627 (Mo banc 1988):
In general, a person has an insurable interest in
the subject matter insured where he has such a
relation or concern in such subject matter that he
will derive pecuniary benefit or advantage from its
preservation, or will suffer pecuniary loss or dam- -
age from its destruction, termination, or injury by
the happening of the event insured against.
TLJ and Bremen base their claim to the building
damage proceeds of BSB’s insurance policy on the fact
that they were listed as named payees or mortgagees on
the policy. (App. 43-45 and 409-411). The district court’s
record clearly indicates that BSB, the named insured,
did not intend to insure their interests. (App. 42, 141,
368 and 380). TLJ was the owner of the building and
Bremen was mortgagee; however, a property insurance
contract does not run with the property unless ex-
pressly stipulated. Puritan Insurance Company v
Yarber, 723 S.W.2d 98, 102 (Mo.App. 1987). An insur-
ance policy is a personal contract between the insurer
and the insured. Wilmurth v National Liberty Ins Co. of
America et al., 206 S.W.2d 730, 733 (Mo.App. 1947).
Accordingly, there must be proof that the terms of the
policy allowed TLJ and Bremen to request to be named
payees without the consent or knowledge of the named
insured, and no such showing was made.
— A-55 —
ARGUMENT
THE DISTRICT COURT ERRED IN GRANTING
TLJ’S AND BREMEN’S MOTIONS FOR SUM.
MARY JUDGMENT BECAUSETLJ AND BREMEN
WERE NOT ENTITILED TO JUDGMENT AS A
MATTER OF LAW BECAUSE THERE WERE
GENUINE AND MATERIAL ISSUES OF FACT
WHICH PRECLUDED SUMMARY JUDGMENT
IN THAT: |
A.
THE RECORD BEFORE THE DISTRICT COURT
CONTAINED SUFFICIENT FACTS TO DEMON.
STRATE THAT BSB HAD AN INSURABLE IN.
TEREST IN THE BUILDING ON 220 BIDDLE
STREET, AND
B.
THE RECORD BEFORE THE DISTRICT COURT
CONTAINED SUFFICIENT FACTS TO DEMON.
STRATE THAT TLJ AND BREMEN HAD NO
CLAIM TO THE ALLSTATE INSURANCE POLICY
BECAUSE IT WAS NOT THE INTENT OF THE
PARTIES TO THAT POLICY TO INSURE TLJ’S
AND BREMEN’S INTEREST IN THE BUILDING
ON 220 BIDDLE STREET.
A. Standard of Review
The Court reviews de novo a district court’s order
granting summary judgment, using the same stan-
dards as the district court. Get Away Club Ince. v.
Coleman 969 F.2d 664, 666 (8th Cir. 1992). On appel-
late review of a decision to grant summary judgment,
the court applies the same standard applied by the
district court. United Tel Co. v. Johnson Publishing Co.,
— A-56 —
855 F.2d 604, 607 (8th Cir. 1988). Summary judgment
is to be granted only ifthere is no genuine issue as to any
material fact, and the moving party is entitled to a
judgment as a matter of law. Id. In passing on a motion
for summary judgment, the court must review the facts
in a light most favorable to the party opposing the
motion and give that party the benefit of any inferences
that logically can be drawn from those facts. Buller v.
Buechler, 706 F.2d 844, 846 (8th Cir. 1983). The court
is required to resolve all conflicts of evidence in favor of
the nonmoving party. Robert Johnson Grain Co. v.
Chem. Interchange Co., 541 F.2d 207, 210 (8th Cir.
1983). According to Federal Rule of Civil Procedure
56(e) BSB was not required to file a response to TLJ’s
and Bremen’s motions for summary judgment to pre-
serve their right to appeal. Rule 56(e) states if the
opposing party fails to respond to a motion for summary
judgment, the court shall only enter judgment against
him “if appropriate.”
B. Applicable Law
This matter was before the district court by exercise
of diversity jurisdiction. Accordingly, this Court should
apply the substantive law of the State of Missouri. R.M.
Taylor Inc. v General Motors Corp., 187 F.3d 809, 812
(8th Cir. 1999).
C. Discussion
i. Material facts exist which show
Biddle Street Bistro’s insurable interest
Material facts in the record below indicate that BSB
had an insurable interest in the property damage
portion of the Allstate policy. In TLJ’s and Bremen’s
memorandum in support of their motions for summary
judgment, they assert that summary judgment is ap-
— A-57 —
propriate because BSB had no insurable interests.
(App. 41-47 and 411-413). They state that BSB admit-
ted that it had no insurable interest, and that it never
intended to make a claim on the building damage
portion of the Allstate policy. (App. 43 and 409). They
further assert that BSB had no insurable interest
because it had no ownership interest in the destroyed
property. (App. 45-46 and 411-413).
A thorough review of the record reveals that BSB
asserted a building damage claim. In its Answer to
Allstate’s Complaint, BSB admits that it made a claim
on the policy benefits for both personal property and
damage to the building. (App. 13). Similarly, in their
Answers, both TLJ and Bremen admit that all three co-
defendants made claims on all applicable insurance
policies. (App. 16-21). Further, in its answer to TLJ ’s
requests for admissions, BSB specifically denied that it
had no insurable interest in the destroyed building.
(App. 386).
It would be an error if the district court relied upon
the fact that Biddle Street Bistro could point to no
ownership interest in the destroyed property for the
conclusion that it could have no insurable interest.
Missouri law consistently refuses to link ownership
with an insurable interest.? Missouri courts make ev-
ery effort to find insurable interest, and to sustain
coverage, when there is any substantial possibility that
the insured will suffer loss from the destruction of the
property. G.M. Battery & Boat Co. v LKN Corp.,
* See e.g., M.F.A. Mut. Ins Co. v Gulf Ins Co., 445 S.W.2d 829 (Mo.
1969) (a building contractor has an insurable interest in an
uncompleted house he was required to complete); Graves v Stanton,
621 S.W.2d 524 (Mo.App. 1981) (a lessee of a trailer who had no
option to purchase had an insurable interest in the liability
insurance policy it took out).
— A-58 —
747 S.W.2d 624, 627 (Mo banc 1988). The Missouri
Supreme Court in that case went on to state that the
controlling rule in Missouri is as follows:
In general, a person has an insurable interest in
the subject matter insured where he has such a
relation or concern in such subject matter that he
will derive pecuniary benefit or advantage from its
preservation, or will suffer pecuniary loss or dam-
age from its destruction, termination, or injury by
happening of the event insured against. Id. at 626
quoting Wrausmann v Kansas City Fire and Ma-
rine Ins Co., 477 S.W.2d 741, 743 (Mo.App. 1972).
The Missouri Supreme Court went on to hold that the
fact that a lessee had not exercised its option to pur-
chase at the time of the loss had no bearing on whether
that lessee had an insurable interest. Id. at 627.
There were many facts at the district court’s disposal
that indicate Biddle Street Bistro had a pecuniary
interest in the destroyed property. At the time of the
loss and when it entered into the insurance contract, it
was in the possession of the destroyed property. (App.
140 and 309). In the year preceding the loss, it was
engaged in litigation to protect and define its interest.
(App. 304-311). At the time of the loss, BSB was at-
tempting to require specific performance of a contract
which would allow it to buy back the destroyed property
which it had previously owned so it could continue
operation of its business. (App. 304-311).
The record below also showed that BSB would have
derived pecuniary benefit from the building’s preserva-
tion. Since 1997 BSB ran a bistro on the premises and~
expended significant sums of money and labor in devel-
oping good will in that location. (App. 304-311). BSB
also made many material improvements to the de- |
— A-59 —
stroyed building from which it was deprived. (App. 304-
311).
ii. Materia! facts exist which question
TLJ and Bremen’s right to benefits
under the Allstate policy
There is no indication in the record below that any
entity other than BSB ever paid to insure the building
at 220 Biddle Street. It is also uncontested that BSB
requested that TLJ.and Bremen be removed as payees,
and that the policy was amended to reflect their wish.
(App. 42, 141, 368 and 380). Upon notification of the
policy change, neither TLJ nor Bremen requested BSB
to replace them as loss payees or mortgagees. There is
nothing in the record which indicates that either defen-
dant attempted to protect their interests by taking out
another property insurance policy. Instead, a represen-
tative of TLJ went behind Biddle Street Bistro’s back
and requested BSB’s insurance agent to put TLJ and
Bremen back on BSB’s policy. (App. 141).
An insurance policy is a personal contract between
the insurer and insured. Wilmurth v National Liberty
Ins Co. of America et al, 206 S.W.2d 730, 733 (Mo.App.
1947). A property insurance contract does not run with
the property unless expressly stipulated. Puritan In-
surance Co vu Yarber,, 723 S.W.2d 98, 102 (Mo.App.
1987). One who is not named as an insured cannot have
the benefit of insurance, unless there is language in the
policy to show that it intended to cover said interest. Id.
TL’s and Bremen’s sole claim to the property damage
proceeds of BSB’s insurance policy is that their request
to be put back on BSB’s policy was granted. The district
court erred by granting their claims to the policy pro-
ceeds based upon this fact alone. It was never suggested
that BSB had a contractual obligation to include them
— ie
on its policy as named insureds. TLJ and Bremen do not
suggest that they attempted to pay for the policy. They
simply assert that they requested BSB’s agent to put
them on BSB’s policy, and the agent did so. They do not
even suggest that BSB was aware that they were put
back on its policy. There are no provisions in BSB’s
insurance contract with Allstate which would autho-
rize any entity other than the named insured to desig-
nate named payees or mortgagees. The only indication
of thé named insured’s intent in the district court’s
record is that it specifically did not want TLJ’s and
Bremen’s interests protected by its policy. (App. 368,
370 and 380).
Without a showing that the Allstate policy permitted
amendments to its terms by an entity other than BSB
or Allstate, itis impossible to argue that an amendment
to the policy made at the request of an entity other than
Allstate or BSB reflects the intent of the policy, in
addition, awarding TLJ and Bremen the benefits of a
policy of insurance for which they did not pay would be
an unjust enrichment.
so
CONCLUSION
BSB respectfully requests this Court to reverse the
district court’s order granting TLJ’s and Bermen’s
motions for summary judgment and remand the case
for further proceedings.
s/
Janet Tennant
400 North 4th Street, #2801
St. Louis, Missouri 63102
314/780-0953
Fax: 314/241-2330
Pro Se Shareholder for Appellant
s/
Jeff Eilers
5506 Grace Avenue
St. Louis, Missouri 63116
314/580-6729
Pro Se Shareholder for Appellant
— A-62 —
ADDENDUM
— A638 —
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ALLSTATE INSURANCE COMPANY ;
Plaintiff,
VS.
BIDDLE STREET BISTRO, INC.,
TLJ COMPANY L.L.C. and,
BREMEN BANK AND TRUST COMPANY ‘
Defendants.
Case No. 4:01CV1513
FILED
JUL 22 2002
U.S. DISTRICT COURT
EASTERN DISTRICT OF MO
ORDER
This matter is before the Court on Bremen Bank and
Trust Company’s motion for summary judgment and
TLJ Company, L.L.C.’s motion for summary judgment
(#30) filed May 13, 2002. On June 26, 2002, the Court
granted the parties’ motion to file an incomplete motion
package because Biddle Street Bistro, Inc., had not
responded to the motion.
Allstate Insurance Company filed this interpleader
action on September 20, 2001. It deposited into the
Court’s registry $500,000 for building coverage and
$100,000 for the contents coverage. Allstate was subse-
— A-64 —
quently dismissed from the action. On October 18,
2001, defendant TLJ and defendant Bremen Bank each
filed a cross-claim against Biddle Street Bistro. Biddle
Street never filed a cross-claim, nor did it file an answer
to the cross-claims against it. Biddle Street Bistro was
paid $100,000 from the Court’s registry which repre-
sented the proceeds from the personal property compo-
nent of the policy because neither TLJ, nor Bremen
Bank claimed any interest in the contents coverage.
TLJ and Bremen Bank have both filed motions for
summary judgment. TLJ states it is entitled to $100,000
of the building damage proceeds, and Bremen Bank
and Trust claims it is entitled to $400,000 of the
building damage proceeds. Biddle Street did not file a
response, and has not objected to these assertions. The
Court has reviewed the summary judgment motions
and finds they are with merit.
Accordingly,
IT IS HEREBY ORDERED that Bremen Bank and
Trust Company’s motion for summary judgment and
TLJ Company L.L.C’s motion for summary judgment
(#30) are GRANTED.
IT IS FURTHER ORDERED that judgment is en-
tered in favor of Bremen Bank and Trust Company and
TLJ Company, L.L.C., and against Biddle Street Bis-
tro, Inc.
IT IS FURTHER ORDERED that the Clerk of the
Court pay $400,000 of the interpleader funds to Bremen.
Bank and Trust Company.
IT IS FURTHER ORDERED that the Clerk of the
Court pay $100,000 of the interpleader funds to TLJ
Company, L.L.C.
— A-65 —
IT IS FINALLY ORDERED that this cause of action
is dismissed with prejudice.
Dated this 22nd day of July, 2002.
s/
SENIOR UNITED STATES
DISTRICT JUDGE
— A-66 —
AN ORDER, JUDGMENT OR ENDORSEMENT WAS
SCANNED, FAXED AND/OR MAILED TO THE FOL-
LOWING INDIVIDUALS ON 07/22/02 by aluisett
4:01cv1513 Allstate Insurance vs Biddle Street Bistro
28:1332 Diversity-Insurance Contract
Karl Dickhaus- 80043 Fax: 314-962-5083
Michael Hunter- 70351 Fax: 314-345-5055
SCANNED & FAXED BY:
JULY 22 2002
— A-67 —
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION ~-
ALLSTATE INSURANCE COMPANY
Plaintiff
VS.
BIDDLE STREET BISTRO, IN C.,
TLJ COMPANY, L.L.C. and
BREMEN BANK AND TRUST COMPANY
Defendants.
FILED
APR 29 2002
U.S. DISTRICT COURT
EASTERN DISTRICT OF MO
Case No.4:01CV01513 SNL
ORDER AND JUDGMENT
Before the Court appears counsel for defendants and
advise the Court that they have stipulated to the
following facts:
1. This matter is before the Court on plaintiff Allstate
Insurance Company’s petition for interpleader re-
garding the proceeds under a policy of insurance
numbered 50 343927. The policy at issue provided
for coverage in the amount of $ 100,000 for personal
property and $500,000 for real property loss.
2. Allstate Insurance Company has been released as
a plaintiff under this Court’s order and judgment
dated February 27, 2002.
— A-68 —
3. Defendant Biddle Street Bistro, Inc. is the only
party claiming any interest in the proceeds of the
personal property component of the insurance, and
there are no disputes regarding the same.
4. Biddle Street Bistro, Inc. has withdrawn any claim
to interest on the $100,000 component represent-
ing the personal property recovery under the policy.
This disclaimer of interest does not apply to any
interest accrued after payment by Allstate into the
control of the Court. It is expressly acknowledged
that any interest earned on the monies held by the
Court will be paid exclusively to Biddle Street
Bistro.
Having been advised of the above, judgment is hereby
entered finding that Biddle Street Bistro, Inc. is en-
titled to disbursement of the interplead funds in the
amount of $100,000, which amount represents the
proceeds from the personal property component of the
policy. The clerk of the court is hereby ordered and
directed to disburse the same, payable to Biddle Street
- Bistro, Inc. and Dickhaus and Associates, LC jointly.
s/ -
Karl W. Dickhaus, 2.D. #80043
Attorneys for Biddle Street Bistro, Inc.
1750 S. Brentwood, Ste. 300
St. Louis, Missouri 63144
Telephone (314) 962-9000
Facsimile (314) 962-5083
BIDDLE STREET BISTRO, INC.
By: s/
Jeffery R: Eilers President
— A-69 —
SO ORDERED,
s/
Judge Stephen N. Limbaugh
DATED: 4/29/02
—
AN ORDER, JUDGMENT OR ENDORSEMENT WAS
SCANNED, FAXED AND/OR MAILED TO THE FOL-
LOWING INDIVIDUALS ON 04/29/02 by aluisett
4:01cev1513 Allstate Insurance vs Biddle Street Bistro
28:1332 Diversity-Insurance Contract
Kar] Dickhaus- 80043 Fax: 314-962-5083
Michael Hunter- 70351 Fax: 314-345-5055
SCANNED & FAXED BY
APR 29 2002
C.D.D.
— A-71 —
CERTIFICATE OF COMPLIANCE
We, Pro Se Shareholders for Appellant, certify that
the number of words in the brief of Appellant is 3,320,
as directed by F.R.A.P. 32(a)(7), which is based on a
word count of the word processing system. The name
and version of the word processing software used to.
prepare the brief is Microsoft Word 2000.
s/.
Janet Tennant
400 North 4th Street, #2801
St. Louis, Missouri 63102
314/780-0953
Fax: 314/241-2330
Pro Se Shareholder for Appellant
s/
Jeff Eilers
5506 Grace Avenue
St. Louis, Missouri 63116
314/580-6729
Pro Se Shareholder for Appellant
— A-72 —
CERTIFICATE OF SERVICE
Comes now and after being duly sworn
and upon his/her oath states that on the day of
, 2002, two copies of the brief of
Appellant Biddle Street Bistro, Inc., were mailed to:
Michael B. Hunter, Attorney for Appellees TLJ Com-
pany, L.L.C. and Bremen Bank and Trust Company, 10
South Broadway, Suite 1600, St. Louis, Missouri 63102.
s/
Janet Tennant
400 North 0' Street, #2801
St. Louis, Missouri 63102
314/780-0953
Fax: 314/241-2330
Pro Se Shareholder for Appellant
s/
Jeff Eilers
5506 Grace Avenue
St. Louis, Missouri 63116
314/580-6729
Pro Se Shareholder for Appellant
Subscribed and sworntobeforemethis___ day of, 2002.
s/
Notary Public
My commission expires:
— A-73 —
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
ALLSTATE INSURANCE
COMPANY,
Interpleader Plaintiff,
¥.
BIDDLE STREET BISTRO, INC.
Defendant / Appellant,
TLJ COMPANY, L.L.C. and
BREMEN BANK AND TRUST COMPANY,
Defendants / Appellees.
Appeal No. 02-3141
MEMORANDUM OF FILING
COMPUTER DISKETTE
COMES NOW Appellant and files a computer dis-
kette containing the full text of Appellant’s brief. The
diskette has been scanned for viruses, and it is virus
free.
s/
Janet Tennant
400 North 4th Street, #2801
St. Louis, Missouri 63102
314/780-0953
Fax: 314/241-2330
Pro Se Shareholder for Appellant
—
s/___
Jeff Eilers
5506 Grace Avenue
St. Louis, Missouri 63116
314/580-6729
Pro Se Shareholder for Appellant
CERTIFICATE OF SERVICE
A copy of the foregoing was mailed this___ day of
October, 2002, to Michael B. Hunter, Attorney for
Appellees TLJ Company, L.L.C. and Bremen Bank and
Trust Company, 10 South Broadway, Suite 1600, St.
Louis, Missouri 63102.
s/
— A-75 —
Appendix F
Exhibit H
United States Court of Appeals
For the Eighth Circuit
Thomas F. Eagleton U.S. Courthouse
111 South 10th Street, Room 24.329
St. Louis, Missouri 63102
Michael E. Gans
Clerk of Court
VOICE 014) 244-4400
FAX (314) 244-2780
November 18, 2002
Ms. Janet Tennant
400 North 4th Street
#2801
St. Louis, MO
Mr. Jeff Eilers
5506 Grace Avenue
St. Louis, MO 63116
Re: No. 02-3141 Biddle Street Bistro. Inc. v TLJ
Company, L.L.C. et al,
Dear Ms. Tennant and Mr. Eilers:
This will acknowledge receipt of your “Reply Brief” in
this matter. When we received the Reply Brief, we
reviewed the file and noted your attorney, Mr. Dickhaus,
was granted leave to withdraw on October 4, 2002. This
—
prompted a review of all of the filings in your appeal,
and it appears that you have made all of the filings
without benefit of counsel.
While an individual may proceed pro se, a corpora-
tion cannot proceed pro se by its shareholders or offic-
ers. U.S. v Van Stelton, 988 F.2d 70 (8th Cir. 1993) and
Carr Enters. Inc. v. United States, 698 F.2d 952 (8th Cr.
1985). As a result, your notice of appeal, as well as all
of your subsequent pleadings, are subject to being
stricken and your appeal is subject to being dismissed.
While I apologize for the fact that this was not noted
earlier, the validity of your notice of appeal is a jurisdic-
tional issue which the court may examine at any time.
As a courtesy to you, I will hold the appeal in abey-
ance for 30 days to permit you to consult and retain
legal counsel and for your attorney to determine whether
there is any motion or other legal pleading which could
be filed to validate your prior filings.
At the end of this period of time, I will refer the case
to the court for a determination as to whether the
appeal must be dismissed or should be permitted to
proceed.
Sincerely,
s/
Michael E. Gans
Clerk of Court
MEG/jpp
co: Mr. Michael B. Hunter
a ee a
— *; a
Appendix G
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
ALLSTATE INSURANCE COMPANY,
Interpleader Plaintiff,
VS.
BIDDLE STREET BISTRO, INC.,
Defendant / Appellant
TLJ COMPANY, L.L.C. and
BREMEN BANK AND TRUST COMPANY,
Defendants /Appelleees.
Appeal No. 02-3141
Appeal from the United States District Court
Eastern District of Missouri
Eastern Division
MEMORANDUM IN SUPPORT OF
APPELLANT BIDDLE STREET BISTRO’S
MOTION TO SUBMIT CORRECTED NOTICE
OF APPEAL AND ADOPT PLEADINGS
PREVIOUSLY FILED PRO SE
INTRODUCTION
Jeffery Eilers and Janet Tennant are the sole share-
holders of Biddle Street Bistro (hereafter BSB) which is
a corporate entity. BSB was named asa defendantin an
interpleader suit filed in the United States District
— A-78 —
Court, Eastern District, along with TLJ Company, Inc.
(hereafter TLJ)and Bremen Bank and Trust Company,
L.L.C. (hereafter Bremen). BSB was represented by
counsel. At issue was the allocation of insurance pro-
ceeds from an insurance policy Eilers and Tennant
purchased to protect BSB’s interests in property lo-
cated at 220 Biddle Street, St. Louis, Missouri.
BSB was running a restaurant called “J’s on the
Landing” at that location. While they were in posses-
sion of the premises, the building and its contents were
destroyed by fire. At that time, Bremen held a mortgage
on the property, and TLJ held the deed on the property.
The district court granted BSB’s motion for partial
summary judgment and awarded it the entire policy
limits for the personal property coverage. The district
court then granted TLJ’s and Bremen’s motions for
summary judgment concerning the policy limits for the
damage to the building, and ordered that the insurance
proceeds for building damage be paid to them. Eilers
and Tennant were not aware of TLJ’s or Bremen’s
motions for summary judgments or the district court’s
order granting them until August 20, 2002.
(App. 392-395). ;
BSB wished to appeal the district court’s order grant-
ing TLJ’s and Bremen’s motions for summary judg-
ment. BSB filed a notice of appeal with the district court
clerk within the time required by FRAP 4(a)( 1 )(A).
(App. 399-402). They also paid the docket fees required
by FRAP3(e) in a timely fashion. The notice of appeal
was only signed by Eilers and Tennant as pro se
shareholders of BSB. (App. 399-402).
Eilers and Tennant on behalf of BSB subsequently
filed a corporate disclosure statement and a designa-
tion of record in a timely fashion. The Eighth Circuit
— A-79 —
Clerk then provided a scheduling order. BSB met all of
the filing deadlines with pleadings that conformed to
all Federal Rules of Appellate Procedure and Eighth
Circuit Local Rules regarding form and content. BSB
therr filed an Appellant’s Brief within the required
time. That brief conformed with all Federal Rules of
Appellate Procedure and Local Rules regarding form
and content as well.
Appellees then filed a brief. Appellees did not contest
this Court’s jurisdiction and responded to Appellant’s
Brief on its merits. This matter was then sent to
screening for oral argument. Within the time allowed to
respond to Appellees’ Brief, Eilers and Tennant filed a
Reply Brief on behalf ofBSB. In correspondence re-
ceived from the Eighth Circuit Clerk dated November
18, 2002, the Clerk acknowledged receipt of BSB’s
Reply Brief, but indicated that a corporation cannot
proceed pro se by its shareholders or officers, and that
as a result BSB’s notice of appeal was subject to being
stricken, and its appeal was subject to dismissal. The
Clerk apologized for not noting this earlier, but stated
that the validity of a notice of appeal was a jurisdic-
tional issue that the Court could examine at any time.
The Clerk indicated that as a courtesy he would hold
the appeal in abeyance for 30 days to permit Eilers and
‘Tennant to retain legal counsel and validate their prior
filings. Counsel has entered an appearance for BSB.
ARGUMENT
The Federal Rules of Appellate Procedure do not
require that BSB’s pleadings be stricken or its appeal
dismissed because its notice of appeal was not signed by
an attorney. On the contrary, the principles guiding the
Federal Rules of Appellate Procedure, as well decisions
interpreting this issue from the United States Supreme
Court and neighboring Circuits, clearly indicate that
— A-80 —
this Court has the authority to allow BSB to amend its
notice of appeal so that it is signed by an attorney and
decide BSB’s appeal on its merits.
The United States Supreme Court has held that the
requirement that a netice of appeal be signed is not
jurisdictional.
Federal Rule of Appellate Procedure 3(a) provides,
in pertinent part, that “[aJn appeal permitted by
law as of right from a district court to a court of
appeals shall be taken by filing a notice of appeal
with the clerk of the district court within the time
allowed by Rule 4.” Rule 3(c) governs the content of
notices of appeal: Notices “shall specify the party or
parties taking the appeal; shall designate the judg-
ment, order or part thereof appealed from; and
shall name the court to which the appeal is taken.
Courts will liberally construe the requirements of
Rule 3. Smith v Barry 502 U.S. 244, 247, 112 S.Ct.
678, 680 (1992).
The United States Supreme Court in Becker v Mont-
gomery also held that Federal Rule of Appellate Proce-
dure 3(c)(2) does not dislodge the signature require-
ment from its Civil Rule 11(a) moorings and make it an
Appellate Rule 3 jurisdictional specification. , at 532
U.s. 757, 759, 121 S.Ct.1801, 1803 (2001).
In Thiem v Hertz Corporation, 732 F.2d 1559 (11th
: Cir. 1984), the Eleventh Circuit was faced with a
situation where a notice of appeal which met the re-
| quirements of Rule 3 was unsigned by an attorney. The
Eleventh Circuit noted that the only provisions for the
content of the notice of appeal are found in Federal
Appellate Rule 3(c) which states that the notice of
appeal shall specify the party or parties taking the
appeal; shall designate the judgment, order or part
— A-81 —
thereof appealed from; and shall name the court to
which the appeal is taken. j4. at 732 F.2d 1559, 1562.
The Eleventh Circuit refused to dismiss the appeal
simply because the notice was unsigned by an attorney
reasoning that the Federal Rules of Appellate Proce-
dure have no provisions for signing pleadings, as is
found in Rule 11, Fed.R.Civ.P, and doubted Rule 11
applied to notices of appeal at all. 14 at 732 F.2d
1559,1563. The Court concluded: “[iJn any event, it
appears clear that the rules do not require a decision
that this Court is without jurisdiction to hear this
appeal.” . The Fifth Circuit has also held that an
unsigned notice of appeal, even if it does not meet the
demands of Fed. R. Civ. P. 11, meets the jurisdictional
requirements for appeal. McNeil v Blackburn, 802 F.2d
830, 832 5th Cir. 1986).
BSB’s notice of appeal complied with the require-
ments of Federal Appellate Rule 3(c) to the letter. Their
notice of appeal specified the party taking appeal,
designated the order appealed, and identified the court
to which the appeal was taken. In fact, it was sufficient
to allow Appellees’s counsel to craft the appropriate
responsive pleadings and a Brief which argued the
merits of its appeal.
Imperfections in noticing an appeal should not be
fatal where no genuine doubt exists about who is
appealing, from what judgment, to which appellate
court. Becker, supra, 532 U.S. at 759, 121 S.Ct. at 1803,
citing Smith v. Barry 502 U.S. 244, 245, 248-249,112
S.Ct. 678, 116 L.Ed.2d 678. It is contrary to the spirit of
the Federal Rules of Appellate Procedure for decisions
on the merits to be avoided on the basis of technical
failing in the pleadings. The intent of the 1993 Rule 3
amendments, as explained in the 1993 advisory com-
mittee notes, is to liberalized the pleading require-
— A-82 —
ments for a notice of appeal.” Ford v Elsbury 32 F.3d
931, 933-934 (5th Cir. 1994). The advisory committee
note to the 1993 amendment in relevant part states:
Finally, the rule makes it clear that dismissal of an
appeal should not occur when it is otherwise clear
from the notice that the party intended to appeal.
If a court determines it is objectively clear that a
party intended to appeal, there are neither admin-
istrative concerns nor fairness concerns that should
prevent the appeal from going forward. 14. 32 F.3d
931 at footnote #2..
The Eighth Circuit traditionally construes notices of
appeal liberally, but the intent to appeal the judgment
in question must be apparent and there must be no
prejudice to the adverse party. Burgess v Suzuki Motor
Co. Ltd, 71 F.3 d 304,307 (8th Cir 1995) citing Klandt v
United States Dep’t of Interior, 990 F.2d 409, 411 (8th
Cir. 1993) and Berdella v Delo 972 F.2d 204, 207 (8th
Cir. 1992). Biddle Street Bistro is only asking to amend
its notice of appeal by allowing it to be signed by an
attorney licensed to practice before this Court. It is not
asking for leave to amend the issues before this Court,
the portions of the record below that it relied upon, or
the arguments it presented in its Briefs. The under-
signed counsel has reviewed all of the pleadings filed on
behalfofBSB and wishes to adopt them without amend-
ment. Counsel has submitted and filed with the Court
new copies of these pleadings with counsel’s signature.
The adverse parties have already responded to these
pleadings. Accordingly, there can be no prejudice to any
party by allowing Appellant to save its appeal and for
the Court to render a decision on the merits.
— A-83 —
CONCLUSION
The essence of Rule 3, both in its language and in the
construction given to it by the courts, is liberality.
Public policy encourages that appeals be heard on the
merits. The undersigned counsel has reviewed the
pleadings filed on behalf of BSB and the legal basis for.
the arguments contained in BSB’s brief. The under-
signed has found that the pleadings meet with this
Court’s jurisdictional requirements, that BSB’s legal
arguments are sound, and wishes to adopt them with-
out amendment. Appellees have already filed their
brief on the merits of Appellant’s arguments, so there
could be no resulting prejudice.
WHEREFORE Appellant Biddle Street Bistro re-
spectfully requests this court to allow it to amend its
notice of appeal by having it signed by the undersigned
counsel, and to allow the undersigned counsel to adopt
the pleadings filed pro se by Eilers and Tennant on
Biddle Street Bistro’s behalf.
Respectfully Submitted,
BRINKER & DOYEN, L.L.P.
_ By:s/
Gary P. Paul, #14579
120 South Central Avenue, Suite 700
Clayton, Missouri 63105
(314)-863-6311
(314)-863-8197
Attorney for Appellant Biddle Street
Bistro, Inc.
— A-84 —
CERTIFICATE OF SERVICE
A copy of the foregoing was mailed this day of
December, 2002, to Michael B. Hunter, Attorney for
Appellees TLJ Company, L.L.C. and Bremen Bank and
Trust Company, 10 South Broadway, Suite 1600, St.
Louis, Missouri 63102.
s/
— A-85 —
Appendix H
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
ALLSTATE INSURANCE COMPANY,
Plaintiff,
Vv.
BIDDLE STREET BISTRO, INC.,
Defendant / Appellant,
TLJ COMPANY L.L.C. and,
BREMEN BANK AND TRUST COMPANY,
Defendants / Appellees.
No. 02-3141
TLJ COMPANY L.L.C AND
BREMEN BANK AND TRUST COMPANY’S
MEMORANDUM IN OPPOSITION TO
BIDDLE STREET BISTRO INC.’S
MOTION FOR LEAVE
Biddle Street Bistro, Inc. (hereinafter “BSB”) admits
that it filed a pro se Notice of Appeal! on the last day
permissible under FRAP Rule 4. BSB admits that all
pleadings filed thereafter prior to the current Decem-
ber 17, 2002 Motion for Leave were filed pro se. BSB
argues that this is not a jurisdictional defect and that
TLJ Company L.L.C. (hereinafter “TLJ”) and Bremen
Bank and Trust Company (hereinafter Bremen”) are
not prejudiced. An improper pro se Notice of Appeal is
— A-86 —
invalid and, as such, it was never properly or timely
filed. BSB failed to properly invoke the jurisdiction of
this court.
BSB argues that Smith v. Barry holds that failure to
sign a Notice of Appeal is not a jurisdictional defect.
However, this is an inaccurate reading of Smith v.
Barry. Rather, the issue in Smith v. Barry was whether
a pro se informal brief filed within the time restraints
of Rule 4 for Notices of Appeal served as the functional
equivalent of a Notice of Appeal. Smith v. Barry, 502
US. 244, 248, 112S.Ct. 678, 682 (1992). The Court held
that it could so serve. Jd at 245. Further, the appellant
in Smith v. Barry was an individual who is entitled to
represent himself pro se. Here, BSB must be repre-
sented by an attorney in federal court. In the instant
action Appellees concede that BSB attempted to file a
document in the proper format. However, the Notice
should be treated as having never been filed as it was
not filed by an attorney representing BSB.
One cannot say that FRAP Rule 3 has been followed
when a corporation, specifically precluded from ap-
pearing pro se before a federal court, files the Notice of
Appeal. “Rule 3’s dictates are jurisdictional in nature,
and their satisfaction is a prerequisite to appellate
review. (citation omitted). Although courts should con-
strue Rule 3 liberally when determining whether it has
been complied with, noncompliance is fatal to an ap-
peal.” Id at 248. BSB did not comply with Rule 3.
Becker v. Montgomery is likewise inapplicable to the
issue before this Court. There, a pro se appellant failed ©
to sign a Notice of Appeal although his typed name ~
appeared on the form. He attempted to fix the problem.
The Court held that the signature requirement is based
on FRCP Rule 11(a) which provides that one can correct
— A-87 —
the failure to sign a pleading and, that since the signa-
ture requirement was not in FRAP Rule 3, it was not
jurisdictional. Becker v. Montgomery, 532 U.S. 757,
758, 121 S.Ct. 1801, 1803 (2001). Becker merely failed
to sign the notice. His right to proceed pro se on appeal
was not at issue.
Similarly, Theim v. Hertz Corporation fails to ad-
dress the pertinent issue. In Theim a represented
individual plaintiff filed a Notice of Appeal through his
attorney that was proper but for the attorney’s failure
to sign where his name was already typed on the notice.
Theim v. Hertz Corporation, 732 F.2d 1559, 1562 (11th
Cir. 1984). The issue was not the capacity of the party
to file the Notice but whether the Notice was properly
filed in that it was not signed. The court found it
maintained jurisdiction over the appeal though the
appellant failed to sign the otherwise proper Notice. Id
at 1562-63.
McNeil v. Blackburn fails to assist BSB. It, like the
other cited cases, focuses on a technical defect in the
Notice, not in the capacity of the party to file the Notice.
However, it provides a general statement of jurisdic-
tion that Appellees submit is of assistance in analyzing
the current dispute. The court states, “[a]lthough nei-
ther party has questioned the jurisdiction of this court
to hear this appeal, this is a court of limited jurisdiction
and this court must, on its own motion, determine if
jurisdiction is present.” McNeil v. Blackburn, 802 F.2d
830, 831-32 (5th Cir. 1986)(citation omitted). Thus, this
Court must determine whetherit hasjurisdiction though
TLJ and Bremen did not raise the issue.
BSB also cites Ford v. Elsbury, 32 F.3d 391 (5th Cir.
1994), stating that the purpose of the 1993 amendment
to FRAP 3 was to liberalize the pleading requirements
— A-88 —
for a Notice of Appeal. It is not the content of BSB’s
Notice that is the problem. Rather, it is that it was filed
by an entity that is not allowed to proceed before this
court.
BSB concludes its argument by reference to prior
decisions of this Court. Again, all of the cited cases deal
with the sufficiency of the content of the Notice of
Appeal, not whether it was properly filed to begin with.
Further, this Court struck portions of the appeal for
failure to comply with FRAP Rule 3 in Klandt and
Berdella, two of the three cited cases. TLJ and Bremen
agree that striking an appeal is appropriate when an
appellant fails to comply with Rule 3.
As to the issue raised by Hon. Michael Ganz in his
November 18, 2002 letter to BSB, the law is clear that
a corporation may only appear before a federal court
through licensed counsel. Rowland v. California Men’s
Colony, 506 U.S. 194, 202, 113 S.Ct. 716, 721 (1993).
The Eighth Circuit has consistently refused to recog-
nize pleadings of a corporation without counsel. In
refusing to consider the appeal of one prose corporation
this Court stated, “[wle conclude that {pro se corporate
appellant] Mystery Boy is not a proper party to the
appeal because it is not represented by counsel, and a
corporation cannot appear pro se. Mystery Boy Incorpo-
rated v. Postal Service, 27 F.3d, 572, 1994 WL 312818,
**1 (8th Cir. (lowa)). See also First Horizon Corpora-
tion v. Singleton et al., 129 F.3d 121, 1997 WL 636616,
**1 (8th Cir.(Mo.)) (pro se corporation would not have
been a proper party to the appeal had it joined the
individual appellant’s Rule 60(b) motion); United States
v. Lylalele, Inc., 221 F. 3d 1345, 2000 WL 688237, **1
(proper for district court to have stricken pleadings
filed by pro se representative of corporation as it could
— A-89 —
not proceed without counsel); United States v. Van
Stelton, 988 F.2d 70 (8th Cir. 1993) (pro se corporation
found not a party to the appeal because not represented
by counsel); Ackra Direct Marketing Corp. v. Fingerhut
Corp., 86 F.3d 852, 857 (8th Cir. 1996) (corporate party
was noted to be technically in default when its counsel
was allowed to withdraw as it could not proceed pro se).
The appellant is required to file a Notice of Appeal
under FRAP 3 to invoke the jurisdiction of this court.
The form of Rule 3 as existed at the time BSB attempted
to file its Notice of Appeal, includes various provisions
stating, in essence, that technical defects on the face of
the Notice will not result in dismissal. However, BSB’s
Notice was defective not in form but was invalid in its
entirety.
BSB is prohibited from appearing before this court
without counsel. Any action taken by BSB before this
Court without counsel is invalid. The Notice of Appeal
filed was filed by BSB without counsel on the last day
permissible under FRAP Rule 4. The decisions of this
Court cited by appellees herein demonstrate that the
notice filed by BSB is invalid. Accordingly, BSB’s mo-
tion for leave should be denied and the appeal dis-
missed.
Wherefore Appellees, TLJ Company L.L.C. and
Bremen Bank and Trust Company, by and through
undersigned counsel, pray the Court deny appellant’s
Motion for Leave and for such other and further relief
as this Court deems just and proper under the circum-
stances.
hi—
WILLIAMS VENKER & SANDERS, L.L.C.
By: s/
Michael B. Hunter,#70351
Equitable Building
10 South Broadway, Suite 1600
St. Louis, MO 63102
(314) 345-5000
(314) 345-5055 FAX
ATTORNEYS FOR TLJ COMPANY, L.L.C. and
BREMEN BANK AND TRUST COMPANY
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and
accurate copy of the above and foregoing was mailed,
postage prepaid, this 26 day of December, 2002, to:
Gary Paul
Brinker .& Doyen LLP
120 S. Central
St. Louis, MO 63105
Attorneys for Plaintiff-
Janet Tennant
400 North 0 Street
St. Louis, Missouri 63102
Jeff Eilers
5506 Grace Avenue
St. Louis, Missouri 63116.
s/
ALLSTATE INSURANCE COMPANY,
Interpleader Plaintiff,
V.S
BIDDLE STREET BISTRO, INC.,
Defendant /Appellant
TLJ COMPANY, L.L.C. and
BREMEN BANK AND TRUST COMPANY,
Defendants /Appelleees.
Appeal No. 02-3141
Appeal from the United States District Court
Eastern District of Missouri
Eastern Division
BIDDLE STREET BISTRO INC.’S
REPLY TO TLJ AND BREMEN’S
MEMORANDUM IN OPPOSITION TO BSB’S
— A-91 —
Appendix I
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
MOTION FOR LEAVE
TLJ Company L.L.C. (hereinafter “TLJ) and Bremen
Bank and Trust Company (hereinafter “Bremen”) ar-
gue that Biddle Street Bistro Inc.’s (hereinafter “BSB”)
appeal should be dismissed because its notice failed to
comply with Federal Rule of Appellant Procedure 3.
However, they fail to cite which Rule 3 requirement
—e
Appellant’s Notice of Appeal violates. In fact, TLJ and
Bremen concede that BSB filed its Notice in the proper
format, and that the content of BSB’s Notice was not a
problem. (Appellees’ Memorandum in Opposition at
pages 2 and 3). TLJ and Bremen’s also fail to cite any
authority which suggests that BSB’s filing its notice of
appeal pro se requires this Court to dismiss its appeal.
The issue before the Court is not whether BSB can be
represented pro se by its shareholders. At the time BSB
filed its Notice of Appeal, BSB was represented by _
Attorney Karl Dickhaus who is an attorney authorized
to practice before this Court. BSB filed its Notice of
Appeal on August 21, 2002. (App. Page 399 and 400).
Attorney Dickhaus was not granted leave to withdraw
as counsel for BSB by this Court until October 4, 2002.
The issue is whether BSB should be given the opportu-
nity to have its appeal decided upon its merits by
allowing it to amend its Notice of Appeal to contain the
signature of counsel authorized to practice before this
Court. On this issue, the United States Supreme Court
and the authors of the Federal Rules of Appellate
Procedure provide a clear and unambiguous answer.
This Court has jurisdiction if BSB filed a timely Notice
of Appeal that met the requirements of Rule 3. TLJ and
Bremen do not contest that BSB’s Notice of Appeal
followed Rule 3’s requirements to the letter. They argue
that BSB’s Notice of Appeal was a nullity simply be-
cause it was not signed by an attorney authorized to
practice before this Court. The United States Supreme
Court clearly disagrees with TLJ and Bremen’s conclu-
sion. The Supreme Court has held that Rule 3 does not
include a signature as a jurisdictional requirement.
“[A] signature requirement is not among Rule 3(c)(1)’s
specifications, for Civil Rule 11(a) alone calls for and
controls that requirement and renders it
nonjurisdictional.” Becker v Montgomery. 532 U.S. 757,
LS
— A-93 —
766, 121 S.Ct. 1801, 1807 (2001). In Becker the Su-
preme Court then held that the appropriate remedy for
an unsigned notice of appeal was to allow appellant to
remedy the lapse by filing a duplicate notice of appeal
with a signature. Id.
~
TLJ and Bremen cite several cases in which this
Court held that corporations cannot be represented pro
se by their shareholders or officers. However, none of
the cases cited by TLJ and Bremen addressed the
sufficiency of the appellants’ notices of appeals. A
review of these cases reveals the true spirit of Rule 3,
and public policy that encourages appeals to be decided
on their merits. In each of cases cited by TLJ and
Bremen, this Court decided the appeal based upon its
merits. In Mystery Boy Incorporated v Postal Service 27
F.3d 572, 1994 WL 312818 (8th Cir.(lowa)), for ex-
ample, this Court went on to consider the merits of
appellants’ appeal even after it concluded that Mystery
Boy was not a proper party, and that the pro se litigant
failed to provide a transcript in accordance with Rule
10(b).
In addition, TLJ and Bremen do not even suggest
they would be prejudiced if the Court grants BSB’s
motion. Prejudice would be impossible because TLJ
and Bremen have already filed responsive pleadings
and a brief which argue the merits of BSB’s appeal.
Granting this Motion would be consistent with the
Supreme Court’s decisions concerning the appropriate
remedy, and allow justice to be served by allowing
BSB’s appeal to be decided upon its merits.
— A-94 —
Respectfully Submitted,
BRINKER & DOYEN, L.L.P.
By: s/
Gary P. Paul, #14579
120 South Central Avenue, Suite 700
Clayton, Missouri 63105
(314)-863-6311
(314)-863-8197
Attorney for Appellant Biddle Street
Bistro, Inc.
CERTIFICATE OF SERVICE
A copy of the foregoing was mailed this __day of
December, 2002, to Michael B. Hunter, Attorney for
Appellees TLJ Company, L.L.C. and Bremen Bank and
Trust Company, 10 South Broadway, Suite 1600, St.
Louis, Missouri 63102.
— A-95 —
Appendix J
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No. 02-3141
Biddle Street Bistro, Inc.,
Appellant,
VS.
TLJ Company, L.L.C.;
Bremen Bank and Trust Company,
Appellees. -
Appeal from the United States
District Court for the
Eastern District of Missouri
JUDGMENT
Having considered apellarit’s motion for leave to
submit a corrected notice of appeal and to adopt plead-
ings previously filed pro se, we deny the motion and
dismiss the appeal for lack of jurisdiction for failure to
file a valid notice of appeal. (5361-010199)
February 12, 2003
Order Entered at the Direction of the Court
s/
Clerk, U.S. Court of Appeals, Eighth Circuit
— A-96 —
Appendix K
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
Appeal No. 02-3141
ALLSTATE INSURANCE COMPANY,
Interpleader Plaintiff
V. _
BIDDLE STREET BISTRO, INC.
Defendant / Appellant
TLJ COMPANY, L.L.C. and
BREMEN BANK AND TRUST COMPANY,
Defendants / Appellees.
Appeal from the United States District Court
Eastern District of Missouri
Eastern Division
The Honorable Stephen N. Limbaugh,
Senior United States District Judge
PETITION FOR REHEARING BY PANEL
BRINKER & DOYEN, L.L.P.
Gary P. Paul, #14579
120 South Central Avenue, Suite 700
Clayton, Missouri 63105
(314)-863-6311
(314)-863-8197
Attorney for Appellant Biddle Street
Bistro, Inc.
ee a ee ene
—~
SUMMARY OF THE CASE
Allstate Insurance Company interplead the funds of
a premises liability insurance policy. (App 1-3)! The
named insured, owner of the property, and mortgagee
were named as co-defendants. Biddle Street Bistro
(hereafter BSB) Occupied the destroyed premises and
was the named insured of the policy. TLJ Company,
Inc. (hereafter TLJ) was the owner of the property, and
Bremen’s Bank and Trust Company, L.L.C. was the
mortgagee of the property. BSB, TLJ and Bremen each
made a claim to the insurance proceeds. (App. 89 and
92).
The district court granted BSB’s motion for partial
summary judgment and awarded it the entire policy
limits for the personal property coverage. (App. 5-7).
The district court then granted TLJ’s and Bremen’s
motions for summary judgment concerning the policy
limits for the building damage. (App. 8-10).
BSB was unable to communicate with its attorney of
record, and was not aware of TLJ’s or Bremen’s motions
and the district court’s order granting their motions
until August 20, 2002, the day before that court’s order
was to become final. (App. 59 and 61) BSB then filed its
notice of appeal. (App. 66-69).
BSB’s notice of appeal was filed pro se by its only two
shareholders, Jeffrey Eilers and Janet Y. Tennant.
(App. 399-402). Eilers and Tennant on behalf of BSB
subsequently met all of the filing deadlines with plead-
ings that conformed to all Federal Rules of Appellate
Procedure and Eighth Circuit Local Rules regarding
form and content. BSB then filed an Appellant’s Brief
within the required time.
1 Appellant’s separate appendix will be referred to as “App.”
— A-98 —
Appellees then filed a brief. Appellees did not contest
this Court’s jurisdiction and responded to Appellant’s
Brief on its merits. Within the time allowed to respond
to Appellees’ Brief, Eilers and Tennant filed a Reply
Brief on behalf ofBSB. In correspondence received from
the Eighth Circuit Clerk dated November 18, 2002, the
Clerk acknowledged receipt of BSB’s Reply Brief, but
indicated that a corporation could not proceed pro se by
its shareholders or officers, and that as a result BSB’s
notice of appeal was subject to being stricken, and its
appeal was subject to dismissal. Clerk Gans then di-
rected Eilers and Tennant to obtain counsel within 30
days.
Ellers and Tennant immediately obtained counsel.
The undersigned counsel within 30 days filed a Motion
to Submit Corrected Notice of Appeal and Adopt Plead-
ings Previously Filed Pro Se. On February 12, 2003 the
Court denied BSB’s motion and dismissed its appeal for
lack of jurisdiction for failure to file a valid notice of
appeal. .
CORPORATE DISCLOSURE STATEMENT
Biddle Street Bistro, Inc. has no parent companies or
subsidiaries not wholly owned by the corporation. No
publicly held company owns ten percent or more of the
corporation’s stock.
— A-99 —
TABLE OF CONTENTS
Document Page
SUMMARY OF THE CASE ..............ccccccesseseees 1
CORPORATE DISCLOSURE STATEMENT ... 3
py Pe ey Ee 4
TABLE OF AUTHORITIES ....................cccc0000 5
STATEMENT OF THE ISSUES. ............00..000000.. 6
STATEMENT OF THE CASE ..............0.0c0c0000 7
PAN SI 10
ee 14
CERTIFICATE OF COMPLIANCE ................... 16
CERTIFICATE OF SERVICE...............ceesceeees 17
— A-100 —
TABLE OF AUTHORITIES
Cases Page
AAA Venetian Blind Sales Inc. v Beaufieu of
America Inc. 124 F.3d 196 (6th Cir. 1997) . 13
Anunicaion v West Capital Financial Services,
97 F.3d 1458 (9th Cir. 1996) ..............cccsseoes 13
Becker v. Montgomery, 532 U.S. 757, 121 S.Ct.
BI Ce victietntecicenennenvadnan 10,11
Bigelow v A & A Reality Limited 170 F.3d 1164
CE Gat He iiisiacdtadesvetenann 11,12
Instituto De Educacion Universal Corp.
v United States Department of Education,
200 FSG 16 (lst Cir. FOOD) ..c<nsescvesvcnvssvcnsvees 12
K.M.A. Inc. v General Motors Acceptance Corp.,
652 F.2.d 398 (5th Cir. 1981) .................0060 13
Lewis v Lenc-Smith Manufacturing Co.
784 F.2d 829 (7th Ci 1986)....................0000 13
Smith v. Barry, 502 U.S. 244, 112 S.Ct. 678
CIEE covsiscusiidesisanethcsneaiivienieednnemaniaaaomemmeoniae 10,11
Statutes
BD UE: SI BI ae sisicsiciohse hastnisscttinennien 13
Federal Rules of Appellate Procedure; Rule 8 .. 10
Federal Rules of Civil Procedure; Rule 11 ........ 10,11
— A-101 —
STATEMENT OF THE ISSUES
The Court overlooked or misapprehended the follow-
ing points of law or facts as shown by its Judgment.
A. Federal Rules of Appellate Procedure do not
require that a notice of appeal be signed for
this Court to have jurisdiction.
B. The filing ofa notice of appeal prose by BSB’s
sole shareholders, Eilers and Tennant, did
not require that BSB’s appeal be dismissed,
and licensed counsel should be permitted to
continue the appeal on BSB’s behalf.
C. The Court failed to take into consideration
that Eilers and Tennant as the sole share-
holders of BSB were real parties in interest,
and that as an S-Type Corporation BSB was -
merely an alter ego of Eilers and Tennant.
STATEMENT OF THE CASE
The case out of which the present appeal arises was
an interpleader action brought by Allstate Insurance
Company (hereafter Allstate). (App. 1-3). Allstate is-
sued a policy of fire insurance to BSB which listed BSB
as the only named insured, and carried coverage up to
a limit of $500,000 for building damage, and up to
$100,000 for personal property damage. (App. 2). Jeffery
Eilers and Janet Tennant are the sole share holders of
BSB. Unknown to BSB, TLJ and Bremen were listed as
loss payees on its policy of insurance. (App. 2 and 52).
The district court awarded the entire $100,000 for
personal property damage to BSB. (App. 5-7). The
district court then granted TLJ’s and Bremen’s motions
for summary judgment, and awarded the entire amount
of the $500,000 policy for building damage to TLJ and
—- A-102 —
Bremen. (App. 8-10). Because of the unresponsiveness
of its counsel, BSB was unaware of TLJ’s and Bremen’s
motions for summary judgment and the district court’s
order granting them until August 20, 2002, the day
before that court’s order became final.(App. 59 and 61).
Eilers and Tennant as pro se shareholders of BSB
then filed its Rule 60(b) motion and notice of appeal
within the time required by FRAP 4(a)(1)(A). They also
paid the docket fees required by FRAP 3(e) in a timely
fashion. At the time BSB filed its Notice of Appeal, BSB
was represented by Attorney Karl Dickhaus who is an
attorney authorized to practice before this Court. How-
ever, Eilers and
Tennant filed a Notice of Appeal on behalf of BSB on
August 21, 2002 as pro se shareholders. (App. Pages
399 and 400).
Eilers and Tennant on behalf of BSB subsequently
filed a corporate disclosure statement and a designa-
tion of record in a timely fashion. The Eighth Circuit
Clerk then provided a scheduling order. BSB met all of
the filing deadlines with pleadings that. conformed to
_ all Federal Rules of Appellate Procedure and Eighth
Circuit Local Rules regarding form and content. BSB
then filed an Appellant’s Brief within the required
time. That brief conformed with all Federal Rules of
Appellate Procedure and Local Rules regarding form
and content as well.
Appellees then filed a brief. Appellees did not contest
this Court’s jurisdiction and responded to Appellant’s
Brief on its merits. This matter was then sent to
screening for oral argument. Within the time allowed to
respond to Appellees’ Brief, Eilers and Tennant filed a
Reply Brief on behalf of BSB. In correspondence re-
ceived from the Eighth Circuit Clerk dated November.
— A-103 —
18, 2002, the Clerk acknowledged receipt of BSB’s
Reply Brief, but indicated that a corporation cannot
proceed pro se by its shareholders or officers, and that
as a result BSB’s notice of appeal was subject to being
stricken, and its appeal was subject to dismissal. The
Clerk apologized for not noting this earlier, but stated
that the validity of a notice of appeal was a jurisdic-
tional issue that the Court could examine at any time.
The Clerk indicated that as a courtesy he would hold
the appeal in abeyance for 30 days to permit Eilers and
Tennant to retain legal counsel and validate their prior
filings. Counsel entered an appearance for BSB, and
within 30 days filed a Motion to Submit Corrected
Notice of Appeal and Adopt Pleadings Previously Filed
Pro Se. With the motion, all pleadings and briefs previ-
ously filed prose were re-filed bearing the undersigned’s
signature. The Court denied BSB’s motion on February
12, 2002 and dismissed its appeal for lack ofjurisdiction
for failure to file a valid notice of appeal.
— A-104 —
ARGUMENT
A. Federal Rules of Appellate Procedure do not
require that a notice of appeal be signed for
this Court to have jurisdiction
The Federal Rules of Appellate Procedure do not
require that notices of appeal be signed for this Court to
have jurisdiction. The United States Supreme Court
has held that the requirement that a notice of appeal be
signed is not jurisdictional.
Federal Rule of Appellate Procedure 3(a) provides,
in pertinent part, that “[a]n appeal permitted by
law as of right from a district court to a court of
appeals shall be taken by filing a notice of appeal
with the clerk of the district court within the time
allowed by Rule 4.” Rule 3(c) governs the content of
notices of appeal: Notices “shall specify the party or
parties taking the appeal; shall designate the judg-
ment, order or part thereof appealed from; and
shall name the court to which the appeal is taken.”
Courts will liberally construe the requirements of
Rule 3. Smith v Barry, 502 U.S. 244, 247, 112S.Ct.
678, 680 (1992).
The United States Supreme Court in Becker v Mont-
gomery also held that Federal Rule of Appellate Proce-
dure 3(c)(2) does not dislodge the signature require-
ment from its Civil Rule 11(a) moorings and make it an
Appellate Rule 3 jurisdictional specification. Jd. at 532
U.S. 757, 759, 121S.Ct. 1801, 1803 (2001). In Becker the
Supreme Court reasoned that the requirement that a
notice of appeal be signed when filed in the district
court only comes from Federal Rule of Procedure 11(a)
which provides that every paper filed with the district
court shall be signed. Jd. at 532 U.S. 757, 758, 121S.Ct.
1801, 1805 (2001). The Supreme Court then reasoned
— A-105 —
that failure to sign a notice of appeal as required by
Civil Rule of Procedure 11(a) could not require dis-
missal of the appeal because Rule 11(a) itself states
that the omission of a signature may be corrected
promptly after being called to the attention of the
attorney or party. The Supreme Court also noted that
this conclusion was in harmony with Federal Rule of
Appellate Procedure Rule 3(c)(4) which provides: “An
appeal must not be dismissed for informality of form or
title of the notice of appeal, or for failure to name a party
whose intent to appeal is otherwise clear from the
notice.” Id. 532 U.s. 757, 759, 121S.Ct. 1801, 1807-1808
(2001) citing Smith » Barry (supra at 502 U.S. 244, 245,
248-249, 112 S.Ct. 678, 116 L.Ed.2d 678.
B. The filing of a notice of appeal pro se by BSB’s
sole shareholders Eilers and Tennant did not
require BSB’s appeal be dismissed and li-
censed counsel should be permitted to con-
tinue the appeal on BSB’s behalf
The majority of Circuit Courts that have considered
the effect of a notice of appeal filed on behalf of a
corporation by a corporate officer who is not authorized
to practice law have ruled that a pro se signature is not
fatal to the corporations appeal. In Bigelow vA & A
Reality Limited 170 F.3d 1164 (9th Cir. 1999), the
Ninth Circuit noted that there is nothing in the Federal
Rules of Appellate Procedure which requires dismissal
of an appeal when a corporate officer who is not licensed
to practice law signs a notice of appeal for a corporation.
Id. at page 1165. “A notice of appeal is just that -a
notice.” Id. The Court failed to see any compelling
reason to refuse to recognize a corporation’s notice of
appeal, so long as a lawyer promptly thereafter enters
a formal appearance on behalf of the corporation and
undertakes the representation. Id.
— A-106 —
The same conclusion was reached by the First Circuit
in Instituto De Educacion Universal Corp. v United
States Department of Education 209 F.3d 181 (1st Cir.
2000). The First Circuit recognized that a non-lawyer
could not represent a corporation in ongoing proceed-
ings. However, the Court found there was a valid
distinction between ongoing legal representation and
the “essentially ministerial action involved in the filing
of a notice of appeal.” Jd. at page 22. The Court then held
that a corporate officer may sign and file a notice of
appeal on behalf of a corporation, as long as the corpo-
ration then promptly retains counsel. Id.
Many other neighboring Circuit Courts have held
that where a corporation’s notice of appeal is signed by
corporate officer who is not an attorney, the court may
allow the appeal to proceed as along as an attorney
admitted to practice before the appellate court has filed
an appearance.'
C. The Court failed to take into consideration
the Eilers and Tennant as the sole sharehold-
ers of BSB were real parties in interest and
that as an S-Type Corporation BSB was merely
an alter ego of Eliers and Tennant
Wnder 28 U.S.C. Section 1654, parties may plead and
conduct their own cases personally. BSB is an S-Type
corporation whose only two shareholders are Eilers and
Tennant. Eilers and Tennant are personally and exclu-
sively responsible for all of BSB’s debts and taxes. BSB
1 See e.g., AAA Venetian Blind Sales Inc. v Beaufieu of America
Inc. 124 F.3d 196 (6th Cir.1997) Anunication v West Capital
Financial Services 97 F.3d 1458 (9th Cir.1996); Lewis uv Lenc-
Smith Manufacturing Company, 784 F.2d 829 (7fl Cir. 1986);
K.M.A. Inc. v General Motors Acceptance Corp. 652 F.2d 398 (5th
Cir. 1981).
— A-107 —
is essentially their alter ego, and Eilers and Tennant
are de facto real parties in interest. BSB has not
engaged in any business since November 14, 2000 (the
date of the fire loss). Ail debts and payables have been
directed to Eilers and Tennant personally. BSB is
currently indebted to Eilers and Tennant for over one
million in United States currency. As such, no interests
other than their own were affected when they filed the
notice of appeal.
CONCLUSION
The essence of Federal Rule of Appellate Procedure 3,
both in its language and in the construction given to it
by the courts, is liberality. Rule 3 does not contain a
signature as one of the jurisdictional requirements for
a notice of appeal. If there is no jurisdictional require-
ment that a notice of appeal contain any signature, then
it hardly can be argued that a notice of appeal contain-
ing a signature is a jurisdictional impediment. Neigh-
boring Circuits have found the best remedy for notices
of appeal signed by pro se shareholders is to allow
licensed counsel to adopt the corporation’s appeal.
This Court traditionally construes notices of appeal
liberally so long as the intent to appeal the judgment in
question is apparent and there is not-prejudice to the
adverse party. Appellees cannot be prejudiced by allow-
ing BSB’s appeal to be considered on its merits because
they have already filed their brief, and all of BSB’s
pleadings were filed in a timely manner. Appellant,
BSB, respectfully requests this Court to reconsider its
Motion to Submit Corrected Notice of Appeal and Adopt
Pleadings Previously Filed Pro Se, and allow BSB’s
appeal to be decided upon its merits.
— A-108 —
s/__
Gary i. Paul, 14579
Brinker & Doyen, LLP
120 South Central Ave., Suite 700
Clayton, Missouri 63105-1705
(314) 863-6311 (Telephone)
(314) 863-8197 (Facsimile)
CERTIFICATE OF COMPLIANCE
I, the undersigned, attorney for Biddle Street Bistro,
Inc., certify that the number of words in Petition for
Rehearing By Panel of Appellant Biddle Street Bistro,
is 2,279 , which is based on a word count of the word
processing system. The name and version of the word
processing software used te prepare the petition is
Microsoft Word 2000. :
Gary 1. Paul, # 14579
Brinker & Doyen, LLP
120 South Central Ave., Suite 700
Clayton, Missouri 63105-1705
(314) 863-6311 (Telephone)
(314) 863-8197 (Facsimile)
Attorney for Appellant
— A-109 —
CERTIFICATE OF SERVICE
COMES NOW,
Gary P. Paul, and after duly being
sworn and upon his oath states that a copy of the
Petition for Rehearing By Panel was mailed this 25th
day of February, 2003, to: Michael B. Hunter, Attorney
for Appellees TLJ Company, L.L.C., and Bremen Bank
and Trust Company, 10 South Broadway, Suite 1600,
St. Louis, Missouri 63102.
s/
Gary P.Paul,#14579
Brinker & Doyen, LLP
120 South Central Ave., Suite 700
Clayton, Missouri 63105-1705
(314) 863-6311 (Telephone)
(314) 863-8197 (Facsimile)
Attorney for Appellant
Subscribed and sworn to before me this 25th day of
February, 2003.
My commission expires: Be “4
s/
Teresa Schaefer Belangee
Notary Public
-O
OF ow
MITT la
— A-110 —
Appendix L
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No. 02-3141
Biddle Street Bistro, Inc.,
Appellant,
vs.
TLJ Company, L.L.C., et al.,
Appellees.
Appeal from the United States District Court
for the Eastern District of Missouri
The petition for rehearing by the panel filed by
appellant has been considered by the court and is
denied.
(5193-010199)
March 12, 2003
Order Entered at the Direction of the Court:
s/
Clerk, U.S. Court of Appeals, Eighth Circuit
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.