Stichting Mayflower Recreational Fonds v. Newpark Resources Inc., (10th Cir. 2001)

Text

---

UNITED

STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

STICHTING MAYFLOWER

RECREATIONAL FONDS;

STICHTING MAYFLOWER

MOUNTAIN FONDS,

Plaintiffs-Appellants,

v.

NEWPARK RESOURCES, INC.;

CONSOLIDATED MAYFLOWER

MINES, INC.; B.F.C. OIL

COMPANY,

Defendants-Appellees.

No.
name="1">00-4097

(D.C. No. 85-CV-176)

(D. Utah)

ORDER AND JUDGMENT
name="txt*">(*)

Before SEYMOUR, BRORBY, and

BRISCOE, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties' request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

Plaintiffs appeal the district court's award of attorney fees against

defendant Consolidated Mayflower Mines, Inc. (CMMI), arguing that the court

erred in not including certain interest in the award. This case has a rather

protracted history. On June 29, 1992, following an appeal and remand, the

district court entered a judgment that, among other things, awarded plaintiffs

attorney fees in the amount of $219,317.55 against all defendants. The judgment

provided that it would bear interest at the legal rate. Thereafter, defendants filed

a motion for relief from judgment pursuant to Fed. R. Civ. P. 60(a) and (b). On

January 22, 1993, the district court entered an order acknowledging that the June

1992 judgment contained several clerical mistakes that were inconsistent with

earlier rulings of the court.(1) Accordingly,

the court entered an amended judgment

providing in pertinent part that only defendant CMMI was liable to plaintiffs for

attorney fees and that the amount would be specified by future order, but would

not exceed $219,317.55. This judgment also provided that it would bear interest

at the legal rate.

On September 25, 1997, the district court entered an order setting the

amount of fees due from CMMI at $170,268.40. The order did not mention the

accrual of any interest, and no accompanying judgment was entered on a separate

document. Several days later, plaintiffs' counsel sent a letter to the district court

in which he stated in pertinent part: "I was gratified to receive the Court's Order

entered September 25, 1997, resolving the award of attorney's fees in this matter,

but note that the Order neglects to carry forward the provision of the Court's

Order of January 21, 1993 for interest on the award." Appellants' App., Ex. 6.
name="txt2a">(2)

The court responded by letter of October 8, 1997, in which it stated:

The court received your letter of October 3, 1997 in which you ask

for an award of interest from January 21, 1993 on your attorney fee

award. The court's Order of September 25, 1997 did not address that

issue because it was not raised by the parties in their most recent

memoranda and the court believed an award of attorney fees in the

amount of $170,268.40 was fair and reasonable, without adding

interest.

Id., Ex. 7. Plaintiffs did not respond to the court's letter or otherwise attempt to

pursue their request for interest.

In April 1999, plaintiffs' counsel sent the district court a letter enclosing a

proposed order concerning the method in which the attorney fees would be paid.

The proposed order stated that all defendants were liable for the fees, and it

provided that defendants would be given credit against the amount owed upon

payment of sums being held in connection with another lawsuit and upon

execution of a deed to certain property. Defendants then retained new counsel,

who entered an appearance in October 1999 and filed an objection to the proposed

order. On April 25, 2000, the district court entered a "Ruling" in which it stated

that plaintiffs' proposed order was both inappropriate and unnecessary, and that

"the Amended Judgment, signed January 21, 1993 (Docket #153), and the Order,

signed September 24, 1997 (Docket #173), dispose of the issue of attorney fees

and the case." Appellees' Suppl. App. at 53. Plaintiffs filed the current appeal on

May 23, 2000.

As an initial matter, we must determine whether we have jurisdiction over

this appeal. Defendants have moved to dismiss the appeal, arguing that the

district court entered its final order adjudicating attorney fees in September 1997,

and plaintiffs did not file a timely notice of appeal from that order. A close

reading of the federal rules of both appellate and civil procedure, however,

demonstrates that plaintiffs' appeal is timely.

Pursuant to Fed. R. App. p. 4(a), the notice of appeal in a civil case in

which the federal government is not a party must be filed within thirty days after

entry of the judgment or order from which the appeal is taken. "A judgment or

order is entered for purposes of this Rule 4(a) when it is entered in compliance

with Rules 58 and 79(a) of the Federal Rules of Civil Procedure."

Fed. R. App. P. 4(a)(7). Rule 58, in turn, provides that "[e]very

judgment shall be

set forth on a separate document" and that "[a] judgment is effective only when so

set forth and when entered as provided in Rule 79(a)."

We have held that, "because motions for attorney fees are separate from

and collateral to any decision on the merits, they should be accorded the same

dignity under Rule 58 as judgments on the merits. Just as a judgment on the

merits must always be accompanied by a separate document, so should a district

court's order denying or granting a motion for fees." DeBoard v. Sunshine

Mining & Ref. Co., 208 F.3d 1228, 1237 (10th Cir. 2000). The district court's

order of September 1997 was not accompanied by a separate document

constituting the Rule 58 judgment, and the order itself could not qualify as the

Rule 58 judgment, because it contained a discussion of the court's reasoning and

legal analysis. See Clough v. Rush, 959 F.2d 182, 185 (10th Cir. 1992).

While the parties may waive the separate document requirement in certain

circumstances, id. at 185, "[t]he separate document rule should be interpreted to

prevent loss of the right to appeal. As a consequence, waiver may not be used to

defeat jurisdiction," id. at 186 (quotation and citation omitted). Absent entry of

judgment on a separate document, the appeal clock on the court's September 1997

fee order did not begin to run. Therefore, we accept jurisdiction over plaintiffs'

appeal and proceed to the merits. See generally, Bankers Trust Co. v. Mallis,

435 U.S. 381, 385 (1978).

In their six-page opening brief, plaintiffs argue that the district court erred

in not awarding them interest on their attorney fees from the date the fees were

incurred or, at the least, from the date of the court's first judgment awarding fees,

which was June 29, 1992. Although plaintiffs purport to ask only for

postjudgment interest, an award of interest back to the date the fees were incurred

would constitute an award of prejudgment interest.

Prejudgment interest and postjudgment interest vary in significant respects.

Postjudgment interest is mandatory under 28 U.S.C. § 1961. Its purpose "is to

compensate the successful plaintiff for being deprived of compensation for the

loss from the time between the ascertainment of the damages and the payment by

defendant." Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827,

835-36

(1990) (quotation omitted). We review a district court's award of postjudgment

interest de novo. Utah v. Babbitt, 53 F.3d 1145, 1148 (10th Cir. 1995).

Prejudgment interest, on the other hand, is not mandatory. Greene v. Safeway

Stores, Inc., 210 F.3d 1237, 1247 (10th Cir. 2000). Its purpose "is to compensate

the wronged party for being deprived of the monetary value of his loss from the

time of the loss to the payment of the judgment." Id. (quotation omitted). We

review a district court's award of prejudgment interest for an abuse of discretion.

Id.

Beyond its failure to differentiate between pre- and post-judgment interest,

plaintiffs' brief is otherwise inadequate to obtain appellate relief. The brief not

only fails to state where in the record the issues were raised and ruled on, in

violation of 10th Cir. R. 28.2(C)(2), but it also fails to recite the appropriate

standard of review, in violation of Fed. R. App. P. 28 (a)(9)(B), and it cites no

authority for plaintiffs' arguments other than 28 U.S.C. § 1961, in violation of

Fed. R. App. P. 28(a)(9)(A).(3)

We require appellants to tell us where in the record an issue was raised and

ruled on, because we require "that an issue be presented to, considered [and]

decided by the trial court" before we will review it on appeal, Lyons v. Jefferson

Bank & Trust, 994 F.2d 716, 721 (10th Cir. 1993) (quotation omitted; alteration

in original). "[V]ague, arguable references to [a] point in the district court

proceedings do not . . . preserve the issue on appeal." Id.

(quotation omitted;

alteration in original). "Similarly, we have held that where an issue is raised but

not pursued in the trial court, it cannot be the basis for the appeal." Id. at 722.

Defendants contend that plaintiffs did not adequately raise to the district

court the issue of whether interest should be awarded back to either the date the

fees were incurred or the court's judgment of June 16, 1992. Defendants are

certainly correct with respect to plaintiffs' request for prejudgment interest.

Nothing in the record before us indicates that plaintiffs ever raised the issue of

prejudgment interest to the district court. Therefore, plaintiffs have not properly

preserved this issue for appellate review. Nor have plaintiffs properly presented

this issue for appellate review. Their appellate briefs provide no analysis and cite

no authority to support their request for prejudgment interest. This court will not

consider an argument that is not properly presented for appellate review. E.g.,

United States v. Edwards, 69 F.3d 419, 430 (10th Cir. 1995).

Plaintiffs' request for interest back to the date of the court's first award of

attorney fees could be construed as a request for postjudgment interest. See, e.g.,

Wheeler v. John Deere Co., 935 F.2d 1090, 1097 (10th Cir. 1991) (Wheeler

II)

(discussing when postjudgment interest will accrue if first judgment was

reversed); Wheeler v. John Deere Co., 986 F.2d 413, 415-16 (10th Cir. 1993)

(Wheeler III) (discussing when postjudgment interest will accrue if initial

quantified judgment was decreased). Although plaintiffs did make a general

request for postjudgment interest in their letter to the court of October 3, 1997,

we agree with defendants that they did not adequately preserve their present

request for postjudgment interest dating back to June 29, 1992.

Even if we assume that a letter from counsel to the court is sufficient to

preserve an issue for appeal, counsel's letter here did not put the court or

defendants on notice that plaintiffs were requesting postjudgment interest from

June 29, 1992, much less provide any legal analysis to support such a request.
name="txt4a">(4)

Thus, the issue of ordering postjudgment interest back to June 29, 1992 was not

adequately preserved for appellate review. Likewise, the issue was not

adequately presented for appellate review. Plaintiffs' appellate briefs provide no

analysis and cite no authority in support of their contention that the district court

erred in not awarding postjudgment interest back to the date of its first judgment.

Therefore, we will not consider whether the district court erred when it failed to

order that postjudgment interest begin to accrue on the attorney fee award as of

June 29, 1992.

Defendants' motion to dismiss and their related motion for damages are

DENIED, and the judgment of the district court is AFFIRMED.

Entered for the Court

Wade Brorby

Circuit Judge

FOOTNOTES

Click footnote number to return to corresponding location in the text.

*. This order and judgment is not binding

precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

1. Although this order was entered on

January 22, the parties and district court

sometimes referred to it as the order of January 21, the date on which it was

signed.

2. Our review of the record in this case

was hindered by plaintiffs' failure to

consecutively paginate their appendix and to include in it an index of documents

with page numbers, as required by 10th Cir. R. 30.1(C)(3). We also note that the

appendix does not comply with 10th Cir. R. 30(C)(1), which requires that copies

of documents show the district court's file stamp. In addition, defendants state in

their appellate brief that plaintiffs failed to comply with Fed. R. App. 30(b)(1),

which requires the parties to try to agree on the contents of the appendix, and if

they cannot, for the appellant to serve on the appellee a designation of the parts of

the record that the appellant intends to include in the appendix. We admonish

plaintiffs' counsel for his failure to follow the rules and remind him of his

continuing duty to do so.

3. Once again, we admonish plaintiffs'

counsel for his failure to follow the

rules and remind him of his continuing duty to comply with the rules of appellate

procedure and the local rules of this court. Counsel is advised that future

violations may result in the imposition of sanctions.

4. Counsel for all parties should note

the requirements of Federal Rule of

Civil Procedure 7(b)(1): "An application to the court for an order shall be by

motion which, unless made during a hearing or trial, shall be made in writing,

shall state with particularity the grounds therefor, and shall set forth the relief or

order sought." A motion filed with the court, rather than a letter sent to the court,

is the appropriate means of seeking relief.

---