RICHARD STALLWORTH, PLAINTIFF-APPELLEE,
v.
LAQUITA SHULER, BOTH INDIVIDUALLY AND AS SUPERINTENDENT OF SCHOOLS, AND LIBERTY COUNTY SCHOOL BOARD, DEFENDANTS-APPELLANTS
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The court held that a timely filed appeal bond can satisfy the notice of appeal requirement, and a consent judgment on attorney's fees does not preclude appeal.
Plaintiff moved to dismiss the appeal, arguing defendants did not timely appeal the final judgment and could not appeal a consent judgment on attorney…
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BY THE COURT:
Plaintiff-appellee Stallworth filed two motions to dismiss this appeal alleging first, that defendants did not timely appeal the final judgment on the merits, and second, that defendants cannot appeal from a consent judgment concerning attorney’s fees entered into after trial.
The final judgment was entered in this case on June 13, 1984. A consent judgment as to the amount of attorney’s fees was entered June 20, 1984. Although defendants-appellants filed a timely motion for new trial or to vacate or to amend, that motion was withdrawn July 16, 1984 and a notice of appeal filed on the same date. This left pending a cross-motion for rehearing filed by plaintiff-appellee June 25,1984. See Fed.R.Civ.P. 6. This motion is interpreted as a Fed.R.Civ.P. 59(e) motion. See Woodham v. American Cystoscope Company of Pelham, NY, 335 F. 2d 551, 555 (5th Cir.1964) (motion for rehearing or reconsideration within the coverage of Rule 59).
A timely motion under Fed.R. Civ.P. 59(e) to alter or amend a judgment suspends the finality of the judgment for purposes of appeal and tolls the time for taking appeal. Hammond v. Public Finance Corp., 568 F. 2d 1362, 1363 (5th Cir. 1978). The motion rendered defendants-appellants’ notice and amended notice of appeal filed on July 16 and 26, 1984 ineffective. See Bolden v. Odum, 695 F. 2d 549, 550 (11th Cir.1983). The district court.entered an order on this motion August 17, 1984.
The notice of appeal would have to have been refiled after that date. No notjce of appeal was filed but the defendants-appellants filed a bond for stay pending appeal on August 20, 1984. This Court has held specifically that a timely appeal bond with adequate recital therein satisfies the notice of appeal requirement. O’Neal v. United States, 272 F. 2d 412, 413 (5th Cir.1959). Thus, treating the bond as a notice of appeal, the notice of appeal was timely.
A record excerpt filed with this Court January 7,1985 supports defendants’ claim that only amount and not entitlement was covered by the attorney’s fee consent judgment. The consent judgment therefore does not preclude appeal.
Plaintiff-appellee’s motions to dismiss are DENIED.
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Stansell v. Revolutionary Armed Forces OF Colombia, 771 F.3d 713 (11th Cir. 2014)…istrict court’s denial of that motion. In addition, the appellants here filed amended notices of appeal after the district court disposed of the Rule 59(e) motion giving us jurisdiction to consider the appeal of the denial. See Stallworth v. Shuler, 758 F. 2d 1409, 1410 (11th Cir.1985) (per curiam). The appellants here first claim that their, due process rights were violated by the district court’s failure to provide them with notice and an opportunity to be heard. Notwithstanding their complaints about lack…
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Clark v. The Hous. Auth. OF the City OF Alma, 971 F.2d 723 (11th Cir. 1992)…(2) where the court lacked subject matter jurisdiction to enter the judgment). This circuit has allowed an appeal from a consent decree where the subject of appeal was outside the four corners of the consent decree itself. In Stallworth v. Shuler, 758 F. 2d 1409 (11th Cir.1985), we denied the plaintiff’s motion to dismiss holding that an appeal could lie from a consent decree for attorney’s fees entered by the district court because the record showed that only the amount and not the entitlement of fees was…
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Jackson v. Am. Sav. Mortg. Corp. & The Resolution Tr. Corp., 924 F.2d 195 (11th Cir. 1991)…motion in federal district court.) . The filing of the motion to modify or vacate should toll the appeal period, and the entry of the district court’s order would actuate the appeal period. Fed.R.Civ.P. 59; Fed.R.App.P. 4(a); Stallworth v. Shuler, 758 F. 2d 1409, 1410 (11th Cir.1985). . Appellant filed a Fed.R.Civ.P. 59-type motion in the state trial court after the grant of summary judgment (see Part II of this opinion). As our analysis in this section of the opinion indicates, the state trial court’s den…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Quillie B. Woodham v. The Am. Cystoscope Co. OF Pelham, 335 F.2d 551 (5th Cir. 1964)
- Print Carter O'Neal v. United States, 272 F.2d 412 (5th Cir. 1959)
- Dealeaner Hammond v. Pub. Fin. Corp., 568 F.2d 1362 (5th Cir. 1978)
- Bolden v. Junior Odum, 695 F.2d 549 (11th Cir. 1983)