Garcia v. Wash

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 16, 1994
• Docket: 93-08071
• Status: Published

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 93-8071 _____________________

ABELIA GARCIA, individually and as the guardian for her brain damaged son Herman Garcia and as the next friend for the minor children of Herman Garcia, St., Marcos Garcia and Herman Garcia, Jr.,

Plaintiffs-Appellants,

v.

MICHAEL A. WASH, Attorney, JACK PARKER, of Nationswide Insurance Company, JONATHON CLUCK, Attorney and Agent for Jack Parker and Nationwide Insurance Company, and NATION-WIDE MUTUAL INSURANCE COMPANY, a/k/a Nationwide Insurance Company,

Defendants-Appellees, Cross-Appellants,

and

PAUL DAVIS, Judge of the 200th Judicial District,

Defendant-Appellee. _________________________________________________________________

Appeals from the United States District Court for the Western District of Texas _________________________________________________________________ (April 27, 1994)

Before KING and SMITH, Circuit Judges, and KAZEN*, District Judge:

PER CURIAM:**

* District Judge of the Southern District of Texas, sitting by designation. ** Pursuant to Local Rule 47.5, the court has determined that the non-precedential portions of this opinion should not be Of the numerous issues raised by the appellants on appeal,

only one has precedential value.

Plaintiff-Appellant Abelia Garcia, individually and as the

guardian for her brain damaged son Herman Garcia and as the next

friend for the minor children of Herman Garcia, Sr., Marcos

Garcia and Herman Garcia, Jr., brings this appeal from a judgment

rendered dismissing the plaintiffs' federal claims with prejudice

and dismissing their pendent state law claims without prejudice.

The Garcias' attorney, Erik C. Moebius ("Moebius"), appeals from

the district court's award of sanctions against him for

violations of Federal Rule of Civil Procedure 11 in the amount of

$57,673.95.

* * *

I. Sanctions Against Moebius

Several of the defendants assert that we do not have

jurisdiction to entertain an appeal from the sanctions imposed

upon Moebius because he was not formally named as a party in any

of the notices of appeal. See Torres v. Oakland Scavenger Co.,

487 U.S. 312, 318 (1988) (holding that the failure to name a

party in a notice of appeal constitutes a fatal defect in that it

fails to confer jurisdiction over that party upon the court of

appeals); May v. Houston Post Pension Plan, 898 F.2d 1068, 1070-

71 (5th Cir. 1990) (Since notice of appeal did not name

published. See also United States v. Wesley, 748 F.2d 962, 963 (5th Cir. 1984).

The places at which the published opinion omits parts of the lengthy unpublished opinion are indicated by asterisks.

2 appellant's attorney as an appealing party, court of appeals did

not have jurisdiction to review award of sanctions against that

attorney). We note, however, that the Federal Rules of Appellate

Procedure -- specifically Rule 3(c) upon which the court in

Torres relied -- have recently been amended. The language of,

and advisory comments to, the amendments to Rule 3(c) indicate

that their aim was to overrule Torres and its progeny. See FED.

R. APP. P. 3(c) ("An appeal will not be dismissed . . . for

failure to name a party whose intent to appeal is otherwise clear

from the notice."); see also Report of the Advisory Committee on

the Federal Rules of Appellate Procedure (September 1992),

reprinted in 147 F.R.D. 287, 335 (recognizing the throng of

litigation following Torres and reciting that the new rule was

designed "to prevent the loss of a right to appeal through

inadvertent omission of a party's name . . . .").

Although the notices of appeal in this case were all filed

prior to the December 1, 1993, effective date of the amendments,

we have recently held that the amendments to Federal Rule of

Appellate Procedure 4(a)(4) are to be given retroactive effect.

See Burt v. Ware, 14 F.3d 256, 260 (5th Cir. 1994). Highly

relevant to our decision in Burt v. Ware to apply the rule

retroactively was the fact that the amendments to Rule 4(a)(4)

were designed to remedy the exact procedural default problem

presented. Id.; see also Skoczylas v. Federal Bureau of Prisons,

961 F.2d 543, 545-46 (5th Cir. 1992). Similarly, Rule 3(c) was

amended to prevent the loss of appellate rights where, as here,

3 an intended party to an appeal fails to be named specifically.

Moreover, the order from the Supreme Court adopting the amended

rules provides "[t]hat the foregoing amendments . . . shall

govern all proceedings in appellate cases . . . commenced [after

the effective date of the amendments] and, insofar as just and

practicable, all proceedings in appellate cases then pending."

61 U.S.L.W. 4395 (U.S. Apr. 27, 1993) (emphasis added). We hold

that it is "just and practicable" to apply the amendments to Rule

3(c) retroactively. See, e.g., Hoeffler v. Tahoe, 1994 WL 28354

at **2 (9th Cir. Jan. 31, 1994) (unpublished opinion) (allowing

an attorney to appeal from a sanctions order entered against him

even though he was not named as a party by retroactive

application of amended Rule 3(c)). But cf. Brooks v. Celeste, 16

F.3d 104, 108 (6th Cir. 1994) (declining to address the

applicability of amended rule 3(c) because the amendments were

not in effect at the time the notice of appeal was filed nor when

the case was submitted for decision).

Applying the amended Rule 3(c) in this case, we find that

Moebius has sufficiently evidenced his intent to appeal the

sanctions order against him within the four corners of at least

one of the notices of appeal in this case. In two of the several

notices of appeal filed by Moebius, he specifically notices this

court -- as well as the other parties -- of his intent to appeal

both the final judgment (in which sanctions were assessed against

him individually) and the district court's "refusal to stay the

execution of the $60,000 sanction against [the Garcias']

4 attorney, Erik Moebius." We find that these references are

sufficiently clear to show Moebius' intent to appeal the sanction

order and thus to confer jurisdiction over that asserted error.

See FED. R. APP. P. 3(c) comments, reprinted in 147 F.R.D. at 335-

36 ("The test established by the rule for determining whether [a]

designation[] [is] sufficient is whether it is objectively clear

that a party intended to appeal."). Thus we conclude that we

have jurisdiction over Moebius' challenge to the sanctions order.

For the reasons discussed in the unpublished opinion, we

affirm the judgment of the district court.

AFFIRMED.