TBG, Inc. v. Bendis

36 F.3d 916
CourtCourt of Appeals for the Tenth Circuit
DecidedSeptember 19, 1994
DocketNos. 93-3130 to 93-3132 and 93-3173
StatusPublished
Cited by45 cases

This text of 36 F.3d 916 (TBG, Inc. v. Bendis) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
TBG, Inc. v. Bendis, 36 F.3d 916 (10th Cir. 1994).

Opinions

STEPHEN H. ANDERSON, Circuit Judge.

The appellants, defendants who have not agreed to settle with TBG, Inc., challenge the district court’s order approving TBG’s settlements with three other defendants. We do not have jurisdiction to review the court’s order approving TBG’s settlement with Robert Mann and John Pappajohn, but we do review the order approving TBG’s settlement with Shook, Hardy & Bacon (“Shook”). We vacate that order because the court imper-missibly barred the nonsettling defendants’ contribution claims against the settling defendants, as well as independent claims by Bendis against Shook.

BACKGROUND

TBG acquired Continental Healthcare Systems, Inc. in 1986. In 1988, TBG sued Richard Bendis, the former president of Continental, Terrance Schreier, the former executive vice president, Robert Mann and John Pappajohn, former outside directors, Shook, Hardy & Bacon, Continental’s outside counsel, and Ernst & Whinney, Continental’s outside auditor. TBG claimed that these defendants had misrepresented Continental’s financial status when TBG acquired it, and sought relief under sections 10(b) and 20(a) of the Securities Exchange Act of 1934, 15 U.S.C. §§ 78j(b), 78t(a), and Rule 10b-5, 17 C.F.R. § 240.10b-5.

In January 1992, Mann and Pappajohn agreed to settle with TBG for $200,000 and the release of their claims for payment of their legal expenses. In September 1992, Shook also agreed to settle with TBG for a confidential sum. Bendis, Schreier, and Ernst & Whinney have not agreed to settle.

Both the Shook and the Mann and Pappa-john settlements were contingent on the district court entering an order barring all related claims against them by, the nonsettling defendants and ordering that the judgment at trial be reduced by the settlement amounts. The district court approved these agreements in a memorandum opinion dated December 30, 1992. 811 F.Supp. 596. On [920]*920January 4, 1993, the court signed separate orders approving each settlement, making the required orders, and certifying each as final and appealable under Fed.R.Civ.P. 54(b). The court entered judgment on the Shook settlement on January 5, then entered the Mann and Pappajohn judgment on January 6.

On January 11, Bendis filed a motion to reconsider the court’s “Memorandum and Order dated December 30, 1992, and its Order and Judgment dated January 4, 1993.” Appellant’s App. at 355. The court denied this motion on February 18.

The appellants did not receive a copy of the court’s order denying the motion to reconsider, and did not learn of it until April 14. On April 15, they filed a joint motion for an extension of time to file notices of appeal. The next day the court gave the appellants fourteen days to appeal, and all three nonset-tling defendants appealed both of the settlement approvals within that time.

On April 23, however, Mann and Pappa-john moved to reconsider the court’s order extending the time for appeal of the order approving their settlement with TBG. On May 4, the court granted their motion because they had already completed their settlement in reliance on the passage of time for appeal. The court subsequently denied for lack of jurisdiction Bendis’s motion for leave to amend his notice of appeal to include an appeal of the court’s withdrawal of this extension. Besides appealing the original orders approving the settlements, Bendis also appeals the court’s order rescinding the extension of time to appeal and the court’s order denying leave to file an amended notice of appeal. The other appellants did not appeal the court’s refusal to extend the time for appealing the approval of the Mann and Pap-pajohn settlement.

DISCUSSION

I. Jurisdiction

Bendis did not appeal the district court’s approval of the Mann and Pappajohn settlement within the thirty days permitted by Fed.R.App.P. 4(a)(1). Therefore we do not have jurisdiction over his appeal unless the court validly extended the time for appeal. See Oda v. Transcon Lines, 650 F.2d 231, 233 (10th Cir.1981) (per curiam). Ben-dis argues on appeal that his notice of appeal was effective because the court abused its discretion when it withdrew the extension of time to appeal the approval of the Mann and Pappajohn settlement. See Jones v. W.J. Servs., Inc. (In re Jones), 970 F.2d 36, 39 (5th Cir.1992) (noting that appellate court must affirm district court’s decision whether to extend time under Rule 4(a)(6) unless the court abused its discretion).

Because Bendis and the other nonsettling defendants did not receive notice of the court’s judgment denying the motion to reconsider, Rule 4(a)(6) allowed the court to extend the time for them to appeal if doing so would not prejudice any party. The district court rescinded the extension of time to appeal because it would prejudice Mann and Pappajohn. We must accept this finding of prejudice because it is not clearly wrong. See In re Marchiando, 13 F.3d 1111, 1114 (7th Cir.1994) (treating prejudice under Rule 4(a)(6) as a factual finding).

Mann and Pappajohn had already completed their settlement with TBG before Bendis asked for an extension of time to appeal. They told the district court that they had made their settlement payment relying on the passage of time for anyone to appeal the court’s approval of their settlement. Extending the time for appeal would prejudice Mann and Pappajohn if they did settle in reliance on the finality of the court’s approval. See Fed.R.App.P. 4 advisory committee’s note to 1991 amendment (“Prejudice might arise, for example, if the appellee had taken some action in reliance on the expiration of the normal time period for filing a notice of appeal.”). Even though they could get their settlement payment back if the settlement was reversed on appeal, they still would lose the settlement itself as well as some of their money’s value.

Bendis argues that Mann and Pappajohn could not have relied on the passage of time for appeal because they actually completed their settlement before the time for appeal had passed. Bendis claims that his motion to [921]*921reconsider extended the time for appeal to March 20, thirty days after the court denied the motion on February 18. Since Mann and Pappajohn completed their settlement on March 18, Bendis reasons, they could not have relied on the finality of the settlement approval.

However, Bendis’s motion to reconsider did not extend the time for appealing the court’s approval of the Mann and Pappajohn settlement. The court separately approved the two settlements in two different judgments, both of which it certified as final and appealable under Rule 54(b). As the district court later found, Bendis moved to reconsider only the approval of the Shook settlement. His motion only referred to a single “Order and Judgment dated January 4, 1993.” Appellant’s App. at 855.

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Bluebook (online)
36 F.3d 916, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tbg-inc-v-bendis-ca10-1994.