The Estate of Noel Robbins, USN (Ret.) v. James Clayton Runyon

• Court: Court of Appeals for the Eleventh Circuit
• Decided: July 13, 2018
• Docket: 17-11064
• Status: Unpublished

Opinion

Case: 17-11064 Date Filed: 07/13/2018 Page: 1 of 5

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-11064 Non-Argument Calendar ________________________

D.C. Docket No. 8:15-cv-02832-EAK-JSS

THE ESTATE OF LCDR NOEL ROBBINS, USN (RET.), Via Personal Representative, Carrole Ward,

Plaintiff-Appellant,

versus

JAMES CLAYTON RUNYON, Esquire, KAREN LYNN HICKS,

Defendants-Appellees.

________________________

Appeal from the United States District Court for the Middle District of Florida ________________________

(July 13, 2018)

Before MARCUS, ROSENBAUM, and EDMONDSON, Circuit Judges. Case: 17-11064 Date Filed: 07/13/2018 Page: 2 of 5

PER CURIAM:

Carrole Ward, proceeding pro se and acting as the personal representative on

behalf of the estate of her late husband, Noel Robbins (“Estate”), appeals the

district court’s dismissal of this civil action. We dismiss the appeal for lack of

jurisdiction.

Briefly stated, this case arises from the contentious divorce proceedings

between Robbins and his ex-wife, Defendant Karen Hicks. The 12-count

complaint alleges that Hicks and her divorce lawyer, Defendant James Runyon,

committed fraud on the state court. The complaint also seeks to void various state

court orders entered during the divorce proceedings and during the administration

of Robbins’s estate.

The magistrate judge determined that Ward, as a non-lawyer, was not

permitted to proceed pro se on behalf of the Estate and that the complaint was thus

subject to dismissal under Fed. R. Civ. P. 12(b)(6). The district court entered an

order directing the Estate to retain counsel, noting that failure to do so would result

in dismissal of the case without further notice.

Ward sought to appeal the district court’s order. This Court dismissed sua

sponte Ward’s appeal for lack of jurisdiction, concluding that no final and

appealable order existed. Ward then moved the district court to enter a “Final

2 Case: 17-11064 Date Filed: 07/13/2018 Page: 3 of 5

Order of Dismissal for Failure to Retain Counsel.” On 16 February 2017, the

district court granted Ward’s motion and dismissed the case. Ward now appeals

from the district court’s 16 February order.

Before reaching the merits, we must first determine whether we have

jurisdiction to consider this appeal. Adams v. Monumental Gen. Cas. Co., 541

F.3d 1276, 1277 (11th Cir. 2008). We review de novo jurisdictional issues. Id.

We are uncertain whether the district court’s 16 February order dismissed

the case with or without prejudice. The order says the case is dismissed

“[p]ursuant to the Motion for Final Order of Dismissal” and “at the Plaintiff’s

request.” The order imposes no conditions of dismissal. To the extent the district

court’s order can be read as having dismissed the case voluntarily without

prejudice, it is no appealable final order over which we have jurisdiction. See

Versa Prods. v. Home Depot USA, Inc., 387 F.3d 1325, 1327 (11th Cir. 2004)

(“Ordinarily a plaintiff cannot appeal an order granting a voluntary dismissal

without prejudice under Rule 41(a)(2)” because the dismissal “does not qualify as

an involuntary adverse judgment so far as the plaintiff is concerned.”); Trujillo v.

Banco Cent. Del Ecuador, 379 F.3d 1298, 1301 (11th Cir. 2004) (same).

To the extent the district court’s order can be construed as a dismissal with

prejudice, we must determine whether the appeal satisfies the constitutional

requirements for federal court jurisdiction. See OFS Fitel, LLC v. Epstein, 549

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F.3d 1344, 1356 (11th Cir. 2008). To satisfy Article III’s “case or controversy”

requirement, an appellant must be adverse to the final judgment challenged on

appeal. Druhan v. Am. Mut. Life, 166 F.3d 1324, 1326 (11th Cir. 1999).

Generally speaking, when a final order of dismissal with prejudice is entered

at the plaintiff’s request, the required level of adverseness is lacking and the

judgment is not appealable. See id.; Woodard v. STP Corp., 170 F.3d 1043, 1044

(11th Cir. 1999). We have recognized an exception to this general rule, however,

when a plaintiff moves for voluntary dismissal with prejudice based on the

issuance of an adverse non-final order that is both “undisputedly case-dispositive”

and one that the plaintiff opposed on the merits. OFS Fitel, LLC, 549 F.3d at

1357-58. Under those circumstances, the plaintiff is sufficiently adverse to the

final judgment to satisfy our constitutional jurisdictional requirements. Id.

Here, Ward seeks to appeal from a final order of dismissal entered on her

own motion: an order that is typically not appealable. See Druhan, 166 F.3d at

1326; Woodard, 170 F.3d at 1044. In addition -- unlike the order at issue in OFS

Fitel -- the adverse non-final order central to this appeal was not “undisputedly

case-dispositive.” Although the district court warned that the Estate’s complaint

would be subject to dismissal if the Estate failed to retain counsel, that ruling had

no bearing on the merits of the claims asserted in the complaint. Cf. OTS Fitel,

LLC, 549 F.3d at 1357 (determining that the district court’s sanctions order

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“excluding plaintiff’s legal expert was case-dispositive because it foreclosed

[plaintiff] from presenting the expert testimony required to prove professional

negligence, which was a core element in all of its claims.”). Nothing in the district

court’s ruling would have legally precluded the Estate from continuing to assert its

claims -- through counsel -- in this litigation or by re-filing the complaint at a later

date.

The appeal is dismissed for lack of jurisdiction.

DISMISSED.