Jones v. Colonial Life ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JIMMY JONES,
Plaintiff-Appellant,
v.
No. 96-2114
COLONIAL LIFE & ACCIDENT
INSURANCE COMPANY,
Defendant-Appellee.
JIMMY JONES,
Plaintiff-Appellee,
v.
No. 96-2118
COLONIAL LIFE & ACCIDENT
INSURANCE COMPANY,
Defendant-Appellant.
Appeals from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Malcolm J. Howard, District Judge.
(CA-95-361-5-H)
Argued: June 2, 1997
Decided: July 3, 1997
Before WIDENER, WILLIAMS, and MICHAEL, Circuit Judges.
_________________________________________________________________
Dismissed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: William D. McNaull, Jr., Charlotte, North Carolina, for
Appellant. John Lester Sarratt, KILPATRICK STOCKTON, L.L.P.,
Raleigh, North Carolina, for Appellee. ON BRIEF: Karen F. Gray,
KILPATRICK STOCKTON, L.L.P., Raleigh, North Carolina, for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Jimmy Jones began selling insurance for Colonial Life & Accident
Insurance Company (Colonial Life) in 1962. Eventually, Jones
entered into a formal Marketing Director Agreement (the Agreement)
with Colonial Life. Among other things, the Agreement required
Jones to recruit, train, and motivate new independent agents to
sell
Colonial Life insurance. As compensation, Jones received a commis-
sion on all premiums received by Colonial Life on policies sold by
the agents under him, and a commission on each of these policies
that
was renewed. The Agreement provided that, if it were terminated,
Jones would no longer receive sales commissions. 1 Nevertheless,
Jones was entitled to the renewal commissions for the remainder of
his life or 20 years, whichever was longer, provided he did not
com-
pete with Colonial Life in the future (Forfeiture Clause). 2
On January 2, 1995, Colonial Life terminated the Agreement.
_________________________________________________________________
1 Under the Agreement, Jones could be terminated only for cause.
2 The Agreement also contained a covenant not to compete (Non-
Compete Clause), wherein Jones was prevented from competing with
Colonial Life for a period of two years after termination of the
Agree-
ment.
2
Shortly thereafter, Jones instituted this action.3 In his
complaint, Jones
alleged that Colonial Life breached the Agreement (Count I), and
engaged in unfair or deceptive acts or practices (Count II). In
addi-
tion, Jones sought a release from the Forfeiture and Non-Compete
Clauses of the Agreement.
Prior to trial, the district court dismissed Count II pursuant to
Rule
12(b)(6) of the Federal Rules of Civil Procedure. On May 17, 1996,
the jury returned a verdict that Colonial Life had breached the
Agree-
ment but did not award any damages to Jones. The district court
entered a judgment for Jones in accordance with the jury's verdict,
and denied Jones's motion for a new trial on the issue of damages
and
Colonial Life's motion for judgment as a matter of law on the issue
of breach of contract. Jones filed his notice of appeal on July 31,
1996
and Colonial Life filed a notice of cross-appeal on August 6, 1996.
With limited exceptions not relevant here, we are empowered to
review only final decisions of the district courts. See 28 U.S.C.A.
§ 1291 (West 1993). A decision "is final when it terminates the
litiga-
tion between the parties on the merits of the case, and leaves
nothing
to be done but to enforce what has been determined." Major v.
Ortho-
pedic Equipment Co., 561 F.2d 1112, 1115 (4th Cir. 1977). Here, the
district court has not disposed of Jones's request for declaratory
relief.4
As such, this is not a final order which may be appealed under 28
U.S.C.A. § 1291. We therefore are without jurisdiction to hear the
appeal and accordingly dismiss it.
DISMISSED
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3 Jones filed suit against Colonial Life on March 20, 1995, in the
Wake
County Superior Court. Colonial Life removed this case to the
Eastern
District of North Carolina based upon diversity of citizenship.
4 Colonial Life argues that Jones abandoned his claim for
declaratory
relief and that the district court's decision was, therefore, an
appealable
final order. See, e.g., National Ass'n of Gov't Employees v. City
Pub.
Serv. Bd., 40 F.3d 698, 705-07 (5th Cir. 1994) (holding that the
omission
from the judgment of an abandoned claim did not prevent the
judgment
from being final). Based on the record before us, we believe it
best to
allow the district court to decide whether Jones abandoned his
claim for
declaratory relief.
3