Haas v. Bellsouth Telecom ( 1999 )

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 98-60197
Summary Calendar
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MICHAEL D. HAAS; NICHOLAS M. HAAS;
GERALDINE HAAS MATTHEWS;
J. NORTON HAAS, JR.,
Plaintiffs-Appellees,
versus
BELLSOUTH TELECOMMUNICATIONS, INC.,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Mississippi
(1:95-CV-310-G-R)
June 9, 1999
Before EMILIO M. GARZA, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
The defendant BellSouth Telecommunications, Inc. (“BellSouth”) appeals from the district
court’s judgment. The plaintiffs Michael Haas, Nicholas Haas, Geraldine Haas Matthews, and J.
Norton Haas, Jr. (“the Haases”) cross-appeal. We dismiss for lack of appellate jurisdiction.
I
This appeal arises from a property dispute. The Haases assert that BellSouth committed a
*
Pursuant to Fifth Circuit Rule 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in Fifth Circuit Rule
47.5.4.
trespass when it placed underground telephone lines on the Haases’ property. The jury returned a
verdict for the Haases, but awarded zero dollars in actual damages. As t o punitive damages, the
court directed a verdict for BellSouth. The Haases moved for a new trial, and the district court
granted a new trial on the issue of actual damages only.
Before holding a new trial, however, the district court issued a document entitled “Judgment.”
This document began: “This final and appealable judgment is entered as a result of the stipulation
reached by the parties at the Pretrial Conference preliminary to the second trial in the case.” In the
“Judgment,” the district court reaffirmed its earlier decision to grant the Haases a new trial on actual
damages. It also found that the “maximum possible actual damages” were $7,800.00. Accordingly,
it directed BellSouth to tender that amount to the court, pending the outcome of the parties’ appeal.
Apparently, the court derived the $7,800.00 maximum figure from evidence presented at the original
trial. It never held a new trial on actual damages. Finally, the court found “that the parties have
agreed to appeal and cross-appeal to the Fifth Circuit Court of Appeals” three issues. According to
the “Judgment,” BellSouth would appeal the district court’s grant of a new trial on actual damages,
and the Haases would appeal two earlier rulings: (1) the district court’s directed verdict for BellSouth
on punitive damages, and (2) the district court ’s decision not to declare a certain provision of the
Mississippi Code unconstitutional.
II
We may raise sua sponte the issue of appellate jurisdiction. See Castaneda v. Falcon, 166
F.3d 799, 801 (5th Cir. 1999). The highly irregular judgment now before us compels such an inquiry.
The parties allege that the district court’s judgment was final and therefore appealable under 28
U.S.C. § 1291. “A decision is final when it ‘ends the litigation on the merits and leaves nothing for
the court to do but execute the judgment.’” Briargrove, No. 98-20262, 1999 WL 156154 at *2
(quoting Askanase v. Livingwell, Inc., 981 F.2d 807, 810 (5th Cir. 1993)).
We find that the district court’s judgment falls short of § 1291’s finality requirement, because
it leaves unresolved the question of actual damages. See Liberty Mutual Ins. Co. v. Wetzel, 424 U.S.
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737, 744, 96 S. Ct. 1202, 1206, 47 L. Ed. 2d 435 (1976) (holding that a judgment is not final under
§ 1291 “where assessment of damages or awarding of other relief remains to be resolved”); see also
In re Morell, 880 F.2d 855, 856 (5th Cir. 1989); 15B CHARLES ALAN WRIGHT, ET AL., FEDERAL
PRACTICE AND PROCEDURE §3915.2 (2d ed. 1992) (“Determinations of liability that leave unresolved
questions of remedy ordinarily are not final.”).
However, the parties insist that the district court’s judgment resolved the issue of actual
damages. The Haases suggest that the parties “in effect stipulated” that actual damages equaled
$7,800.00. BellSouth contends that “Judgment was entered in favor of the [Haases] for $7,800.00,
and a second trial was avoided.” These assertions misconstrue the district court’s judgment. The
judgment does not state that the parties stipulated to actual damages totaling $7,800.00. Rather, the
court finds that $7,800.00 is the “maximum possible actual damages,” based apparently on the
evidence present ed at the original trial. It does not enter judgment in favor of the Haases for
$7,800.00. Nor does the district court, by its judgment, withdraw its decision to grant a new trial on
actual damages. To the contrary, the judgment reaffirms its decision to hold a new trial. A party may
not appeal an order granting a new trial until final judgment is entered. See Allied Chem. Corp. v.
Daiflon, Inc., 449 U.S. 33, 34, 101 S. Ct. 188, 190, 66 L Ed. 2d 193 (1980) (“An order granting a
new trial is interlocutory in nature and therefore not immediately appealable.”).
III
Accordingly, we DISMISS this appeal for lack of appellate jurisdiction.
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