Stichting Mayflower v. Newpark Resources, 10th Cir. (2001)

F I L E D
UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT
United States Court of Appeals

Tenth Circuit
MAY 30 2001
PATRICK FISHER
Clerk
STICHTING MAYFLOWER
RECREATIONAL FONDS;
STICHTING MAYFLOWER
MOUNTAIN FONDS,
Plaintiffs-Appellants,
v.
No. 00-4097
(D.C. No. 85-CV-176)
(D. Utah)
NEWPARK RESOURCES, INC.;

CONSOLIDATED MAYFLOWER
MINES, INC.; B.F.C. OIL
COMPANY,
Defendants-Appellees.
ORDER AND JUDGMENT
Before SEYMOUR , BRORBY , and BRISCOE , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties request for a decision on the briefs without oral
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
Plaintiffs appeal the district courts award of attorney fees against
defendant Consolidated Mayflower Mines, Inc. (CMMI), arguing that the court
erred in not including certain interest in the award. This case has a rather
protracted history. On June 29, 1992, following an appeal and remand, the
district court entered a judgment that, among other things, awarded plaintiffs
attorney fees in the amount of $219,317.55 against all defendants. The judgment
provided that it would bear interest at the legal rate. Thereafter, defendants filed
a motion for relief from judgment pursuant to Fed. R. Civ. P. 60(a) and (b). On
January 22, 1993, the district court entered an order acknowledging that the June
1992 judgment contained several clerical mistakes that were inconsistent with
earlier rulings of the court.
Accordingly, the court entered an amended judgment
providing in pertinent part that only defendant CMMI was liable to plaintiffs for
attorney fees and that the amount would be specified by future order, but would
not exceed $219,317.55. This judgment also provided that it would bear interest
at the legal rate.
Although this order was entered on January 22, the parties and district court
sometimes referred to it as the order of January 21, the date on which it was
signed.
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On September 25, 1997, the district court entered an order setting the
amount of fees due from CMMI at $170,268.40. The order did not mention the
accrual of any interest, and no accompanying judgment was entered on a separate
document. Several days later, plaintiffs counsel sent a letter to the district court
in which he stated in pertinent part: I was gratified to receive the Courts Order
entered September 25, 1997, resolving the award of attorneys fees in this matter,
but note that the Order neglects to carry forward the provision of the Courts
Order of January 21, 1993 for interest on the award. Appellants App., Ex. 6.
The court responded by letter of October 8, 1997, in which it stated:

The court received your letter of October 3, 1997 in which you ask
for an award of interest from January 21, 1993 on your attorney fee
award. The courts Order of September 25, 1997 did not address that
issue because it was not raised by the parties in their most recent
memoranda and the court believed an award of attorney fees in the
amount of $170,268.40 was fair and reasonable, without adding
interest.
Our review of the record in this case was hindered by plaintiffs failure to
consecutively paginate their appendix and to include in it an index of documents
with page numbers, as required by 10th Cir. R. 30.1(C)(3). We also note that the
appendix does not comply with 10th Cir. R. 30(C)(1), which requires that copies
of documents show the district courts file stamp. In addition, defendants state in
their appellate brief that plaintiffs failed to comply with Fed. R. App. 30(b)(1),
which requires the parties to try to agree on the contents of the appendix, and if
they cannot, for the appellant to serve on the appellee a designation of the parts of
the record that the appellant intends to include in the appendix. We admonish
plaintiffs counsel for his failure to follow the rules and remind him of his
continuing duty to do so.
-3-
Id. , Ex. 7. Plaintiffs did not respond to the courts letter or otherwise attempt to
pursue their request for interest.
In April 1999, plaintiffs counsel sent the district court a letter enclosing a
proposed order concerning the method in which the attorney fees would be paid.
The proposed order stated that all defendants were liable for the fees, and it
provided that defendants would be given credit against the amount owed upon
payment of sums being held in connection with another lawsuit and upon
execution of a deed to certain property. Defendants then retained new counsel,
who entered an appearance in October 1999 and filed an objection to the proposed
order. On April 25, 2000, the district court entered a Ruling in which it stated
that plaintiffs proposed order was both inappropriate and unnecessary, and that
the Amended Judgment, signed January 21, 1993 (Docket #153), and the Order,
signed September 24, 1997 (Docket #173), dispose of the issue of attorney fees
and the case. Appellees Suppl. App. at 53. Plaintiffs filed the current appeal
on May 23, 2000.
As an initial matter, we must determine whether we have jurisdiction over
this appeal. Defendants have moved to dismiss the appeal, arguing that the
district court entered its final order adjudicating attorney fees in September 1997,
and plaintiffs did not file a timely notice of appeal from that order. A close
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reading of the federal rules of both appellate and civil procedure, however,
demonstrates that plaintiffs appeal is timely.
Pursuant to Fed. R. App. p. 4(a), the notice of appeal in a civil case in
which the federal government is not a party must be filed within thirty days after
entry of the judgment or order from which the appeal is taken. A judgment or
order is entered for purposes of this Rule 4(a) when it is entered in compliance
with Rules 58 and 79(a) of the Federal Rules of Civil Procedure.
Fed. R. App. P. 4(a)(7). Rule 58, in turn, provides that [e]very judgment shall be
set forth on a separate document and that [a] judgment is effective only when so
set forth and when entered as provided in Rule 79(a).
We have held that, because motions for attorney fees are separate from
and collateral to any decision on the merits, they should be accorded the same
dignity under Rule 58 as judgments on the merits. Just as a judgment on the
merits must always be accompanied by a separate document, so should a district
courts order denying or granting a motion for fees.
DeBoard v. Sunshine
Mining & Ref. Co. , 208 F.3d 1228, 1237 (10th Cir. 2000). The district courts
order of September 1997 was not accompanied by a separate document
constituting the Rule 58 judgment, and the order itself could not qualify as the
Rule 58 judgment, because it contained a discussion of the courts reasoning and
legal analysis.
See Clough v. Rush , 959 F.2d 182, 185 (10th Cir. 1992).
-5-
While the parties may waive the separate document requirement in certain
circumstances, id. at 185, [t]he separate document rule should be interpreted to
prevent loss of the right to appeal. As a consequence, waiver may not be used to
defeat jurisdiction,
id. at 186 (quotation and citation omitted). Absent entry of
judgment on a separate document, the appeal clock on the courts September 1997
fee order did not begin to run. Therefore, we accept jurisdiction over plaintiffs
appeal and proceed to the merits.
See generally, Bankers Trust Co. v. Mallis
435 U.S. 381, 385 (1978).

In their six-page opening brief, plaintiffs argue that the district court erred
in not awarding them interest on their attorney fees from the date the fees were
incurred or, at the least, from the date of the courts first judgment awarding fees,
which was June 29, 1992. Although plaintiffs purport to ask only for
postjudgment interest, an award of interest back to the date the fees were incurred
would constitute an award of prejudgment interest.
Prejudgment interest and postjudgment interest vary in significant respects.
Postjudgment interest is mandatory under 28 U.S.C. 1961. Its purpose is to
compensate the successful plaintiff for being deprived of compensation for the
loss from the time between the ascertainment of the damages and the payment by
defendant. Kaiser Aluminum & Chem. Corp. v. Bonjorno
, 494 U.S. 827, 835-36
(1990) (quotation omitted). We review a district courts award of postjudgment

-6-
interest de novo.
Utah v. Babbitt , 53 F.3d 1145, 1148 (10th Cir. 1995).
Prejudgment interest, on the other hand, is not mandatory.
Greene v. Safeway
Stores, Inc. , 210 F.3d 1237, 1247 (10th Cir. 2000). Its purpose is to compensate
the wronged party for being deprived of the monetary value of his loss from the
time of the loss to the payment of the judgment.
Id. (quotation omitted). We
review a district courts award of prejudgment interest for an abuse of discretion.

Id.
Beyond its failure to differentiate between pre- and post-judgment interest,
plaintiffs brief is otherwise inadequate to obtain appellate relief. The brief not
only fails to state where in the record the issues were raised and ruled on, in
violation of 10th Cir. R. 28.2(C)(2), but it also fails to recite the appropriate
standard of review, in violation of Fed. R. App. P. 28 (a)(9)(B), and it cites no
authority for plaintiffs arguments other than 28 U.S.C. 1961, in violation of
Fed. R. App. P. 28(a)(9)(A).
We require appellants to tell us where in the record an issue was raised and
ruled on, because we require that an issue be presented to, considered [and]
decided by the trial court before we will review it on appeal,
Lyons v. Jefferson
Once again, we admonish plaintiffs counsel for his failure to follow the
rules and remind him of his continuing duty to comply with the rules of appellate
procedure and the local rules of this court. Counsel is advised that future
violations may result in the imposition of sanctions.
3
-7-
Bank & Trust , 994 F.2d 716, 721 (10th Cir. 1993) (quotation omitted; alteration in
original). [V]ague, arguable references to [a] point in the district court
proceedings do not . . . preserve the issue on appeal.
Id. (quotation omitted;
alteration in original). Similarly, we have held that where an issue is raised but
not pursued in the trial court, it cannot be the basis for the appeal.
Id. at 722.
Defendants contend that plaintiffs did not adequately raise to the district
court the issue of whether interest should be awarded back to either the date the
fees were incurred or the courts judgment of June 16, 1992. Defendants are
certainly correct with respect to plaintiffs request for prejudgment interest.
Nothing in the record before us indicates that plaintiffs ever raised the issue of
prejudgment interest to the district court. Therefore, plaintiffs have not properly
preserved this issue for appellate review. Nor have plaintiffs properly presented
this issue for appellate review. Their appellate briefs provide no analysis and cite
no authority to support their request for prejudgment interest. This court will not
consider an argument that is not properly presented for appellate review.
E.g.,
United States v. Edwards , 69 F.3d 419, 430 (10th Cir. 1995).

Plaintiffs request for interest back to the date of the courts first award of
attorney fees could be construed as a request for postjudgment interest.
Wheeler v. John Deere Co. , 935 F.2d 1090, 1097 (10th Cir. 1991) (
See, e.g.,
Wheeler II )
(discussing when postjudgment interest will accrue if first judgment was

-8-
reversed); Wheeler v. John Deere Co. , 986 F.2d 413, 415-16 (10th Cir. 1993)
(Wheeler III ) (discussing when postjudgment interest will accrue if initial
quantified judgment was decreased). Although plaintiffs did make a general
request for postjudgment interest in their letter to the court of October 3, 1997,
we agree with defendants that they did not adequately preserve their present
request for postjudgment interest dating back to June 29, 1992.
Even if we assume that a letter from counsel to the court is sufficient to
preserve an issue for appeal, counsels letter here did not put the court or
defendants on notice that plaintiffs were requesting postjudgment interest from
June 29, 1992, much less provide any legal analysis to support such a request.
Thus, the issue of ordering postjudgment interest back to June 29, 1992 was not
adequately preserved for appellate review. Likewise, the issue was not
adequately presented for appellate review. Plaintiffs appellate briefs provide no
analysis and cite no authority in support of their contention that the district court
erred in not awarding postjudgment interest back to the date of its first judgment.
Therefore, we will not consider whether the district court erred when it failed to
Counsel for all parties should note the requirements of Federal Rule of
Civil Procedure 7(b)(1): An application to the court for an order shall be by
motion which, unless made during a hearing or trial, shall be made in writing,
shall state with particularity the grounds therefor, and shall set forth the relief or
order sought. A motion filed with the court, rather than a letter sent to the court,
is the appropriate means of seeking relief.
-9-
order that postjudgment interest begin to accrue on the attorney fee award as of
June 29, 1992.
Defendants motion to dismiss and their related motion for damages are
DENIED, and the judgment of the district court is AFFIRMED.
Entered for the Court
Wade Brorby
Circuit Judge
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F I L E D

UNITED STATES COURT OF APPEALS

United States Court of Appeals

NEWPARK RESOURCES, INC.;

Before SEYMOUR , BRORBY , and BRISCOE , Circuit Judges.

Accordingly, the court entered an amended judgment

The court responded by letter of October 8, 1997, in which it stated:

id. at 186 (quotation and citation omitted). Absent entry of

See generally, Bankers Trust Co. v. Mallis

435 U.S. 381, 385 (1978).

, 494 U.S. 827, 835-36

(1990) (quotation omitted). We review a district courts award of postjudgment

Utah v. Babbitt , 53 F.3d 1145, 1148 (10th Cir. 1995).

Prejudgment interest, on the other hand, is not mandatory.

Id. (quotation omitted). We

review a district courts award of prejudgment interest for an abuse of discretion.

Id. (quotation omitted;

United States v. Edwards , 69 F.3d 419, 430 (10th Cir. 1995).

(discussing when postjudgment interest will accrue if first judgment was

Entered for the Court

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