USCA11 Case: 20-14415 Date Filed: 10/15/2021 Page: 1 of 7
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-14415
Non-Argument Calendar
____________________
ESTATE OF GERALDINE F. JENNINGS,
ROBERT J. JENNINGS,
CHERYL FAZO,
KIM S. JENNINGS,
Plaintiffs-Appellants,
versus
GULFSHORE PRIVATE HOME CARE, LLC,
Defendant-Third Party Plaintiff-Appellee.
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2 Opinion of the Court 20-14415
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 2:19-cv-00072-SPC-NPM
____________________
Before JORDAN, GRANT, and BLACK, Circuit Judges.
PER CURIAM:
This Court requested that the Estate of Geraldine F.
Jennings, Robert J. Jennings, Cheryl Fazo, and Kim S. Jennings
(collectively, Jennings) and Gulfshore Private Home Care, LLC
(Gulfshore) respond to jurisdictional questions raised by Jennings’s
appeal of the district court’s November 23, 2020 judgment. We
asked them to address (1) given that the November 23, 2020 order
and judgment granting summary judgment to Gulfshore were
vacated, whether any challenge to that order and judgment was
now moot; and (2) whether the notice of appeal was effective to
appeal from the district court’s November 24, 2020 order and
judgment. Both parties filed responses, and Gulfshore
incorporated a motion to dismiss Jennings’s appeal for lack of
appellate jurisdiction.
The facts relevant to the motion to dismiss occurred over a
two-day period. On November 23, 2020, the following events
occurred: (1) the district court entered an opinion and order
granting Gulfshore’s fourth motion for summary judgment,
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20-14415 Opinion of the Court 3
dismissing Jennings’s amended complaint with prejudice, and
directing the clerk to enter judgment accordingly and to terminate
all remaining deadlines and motions; (2) the clerk entered a
document setting out the judgment pursuant to the district court’s
order; and (3) the district court then entered an endorsed order
vacating its opinion and order granting the motion for summary
judgment and stating it would “enter an amended decision under
separate cover.”
On November 24, 2020, Jennings, through counsel, filed a
notice of appeal stating Jennings was seeking an appeal “from the
judgment of this Court entered on November 23, 2020, which,
upon a motion for summary judgment, dismissed the action with
prejudice.” The district court transmitted the “initial appeal
package” to this Court as well. The same day, after the district
court had docketed and transmitted Jennings’s notice of appeal, the
district court entered a new opinion and order which granted
Gulfshore’s fourth motion for summary judgment, denied
Jennings’s discovery motions as untimely, and directed the clerk to
enter judgment accordingly. The clerk entered judgment pursuant
to the new opinion and order.
This Court will not dismiss an appeal “for informality of
form or title of the notice of appeal, or for failure to name a party
whose intent to appeal is otherwise clear,” Fed. R. App. P. 3(c)(4);
and “embraces ‘a policy of liberal construction of notices of appeal’
when (1) unnoticed claims or issues are inextricably intertwined
with noticed ones and (2) the adverse party is not prejudiced,” Hill
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4 Opinion of the Court 20-14415
v. BellSouth Telecomm., Inc.,
364 F.3d 1308, 1313 (11th Cir. 2004)
(quoting C.A. May Marine Supply Co. v. Brunswick Corp.,
649 F.2d
1049, 1056 (5th Cir.1981)). However, this case does not present the
circumstances of a notice of appeal that is merely lacking formality
or contains a simple mistake of omitting an intended party or
order, nor does this case warrant this Court exercising liberal
construction of the notice of appeal because (1) Jennings is not
proceeding pro se and the notice of appeal was filed by Jennings’s
counsel; (2) the notice of appeal clearly and unambiguously states
it is seeking an appeal from the judgment entered on November
23, 2020; and (3) the notice of appeal was filed before the existence
of the November 24, 2020 final order and judgment, so there was
no possibility that the wrong judgment date was entered by
mistake.
Jennings’s counseled notice of appeal sought to appeal the
judgment from an already vacated final order. The district court
vacated only the November 23 opinion and order granting
summary judgment but did not vacate the November 23 clerk-
entered judgment. Jennings asserts that because the district court
vacated only the opinion and order, but not the judgment, his
notice of appeal deprived the district court of jurisdiction to enter
the November 24 opinion and order and judgment. The flaw in
this argument is that the November 23 judgment was dependent
on the November 23 opinion and order granting Gulfshore’s
motion for summary judgment. Without the November 23
opinion and order, there is no final order disposing of the case and
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20-14415 Opinion of the Court 5
no final judgment and nothing to appeal.
28 U.S.C. § 1291; see also
Barfield v. Brierton,
883 F.2d 923, 931 (11th Cir. 1989) (explaining
this court usually cannot hear appeals from non-final orders).
Jennings’s notice of appeal of a non-appealable order did not divest
the district court of jurisdiction to enter the November 24 order
and judgment. United States v. Hitchmon,
602 F.2d 689, 694 (5th
Cir. 1979) (en banc), 1 superseded by statue on other grounds as
recognized by United States v. Martinez,
763 F.2d 1297, 1308 &
n.11 (11th Cir. 1985) (holding that filing a notice of appeal from a
non-appealable order does not divest the district court of
jurisdiction).
We conclude that by the time the notice of appeal was filed,
the November 23 judgment was null and void because the
November 23 opinion and order, upon which the judgment was
entered, was vacated by the district court. See United States v.
Ayres,
76 U.S. 608, 610 (1869) (holding an order granting a new trial
had the effect of vacating the former judgment and rendering it null
and void, leaving the parties in the same situation as if no trial had
ever taken place). Because the November 23 opinion and order
was vacated, there is no live controversy with respect to which this
Court may grant meaningful relief and Jennings is no longer
aggrieved by the November 23 final order and judgment.
Jennings’s challenge of the vacated order and judgment is moot.
1 In Bonner v. City of Prichard,
661 F.2d 1206, 1209 (11th Cir. 1981) (en banc),
this Court adopted as binding precedent all decisions of the former Fifth
Circuit handed down prior to close of business on September 30, 1981.
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6 Opinion of the Court 20-14415
See Christian Coal. of Fla., Inc. v. United States,
662 F.3d 1182, 1189
(11th Cir. 2011) (stating an “issue is moot when it no longer
presents a live controversy with respect to which the court can give
meaningful relief”); Wolff v. Cash 4 Titles,
351 F.3d 1348, 1353-54
(11th Cir. 2003) (explaining a party to the lawsuit must be aggrieved
by the judgment or order to sustain an appeal); see also Fort Knox
Music, Inc. v. Baptiste,
257 F.3d 108, 110 (2d Cir. 2001) (stating
because a vacated judgment has no effect, a party can no longer be
aggrieved by that judgment and an appeal from the vacated
judgment is moot).
Further, Jennings’s counseled notice of appeal is invalid to
appeal from the November 24 final judgment because it was filed
and entered on the docket before the existence of the November
24 final order and judgment. See Bogle v. Orange Cty. Bd. of Cty.
Comm’rs,
162 F.3d 653, 661 (11th Cir. 1998) (stating under Federal
Rule of Appellate Procedure 3(c), a notice of appeal must designate
an existent judgment or order, not one that is merely expected or
within the appellant’s contemplation when the notice of appeal is
filed). Moreover, the notice of appeal is invalid to challenge the
November 24 final order and judgment because it specifically
designated that it was seeking an appeal from the final judgment
entered on November 23 which, as discussed above, was vacated.
See Fed. R. App. P. 3(c)(1)(B) (providing a notice of appeal “must .
. . designate the judgment, order, or part thereof being appealed”);
Osterneck v. E.T. Barwick Indus., Inc.,
825 F.2d 1521, 1528 (11th
Cir. 1987) (explaining that ordinarily, the failure to abide by the
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20-14415 Opinion of the Court 7
requirement a notice of appeal “designate the judgment, order or
part thereof appealed from” will preclude the appellate court from
reviewing any judgment or order not so specified).
Nor was the district court’s vacating of the November 23
order a sua sponte reconsideration under Federal Rule of Civil
Procedure 59(e), making the notice of appeal effective when the
district court entered the November 24 final order. Jennings did
not file a notice of appeal from an order or judgment which was
still valid and was later revisited and vacated or amended by the
district court, but instead filed a notice of appeal from an order and
judgment that had already been vacated. Even if we considered
the district court’s actions to constitute a sua sponte
reconsideration pursuant to Rule 59(e), Jennings was required to
file a new or amended notice of appeal to challenge the November
24 order which resolved the sua sponte Rule 59(e) reconsideration.
See Fed. R. App. 4(a)(4)(B)(ii); Weatherly v. Alabama State Univ.,
728 F.3d 1263, 1271 (11th Cir. 2013) (stating to seek appellate
review of an order entered after the notice of appeal was filed
disposing of a tolling motion, the appealing party is required to file
a separate notice of appeal or amend its original notice to designate
the order on the motion as subject to appeal).
Accordingly, we GRANT Gulfshore’s motion to dismiss
Jennings’s appeal for lack of appellate jurisdiction and this appeal is
hereby DISMISSED.
