Ralph Robinson v. Sherman Financial Group, LLC , 611 F. App'x 300 ( 2015 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0336n.06
No. 14-5334
FILED
UNITED STATES COURT OF APPEALS May 07, 2015
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
RALPH ROBINSON, )
)
Plaintiff-Appellee, )
)
v. )
)
SHERMAN FINANCIAL GROUP, LLC )
ON APPEAL FROM THE
)
UNITED STATES DISTRICT
Defendant, )
COURT FOR THE EASTERN
)
DISTRICT OF TENNESSEE
and )
)
HOSTO & BUCHAN, )
)
Defendant-Appellant. )
Before: KETHLEDGE and WHITE, Circuit Judges; LUDINGTON, District Judge.*
LUDINGTON, District Judge. After a two-day trial, a jury determined that Defendant-
Appellant Hosto & Buchan, PLLC (“Hosto”) had violated the Fair Debt Collection Practices Act,
15 U.S.C. §§ 1692–1692p (“FDCPA”), and awarded Plaintiff-Appellee Ralph Robinson
$1,000.00 in statutory damages. Hosto appealed, contending the district court erred in admitting
certain pieces of unauthenticated hearsay evidence. Because Hosto’s appeal is untimely,
however, the appeal must be dismissed.
*
The Honorable Thomas L. Ludington, United States District Judge for the Eastern District of
Michigan, sitting by designation.
No. 14-5334
Ralph Robinson v. Hosto & Buchan
I.
On January 23, 2012, Robinson sued five defendants—Hosto, Sherman Financial Group,
LLC; LVNV Funding LLC; Resurgent Capital Services L.P.; and R. Scott Batson—for
violations of the FDCPA. A two-day trial began on November 18, 2013, and the jury returned a
verdict finding that only Hosto had violated the FDCPA. Verdict, PageID 1087. The jury
awarded $1,000.00 in statutory damages to Robinson for Hosto’s violation. Id., PageID 1088.
Hosto then filed a Brief in Support of a Directed Verdict1 (which renewed its oral motion
for judgment as a matter of law), which the district court denied on February 5, 2014. Order on
Directed Verdict, PageID 1144-45. That same day, the district court entered judgment on a
prepared form, stating that “[t]he court has ordered that the plaintiff Ralph Robinson recover
from the defendant LVNV Funding, LLC. et al. the amount of One thousand dollars ($1,000.00)
. . . .” Id. About three weeks later, on February 26, 2014, the district court sua sponte entered an
amended judgment that stated “[t]he court has ordered that the plaintiff Ralph Robinson recover
from the defendant Hosto & Buchanan, PLLC the amount of _____________ dollars ($1,000.00)
. . . .”2 Am. J., PageID 1147. The district court did not explain why it amended the judgment.
Hosto filed a notice of appeal on March 21, 2014.
II.
Before addressing the merits of Hosto’s substantive appeal, this court must determine
whether it has jurisdiction over the appeal. Robinson contends that Hosto’s notice of appeal was
untimely, and that the appeal must be dismissed.
1
Although titled as a “Motion for Directed Verdict,” Hosto brought the motion pursuant to
Federal Rule of Civil Procedure 50, which governs motions for judgment as a matter of law.
2
The amended judgment does not include a written amount but does include a numerical amount
of $1,000.00.
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No. 14-5334
Ralph Robinson v. Hosto & Buchan
In a civil case, Federal Rule of Appellate Procedure 4(a)(1) requires an appellant to file a
notice of appeal within 30 days of the entry of the judgment or order being appealed. “The
failure of appellant to timely file a notice of appeal deprives an appellate court of jurisdiction.
Compliance with Fed. R. App. P. 4(a) is a mandatory and jurisdictional prerequisite which this
court can neither waive nor extend.” Rhoden v. Campbell, 153 F.3d 773, 774 (6th Cir. 1998)
(citing Baker v. Raulie, 879 F.2d 1396, 1398 (6th Cir. 1989) (per curiam)).
Generally, the time to appeal commences when a final decision is entered by the district
court. Fed. R. App. P. 4(a)(1)(A). An exception exists, however, where a district court
subsequently amends a final decision by incorporating material changes. Federal Trade
Commission v. Minneapolis-Honeywell Regulator Co., 344 U.S. 206, 211–12 (1952). Material
changes are those that “change[] matters of substance, or resolve[] a genuine ambiguity, in a
judgment previously rendered . . . .” Id. at 211. The key question is whether changes to an
amended order “disturbed or revised legal rights and obligations which, by its prior judgment,
had been plainly and properly settled with finality.” Id. at 212. At issue, then, is whether the
district court’s amended judgment introduced a material change that resolved a genuine
ambiguity or otherwise altered Hosto’s legal rights or obligations.
On November 19, 2013, the jury returned a verdict finding that Robinson had proved by a
preponderance of the evidence that Hosto violated the FDCPA but had not proved that the other
remaining defendants (LVNV Funding, LLC, Resurgent Capital Services, LP, and R. Scott
Batson3) had violated the FDCPA. Id. The jury then awarded Robinson $1,000.00 in statutory
damages. Id., PageID 1088.
3
The district court previously dismissed all claims against defendant Sherman Financial Group,
LLC. PageID 801.
-3-
No. 14-5334
Ralph Robinson v. Hosto & Buchan
The district court entered judgment against “LVNV Funding, LLC et al.” on February 5,
2014, and then entered an amended judgment against “Hosto & Buchanan, PLLC” 4 on February
26, 2014, without explanation. Hosto contends that its appeal time should be calculated from the
date the clerk of the court entered the later, amended judgment.
The amended judgment clarifies that the judgment is entered against Hosto alone.
Although the amended judgment altered Hosto’s codefendants’ obligations, the corrected
judgment did not alter Robinson’s right to collect from Hosto or Hosto’s obligation to pay
Robinson, and therefore, the amended judgment did not substantially change the prior judgment
as it related to Hosto. See Cuyahoga Valley Ry. Co. v. Tracy, 6 F.3d 389, 394 (6th Cir. 1993)
(holding that modified decision did not begin a new period to take appeal because the modified
decision did not alter the previous order from which appellant sought review). Indeed, Hosto
does not allege that the amended judgment altered its legal rights or obligations. At best, Hosto
claims that the original judgment “created ambiguity.” Appellant’s Reply 3. Hosto does not
explain the alleged ambiguity, however, and it is difficult to see what the ambiguity would be in
light of the verdict form. The jury determined that only Hosto had violated the FDCPA and
should pay $1,000.00 in damages; accordingly, Hosto was the only defendant against whom the
district court could have entered the $1,000.00 judgment. Taking the entire record as a whole,
there was no genuine ambiguity in the original judgment.
The cases on which Hosto relies are inapposite because they address the substantive
requirements of an appellant’s notice of appeal. Hosto explains that the Sixth Circuit has
repeatedly concluded that the term “et al.” insufficiently identifies which parties are appealing a
district-court judgment. See, e.g., 37712, Inc. v. Ohio Dep’t of Liquor Control, 113 F.3d 614,
4
Defendant’s name is “Hosto & Buchan, PLLC” so the amended judgment still contains a
typographical error.
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No. 14-5334
Ralph Robinson v. Hosto & Buchan
618 n.6 (6th Cir. 1997) (“In this circuit, the term ‘et al.’ is insufficient to designate the appealing
parties in a notice of appeal . . . .” (internal quotations and citations omitted)). But the issue here
is not the content of Hosto’s notice of appeal, but rather the timing of it.
For purposes of Rule 4, the entry of judgment on February 5, 2014, began the 30-day
time-period in which to appeal. Hosto filed an untimely notice of appeal forty-four days later, on
March 21, 2014, and therefore the appeal must be dismissed.5
III.
The appeal is dismissed as untimely.
5
We note that Robinson’s motion for attorney fees and costs (R. 115), which was filed on March
5, 2014, relies on the February 26, 2014 amended judgment. See Fed. R. Civ. P.(d)(2)(B)(i). We
leave to the district court to determine the effect this ruling has on the issues stayed and pending
below, if any.
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