Augustine v. Adams

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 22 1998
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
ELMA AUGUSTINE,
Plaintiff-Appellant,
v. No. 97-3261
(D.C. No. 95-CV-2489 GTV)
JAMES ADAMS; ADAMS, BROWN, (D. Kan.)
BERAN AND BALL, CHTD.,
a Professional Association; JOHN
BIRD; ROBERT GLASSMAN;
GLASSMAN, BIRD & BRAUN,
a Partnership,
Defendants-Appellees.
and
CHARLES HAYNES,
Defendant.
ORDER AND JUDGMENT *
Before KELLY, BARRETT, and HENRY, Circuit Judges.
*
This order and judgment is not binding precedent, except under the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.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
Plaintiff Elma Augustine appeals the district court’s grant of summary
judgment in favor of defendants-appellees on her professional malpractice claims
arising out of the preparation and probate of her mother’s will and trust. This
court lacks jurisdiction over this appeal because the district court has not
adjudicated all of the claims against all of the parties. See Fed. R. Civ. P. 54(b).
The plaintiff appeals an order of the district court dismissing some, but not
all, of the defendants. Plaintiff voluntarily dismissed the claims against one of
the defendants without prejudice. Therefore, the order dismissing the claims
against the defendants-appellees with prejudice is not a final order. See Cook v.
Rocky Mountain Bank Note Co. , 974 F.2d 147, 148 (10th Cir. 1992). Pursuant to
Lewis v. B.F. Goodrich , 850 F.2d 641, 645-46 (10th Cir. 1988) (en banc), this
court gave the plaintiff fifteen days in which to obtain either a final judgment or a
Rule 54(b) certification. The district court denied the plaintiff’s motion for
certification.
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Accordingly, this appeal is DISMISSED. The mandate shall issue
forthwith.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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