Doctors' Co. v. Insurance Corp. of America

837 P.2d 685 (1992)

The DOCTORS' COMPANY, a California corporation, Appellant (Plaintiff),
v.
The INSURANCE CORPORATION OF AMERICA, a Texas corporation; and Stanley W. Peters, MD, Appellees (Defendants).

No. 92-68.

Supreme Court of Wyoming.

September 15, 1992.

Arthur H. Downey and Laurel E. Adams, Downey Law Firm, P.C., Denver, Colo., for appellant.

Judith A. Studer, Schwartz, Bon, McCrary & Walker, Casper, for appellee, The Ins. Corp. of America.

Before MACY, C.J., and THOMAS, CARDINE, URBIGKIT and GOLDEN, JJ.

PER CURIAM.

The appellant seeks a "limited remand" to the district court for the purpose of having the district court consider a motion to be made pursuant to Wyo.R.Civ.P. 60(b). We have not definitively stated our position on such a request for remand and so avail ourselves of the opportunity to establish a workable procedure for this case, as well as for future such cases. We establish this procedure:

[D]uring the pendency of an appeal the district court may consider a Rule 60(b) motion and if it indicates that it is inclined to grant it, application then can be made to the appellate court for a remand. * * * The logical consequence is that the district court may deny the motion although it cannot, until there has been a remand, grant it * * *. This allows a new appeal from the denial of the motion and often the appellate court can consider that appeal together with the appeal from the original judgment.

11 CHARLES A. WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE, CIVIL § 2873 (1973).

Having established this procedure, it is unnecessary for us to grant the motion for a limited remand and the motion is, therefore, denied. If the appellant chooses to pursue a Rule 60(b) motion, it should be filed in the district court, and the district court has jurisdiction to consider it. Further proceedings in this court relating to such a motion, if any, must await the district court's ruling on that motion.