                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           OCT 4 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    WOODWORKER’S SUPPLY, INC.,
    a Wyoming corporation,

                Plaintiff-Counter-
                Defendant-Appellant,

    v.                                                    No. 00-2514
                                                (D.C. No. CIV-99-796 LCS/DJS)
    LOS ALAMOS TECHNICAL                                   (D. N.M.)
    ASSOCIATES, INC.,

                Defendant-Counter-
                Claimant-Appellee.


                            ORDER AND JUDGMENT            *




Before TACHA , Chief Judge, BALDOCK , Circuit Judge, and BRORBY , Senior
Circuit Judge.



         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

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.


*
      This order and judgment is not binding precedent, except under the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.
      Plaintiff-appellant Woodworker’s Supply, Inc. (Woodworker’s) appeals

two district court rulings, entered before and during the trial that concluded with

a jury verdict entered in favor of defendant-appellee Los Alamos Technical

Associates, Inc. (LATA). We exercise jurisdiction and affirm. We conclude,

however, that we are without jurisdiction to review the jury verdict entered upon

LATA’s counterclaim.


I.    Background

      This civil action arises out of three contracts providing for LATA’s design

of an e-commerce web site for Woodworker’s, a seller of woodworking products

through retail stores, sales representatives, and catalogs. When LATA determined

that changes in site features meant that the original web site code would have to

be rewritten, it submitted an additional proposal for the completion of the web

site. Rather than accept the new proposal, Woodworker’s terminated the third

contract, refused to pay LATA’s final three invoices on that contract, and brought

suit against LATA. In its amended complaint, Woodworker’s asserted claims of

breach of contract, violation of the New Mexico Unfair Practices Act (UPA),

fraud, negligent misrepresentation, breach of the covenant of good faith and fair

dealing, and rescission/restitution. LATA counterclaimed for breach of contract,

seeking recovery of $76,429.41 for services rendered under the third contract.



                                         -2-
      In pretrial proceedings, LATA filed a motion for partial summary

judgment, seeking entry of judgment in its favor on the bulk of Woodworker’s

claims. 1 The district court granted the motion on claims arising out of the first

and second contracts, but determined that there were genuine issues of disputed

fact concerning claims under the third contract. The parties then proceeded to

trial. At the close of Woodworker’s case, the court entered judgment as a matter

of law in favor of LATA on Woodworker’s UPA, fraud, negligent

misrepresentation, and punitive damage claims. The jury returned a verdict in

favor of LATA on Woodworker’s remaining claims and also on LATA’s contract

counterclaim.

      The district court entered judgment for a total of $82,343.40, an amount

which included the jury award and prejudgment interest. Upon Woodworker’s

delivery of a letter of credit, the court stayed enforcement of the judgment

pending appeal. Woodworker’s filed a notice of appeal, designating the grant

of LATA’s motion for summary judgment and motion for judgment as a matter

of law as the orders being appealed.




1
       Pursuant to 28 U.S.C. § 636(c), the parties consented to a final disposition
of the case by a magistrate judge.

                                         -3-
II.    Discussion

       On appeal, Woodworker’s asserts error in the (1) entry of summary

judgment on its claims of UPA violations and breach of contract, including

implied covenants of the contract, with respect to the second contract and

(2) entry of judgment as a matter of law on its claims of UPA violations, fraud,

negligent misrepresentation, and punitive damages with respect to the third

contract.   2
                We have jurisdiction over these appeal issues pursuant to 28 U.S.C.

§ 1291. We review both contested rulings de novo, applying the same standard

as the district court, construing the evidences and the inferences therefrom in

the light most favorable to Woodworker’s, the nonmoving party.        See Simms v.

Okla. ex rel Dep’t of Mental Health & Substance Abuse Servs.       , 165 F.3d 1321,

1326 (10th Cir. 1999) (reviewing grant of motion for summary judgment);

Knowlton v. Teltrust Phones, Inc.     , 189 F3d. 1177, 1186 (10th Cir. 1999)

(reviewing grant of motion for judgment as a matter of law).

       “Summary judgment is appropriate ‘if the pleadings, depositions, answers

to interrogatories, and admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law.’”    Simms , 165 F.3d at 1326


2
      Woodworker’s does not contest the entry of summary judgment on any
claims under the first contract or its claims of negligent misrepresentation and
fraud with regard to the second contract.

                                             -4-
(quoting Fed. R. Civ. P. 56(c)). Here, the district court properly measured the

evidence against the elements of Woodworker’s claims. We agree with its

determination that, concerning the parties’ dealings under the second contract,

Woodworker’s failed to demonstrate a genuine issue as to any material facts

relevant to the contract or UPA claims.

       Woodworker’s second assertion of error relates to the district court’s entry

of judgment as a matter of law, a ruling which “is appropriate only ‘[i]f during

a trial by jury a party has been fully heard on an issue and there is no legally

sufficient evidentiary basis for a reasonable jury to find for that party.’”

Knowlton , 189 F.3d at 1186 (quoting Fed. R. Civ. P. 50(a)(1)). A review of the

record on appeal, including the trial transcript, reveals that Woodworker’s

evidence was insufficient to submit to the jury claims of UPA violations, fraud,

negligent misrepresentation, and punitive damages arising out of the third

contract. We find no reason to disturb the district court’s grant of judgment as

a matter of law on these claims.

       Finally, Woodworker’s argues in its brief that the jury verdict on LATA’s

contract counterclaim should be set aside. Woodworker’s notice of appeal,

however, did not indicate an intent to appeal the judgment on the counterclaim.

“This court cannot exercise jurisdiction absent a timely notice of appeal.”    United

States v. Smith , 182 F.3d 733, 734 (10th Cir. 1999);    see also Fed. R. App. P.


                                            -5-
3(a)(1), (c)(1)(B) (“The notice of appeal must . . . designate the judgment, order,

or part thereof being appealed. . . .”). We do not have jurisdiction to consider the

propriety of the jury verdict.   3




III.   Conclusion

       Accordingly, the judgment of the district court on Woodworker’s claims is

AFFIRMED for substantially the same reasons stated in the magistrate judge’s

memorandum opinion and order dated August 8, 2000, and his ruling from the

bench announced September 13, 2000. The appeal of the judgment on LATA’s

counterclaim is DISMISSED for lack of jurisdiction. LATA’s “Amended Motion

to Dismiss Appellant’s Appeal of the Judgment in Favor of Los Alamos Technical

Associates, Inc. on its Counterclaim” is GRANTED.



                                                     Entered for the Court



                                                     Deanell Reece Tacha
                                                     Chief Judge




3
      In any event, Woodworker’s challenge to the jury verdict is conditioned
upon its prevailing on the issues designated in the notice of appeal. Because we
affirm the judgment of the district court on these issues, the defective nature of
the notice of appeal has no effect on the outcome of this appeal.

                                         -6-
