                       UNITED STATES COURT OF APPEALS
                            for the Fifth Circuit

                 _____________________________________

                               No. 92-2113
                            Summary Calendar
                 _____________________________________

                             In the Matter of:
                       WOOD F. JONES and MARY JONES,

                                                                   Debtors,

                       WOOD F. JONES and MARY JONES,

                                                                 Appellants,

                                    VERSUS

                            W.J. SERVICES, INC.,

                                                                   Appellee.

     ______________________________________________________

            Appeal from the United States District Court
                 for the Southern District of Texas

     ______________________________________________________

                               (August 21, 1992)

Before JONES, DUHÉ, and WIENER, Circuit Judges.

DUHÉ, Circuit Judge:

     This appeal requires us to decide whether the district court

abused its discretion in denying the Appellants' motion for relief

from judgment under Federal Rule of Civil Procedure 60(b)(6).

Because we find no abuse of discretion even when the new procedural

rules are applied, we affirm.

                                        I.

     Wood   F.   and    Mary   Jones,   along   with   their   business   W.J.

Services, Inc., have been debtors in a Chapter 11 bankruptcy
proceeding.     The bankruptcy court appointed trustees for the

debtors, who sued the Commercial State Bank of El Campo and others

on   lender   liability   theories.       The   case   was    settled   to   the

satisfaction of the trustees but not of the Joneses.                After the

bankruptcy court approved the settlement, the Joneses appealed to

the district court.

      In an order entered into the docket on June 10, 1991, the

district court affirmed the bankruptcy court.                The clerk of the

district court mailed notices to counsel, but the Appellants'

counsel had moved his office, and the Postal Service returned his

notice to the clerk.      According to their affidavits, however, the

Appellants and their counsel did not rely solely on receiving

notice from the clerk.      They "routinely and periodically checked

the docket sheet to determine whether an order resolving the

consolidated appeals had been entered." 1 R. 162-63. According to

the Appellants' argument, they failed to see the entry of the order

because it was entered on the reverse of the first page of the

docket sheet instead of on a separate sheet.

      The Appellants discovered that an order had been entered when

the district judge referred to the order while on the bench in a

related proceeding that took place August 15, 1991. The Appellants

wanted to appeal the order, but the time for appeal, or to request

an enlargement of time to appeal, had already expired.            See Fed. R.

App. P. 4(a)(1), (5).     On September 5, 1991, therefore, they filed

a Motion to Set Aside Order Pursuant to Fed. R. Civ. P. 60(b).

The district court denied the motion, and the Joneses have properly


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appealed the denial.

                                        II.

       In their claim for relief under Rule 60(b), the Appellants

rely primarily on the fact that the entry of affirmance is on the

reverse of the docket sheet instead of on a separate sheet.                          They

also argued that the clerk was negligent because he failed to take

further steps once the first notice was returned by the Postal

Service.      These     facts    do   not       help    the    Appellants    under    the

applicable law.

       The interplay of several procedural rules determines the

outcome of this case.       The Appellants have cast their claim under

Rule 60(b)(6), which states that "the court may relieve a party or

a party's legal representative from a final judgment, order, or

proceeding for [several enumerated reasons] or (6) any other reason

justifying relief from the operation of the judgment."                         Fed. R.

Civ. P. 60(b)(6).        Whether to grant such relief rests within the

discretion of the district court.                    "It is not enough that the

granting of relief might have been permissible, or even warranted--

denial must have been so unwarranted as to constitute an abuse of

discretion."     Crutcher v. Aetna Life Ins. Co., 746 F.2d 1076, 1082

(5th   Cir.   1984).       The    scope         of     our    review,   therefore,     is

constrained.

       The   district    court    had   to        consider       several    factors   in

exercising its discretion.            First, the record is bereft of any

indication that counsel complied with the local rule requiring

attorneys to provide the clerk with written notice of a change of


                                            3
address.   See S.D. Tex. R. 2.F.       This default by counsel in turn

frustrated Rule 77(d), which directs the clerk to send notice to

counsel.

     Rule 77(d) now provides:

     Immediately upon the entry of an order or judgment the clerk
     shall serve a notice of the entry by mail in the manner
     provided for in Rule 5 upon each party who is not in default
     for failure to appear, and shall make a note in the docket of
     the mailing. Any party may in addition serve a notice of such
     entry in the manner provided in Rule 5 for the service of
     papers. Lack of notice of the entry by the clerk does not
     affect the time to appeal or relieve or authorize the court to
     relieve a party for failure to appeal within the time allowed,
     except as permitted in Rule 4(a) of the Federal Rules of
     Appellate Procedure.

Fed. R. Civ. P. 77(d).      Appellate Rule 4(a) now provides in

relevant part:

     The district court, if it finds (a) that a party entitled to
     notice of entry of a judgment or order did not receive such
     notice from the clerk or any party within 21 days of its entry
     and (b) that no party would be prejudiced, may, upon motion
     filed within 180 days of entry of the judgment or order or
     within 7 days of receipt of such notice, whichever is earlier,
     reopen the time for appeal for a period of 14 days from the
     date of entry of the order reopening the time for appeal.

Fed. R. App. P. 4(a)(6).

     These versions of the rules are relatively new.       The Supreme

Court ordered that the new version of Rule 77(d) "shall take effect

on December 1, 1991, and shall govern all proceedings in civil

actions thereafter commenced and, insofar as just and practicable,

all proceedings in civil actions then pending."1        Similarly, the

new version of Rule 4(a) "shall take effect on December 1, 1991,


1
  This order, which is dated April 30, 1991, is reproduced in the
first part of the interim volume 111 of the Supreme Court reporter,
at page 813, in the material preceding the opinions of the Court.

                                   4
and shall govern all proceedings in appellate cases thereafter

commenced and, insofar as practicable, all proceedings in appellate

cases then pending."2

     The Appellants filed their motion and the Appellees responded

before December 1, 1991, but the district court rendered its

decision after that date. The notice of appeal which commenced the

instant appellate case, of course, was also filed after that date.

We conclude that the new version of Rule 4(a) applies to this case

because it is an "appellate case[] . . . commenced" after December

1, 1991.    We also believe that it is "just and practicable" to

apply the new version of Rule 77(d) to this case, a civil action

pending before December 1.      This conclusion accords with the

general rule that courts apply procedural rules as they exist at

the time of decision, as long as no manifest injustice results.

See Belser v. St. Paul Fire & Marine Ins. Co., No. 91-3902, slip

op. 5676, at 5679 (5th Cir. July 9, 1992).   No manifest injustice

can result in this case because the Appellants cannot prevail under

either the old or the new versions, even though the new ones are

more favorable to litigants who have not received notice of a

district court order or judgment.

     This Court has interpreted the old version of Rule 77(d)

strictly.   See Wilson v. Atwood Group, 725 F.2d 255 (5th Cir.) (en

banc), cert. dismissed, 468 U.S. 1222 (1984).   Under the exacting

rule in Wilson, the Appellants could not prevail.       Wilson and

2
  This order, which is dated April 30, 1991, is reproduced in the
first part of the interim volume 111 of the Supreme Court reporter,
at page 1011, in the material preceding the opinions of the Court.

                                 5
decisions like it, however, prompted a revision in the rules in

order "to permit district courts to ease strict sanctions now

imposed on appellants whose notices of appeal are filed late

because of their failure to receive notice of entry of a judgment."

Fed. R. Civ. P. 77(d) advisory committee note (1991 amendment)

(citing Wilson and other cases).         The revision of Rule 4(a) was

motivated by the same idea.      Id.; Fed. R. App. P. 4(a)(6) advisory

committee note (1991 amendment).            The continuing viability of

Wilson, on which the Appellees rely heavily, is now subject to

question.

     Nevertheless,      the   Appellants    have    failed   to    meet    the

requirements of the new rules.       Rule 4(a)(6) allows the district

court to grant relief if the specified requirements are satisfied,

but the rule does not require the district court to grant the

relief, even if the requirements are met.          The abuse of discretion

standard    therefore   continues   to     apply   under   the    new   rules.

Furthermore, the Appellees argued before the district court, as

they argue before this Court, that the relief would prejudice them,

in contravention of Rule 4(a)(6)(b), and the Appellants' motion

under Rule 60(b) did not meet the time requirements of the new

rule.

     In sum, the district court, when deciding whether to grant the

Appellants relief under Rule 60(b), was faced with the following

facts:     First, the clerk had mailed notice to the Appellants'

counsel, but the notice was not received because counsel failed to

follow the local rule requiring him to inform the clerk in writing


                                    6
of   his   change   of   address.    Second,    affidavits   stated     that

Appellants and their counsel checked the docket sheet, but they

failed to notice the entry of the district court order because it

was noted on the reverse of the first page instead of on a separate

page.      This method of entry may be atypical but it is hardly

unique. Finally, under the rules of civil and appellate procedure,

as   amended   effective    after   the    Appellants'   motion   and    the

Appellees' responses thereto but before rendition of the district

court decision, the Appellants could not have gained relief.              In

light of these facts, we cannot say that the district court abused

its discretion in denying the Appellants' motion.

                                    III.

      For the foregoing reasons, the judgment of the district court

is

      AFFIRMED.




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