B. B. Adams General Contractors, Inc. v. Department of Housing and Urban Development, 73-2706

• Decision Date: 20 September 1974
• Docket Number: No. 73-2706,73-2706
• Citation: 501 F.2d 176
• Parties: B. B. ADAMS GENERAL CONTRACTORS, INC., Plaintiff-Appellee, v. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT et al., Defendants-Appellants, v. James A. PATE, Defendant-Appellant, Modern American Mortgage Corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 176

501 F.2d 176

B. B. ADAMS GENERAL CONTRACTORS, INC., Plaintiff-Appellee, v. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT et al.,

Defendants-Appellants, v. James A. PATE,

Defendant-Appellant, Modern American

Mortgage Corporation,

Defendant-Appellee.

No. 73-2706.

United States Court of Appeals, Fifth Circuit.

Sept. 20, 1974.

Dale Wootton, Dallas, Tex., for James A. Pate.

Frank D. McCown, U.S. Atty., Fort Worth, Tex., Roger J. Allen, Asst. U.S. Atty., Dallas, Tex., Robert E. Kopp, Barbara L. Herwig, Dept. of Justice, Washington, D.C., for HUD.

J. P. Jones, Harry M. Roberts, Dallas, Tex., for Modern Am. Mortgage.

Paul M. Thorp, Dallas, Tex., for B. B. Adams Contr.

Before GEWIN, THORNBERRY and SIMPSON, Circuit Judges.

PER CURIAM:

Adams, a general contracting firm, brought this action on claims arising from its work in constructing the Penzance Hamlet Apartments in Dallas, Texas. Adams named as defendants the owner of the apartments, Col. James A. Pate; the lender, Modern American Mortgage Corporation; and the insurer of the loan, the Department of Housing and Urban Development (HUD), together with Manuel Sanchez, HUD's Dallas Area Director. All parties moved for summary judgment. The district court overruled the motions of Pate, HUD and Sanchez, granted the motion filed by Modern American, and granted in part the motion filed by Adams. Pate, HUD and Sanchez appeal. We dismiss the appeal for want of jurisdiction.

The order on the motions for summary judgment did not dispose of Adams' claim against Pate for extra work. Thus it adjudicated fewer than all of the claims of all of the parties, and it is not a final, appealable order under Rule 54(b) in the absence of an express determination that there is no just reason for delay and an express direction for the entry of judgment. The record reveals that Pate moved for certification under Rule 54(b) on the same day he filed notice of appeal. The district court, however, never ruled on the motion nor did it file the required certificate. In its absence we have no jurisdiction to entertain this appeal, a fact that we are required to notice on our own initiative even though none of the parties argues it. We therefore dismiss the appeal for lack of jurisdiction. General Motors Corp., Inc. v. Dade Bonded Warehouse, Inc., 5 Cir. 1974, 498 F.2d 327; Anderson v. Robinson, 5 Cir. 1974, 494 F.2d 45; Foret v. McDermott, 5 Cir. 1973, 484 F.2d 992; 10 C. Wright & A. Miller, Federal Practice and Procedure: Civil 2660.

Since this case must be remanded to the district court, we note that there appears to be a serious question regarding the existence of jurisdiction over the subject matter of this suit. Defendants HUD and Sanchez argued below and renewed the argument in their appellate brief that there was no jurisdiction as to them under any of the three jurisdictional statutes cited by Adams. They argue that 28 U.S.C.A. 1331 cannot confer jurisdiction since Adams' rights arise from contracts rather than from the Constitution, laws, or treaties of the United States. They also argue that 28 U.S.C.A. 1346, which grants jurisdiction over suits on express and implied contracts with the United States, is inapplicable because it allows only suits for damages, whereas Adams seeks only declaratory and injunctive relief against HUD and Sanchez. Finally, they argue with much case support that HUD owed no duty whatsoever to either Adams or Pate under its insurance contract with Modern American, so there is no ministerial duty which can be enforced by mandamus under 28 U.S.C.A. 1361. Furthermore they allege that the functions at issue are discretionary rather than...