Holmes v. J. Ray McDermott & Co., Inc.

• Decision Date: 09 August 1982
• Docket Number: No. 81-3486,81-3486
• Parties: Harry J. HOLMES, Plaintiff-Appellee, v. J. RAY McDERMOTT & CO., INC., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1143

682 F.2d 1143

Harry J. HOLMES, Plaintiff-Appellee, v. J. RAY McDERMOTT & CO., INC., Defendant-Appellant.

No. 81-3486.

United States Court of Appeals, Fifth Circuit.

Aug. 9, 1982.

Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Edward J. Koehl, Jr., New Orleans, La., for defendant-appellant.

Heisler & Wysocki, James A. Wysocki, New Orleans, La., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before CLARK, Chief Judge, POLITZ and RANDALL, Circuit Judges.

RANDALL, Circuit Judge:

This action was commenced by Harry Holmes against his employer, J. Ray McDermott & Co., Inc. (McDermott), under the Jones Act, 46 U.S.C. § 688, and general maritime law. Holmes sought to recover for lower-back injuries sustained in 1977 while working as a rigger on a barge owned by McDermott. McDermott appeals from an award of damages against it. Because the order appealed from is not a final judgment, we dismiss this appeal for want of jurisdiction.

I. Procedural History

The case was tried to a jury. On June 5, 1981, the jury returned a verdict in Holmes' favor. The jury awarded damages, maintenance and cure, and damages for McDermott's willful and arbitrary refusal to pay maintenance and cure. The jury also determined that Holmes was entitled to attorney's fees for the prosecution of the maintenance and cure claim because of McDermott's conduct in denying maintenance and cure. Significant to this appeal, the amount of attorney's fees was left to the court.

On June 9, 1981, the court entered an order captioned "Judgment". The court had not yet decided the size of the attorney's fees award and specifically left that matter for later determination. ¹ McDermott filed a variety of post-trial motions on June 19, but failed to serve them until June 22, 1981. On Holmes' motion, the district court ruled that these motions were not timely served under Federal Rule of Civil Procedure 59(e). ² The district court therefore dismissed the motions. In the alternative, the district court denied the motions on their merits. McDermott then filed its notice of appeal. ³

McDermott, although the appellant in this case, calls into question our appellate jurisdiction. McDermott argues that the district court's order of June 9 was not a final, appealable order because, while the jury had awarded attorney's fees, the court had not fixed the amount. If that order was not final, of course, we have no jurisdiction to hear this appeal. 28 U.S.C. § 1291. As a corollary, if the order of June 9 was not final, the district court erred in ruling that McDermott's post-trial motions were not timely under Rule 59(e).

II. Finality of the Order for Purposes of Appeal

A. Pertinent Case Law

A final judgment is one that "terminates the litigation between the parties on the merits of the case, and leaves nothing to be done but to enforce by execution what has been determined." St. Louis Iron Mountain & Southern Railway v. Southern Express Co., 108 U.S. 24, 28-29, 2 S.Ct. 6, 8, 27 L.Ed. 638 (1883). No appeal lies from a finding of liability on the merits when the district court leaves undetermined the nature and scope of relief. Liberty Mutual Insurance Co. v. Wetzel, 424 U.S. 737, 96 S.Ct. 1202, 47 L.Ed.2d 435 (1976). Thus we are faced with the legal question whether the lack of determination of the amount of attorney's fees left undetermined any of the "merits" or "scope of relief" in this case.

The United States Supreme Court has recently spoken indirectly to the question before us. In White v. New Hampshire Department of Employment Security, --- U.S. ----, 102 S.Ct. 1162, 71 L.Ed.2d 325 (1982), the court addressed the question whether a motion to award attorney's fees statutorily authorized by 42 U.S.C. § 1988 ⁴ for an action brought under one of the Civil Rights Statutes was a motion to alter or amend a judgment under Fed.R.Civ.P. 59(e). ⁵ The Court, in its determination that a request for attorney's fees was not covered by Rule 59(e), analyzed the relationship of an award of attorney's fees in civil rights suit to a determination on the merits and the scope of relief in such a case.

In White, the plaintiff moved for an award of attorney's fees under § 1988 more than ten days after the entry of a consent decree in a § 1983 suit. The defendant argued that the attorney's fees motion was not timely under Rule 59(e). The Court held that a motion for attorney's fees under § 1988 was not subject to Rule 59(e), and, therefore, could be made more than ten days after the entry of judgment. The Court reasoned that an award of attorney's fees under § 1988 was not integral to the main cause of action. Rather, the award was a collateral matter, independent of the merits of the case and uniquely separable from the cause of action to be proved at trial. White v. New Hampshire Department of Employment Security, --- U.S. at ----, 102 S.Ct. at 1165-66. The Court concluded:

As the Court of Appeals for the Fifth Circuit recently stated:

"(A) motion for attorney's fees is unlike a motion to alter or amend a judgment. It does not imply a change in the judgment, but merely seeks what is due because of the judgment..." Knighton v. Watkins, 616 F.2d 795, 797 (CA5 1980).

Id. at 1166-67 (footnotes omitted).

The question whether a judgment is final when attorney's fees have been awarded but their amount has not been set has also been addressed in various circuit court decisions. The determination of finality has, as was the case in White, seemingly hinged upon a circuit court's analysis of whether the award of attorney's fees was, in a particular action, similar to an application for costs, Johnson v. Snyder, 639 F.2d 316 (6th Cir. 1981) (judgment final although amount of attorney's fees not yet determined), a part of the relief sought, Johnson v. University of Bridgeport, 629 F.2d 828 (2nd Cir. 1980) (judgment not final when amount of attorney's fees not yet determined), or a collateral or independent claim that is neither a part of the relief sought or costs. Obin v. District No. 9, International Assn. of Machinists and Aerospace Workers, 651 F.2d 574 (8th Cir. 1981) (judgment final although amount of attorney's fees not yet determined). See also White v. New Hampshire Department of Employment Security, --- U.S. at ----, 102 S.Ct. at 1165 n.9 (setting forth, circuit by circuit, the various rules relating to finality of the judgment absent a determination of the amount of attorney's fees).

This court has also had occasion to discuss the relationship of attorney's fees to the finality of an order for purposes of appeal. Jones v. Dealers Tractor and Equipment Company, 634 F.2d 180 (5th Cir. 1981); Knighton v. Watkins, 616 F.2d 795 (5th Cir. 1980); Williams v. Ezell, 531 F.2d 1261 (5th Cir. 1976); Stacy v. Williams, 446 F.2d 1366 (5th Cir. 1971). In Jones and Knighton, we held, consistent with the Supreme Court's later decision in White, that Fed.R.Civ.P. 59(e) is inapplicable to a request for attorney's fees under the Civil Rights Attorney Fees Award Act. 42 U.S.C. § 1988. We reasoned:

Because this statute designates attorney's fees as part of the costs, they will ordinarily be sought only after litigation. See Gore v. Turner, 563 F.2d 159, 163 (5th Cir. 1978).

Jones v. Dealers Tractor and Equipment Co., 634 F.2d at 181-82 (emphasis added). In Williams v. Ezell, we held that an order granting a motion for attorney's fees but reserving the determination of their amount is not a final order for purposes of appeal. ⁶ In Stacy v. Williams, finding that the attorney's fees were part of the "relief" requested, we held that a motion for attorney's fees was a motion to alter a judgment and subject to the stricture of Rule 59(e).

Thus, while we have not articulated in detail our rationale for holding that an undetermined amount of attorney's fees may pretermit a final judgment in some cases (Stacy ) but not in others (Jones ), the applicable rationale, as derived from pertinent case law, is clear. When attorney's fees are similar to costs (White ) or collateral to an action (Obin ), a lack of determination as to the amount does not preclude the issuance of a final, appealable judgment on the merits. When, however, the attorney's fees are an integral part of the merits of the case and the scope of relief, they cannot be characterized as costs or as collateral and their determination is a part of any final, appealable judgment. The final task for us, then, is to determine the appropriate characterization of the attorney's fees award in this maintenance and cure action.

B. Applicability of the Law to These Facts

Holmes describes the award of attorney's fees here as "similar to costs." If that were the case, our decision might be materially different. However, in an action for arbitrary and willful failure to pay maintenance and cure, attorney's fees are not "similar to costs," at all but rather are an element of damages which may be recovered. As the Supreme Court stated in its seminal decision allowing an award of attorney's fees in an action for maintenance and cure:

Nor do we have the usual problem of what constitutes "costs" in the conventional sense. Cf. The Baltimore, 8 Wall. 377 (19 L.Ed. 463). Our question concerns damages. Counsel fees were allowed in The Apollon, 9 Wheat. 362, 379 (6 L.Ed. 111), an admiralty suit where one party was put to expense in recovering demurrage of a vessel wrongfully seized. While failure to give maintenance and cure may give rise to a claim for damages for the suffering and for the physical handicap which follows (The Iroquois, 194 U.S. 240 (24 S.Ct. 640, 48 L.Ed. 955) ), the recovery may also include "necessary expenses." Cortes v. Baltimore Insular Line, 287 U.S. 367, 371 (53 S.Ct. 173, 174, 77 L.Ed. 368).

In the instant case respondents were callous in their attitude, making no investigation of libellant's claim and by their silence neither admitting nor denying it. As...